**NOT FINAL**
IN THE SUPREME COURT OF NORTH CAROLINA
No. 156A94-2
FILED: 5 MAY 2000
STATE OF NORTH CAROLINA
v.
CHRISTOPHER LUNORE ROSEBORO
Appeal as of right by defendant pursuant to N.C.G.S.
§ 7A-27(a) from a judgment imposing a sentence of death entered
by Patti, J., on 29 August 1997 in Superior Court, Gaston County,
upon defendant's conviction of first-degree murder. Heard in the
Supreme Court 15 September 1999.
Michael F. Easley, Attorney General, by Thomas J. Ziko,
Special Deputy Attorney General, and John Barnwell,
Assistant Attorney General, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender, by Constance
Everhart Widenhouse, Assistant Appellate Defender, for
defendant-appellant.
PARKER, Justice.
Defendant Christopher Lunore Roseboro was indicted for one
count each of first-degree murder, first-degree rape, and larceny
from the person, and for three counts each of first-degree
burglary, felonious larceny, and felonious possession of stolen
goods. He was tried at the 28 February 1994 Criminal Session of
Superior Court, Gaston County. Defendant was found guilty of
first-degree murder on the basis of both premeditation and
deliberation and felony murder; he was also convicted of first-
degree burglary, first-degree rape, felonious larceny, and
possession of stolen property. Following a capital sentencing
proceeding, the jury recommended the death sentence for thefirst-degree murder, and the trial court sentenced defendant
accordingly. The trial court also sentenced defendant to
consecutive terms of life imprisonment for first-degree rape,
fourteen years of imprisonment for first-degree burglary, and
three years of imprisonment for felonious larceny. The trial
court arrested judgment for the conviction of possession of
stolen property. On appeal, this Court affirmed the convictions
but granted defendant a new capital sentencing proceeding based
on error in the jury instructions at the initial sentencing
proceeding. State v. Roseboro, 344 N.C. 364, 474 S.E.2d 314
(1996). At defendant's second capital sentencing proceeding, the
jury again recommended the death sentence for the first-degree
murder conviction, and the trial court sentenced defendant
pursuant to the recommendation.
On appeal to this Court, defendant brings forward fifty-
eight assignments of error. For the reasons stated herein, we
conclude that defendant's capital sentencing proceeding was free
of prejudicial error and that the death sentence is not
disproportionate.
The State's evidence at the resentencing proceeding tended
to show the following. Defendant lived with Roger Bell in a one-
bedroom apartment on West Second Avenue in Gastonia next to
seventy-two-year-old Martha Edwards. Bell testified that on the
night of 13 March 1992, he climbed through the window of the
victim's ground-floor apartment, stole two vases and a telephone,
and took them back to the apartment. On the second trip back to
the victim's apartment, Bell heard snoring and discovered someone
sleeping in the bedroom. Thinking no one was at home, Bell
became unnerved and left through the kitchen door. At theapartment Bell then told defendant about what had happened. They
both decided to return to the victim's apartment to take the
floor-model television set that Bell had previously seen. They
entered the victim's apartment through the kitchen door and
carried the television back to their apartment.
Defendant and Bell returned to the victim's apartment to
wipe away any fingerprints that they might have left. Noticing
defendant walking toward the victim's bedroom, Bell told
defendant that they needed to leave. Defendant motioned for Bell
to remain quiet. Bell then returned to his and defendant's
apartment, leaving defendant in Ms. Edwards' apartment. Bell did
not see defendant again until the next morning.
Defendant's testimony from his 1994 trial was read into
evidence at his resentencing proceeding. Defendant had testified
that on the night of the murder, he had smoked crack cocaine and
then had fallen asleep. He awoke to find Bell carrying two vases
and a telephone into the apartment. Bell left again and returned
the second time with a microwave oven and a radio. Bell left
again and returned the third time with a pocketbook and
silverware. While Bell was gone that third time, defendant
smoked more crack cocaine. Bell emptied the contents of the
pocketbook and gave defendant a twenty-dollar bill that was in
the purse. They then walked to Cherry Street so that defendant
could buy more cocaine. In route to Cherry Street, Bell threw
the pocketbook into the back of a truck.
Defendant agreed to return to the victim's apartment to help
Bell take out the floor-model television. Defendant asked about
the woman who was asleep, and Bell responded that he had
smothered her. They then went back to the victim's apartment,and defendant went into the victim's bedroom. He saw a pillow on
the victim's face and checked to see if she was dead. Observing
no movement, defendant then removed the victim's underwear and
raped her. Defendant maintained that at the time he raped the
victim, she was already dead. Defendant claimed that he was not
thinking; that he was real high and paranoid; and that
something just came over me.
The pathologist who performed the autopsy on the victim's
body testified that the lacerations in the vagina showed that she
had been sexually assaulted. The pathologist opined that based
on the bruises on her face and the fluid in her lungs, the victim
had been suffocated. Further, based on the small amount of blood
around the vaginal area, the victim was either dying or dead at
the time she was raped. The male DNA fractions found in the
fluid taken from the victim's vagina matched defendant's DNA.
The probability of another, unrelated individual having the same
DNA is approximately one in 3.5 billion in the North Carolina
black population.
Defendant presented evidence from his sister, his brother,
and two cousins, who all claimed that defendant was not a violent
person. Defendant's sister testified that defendant's father was
absent during his childhood; that defendant had a good
relationship with the grandparents who raised him; and that
defendant's wife introduced him to drugs. Defendant's brother
and first cousin testified that defendant always worked but that
he simply associated with the wrong crowd.
Defense counsel read into evidence the prior testimony of
Charles Peanut Dameron, who had known defendant since 1976 when
they lived in the same area. Dameron had testified in the 1994trial that on the morning of 14 March 1992, both Bell and
defendant made statements to him: Bell told him that he had
broken into the apartment and had stolen items. Defendant told
him that he had not killed the victim and that Bell had killed
her. This testimony was in accord with the statement that
Dameron made to Detective Hawkins on 16 March 1992.
Dr. William M. Tyson, an expert in clinical and forensic
psychology, testified that he evaluated defendant and found
substantial evidence of borderline intelligence functioning, a
personality disorder, and chronic substance dependence disorder.
Dr. Tyson concluded that the combination of these psychological
problems would have reduced defendant to acting on impulse with a
limited ability to plan, reason, understand, and appreciate the
consequences of his actions at the time of the offense. However,
Dr. Tyson admitted that these three disorders did not eliminate
defendant's responsibility for the offense; he believed that
defendant knew what he was doing. Dr. Tyson also admitted that
defendant's evaluation report from Dorothea Dix indicated that he
had a history of physical abuse of his wife and that he admitted
hitting her.
Benny Mack, a program director in Central Prison, testified
that defendant had spoken to a young man on probation in the
Think Smart program and had told him to be more respectful of
adults and that defendant had always been courteous and
respectful. Harold Williams, a staff psychologist at Central
Prison, testified that defendant participated in group counseling
sessions and was learning to accept some responsibility for his
actions. George Denard, a case worker in the programs division
at Central Prison, opined that defendant was not as bad as someof the younger inmates in that he is more respectful. Randall
Spear, a clinical chaplain at Central Prison, testified that
defendant participated in the choir and was involved in other
religious activities in the prison. A former inmate testified
that defendant got along with many of the inmates.
JURY SELECTION
By one assignment of error, defendant contends that the
trial court denied his rights to a fair and impartial jury and a
reliable sentencing hearing under both the North Carolina
Constitution and the United States Constitution by erroneously
failing to excuse for cause prospective juror Harold Smith.
Although juror Smith expressed strong concerns that the court
system was failing, he felt that his opinions about the court
system would not keep him from being fair and impartial. Since
defendant had to use a peremptory challenge to remove juror
Smith, defendant contends that he was denied his statutory right
to fourteen peremptory challenges. At a subsequent point in the
jury selection but before the full panel was selected, defendant
exhausted his peremptory challenges. Defendant's request for
additional peremptory challenges was denied. When this request
was denied, defendant announced that he was satisfied with the
last seated juror. Defendant did not expressly renew his earlier
challenge for cause to juror Smith.
Defendant concedes that he did not comply with the
requirements of N.C.G.S. § 15A-1214(h) for preserving this issue
for appellate review. Nevertheless, defendant asserts that he
sufficiently complied with the spirit of the statute to warrant
review. Defendant submits that he clearly signaled to the trial
court by his request for additional peremptory challenges duringthe questioning of the last juror that he desired to excuse juror
Smith and that his declaration of satisfaction was not an
indication of satisfaction with the panel but rather an
indication of having no peremptory challenges remaining. We
disagree.
N.C.G.S. § 15A-1214(h) prescribes the only method of
preserving for appellate review a denial of a challenge for
cause. Counsel must first have exhausted his peremptory
challenges, must have renewed for cause as to each prospective
juror whose previous challenge for cause had been denied, and
must have had his renewed motion denied as to the juror in
question. See State v. Ball, 344 N.C. 290, 304, 474 S.E.2d 345,
353 (1996), cert. denied, 520 U.S. 1180, 137 L. Ed. 2d 561
(1997). Defendant failed to follow this mandatory statutory
procedure to preserve for appellate review his exception to the
ruling on his challenge for cause and is not entitled to relief.
We overrule this assignment of error.
In his next assignment of error, defendant contends that the
trial court denied his constitutional rights to a fair and
impartial jury and a fair sentencing hearing by failing to excuse
for cause four prospective jurors who were tainted by the remarks
of pro-death penalty prospective jurors Bobby Baker and Robert
Pearson during voir dire. We disagree. The trial court informed
the prospective jurors that the penalty of life imprisonment
means a term of imprisonment for life. Prospective juror Baker
was excused for cause after he stated that he would vote for the
death penalty to ensure that justice was upheld. The State then
expressed satisfaction with the remaining prospective jurors,including juror Pearson, who expressed concerns about convictions
being overturned on appeal.
Defendant moved to strike the remainder of the panel on the
basis of these remarks of prospective jurors Baker and Pearson.
The trial court denied the motion, noting that it had properly
instructed the jury as required by this Court. Defendant then
used peremptory challenges to remove each of these four
prospective jurors whom he considered to be tainted by these
remarks. Defendant renewed this motion and also requested and
was allowed an additional peremptory challenge. After exhausting
his peremptory challenges, defendant again requested additional
peremptory challenges, which the trial court denied.
As noted in the previous assignment of error, defendant
failed to properly preserve for appellate review his exception to
the trial court's denial of his challenges for cause to any
juror. N.C.G.S. § 15A-1214(h) (1997). Although defendant
renewed his challenges to the jurors at a later time, he failed
to renew them at a time when he had exhausted his peremptory
challenges and failed to renew each of his previously denied
challenges for cause. Ball, 344 N.C. at 304, 474 S.E.2d at 353.
Accordingly, we overrule this assignment of error.
SENTENCING
In his next assignment of error, defendant contends that his
rights under the Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution and Article I, Sections 19, 23, and 27
of the North Carolina Constitution were violated when the
prosecutor during closing argument improperly encouraged the jury
to consider the sentences of defendant's accomplice, Roger Bell,
in determining the proper sentence to be imposed on defendant. Defendant submits that he was denied a fair trial by the trial
court's failure to intervene ex mero motu and admonish the
prosecutor, instruct the jury, or otherwise cure the prejudice.
We disagree.
Roger Bell testified for the prosecution, and in the course
of his testimony admitted that he was currently serving three
consecutive life sentences for convictions relating to the
burglary and murder of Ms. Edwards. Defense counsel later
stipulated during defendant's presentation of the evidence that
defendant had been convicted in March 1994 of first-degree
murder, first-degree rape, first-degree burglary, and felonious
larceny and that he had received consecutive sentences of life
plus seventeen years for the noncapital offenses. During closing
argument, the prosecutor addressed each of defendant's proffered
mitigating circumstances and offered reasons to reject them. One
of those mitigating circumstances was the catchall mitigating
circumstance: Any other circumstance arising from the evidence
which the jury deems to have mitigating value. N.C.G.S. §
15A-2000(f)(9) (1997). Addressing the catchall mitigating
circumstance, the prosecutor stated:
But, ladies and gentlemen, there is not any
mitigating circumstance that they argue about Roger
Bell's sentence. He has got life plus life plus life.
How is that mitigating for Mr. Bell? Excuse me.
Toward Mr. Roseboro whereas if he gets life in this
case? And they told you what his sentences in the
other cases were. If he gets life in this case, then
he has life plus life plus fourteen plus three. Less
time than Mr. Bell. So how is Mr. Bell's sentence a
mitigating? It is not.
Defendant did not object to this argument at the time. When
a defendant fails to object to an allegedly improper closing
argument, the standard of review is whether the argument was sogrossly improper that the trial court erred in failing to
intervene ex mero motu. See State v. Trull, 349 N.C. 428, 451,
509 S.E.2d 178, 193 (1998), cert. denied, ___ U.S. ___, ___ L.
Ed. 2d ___, 1999 WL 319440 (Oct. 4, 1999) (No. 98-9424). In a
capital trial, the prosecutor is given wide latitude during jury
arguments, see State v. Warren, 348 N.C. 80, 124, 499 S.E.2d 431,
456, cert. denied, ___ U.S. ___, 142 L. Ed. 2d 216 (1998), and
has a duty to vigorously present arguments for the sentence of
death using every legitimate method. See State v. Daniels, 337
N.C. 243, 277, 446 S.E.2d 298, 319 (1994), cert. denied, 513 U.S.
1135, 130 L. Ed. 2d 895 (1995).
Evidence of a co-defendant's sentence is not relevant to a
defendant's character or record or to the circumstances of the
killing; hence, such evidence is not relevant to show a
mitigating circumstance. See State v. Sidden, 347 N.C. 218, 231,
491 S.E.2d 225, 232 (1997), cert. denied, ___ U.S. ___, 140 L.
Ed. 2d 297 (1998). This Court has, however, recognized that the
jury may consider an accomplice's sentence as a mitigating
circumstance under the catchall instruction. See State v.
Williams, 305 N.C. 656, 687, 292 S.E.2d 243, 262, cert. denied,
459 U.S. 1056, 74 L. Ed. 2d 622 (1982); see also N.C.G.S. §
15A-2000(f)(9). With respect to the catchall mitigating
circumstance, the jury here was instructed: Finally, you may
consider any other circumstance or circumstances arising from the
evidence which you deem to have mitigating value. Therefore,
the prosecution could properly argue in opposition to the
catchall mitigating circumstance that the jury should not give
any mitigating value to the fact that Bell was not sentenced to
death. The prosecution did not imply, as defendant argues, thatBell's sentence could be treated as a nonstatutory aggravating
circumstance. The argument did not warrant the trial court's
intervention ex mero motu, and we overrule this assignment of
error.
In another assignment of error, defendant contends that the
trial court violated his Eighth and Fourteenth Amendment rights
by refusing to give a peremptory instruction on the statutory
mitigating circumstance that the capacity of the Defendant to
appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was impaired at the time of
the offense. See N.C.G.S. § 15A-2000(f)(6). Defendant claims
that this circumstance was supported by uncontroverted and
credible evidence. We disagree.
A defendant is entitled, upon request, to a peremptory
instruction on a statutory mitigating circumstance when the
evidence supporting the circumstance is uncontroverted. See
State v. Simpson, 341 N.C. 316, 344, 462 S.E.2d 191, 207 (1995),
cert. denied, 516 U.S. 1161, 134 L. Ed. 2d 194 (1996). A review
of the record reveals that all the evidence did not support this
mitigating circumstance. Defendant's testimony at his 1994 trial
was read into evidence at this capital resentencing proceeding.
Despite the fact that defendant was under the influence of crack
cocaine on the night of the murder, he did not intimate in his
testimony that he did not know what he was doing or that he could
not stop himself. Defendant testified that when Bell returned
from his second trip to the victim's apartment with more stolen
items, defendant asked, For you to be getting all this stuff,
. . . where are these people at? Bell first told defendant that
the woman was asleep; and defendant replied, Can't nobody sleepthat hard and don't hear nobody go in their house. Once inside
the victim's apartment, defendant asked again, I don't hear
nobody around. . . . Where is the people at? When Bell and
defendant went back to the apartment later, defendant entered the
victim's bedroom. He said that while he was in her bedroom,
Something just came over me. I don't know what it was. And,
like I say, I committed a sex act with the woman. Further, Bell
testified at the resentencing hearing that when defendant was
walking down the hall toward Ms. Edwards' bedroom, he motioned
for Bell to remain quiet.
In addition, Dr. Tyson, an expert in psychology, testified
that he diagnosed defendant with three mental disorders and
opined that these disorders impaired defendant's ability to
appreciate the criminality of his conduct and conform his conduct
to the law. However, Dr. Tyson did agree with defendant's
evaluation report from Dorothea Dix indicating no positive
findings of any information suggestive of particular impairment
during the time specific to the alleged crimes.
The record thus discloses conflicting evidence concerning
whether defendant's ability to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law
was impaired. [A] peremptory instruction is inappropriate when
the evidence surrounding that issue is conflicting. State v.
Noland, 312 N.C. 1, 20, 320 S.E.2d 642, 654 (1984), cert. denied,
469 U.S. 1230, 84 L. Ed. 2d 369 (1985). Therefore, the trial
court did not err by denying defendant's motion for a peremptory
instruction on this mitigating circumstance. We overrule this
assignment of error. In another assignment of error, defendant contends that the
trial court erred in failing to submit for the jury's
consideration the statutory mitigating circumstance that
defendant was an accomplice in or accessory to the capital
felony committed by another person and his participation was
relatively minor. N.C.G.S. § 15A-2000(f)(4). Defendant asserts
that evidence was presented from which the jury could have found
the existence of the (f)(4) mitigating circumstance and that the
failure to submit this mitigating circumstance violated his right
to due process and to be free from cruel and unusual punishment.
We disagree.
After considering all the evidence, the jury in the guilt-
innocence phase of defendant's 1994 trial found him guilty of
premeditated and deliberate murder. The record discloses no
evidence from which the jury could have found defendant guilty of
premeditated murder of Ms. Edwards without finding that he
actually killed her. Bell testified that he entered the victim's
apartment on more than one occasion to steal various items but
never entered the victim's bedroom, and no forensic evidence
suggested that Bell had been in the victim's bedroom.
Conversely, defendant testified that Bell had told him that he,
Bell, had killed the victim. Defendant admitted that he entered
the victim's bedroom and raped her; this statement is consistent
with the forensic evidence. Defendant maintained that the victim
was already dead when he raped her; the pathologist opined that,
in light of the small amount of vaginal bleeding, the victim was
either dead or in the last breath of life when she was raped.
The evidence demonstrates either that Bell killed the victim and
defendant raped her afterwards or that defendant both killed andraped the victim. Accordingly, the trial court did not instruct
the jury that it could find defendant guilty of premeditated and
deliberate murder on a theory of aiding and abetting.
Defendant concedes that his conviction of first-degree
murder cannot be relitigated for purposes of determining guilt or
innocence. However, defendant submits that the jury's factual
findings underlying the determination that defendant was guilty
of first-degree murder at the guilt-phase does not preclude the
resentencing jury from relitigating any of the facts underlying
the conviction for purposes of determining the existence of the
(f)(4) mitigating circumstance, which might be favorable to him.
Under the guise of the (f)(4) mitigating circumstance, defendant
is essentially seeking to retry the question of guilt, that is,
whether he had a sufficiently culpable state of mind at the time
of the murder. We have held that once a jury has found a
defendant guilty of first-degree murder at trial, it is
inappropriate for the sentencing jury to focus on anything other
than the defendant's character or record and any circumstance of
the offense. See State v. Walls, 342 N.C. 1, 52-53, 463 S.E.2d
738, 765 (1995), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 794
(1996). We have recognized that the defendant's character or
record and the circumstances of the offense do not encompass
[l]ingering or residual doubt of defendant's guilt. State v.
Hill, 331 N.C. 387, 415, 417 S.E.2d 765, 779 (1992), cert.
denied, 507 U.S. 924, 122 L. Ed. 2d 684, (1993). Therefore,
residual doubt is not a relevant circumstance to be submitted in
a capital sentencing proceeding. Id.
Furthermore, this Court has held that once a jury has
convicted a defendant of first-degree murder on a theory ofpremeditated and deliberate murder, at the sentencing proceeding
the trial court does not need to instruct the jury to make a
factual finding of the defendant's state of mind at the time of
the murder. See State v. Robinson, 342 N.C. 74, 88, 463 S.E.2d
218, 226 (1995), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 793
(1996). The trial jury in this case found defendant guilty of
premeditated and deliberate murder. The evidence before the
sentencing jury failed to support a finding that defendant was an
accomplice in or accessory to a capital felony committed by
another person, but it also failed to support a finding that
defendant's participation was relatively minor. Accordingly, the
trial court did not err in failing to submit the (f)(4)
mitigating circumstance; and this assignment of error is without
merit.
In the next assignment of error, defendant contends that the
trial court erred in violation of defendant's Eighth and
Fourteenth Amendment rights by excluding evidence regarding the
levels of security at Central Prison to support the nonstatutory
mitigating circumstance that [d]efendant has adjusted well to
the structured environment presented by Central Prison. We
disagree. During the presentation of defendant's evidence, Benny
Mack, a program director at Central Prison, gave a favorable
opinion of defendant. On redirect examination, defendant asked
Mack to define the maximum security prison and to describe the
different levels of security within the prison system. At that
point, the trial court excused the jury and asked defense counsel
about the relevance of this inquiry. Mack then described the
different levels of security, the corresponding population ineach level, and the different degrees of supervision in each
level. Following this testimony, the trial court ruled:
If you want to ask the witness in front of the jury if
he is working, if Mr. Roseboro is working, if he is
doing good deeds, you can ask him all those questions,
but the jury just doesn't need to know the different
levels of security.
In Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973 (1978),
the United States Supreme Court established that a jury in a
capital case cannot be precluded from considering as a
mitigating factor, any aspect of a defendant's character or
record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.
Id. at 604, 57 L. Ed. 2d at 990; see N.C.G.S. § 15A-2000(a)(3).
The United States Supreme Court has also held that evidence of a
defendant's ability to adjust to prison life is relevant to a
jury's sentencing recommendation and that a defendant is entitled
to present evidence concerning his conduct and ability to adjust
in prison. Skipper v. South Carolina, 476 U.S. 1, 4-5, 90 L. Ed.
2d 1, 6-7 (1986). Nonetheless, the trial court has the authority
to exclude, as irrelevant, evidence not bearing on the
defendant's character, prior record, or the circumstances of his
offense. Lockett, 438 U.S. at 604 n.12, 57 L. Ed. 2d at 990
n.12.
Here, evidence as to the different levels of security in the
prison is irrelevant to show defendant's character, prior record,
or circumstances of the offense. Defendant argues that the trial
court, in excluding the evidence, prevented him from showing that
he was not considered by the prison staff to be dangerous or to
require special supervision. However, the court's ruling did not
preclude defendant from adducing testimony from Mack aboutdefendant's good behavior, adjustment, and freedom of movement
within the prison. The trial court ruled only that defendant
could not present testimony about the levels of security at the
prison since it was not pertinent to defendant. Thus, the trial
court did not abuse its discretion; and this assignment of error
is overruled.
In another assignment of error, defendant contends that the
trial court erred by refusing his request to submit for the
jury's consideration the nonstatutory mitigating circumstance
that defendant's criminal conduct was the result of circumstances
unlikely to recur. Defendant claims that all the evidence
demonstrates that the victim's death arose out of an unusual
combination of events that are not likely to be duplicated in the
future, namely, Bell's conduct which led defendant into the
victim's home. We do not agree.
In order to succeed on the claim that the trial court erred
by refusing to submit a mitigating circumstance for the jury's
consideration, defendant must show that (1) the nonstatutory
mitigating circumstance is one which the jury could reasonably
find had mitigating value, and (2) there is sufficient evidence
of the existence of the circumstance to require it to be
submitted to the jury. State v. Benson, 323 N.C. 318, 325, 372
S.E.2d 517, 521 (1988). A review of the record reveals that the
evidence does not support the circumstance that defendant's
criminal conduct was the result of circumstances unlikely to
recur. To the contrary, defendant was not able to explain how
the victim's murder occurred. Defendant has maintained
throughout that Bell killed the victim before defendant raped
her. Without knowing the circumstances that led to defendant'sconduct and the victim's murder, a jury could not determine how
likely such circumstances were to recur.
Dr. Tyson, defendant's expert psychologist, testified that
defendant suffered from three psychological disorders: a
personality disorder, borderline intellectual functioning, and
chronic substance dependence. Dr. Tyson opined that the
combination of all three of these psychological disorders
contributed to the defendant's impulsiveness. Dr. Tyson also
testified that [i]t would be very hard to give an opinion
without being speculative about how defendant with these three
psychological disorders might behave when in the presence of
someone who might initiate criminal activity. Thus, to conclude
that defendant would not commit a similar crime under similar
circumstances in the future would be speculation.
Further, the refusal of the trial court to submit the
proposed mitigating circumstance is not error when the proposed
circumstance is subsumed in the other mitigating circumstances
submitted to the jury. Benson, 323 N.C. at 327, 372 S.E.2d at
521-22. In addition to finding that the proposed mitigating
circumstance was not supported by the evidence, the trial court
also rejected the circumstance on the basis that it was subsumed
in another mitigating circumstance to be submitted to the jury,
namely, But for the initial unilateral act of burglary committed
by Roger Bell, this series of events which ultimately resulted in
the Defendant's commission of the crimes for which he has been
convicted would probably not have occurred. Defendant argues
that each of the two circumstances has a different focus and
rests on independent evidence. We disagree. Both circumstances
involve Bell setting in motion a series of events that led to thevictim's death. Thus, the trial court properly determined that
the proposed mitigating circumstance was subsumed in another
mitigating circumstance to be submitted to the jury. We overrule
this assignment of error.
In another assignment of error, defendant contends that the
trial court committed plain error when it failed to intervene ex
mero motu and allowed cross-examination of defendant's character
witnesses about allegations of violence by defendant against his
wife. We disagree. On direct examination, defendant called
three members of his family who testified either that defendant
was not a violent person or that they had never known him to be
violent. On cross-examination, the prosecutor questioned each
witness about his or her knowledge of defendant's violent
behavior toward his wife. Two of the three witnesses admitted
that they had heard that defendant had hit his wife. Defendant
did not object to any of the prosecutor's questions at that time.
Having failed to object, defendant is entitled to relief based on
this assignment of error only if he can demonstrate plain error.
Under the plain error rule, defendant must convince this Court
not only that there was error, but that absent the error, the
jury probably would have reached a different result. See State
v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
A criminal defendant is entitled to introduce evidence of
his good character, thereby placing his character at issue. The
State in rebuttal can then introduce evidence of defendant's bad
character. See State v. Gappins, 320 N.C. 64, 69, 357 S.E.2d
654, 658 (1987). Such evidence offered by the defendant or the
prosecution in rebuttal must be a pertinent trait of hischaracter. N.C.G.S. § 8C-1, Rule 404(a)(1) (1999). Rule 405(a)
provides in pertinent part:
In all cases in which evidence of character or a trait
of character of a person is admissible, proof may be
made by testimony as to reputation or by testimony in
the form of an opinion. On cross-examination, inquiry
is allowable into relevant specific instances of
conduct.
N.C.G.S. § 8C-1, Rule 405(a) (1999). Defendant placed his
character at issue by having members of his family testify about
his reputation for nonviolence or peacefulness, a pertinent
trait of his character. In accordance with Rule 405(a), the
prosecutor then cross-examined these witnesses about whether they
knew of or had heard any accusations that defendant had hit or
been violent toward his wife.
Defendant argues that the prosecutor failed to limit his
inquiry only to specific instances of misconduct by defendant by
asking very general questions about whether the witnesses knew
about any violence in the marriage or allegations of
violence. Given that defendant's character witnesses testified
that defendant was not a violent person, the prosecution was
entitled to probe their knowledge of defendant's violence in his
marriage. Such an inquiry was directed at specific instances of
defendant's misconduct in the context of his marriage, not just
general charges of violent behavior. On this basis, defendant's
argument that the prosecutor elicited irrelevant information
concerning problems in defendant's marriage is without merit.
Defendant also argues that the trial court should not have
allowed the prosecution to ask the character witnesses whether
defendant had been accused of or charged with hitting his
wife. One of the passages cited by defendant is as follows: Q. You indicated that you had never known
Chris [defendant] to be violent?
A. No.
Q. Had you heard any accusations from
Laurie [wife] about him being violent
during their marriage?
A. One time.
Q. One time? Do you know if Laurie ever
had him charged with being violent
toward her, any kind of criminal action?
A. One time that I know of.
Q. One time? He was married to Laurie for
eight years. How long did he live with
Laurie?
A. I think up until maybe six months before
he got in trouble, these charges was
brought against him.
Defendant relies on State v. Martin, 322 N.C. 229, 367
S.E.2d 618 (1988), in which we held that it was error to allow
the prosecution to cross-examine a character witness about
whether he knew that the defendant had been charged with a crime.
The fact that the defendant had been charged with a crime does
not show he is guilty of the crime. Id. at 238, 367 S.E.2d at
623. However, Martin is distinguishable. Notwithstanding the
prosecution's choice of words, the questions in this case were
intended to address the witness' knowledge of defendant's acts of
violence against his wife rather than his criminal record, as in
Martin. In Martin, the question was based entirely on the fact
that the defendant had been charged with selling marijuana in
jail. Id. at 237, 367 S.E.2d at 623. Here, the prosecution's
questions were based on evidence from the prior trial: a
witness' testimony that defendant's wife had told him about
defendant hitting her and defendant's evaluation report fromDorothea Dix which stated that defendant admitted hitting his
wife.
We conclude that the prosecutor's questions were not
improper cross-examination and that allowing the witness to
answer was not error, much less plain error. Defendant is not
entitled to relief, and this assignment of error is overruled.
In the next assignment of error, defendant contends that the
trial court committed constitutional error by denying defendant's
request for a jury instruction that the race of defendant and the
victim should not be considered in the jury's sentencing
recommendation. We disagree. Defendant's proposed jury
instruction was as follows:
MEMBERS OF THE JURY, I instruct you that you may
not consider the race of the Defendant or that of the
victim in making your determination about whether death
or life imprisonment is the appropriate punishment for
the Defendant. Because of the range of discretion that
will be entrusted to you, there is a unique opportunity
for racial prejudice to operate in this case. It
remains an unfortunate fact in our society that racial
prejudice can improperly influence a jury. Even
subtle, less conscious racial attitudes must be
eliminated by you from your consideration of the
appropriate sentence in this case. It would be a
violation of your oaths and you[r] duty under the laws
of the United States and the State of North Carolina
for you to give any consideration whatsoever to racial
factors in reaching your decision in this case.
In Turner v. Murray, 476 U.S. 28, 90 L. Ed. 2d 27 (1986),
the United States Supreme Court held that, upon request, a
capital defendant accused of an interracial crime is entitled to
have prospective jurors informed of the race of the victim and
questioned on the issue of racial bias. Id. at 36-37, 90 L. Ed.
2d at 37. Defendant argues that the same due process
considerations that require the trial court to allow voir dire of
prospective jurors about racial attitudes in capital cases alsoentitled defendant to a jury instruction about the need to
disregard racial considerations in sentencing. Rejecting a
similar argument in State v. Richardson, 342 N.C. 772, 467 S.E.2d
685, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996), we
noted that Turner is not authority for the proposition that a
trial court in the trial of an interracial crime must instruct
the jury to disregard racial considerations where defendant
requests such an instruction. Id. at 792, 467 S.E.2d at 696.
Given this precedent, the trial court was not required to
instruct the jurors that they should avoid giving any
consideration to racial factors in defendant's sentencing.
Contrary to defendant's position, the instruction in this case
would have, in effect, injected racial bias into the jurors'
consideration of defendant's sentence and diverted their
attention away from the more pertinent issues of defendant's
character and the circumstances of the crime. Therefore, we
conclude that the trial court did not err in refusing to give the
requested instruction. We overrule this assignment of error.
In another assignment of error, defendant contends that the
trial court erred by denying defendant's request for separate
instructions on each of defendant's alleged mental impairments
and by giving a single instruction combining all of the mental
impairments into a single mitigating circumstance. Defendant
argues that the trial court's failure to instruct on the three
separate mitigating circumstances impinged on the jury's full
consideration of the mitigating evidence in violation of the
Eighth and Fourteenth Amendments to the United States
Constitution and Article I, Sections 19, 23, and 27 of the North
Carolina Constitution. Defendant also disputes the trial court'sinstruction on the ground that it limited the jury's
consideration to the evidence that defendant used crack cocaine
before the killing, ignoring defendant's chronic cocaine
dependence. He contends that the instruction improperly limited
the scope of the circumstance. We disagree.
Dr. Tyson testified that defendant suffered from three
psychological disorders: personality disorder, impaired
intellectual functioning, and chronic substance dependence.
Dr. Tyson opined that these disorders potentiat[ed] each other,
limited defendant's ability to function as an adult, to think
through his behavior, make decisions with any appreciation of the
future. Both Bell and defendant testified that defendant was
using crack cocaine on the night of the murder. Based on this
evidence, defendant requested three separate mitigating
circumstances under N.C.G.S. § 15A-2000(f)(6) each of which
instructed that the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of the law was impaired by one of the following:
defendant's personality disorder, borderline range of
intelligence, and long-term, chronic and severe abuse of crack-
cocaine at and around the time of the offenses. The trial court
rejected defendant's request and subsequently combined all the
defendant's allegedly impairing mental conditions into the single
(f)(6) mitigating circumstance. The trial court instructed in
pertinent part as follows:
You would find this mitigating circumstance if you
find that the Defendant suffered from a personality
disorder and/or had a borderline range of intelligence
and/or used crack cocaine before the killing and that
this impaired his capacity to appreciate the
criminality of his conduct or to conform his conduct to
the requirements of the law.
The trial court's instruction specifically referred to each
of defendant's alleged mental disorders and instructed the jury
to consider whether one or all of defendant's mental disorders
impaired defendant's capacity to appreciate the criminality of
his conduct or to conform his conduct to the requirements of the
law. Defendant was not prohibited from presenting evidence on
each of these disorders and had ample opportunity to argue the
weight of that evidence to the jury. See State v. McLaughlin,
341 N.C. 426, 452, 462 S.E.2d 1, 15 (1995), cert. denied, 516
U.S. 1133, 133 L. Ed. 2d 879 (1996). The instruction given
comported with defendant's evidence and was a correct statement
of the law. Therefore, we overrule this assignment of error.
In the next assignment of error, defendant contends that the
trial court erred when it instructed the jury that it could
consider as separate aggravating circumstances whether the murder
was committed in the course of a burglary and whether the murder
was committed in the course of a rape as set forth in N.C.G.S. §
15A-2000(e)(5). We disagree.
Defendant did not object to this instruction at trial;
therefore, our review is limited to review for plain error. N.C.
R. App. P. 10(b)(2). In order to rise to the level of plain
error, the error in the trial court's instructions must be so
fundamental that (i) absent the error, the jury probably would
have reached a different verdict; or (ii) the error would
constitute a miscarriage of justice if not corrected. State v.
Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997), cert.
denied, ___ U.S. ___, 140 L. Ed. 2d 132 (1998).
We have consistently held that where there is separate
substantial evidence to support each aggravating circumstance, itis not improper for each aggravating circumstance to be submitted
even though the evidence supporting each may overlap. State v.
Conaway, 339 N.C. 487, 530, 453 S.E.2d 824, 851 (1995), cert.
denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995). Moreover, [w]e
have interpreted N.C.G.S. § 15A-2000(e) to permit the submission
of separate aggravating circumstances pursuant to the same
statutory subsection if the evidence supporting each is distinct
and separate. . . . [I]t is proper for a trial court to allow
such multiple submission of the (e)(5) aggravating circumstance.
State v. Bond, 345 N.C. 1, 34-35, 478 S.E.2d 163, 181 (1996),
cert. denied, 521 U.S. 1124, 138 L. Ed. 2d 1022 (1997).
Defendant argues that the burglary and the rape were not
separate and distinct felonies since both felonies were committed
against the same victim and occurred as part of one transaction.
To the contrary, the evidence shows that defendant, along with
Bell, broke into the victim's home at night with the intent to
steal her television. Defendant and Bell returned later, and
defendant entered the victim's bedroom and raped her. A review
of the record discloses that the evidence is sufficient to
support separate crimes of burglary and rape.
Defendant also argues that the legislature did not intend
for a jury to consider each crime specified in N.C.G.S. §
15A-2000(e)(5) as a separate aggravating circumstance. Defendant
asserts that under the rules of statutory construction the
wording of N.C.G.S. § 15A-2000(e)(5) requires that a defendant
who commits a murder while engaged in a burglary and while raping
the victim be treated for purposes of sentencing the same as a
defendant who murders the victim while engaged solely in a
burglary. We hold, as defendant concedes this Court has donepreviously, that the General Assembly did not so intend. See Id.
The trial did not commit error, much less plain error, in
submitting each of these aggravating circumstances for the jury's
consideration, and this assignment of error is overruled.
PRESERVATION ISSUES
Defendant raises eleven additional issues that have been
decided contrary to his position previously by this Court:
(i) whether the trial court erred when it did not instruct the
jury that it would have to consider and determine whether
defendant had a sufficiently culpable state of mind to warrant
the imposition of the death sentence; (ii) whether the trial
court erred when it denied defendant's motion to question
prospective jurors regarding parole eligibility or to instruct
prospective jurors that defendant would not be eligible for
parole for at least twenty years; (iii) whether the trial court
erred when it refused to include defendant's requested
instruction regarding parole eligibility in its final charge to
the jury; (iv) whether the trial court erred when it instructed
the jury that their verdict on Issues One, Three, and Four must
be unanimous; (v) whether the trial court erred when it
instructed the jury that defendant had the burden to prove the
mitigating circumstances by a preponderance of evidence and that
the evidence must satisfy the jury that the mitigating
circumstances existed; (vi) whether the trial court erred when it
instructed the jurors that they were to decide whether any of the
nonstatutory mitigating circumstances had mitigating value;
(vii) whether the trial court erred when it refused to give
defendant's requested instruction defining the type of factors
that might be considered mitigating; (viii) whether the trialcourt erred when instructing the jurors on Issues Three and Four
that they may consider any mitigating circumstance or
circumstances that they determined to exist; (ix) whether the
trial court erred when it instructed the jury on Issues Three and
Four that each juror may consider any mitigating circumstance or
circumstances that the juror determined to exist by a
preponderance of the evidence in Issue Two; (x) whether the
trial court erred when it denied defendant's request for
allocution; and (xi) whether the death penalty statute is
unconstitutionally vague and overbroad and imposed in a
discretionary and discriminatory manner.
Defendant raises these issues for purposes of urging this
Court to reexamine its prior holdings. We have considered
defendant's arguments on these issues and conclude that there is
no compelling reason to depart from our prior holdings. These
assignments of error are overruled.
PROPORTIONALITY
Finally, defendant argues that the death sentence imposed
upon him in this case is excessive and disproportionate to the
sentence imposed in similar cases, considering both the crime and
the defendant. This Court exclusively has the statutory duty in
capital cases to review the record and determine (i) whether the
record supports the aggravating circumstances found by the jury;
(ii) whether the death sentence was entered under the influence
of passion, prejudice, or any other arbitrary factor; and
(iii) whether the death sentence is excessive or disproportionate
to the penalty imposed in similar cases, considering both the
crime and the defendant. N.C.G.S. § 15A-2000(d)(2). Having
thoroughly reviewed the record, transcripts, and briefs in thepresent case, we conclude that the record fully supports the
aggravating circumstances found by the jury. Further, we find no
suggestion that the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary
consideration. Accordingly, we turn to our final statutory duty
of proportionality review.
The jury at defendant's capital trial in 1994 found
defendant guilty of first-degree murder based on premeditation
and deliberation and felony murder. At defendant's 1997 capital
resentencing proceeding, the jury found both the submitted
aggravating circumstances: (i) that the murder was committed
while defendant was engaged in the commission of burglary,
N.C.G.S. § 15A-2000(e)(5); and (ii) that the murder was committed
while defendant was engaged in the commission of rape, N.C.G.S. §
15A-2000(e)(5).
The jury found two statutory mitigating circumstances:
(i) that defendant's capacity to appreciate the criminality of
his conduct or to conform his conduct to the requirements of the
law was impaired, N.C.G.S. § 15A-2000(f)(6); and (ii) that
defendant aided in the apprehension of another capital felon,
N.C.G.S. § 15A-2000(f)(8). Three statutory mitigating
circumstances were submitted but not found: (i) no significant
history of prior criminal activity, N.C.G.S. § 15A-2000(f)(1);
(ii) defendant's age at the time of the crime, N.C.G.S. §
15A-2000(f)(7); and (iii) the catchall, N.C.G.S. §
15A-2000(f)(9). Of the nine nonstatutory mitigating
circumstances submitted, the jury found four that had mitigating
value. We begin our analysis by comparing this case to those cases
in which this Court has determined the sentence of death to be
disproportionate. We have determined the death penalty to be
disproportionate on seven occasions. State v. Benson, 323 N.C.
318, 372 S.E.2d 517; State v. Stokes, 319 N.C. 1, 352 S.E.2d 653
(1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986),
overruled on other grounds by State v. Gaines, 345 N.C. 647, 483
S.E.2d 396, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997),
and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988);
State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v.
Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant,
309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C.
26, 305 S.E.2d 703 (1983). We conclude that this case is not
substantially similar to any case in which this Court has found
the death penalty disproportionate. Notably, this Court has
never found a death sentence disproportionate in a case involving
a victim of first-degree murder who was also sexually assaulted.
State v. Penland, 343 N.C. 634, 666, 472 S.E.2d 734, 752 (1996),
cert. denied, 519 U.S. 1098, 136 L. Ed. 2d 725 (1997).
Defendant contends that there are several cases in which
this Court has affirmed life sentences in similar cases involving
murder and a sexual offense. However, the fact that in one or
more cases factually similar to the one under review a jury or
juries have recommended life imprisonment is not determinative,
standing alone, on the issue of whether the death penalty is
disproportionate in the case under review. State v. Green, 336
N.C. 142, 198, 443 S.E.2d 14, 46, cert. denied, 513 U.S. 1046,
130 L. Ed. 2d 547 (1994). The determination of whether the death
penalty is disproportionate in this particular case ultimatelyrest[s] upon the 'experienced judgments' of the members of this
Court. Id., 443 S.E.2d at 47.
Several characteristics in this case support the
determination that the imposition of the death penalty was not
disproportionate. Defendant was convicted of both felony murder
and premeditated and deliberate murder. We have noted that the
finding of premeditation and deliberation indicates a more cold-
blooded and calculated crime. State v. Artis, 325 N.C. 278,
341, 384 S.E.2d 470, 506 (1989), sentence vacated on other
grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). Moreover,
defendant sexually assaulted an elderly woman while she was dead
or in her last breath of life in her home in her own bed. A
murder in the home 'shocks the conscience, not only because a
life was senselessly taken, but because it was taken [at] an
especially private place, one [where] a person has a right to
feel secure.' State v. Adams, 347 N.C. 48, 77, 490 S.E.2d 220,
236 (1997) (quoting State v. Brown, 320 N.C. 179, 231, 358 S.E.2d
1, 34, cert. denied, 484 U.S. 970, 108 S. C. 467, 98 L. Ed. 2d
406 (1987)), cert. denied, ___ U.S. ___, 139 L. Ed. 2d 878
(1998).
This case is similar to cases in which this Court has found
the death penalty proportionate. In State v. Williams, 350 N.C.
1, 510 S.E.2d 626, cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___,
1999 WL 462136 (Oct. 4, 1999) (No. 99-5014), we affirmed the
death sentence where the defendant raped and brutally beat an
elderly woman during an attempt to steal money to enable him to
buy crack cocaine. Although the jury found no statutory
mitigating circumstances, the jury did find as nonstatutory
mitigating circumstances that at the time the defendant committedthe crime, he was under the influence of crack cocaine and/or
alcohol and that under oath, defendant expressed remorse for his
actions and apologized to the victim's family. Id. at 37, 510
S.E.2d at 649. The jury found three aggravators, including two
under N.C.G.S. § 15A-2000(e)(5). Id. (committed while in the
commission of first-degree burglary and while in the commission
of first-degree rape). In State v. Adams, 347 N.C. 48, 490
S.E.2d 220, we also affirmed the death sentence where the
defendant murdered an elderly woman in her home after breaking in
to steal money to buy drugs. As did Williams and Adams, this
case involves the premeditated murder of an elderly woman in her
home. The fact that defendant in this case raped the victim in
her own bed while she was dead or in her last breath of life
elevates the brutality.
For the foregoing reasons we conclude that defendant's death
sentence was not excessive or disproportionate. We hold that
defendant received a fair capital sentencing proceeding, free
from prejudicial error. The sentence of death is, therefore,
left undisturbed.
NO ERROR.
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