1. Sentencing--capital--mitigating circumstance--age of
defendant--evidence not sufficient
The trial court did not err in a capital sentencing
proceeding by not submitting the mitigating circumstance for the
age of the defendant, N.C.G.S. § 15A-2000(f)(7), where defendant
was twenty years old at the time he committed the crimes, in
honors English and history classes in high school and a voracious
reader, had completed his general equivalency diploma, served in
the military, and did well in quartermaster school. Defendant
presented evidence of emotional immaturity but not of mental
impairment, and, based on his chronological age, his apparently
normal physical and intellectual development, and his level of
experience, the evidence did not reasonably support nor require
the court to submit this circumstance.
2. Homicide--first-degree murder--short-form indictment
The North Carolina short-form indictment for first-degree
murder is constitutional.
3. Homicide--guilty plea--finding of premeditation and
deliberation--surplusage
A trial court “finding” of premeditation and deliberation
constituted unnecessary surplusage where defendant pled guilty to
two first-degree murders; a plea of guilty means, nothing else
appearing, that defendant is guilty upon any and all theories
available to the State.
4. Sentencing--capital--codefendant's sentence--irrelevant
The trial court did not err in a capital sentencing
proceeding by not admitting evidence of a codefendant's life
sentences and not submitting the nonstatutory mitigating
circumstance that defendant's codefendant received life
sentences. A codefendant's sentence for the same murder is
irrelevant in sentencing proceedings; the accomplices' punishment
is not an aspect of defendant's character or record nor a
mitigating circumstance of the particular offense.
5. Sentencing--capital--jury selection--personal views on death
penalty--instruction
The trial court did not err during jury selection or in the
jury charge in a capital sentencing proceeding by not giving
defendant's requested instructions that it was permissible for
the jurors' personal views concerning the death penalty to
influence their sentencing decision. The requested instructions
were not a correct statement of the law; moreover, the trial
court properly instructed the jury.
6. Sentencing--capital--aggravating circumstance applying to
each of two counts--instruction
The trial court did not err in a capital sentencing
proceeding for two murders in its instruction on the especially
heinous, atrocious, or cruel aggravating circumstance, N.C.G.S. §
15A-2000(e)(9), that the circumstance “applies equally to both
murders.” Although defendant contended that a rational juror
could interpret the instruction to indicate that the trial court
believed the aggravating circumstance existed and should be given
equal weight in each case, the trial court was merely reiterating
its previous admonition that the law as to both murder counts was
generally the same since the jury would be considering the same
aggravating and mitigating circumstances. Viewed contextually,
the challenged instruction did not mislead the jury.
7. Sentencing--capital--nonstatutory mitigating circumstance--
depression
The trial court did not err during a capital sentencing
proceeding by failing to submit defendant's requested
nonstatutory mitigating circumstance that he was depressed after
he returned from military service in Korea. Defendant requested
and the trial court allowed the mitigating circumstance that
defendant “has suffered from emotional problems,” the trial court
determined that the proposed circumstance was subsumed in the
mitigating circumstance allowed, the jury heard and considered
testimony about defendant's unhappiness after he returned from
overseas and his attempted suicide, and the court submitted the
catchall mitigating circumstance.
8. Jury--selection--capital sentencing--whether juror could
impose life sentence--redundant--court's discretion
The trial court did not abuse its discretion in a capital
sentencing proceeding by refusing to allow defense counsel to ask
a prospective juror whether he could consider imposing a life
sentence after being informed that defendant was guilty of two
homicides. Assuming that defendant's stake-out question was
permissible, the court still had discretion to disallow the
question; this question was redundant and superfluous because the
prospective juror had already clearly indicated his ability and
intention to perform his legal duties as a juror, including
recommending the sentence required by law under the facts of this
case.
9. Jury--selection--capital sentencing--residual mitigation
The trial court did not abuse its discretion in a capital
sentencing proceeding by preventing defendant from asking a
prospective juror whether he could consider residual mitigation
under the catchall circumstance, N.C.G.S. § 15A-2000(f)(9), where
the prospective juror had indicated that he could follow the law
as instructed by the trial court and the court's instruction on
the catchall mitigating circumstance after the evidence was heard
was proper.
10. Jury--selection--objection to procedure--not preserved for
appeal
The defendant in a capital sentencing proceeding failed to
preserve for appellate review the question of whether the trial
court erred by reassigning a prospective juror to a later panelwhere defendant never objected at trial, never complied with
N.C.G.S. § 15A-1211(c), and expressly approved the reassignment
of the prospective juror.
11. Criminal Law--prosecutor's argument--capital sentencing--
outside record--defendant's guilt not in issue--comment
minor in context of entire record
There was no error so grossly improper that the trial court
erred by not intervening ex mero motu in a capital sentencing
proceeding where the prosecutor's argument that the blood of both
victims was found on defendant's clothing was not wholly
supported by the record. Defendant's guilt was not at issue in
this proceeding and the comment was minor in the context of the
prosecutor's entire closing statement.
12. Sentencing--capital--aggravating circumstance--especially
heinous, atrocious, or cruel--not unconstitutionally vague
The especially heinous, atrocious, or cruel aggravating
circumstance is not unconstitutionally vague. N.C.G.S. § 15A-
2000(e)(9).
13. Sentencing--capital--aggravating circumstance--especially
heinous, atrocious, or cruel--sufficiency of evidence
The trial court did not err in a capital sentencing
proceeding by submitting the especially heinous, atrocious, or
cruel aggravating circumstance where defendant argued that the
jury was permitted to vicariously apply the circumstance based on
the conduct of his accomplice but, considered in the light most
favorable to the State, there was sufficient evidence from which
the jury could conclude that defendant personally participated in
the killing of both victims, defendant pled guilty to both first-
degree murders, and defendant does not dispute that the manner in
which both victims were murdered is sufficient to warrant this
circumstance. N.C.G.S. § 15A-2000(e)(9).
14. Sentencing--capital--death sentence not arbitrary
The evidence fully supported the aggravating circumstances
found by the jury in a capital sentencing proceeding and there
was no indication that the two death sentences were imposed under
the influence of passion, prejudice, or any other arbitrary
factor.
15. Sentencing--capital--death penalty--not disproportionate
Death sentences for two first degree-murders were not
disproportionate where defendant was convicted of two counts of
first-degree murder; the three aggravating circumstances found by
the jury are among the four which have been found sufficient to
support a death sentence standing alone; although an accomplice
received a sentence of life imprisonment, defendant pled guilty
to two counts of first-degree murder, admitting guilt on any and
all theories available to the State, including premeditation and
deliberation and felony murder; these murders were found to be
part of a course of conduct which included crimes of violence
against another person, and the victims were killed in their
home; and, based on the brutal nature of the crimes, these casesare more similar to cases in which the sentence of death was
found proportionate than to those in which it was found
disproportionate.
Appeal as of right by defendant pursuant to N.C.G.S. §
7A-27(a) from two judgments on 3 February 1999 imposing sentences
of death entered by Jenkins, J., at a resentencing proceeding
held in Superior Court, Cumberland County, upon defendant's
convictions of first-degree murder. Heard in the Supreme Court
12 September 2000.
Michael F. Easley, Attorney General, by John G. Barnwell,
Assistant Attorney General, for the State.
Janine Crawley Fodor for defendant-appellant.
WAINWRIGHT, Justice.
On 2 February 1987, Jeffrey Karl Meyer was indicted for two
counts of first-degree murder, one count of first-degree
burglary, and two counts of robbery with a dangerous weapon. On
12 May 1988, defendant pled guilty to the robbery and burglary
charges, and on 16 May 1988, defendant pled guilty to the first-
degree murder charges. The trial court entered judgments in the
noncapital cases, sentencing defendant to life imprisonment for
first-degree burglary and to two consecutive terms of forty
years' imprisonment for the two counts of robbery with a
dangerous weapon.
During his first capital sentencing proceeding that began on
3 June 1988, defendant escaped from custody, forcing the trial
court to declare a mistrial. See State v. Meyer, 330 N.C. 738,
740, 412 S.E.2d 339, 340 (1992) (Meyer I). Following a capital
sentencing proceeding that began on 24 October 1988, the juryrecommended sentences of death for the two first-degree murders,
and the trial court entered judgments in accordance with that
recommendation. See id. at 740, 412 S.E.2d at 341. On appeal,
this Court vacated the judgments and remanded for a new capital
sentencing proceeding pursuant to McKoy v. North Carolina, 494
U.S. 433, 108 L. Ed. 2d 369 (1990). Meyer I, 330 N.C. 738, 412
S.E.2d 339.
On 31 August 1995, following another capital sentencing
proceeding, another jury recommended sentences of death for the
two counts of first-degree murder, and the trial court entered
judgments in accordance with those recommendations. State v.
Meyer, 345 N.C. 619, 620, 481 S.E.2d 649, 650 (1997) (Meyer II).
On appeal, this Court vacated the judgments and remanded for
resentencing because defendant was absent from an unrecorded,
in-chambers conference involving the trial judge, defense
counsel, and counsel for the State. Id. at 623, 481 S.E.2d at
651-52.
On 3 February 1999, following yet another capital sentencing
proceeding, another jury once again recommended sentences of
death for the two first-degree murders, and the trial court
entered judgments in accordance with those recommendations.
Defendant appeals his sentences to this Court.
The State's evidence at defendant's capital sentencing
proceeding tended to show the following: In December 1986,
defendant and Mark Thompson were soldiers on active duty and
stationed at Fort Bragg. Defendant and Thompson began watching a
residence owned by an elderly couple, planning to burglarize thecouple's home. Based on their surveillance efforts, defendant
and Thompson knew that Paul and Janie Kutz (the victims) were an
“elder couple” who owned two vehicles but “usually traveled”
together in the same car.
On 1 December 1986, defendant and Thompson, dressed in
“ninja” suits, broke into the victims' home in Fayetteville,
North Carolina. Surprised by Mr. Kutz, defendant shot him with a
blow gun (a martial arts weapon that launches sharp darts from a
hollow tube). When Mr. Kutz continued to advance, defendant
stabbed and killed him with a butterfly knife. Defendant and
Thompson also stabbed and killed Mrs. Kutz with butterfly knives.
Thereafter, defendant and Thompson stole jewelry, credit cards,
and a television from the Kutz residence.
During the early morning hours of 2 December 1986, military
police officer Robert Provalenko intercepted defendant and
Thompson as they traveled in a red pickup truck through a
restricted area of Fort Bragg. Officer Provalenko observed that
defendant and Thompson were dressed in black pants and ninja
boots. When Officer Provalenko noticed a black-handled butterfly
knife in the glove compartment of the truck, directly in front of
defendant, he asked defendant and Thompson to exit the vehicle.
Thompson then consented to a search of his vehicle. During the
ensuing search, Officer Provalenko and military police officer
George Clark found a second butterfly knife, a pair of nunchucks,
a blowgun, and latex rubber gloves. The officers also found
jewelry, a television, and credit cards, all of which were later
identified as belonging to the victims. Later that morning, following a report from the military
police about credit cards seized from defendant and Thompson,
Cumberland County Deputy Sheriff David Stewart was dispatched to
respond to a possible break-in at the victims' residence. Upon
arriving at the victims' residence, Deputy Stewart observed signs
of a break-in, including an open window and door. After entering
the victims' residence, Deputy Stewart discovered the victims'
stabbed bodies. Deputy Stewart found Mr. Kutz's body lying in a
recliner in the den and discovered Mrs. Kutz's body lying on a
bed in the master bedroom. John Trogdon, a crime-scene
technician with the Fayetteville Police Department, examined the
victims' residence and observed footprints consistent with ninja
boots in the dirt around the house, as well as on a dining room
chair. State Bureau of Investigation (SBI) Agent Lucy Milks, an
expert in forensic serology, tested various evidence seized from
the victims' residence. Among other things, Agent Milks
determined that human blood consistent with the type of both
victims was present on the black-handled butterfly knife. A test
conducted on the chrome butterfly knife revealed the presence of
human blood consistent with the type of Mrs. Kutz.
SBI agent John Bendure, an expert in fiber analysis and
comparison, testified that his testing of the black-handled
butterfly knife revealed the presence of light-brown polyester
fiber that was consistent with the upholstery of the chair in
which Mr. Kutz's body was found. Agent Bendure also tested the
chrome butterfly knife and associated fiber samples from that
knife with a blue blanket found with Mrs. Kutz's body. Inaddition, Agent Bendure testified that fibers from the pink
nightgown worn by Mrs. Kutz at the time of her death could be
associated with both knives. Finally, Agent Bendure testified
that fibers associated with the blanket and sheets in the bedroom
were found on the clothing worn by both defendant and Thompson.
On 3 December 1986, Dale Wayne Wyatt, then a soldier
stationed at Fort Bragg, was detained in the Cumberland County
jail waiting to appear in court on a worthless-check charge.
Wyatt testified at trial that he met defendant in one of the
holding facilities during his detention. According to Wyatt,
defendant told him that “he was being investigated in a double
homicide” and that his clothes were being held as evidence.
Wyatt testified that defendant told him about the murder of
Mr. Kutz. Defendant told Wyatt that when he entered the Kutz
residence, he saw Mr. Kutz, shot him with a blowgun dart, then
stabbed him with a butterfly knife.
Forensic pathologist Dr. George Lutman performed an autopsy
on the sixty-two-year-old body of Mrs. Kutz. In Dr. Lutman's
expert opinion, Mrs. Kutz's death was caused by multiple stab
wounds. Dr. Lutman testified that Mrs. Kutz had been stabbed or
cut approximately twenty-five or twenty-six times. Four stab
wounds penetrated into the right side of Mrs. Kutz's chest, and
another penetrated into the left side. Mrs. Kutz also suffered
multiple wounds to the liver, a stab wound into her neck that
reached to the spinal column, a stab wound that cut the tip of
her spleen, and a stab wound that cut one of the tubes from the
kidney to the bladder. Dr. Lutman also noted “defensive wounds”to Mrs. Kutz's hands, indicating an attempt to fend off an
attacker. The most critical wound was located near Mrs. Kutz's
right shoulder, where a knife “tunneled up” and severed her
windpipe and her carotid artery, causing Mrs. Kutz to aspirate
blood into her lungs when she inhaled. Dr. Lutman observed that
Mrs. Kutz's “lungs were markedly expanded with . . . trapped air
and blood.” This aspiration indicated to Dr. Lutman that
Mrs. Kutz had remained alive “for some period of time after
receiving the wound.”
Forensic pathologist Dr. Fred Ginn performed an autopsy on
the sixty-eight-year-old body of Mr. Kutz. Dr. Ginn testified
that wounds to the front of Mr. Kutz's body included a stab wound
above the left eye, a stab wound above the right collar bone down
in his neck, a “large gaping wound across the neck,” two stab
wounds in the upper left chest, and an “oval shaped stab wound
. . . in the sixth rib space.” Dr. Ginn also noted defensive
wounds on Mr. Kutz's left hand and, on Mr. Kutz's left shoulder,
“a small punctate mark of the size that would be made by a needle
or dart.” Dr. Ginn further testified that wounds to the back of
Mr. Kutz's body included a cut above the left elbow; three stab
wounds into the left side of the chest and one into the right
side of the chest; and stab wounds to the left and right of the
spine, with the left wound extending into the left kidney. A
wound to the chest and left ventricle of Mr. Kutz's heart caused
150 milliliters of blood from the heart to collect between the
heart wall and the connective tissue sac that encases the heart.
Dr. Ginn opined that the probable cause of death was the stabwound to the heart. Dr. Ginn also testified that “between half a
minute to five minutes could have elapsed before” Mr. Kutz died
from the effects of the stab wounds and that Mr. Kutz “could have
been conscious any of that time up to the maximum.”
[1]By assignment of error, defendant contends the trial
court erred by failing to submit to the jury the (f)(7)
mitigating circumstance, “[t]he age of the defendant at the time
of the crime.” N.C.G.S. § 15A-2000(f)(7) (1999). Although
defendant did not request submission of the (f)(7) mitigating
circumstance, he now contends the trial court should have
submitted the circumstance on its own motion. We disagree.
This Court has characterized “age” as a “flexible and
relative concept.” State v. Johnson, 317 N.C. 343, 393, 346
S.E.2d 596, 624 (1986); accord State v. Spruill, 338 N.C. 612,
660, 452 S.E.2d 279, 305 (1994), cert. denied, 516 U.S. 834, 133
L. Ed. 2d 63 (1995). We have recognized that chronological age
is not the determinative factor with regard to submission of the
(f)(7) mitigating circumstance. See State v. Peterson, 350 N.C.
518, 528, 516 S.E.2d 131, 138 (1999), cert. denied,___ U.S. ___,
145 L. Ed. 2d 1087 (2000); State v. Bowie, 340 N.C. 199, 203, 456
S.E.2d 771, 773, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 435
(1995). Rather, the trial court must consider other “varying
conditions and circumstances.” Peterson, 350 N.C. at 528, 516
S.E.2d at 138; accord State v. Gregory, 340 N.C. 365, 422, 459
S.E.2d 638, 671 (1995), cert. denied, 517 U.S. 1108, 134 L. Ed.
2d 478 (1996).
In the instant case, defendant was twenty years old at thetime he committed the crimes. During defendant's capital
sentencing proceeding, he presented evidence through several lay
witnesses regarding his emotional immaturity, but no evidence
whatsoever of mental impairment. Although evidence showing
emotional immaturity is relevant to submission of the (f)(7)
mitigating circumstance, “this Court will not conclude that the
trial court erred in failing to submit the age mitigator ex mero
motu where evidence of defendant's emotional immaturity is
counterbalanced by other factors such as defendant's
chronological age, defendant's apparently normal intellectual and
physical development, and defendant's lifetime experience.”
State v. Steen, 352 N.C. 227, 257, 536 S.E.2d 1, 19 (2000);
accord Spruill, 338 N.C. at 660, 452 S.E.2d at 305; Johnson, 317
N.C. at 393, 346 S.E.2d at 624.
The evidence here showed that defendant “was of normal
intelligence,” that he was in honors English and history classes
in high school, that he was a “voracious” reader, that he
completed his General Equivalency Diploma, and that he served in
the military and did well in quartermaster school. Based on
defendant's chronological age of twenty, his apparently normal
physical and intellectual development, and his level of
experience, we conclude the evidence does not reasonably support
the submission of, nor does it require the trial court to submit,
the (f)(7) mitigating circumstance. This assignment of error is
overruled.
[2]
[3]By assignments of error, defendant argues his pleas ofguilty to first-degree murder must be vacated because the
indictments charging defendant with first-degree murder were
constitutionally deficient. Specifically, defendant contends the
short-form indictments were improper because they did not allege
the elements of premeditation and deliberation in first-degree
murder. Defendant also argues the trial court made an improper
judicial “finding” that “upon the evidence produced . . . [today]
by the State of North Carolina, . . . there is substantial
evidence as to the elements of premeditation and deliberation,
and that for the purpose of the plea adjudication they were
proven beyond a reasonable doubt.”
With regard to defendant's short-form indictment argument,
this Court has recently addressed this issue in State v. Braxton,
352 N.C. 158, 531 S.E.2d 428 (2000), and defendant has presented
no basis for this Court to revisit the issue in the present case.
As for the trial court's judicial “finding” of premeditation and
deliberation in this case, we have held that
[a] defendant, nothing else appearing, pleads guilty to
a charge contained in a bill of indictment[,] not to a
particular legal theory by which that charge may be
proved. His plea waives his right to put the state to
its proof. It obviates the necessity for the state's
invocation of some particular legal theory upon which
to convict defendant. The question of which theory, if
there is more than one available, upon which defendant
might be guilty does not arise. His plea of guilty
means, nothing else appearing, that he is guilty upon
any and all theories available to the state.
State v. Silhan, 302 N.C. 223, 263, 275 S.E.2d 450, 478 (1981),
overruled on other grounds by State v. Sanderson, 346 N.C. 669,
488 S.E.2d 133 (1997). Because defendant pled guilty to two
first-degree murders in the instant case, the trial court'ssubsequent “finding” of premeditation and deliberation
constitutes unnecessary surplusage. These assignments of error
are overruled.
[4]By assignments of error, defendant contends the trial
court erred by failing to admit evidence of codefendant
Thompson's life sentences and by declining to submit to the jury
the nonstatutory mitigating circumstance that defendant's
codefendant received life sentences. We disagree.
This Court has repeatedly held that a codefendant's sentence
for the same murder is irrelevant in the sentencing proceedings.
See, e.g., State v. Smith, 352 N.C. 531, 563, 532 S.E.2d 773, 793
(2000); State v. Sidden, 347 N.C. 218, 231, 491 S.E.2d 225, 232
(1997), cert. denied, 523 U.S. 1097, 140 L. Ed. 2d 797 (1998).
We have stated that a codefendant's lesser sentence “'does not
reduce the moral culpability of the killing [or] make it less
deserving of the penalty of death than other first-degree
murders. The accomplices' punishment is not an aspect of the
defendant's character or record nor a mitigating circumstance of
the particular offense.'” Smith, 352 N.C. at 563, 532 S.E.2d at
793 (quoting State v. Williams, 305 N.C. 656, 687, 292 S.E.2d
243, 261-62 (citations omitted), cert. denied, 459 U.S. 1056, 74
L. Ed. 2d 622 (1982)).
Nonetheless, defendant contends that in State v. Roseboro,
351 N.C. 536, 528 S.E.2d 1, cert. denied, ___ U.S. ___, 148 L.
Ed. 2d 498 (2000), this Court acknowledged the relevance of
evidence pertaining to a codefendant's sentence. Contrary to
defendant's argument, however, this Court in Roseboro reaffirmedthat “[e]vidence 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.” Id. at 546, 528 S.E.2d at 8. Therefore,
defendant's argument is without merit. These assignments of
error are overruled.
[5]By assignments of error, defendant contends the trial
court committed error by failing to instruct the jury that it was
permissible for the jurors' personal views concerning the death
penalty to influence their approach to the sentencing decision.
We disagree.
Prior to trial, defendant asked the trial court to give
prospective jurors special preselection instructions that
explained the sentencing process. The requested instruction at
issue reads in pertinent part as follows:
If you are selected as a juror, it will be your
duty to consider all the evidence presented and follow
the instructions of the Court. If the jury unanimously
finds the existence of an aggravating circumstance, it
will be your duty to consider both Life Imprisonment
and the Death Penalty, regardless of your personal
views concerning capital punishment. However, you
should know that it is acceptable for jurors to have
different views about what circumstances call for the
death penalty, and to use their personal views in
deciding whether the mitigating circumstances outweigh
the aggravating circumstances or when deciding whether
the aggravating circumstances, when considered with any
mitigating circumstances, are sufficiently substantial
to call for the death penalty. You are not required to
return a verdict of death in any given case; you are
required to consider the evidence fairly, and to follow
the instructions of the Court in deciding the
appropriate punishment.
(Emphasis added.) The trial court declined to give the
emphasized portion of defendant's requested instruction,explaining that the instruction was not a proper statement of
law. The trial court stated that “[t]he correct statement is
that [the jurors] are to follow the law as the Court gives it to
them and not as they think it is or might like it to be.”
At the conclusion of the sentencing proceeding, during the
charge conference, defendant requested the following similar
instruction:
Each of you has expressed varying views about the
circumstances under which you might feel that the
punishment of death should be imposed. You were
selected to serve on this jury because of and not in
spite of those differences. When determining those
matters in the course of your deliberations which call
for you to make subjective judgments, you are expected,
indeed required, to bring your personal views into
play.
The trial court denied defendant's requested instruction.
Defendant contends the trial court erred by declining to
submit both the preselection instruction and the charge
conference instruction. Defendant argues that both instructions
were correct statements of law and, therefore, should have been
submitted by the trial court.
Regarding defendant's preselection instruction, the trial
court “has the duty 'to supervise the examination of prospective
jurors and to decide all questions relating to their
competency.'” State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d
452, 455 (1980) (quoting State v. Young, 287 N.C. 377, 387, 214
S.E.2d 763, 771 (1975), death sentence vacated, 428 U.S. 903, 49
L. Ed. 2d 1208 (1976)). Moreover, we have repeatedly held that
the trial court has “broad discretion to see that a competent,
fair and impartial jury is impaneled[,] and rulings of the trialjudge in this regard will not be reversed absent a showing of
abuse of discretion.” State v. Johnson, 298 N.C. 355, 362, 259
S.E.2d 752, 757 (1979), quoted in State v. Ward, 338 N.C. 64, 89,
449 S.E.2d 709, 722 (1994), cert. denied, 514 U.S. 1134, 131 L.
Ed. 2d 1013 (1995).
In the instant case, the trial court correctly determined
that defendant's proposed instruction misstated the law
concerning the duty of a juror in a capital case. Moreover, the
trial court properly instructed the jury to “consider the
evidence fairly and to follow [its] instructions . . . in
deciding the appropriate punishment.” See State v. Sokolowski,
351 N.C. 137, 148, 522 S.E.2d 65, 72 (1999); State v. Jaynes, 342
N.C. 249, 270, 464 S.E.2d 448, 461 (1995), cert. denied, 518 U.S.
1024, 135 L. Ed. 2d 1080 (1996). Therefore, the trial court did
not err in declining to give the instruction requested by
defendant.
We likewise find no error in the trial court's denial of
defendant's requested instruction during the charge conference.
When a defendant requests an instruction that is supported by the
evidence and is a correct statement of law, the trial court must
give the instruction in substance. See State v. Garner, 340 N.C.
573, 594, 459 S.E.2d 718, 729 (1995), cert. denied, 516 U.S.
1129, 133 L. Ed. 2d 872 (1996); State v. Hill, 331 N.C. 387, 420,
417 S.E.2d 765, 782 (1992), cert. denied, 507 U.S. 924, 122 L.
Ed. 2d 684 (1993). In the instant case, however, the requested
instruction, like the preselection instruction requested by
defendant, is not a correct statement of law. Rather, theinstruction would serve only to confuse jurors regarding their
duties in a capital case by inviting personal views to trump the
rule of law. During its charge to the jury, the trial court
correctly instructed the jury in accordance with the pattern jury
instructions that “it is absolutely necessary that you understand
and apply the law as I give it to you and not as you think it is
or might like it to be.” See N.C.P.I.--Crim. 150.10 (2000).
Therefore, defendant's argument is without merit. These
assignments of error are overruled.
[6]By assignment of error, defendant contends the trial
court committed reversible error by expressing an opinion on the
existence of and weight to be given to the N.C.G.S. §
15A-2000(e)(9) aggravating circumstance that “the murders were
especially heinous, atrocious, or cruel.” We disagree.
The trial court instructed the jury on the (e)(9)
aggravating circumstance as follows:
Now, the third alleged aggravating circumstance on
the form concerns the murder of each victim --
concerning the murder of each victim is as follows:
Was this murder especially heinous, atrocious or cruel.
Now, members of the jury, you must understand that this
alleged circumstance or aggravating circumstance
applies equally to both murders and you will consider
this aggravating circumstance in making your
recommendation as to punishment in each case.
Defendant contends the above instruction to the jury could be
interpreted by a rational juror to indicate that the trial court
believed the (e)(9) aggravating circumstance existed and should
be given equal weight in each case. Defendant also argues that
he was prejudiced by the trial court's instruction because the
jury found the (e)(9) aggravating circumstance in each case. N.C.G.S. §§ 15A-1222 and 15A-1232 prohibit the trial court
from expressing an opinion in the presence of the jury on any
question of fact to be decided by the jury. N.C.G.S. §§
15A-1222, 15A-1232 (1999); see also State v. York, 347 N.C. 79,
92, 489 S.E.2d 380, 387-88 (1997). “'In evaluating whether a
judge's comments cross into the realm of impermissible opinion, a
totality of the circumstances test is utilized.'” State v.
Jones, 347 N.C. 193, 207, 491 S.E.2d 641, 649 (1997) (quoting
State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808
(1995)). This Court has also held that
“'[t]he charge of the court must be read as a whole
. . . , in the same connected way that the judge is
supposed to have intended it and the jury to have
considered it . . . .' State v. Wilson, 176 N.C. 751,
[754-55,] 97 S.E. 496[, 497] (1918). It will be
construed contextually, and isolated portions will not
be held prejudicial when the charge as [a] whole is
correct. If the charge presents the law fairly and
clearly to the jury, the fact that some expressions,
standing alone, might be considered erroneous will
afford no ground for reversal.”
State v. Rich, 351 N.C. 386, 393-94, 527 S.E.2d 299, 303 (2000)
(quoting State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765, 770
(1970) (alterations in original) (citations omitted)). Finally,
we have stated that the trial court's words “'may not be detached
from the context and the incidents of the trial and then
critically examined for an interpretation from which erroneous
expressions may be inferred.'” State v. Chandler, 342 N.C. 742,
752, 467 S.E.2d 636, 641 (quoting State v. McWilliams, 277 N.C.
680, 685, 178 S.E.2d 476, 479 (1971)), cert. denied, 519 U.S.
875, 136 L. Ed. 2d 133 (1996).
Applying the foregoing principles to the present case, wehold that, based on the totality of circumstances, the trial
court's charge did not constitute an impermissible expression of
opinion on the evidence. At the outset, we note that the trial
court characterized the (e)(9) aggravating circumstance as the
“third alleged aggravating circumstance.” (Emphasis added.)
Moreover, the record reveals the trial court explained to the
jury at the beginning of its charge that the jury must
(1) consider and make recommendations as to each count of murder,
(2) consider all of the evidence as it related to each count of
murder, and (3) apply the trial court's instructions on the law
to each count of murder. Further, the trial court instructed the
jury as follows:
As you are well aware, there are two offenses of first
degree murder to which the defendant has pled guilty.
And you, of course, must consider and make
recommendations as to each of the counts or each of the
cases.
When I say two counts, one is for the murder of
Mr. Kutz and one is for the murder of Mrs. Kutz. I
will use these terms -- use the terms cases and counts
interchangeably during some of these instructions.
Now, it will be your duty in your deliberations to
consider each of these two counts separately and to
make separate recommendations on each of the two cases
to which the defendant has pled guilty. This means you
must consider each count separately during your
deliberations, find the facts separately, apply the law
separately and make a separate sentencing
recommendation as to each of the counts of murder in
the first degree.
. . . .
Now, in your deliberations, you are to consider
all of the evidence as it relates to each case. You
may consider the same evidence as to both counts if you
find it to be applicable. The law as to both of the
counts is generally the same since you will be
considering the same aggravating and mitigating
circumstances.
The above instructions reveal that, by instructing the jury
that the (e)(9) aggravating circumstance “applies equally to both
murders,” the trial court merely reiterated its previous
admonition that “the law as to both of the counts is generally
the same since you will be considering the same aggravating and
mitigating circumstances.” Viewed contextually, the challenged
instruction did not mislead the jury on the existence of the
(e)(9) aggravating circumstance in each case. Therefore, this
assignment of error is overruled.
[7]By assignment of error, defendant contends the trial
court erroneously failed to submit defendant's requested
nonstatutory mitigating circumstance that he was depressed after
he returned from military service in Korea. Defendant requested
and the trial court allowed the mitigating circumstance that
defendant “has suffered from emotional problems.” The trial
court then determined that the proposed circumstance concerning
his depression after returning from Korea was subsumed in the
mitigating circumstance that defendant had suffered from
emotional problems. Defendant's argument is based on the belief
that the jury would have given more value to two separate
mitigating circumstances and that the circumstance given was
overly broad. We disagree.
A jury in a capital case must “not 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.” Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973,990 (1978), quoted in State v. White, 349 N.C. 535, 566, 508
S.E.2d 253, 272-73 (1998), cert. denied, 527 U.S. 1026, 144 L.
Ed. 2d 779 (1999). However, we have continually refused to
follow a “mechanical, mathematical approach to capital
sentencing.” State v. Bond, 345 N.C. 1, 30, 478 S.E.2d 163, 178
(1996), cert. denied, 521 U.S. 1124, 138 L. Ed. 2d 1022 (1997);
accord State v. Greene, 324 N.C. 1, 21, 376 S.E.2d 430, 442
(1989), sentence vacated on other grounds, 494 U.S. 1022, 108 L.
Ed. 2d 603 (1990). Moreover, we have held that trial courts may
combine redundant mitigating circumstances. State v. Frye, 341
N.C. 470, 504, 461 S.E.2d 664, 682 (1995), cert. denied, 517 U.S.
1123, 134 L. Ed. 2d 526 (1996). This Court has also found
harmless error where a proposed nonstatutory mitigating
circumstance was subsumed within another nonstatutory mitigating
circumstance. See Bond, 345 N.C. at 30, 478 S.E.2d at 178.
In the instant case, the trial court determined that the
proposed circumstance concerning defendant's depression after
returning from overseas was subsumed in the mitigating
circumstance that defendant had suffered from emotional problems.
Moreover, the jury was not precluded from considering evidence of
defendant's depression as a mitigating circumstance. See Greene,
324 N.C. at 20, 376 S.E.2d at 442. The jury heard and considered
testimony from defendant's family and friends about his
unhappiness after he returned from overseas and about his
attempted suicide. In addition, the court submitted the N.C.G.S.
§ 15A-2000(f)(9) catchall mitigating circumstance, which
permitted the jury to consider “[a]ny other circumstance arisingfrom the evidence which the jury deems to have mitigating value.”
N.C.G.S. § 15A-2000(f)(9); see also Greene, 324 N.C. at 21, 376
S.E.2d at 442. Therefore, the trial court's refusal to submit
the requested nonstatutory mitigating circumstance was not error.
This assignment of error is overruled.
[8]By assignment of error, defendant contends the trial
court erred by refusing to allow defense counsel to ask
prospective juror Robert West, as well as other prospective
jurors, whether he could consider imposing a life sentence after
he had been informed that defendant was guilty of committing two
homicides. We disagree.
The trial court has broad discretion in ensuring that “a
competent, fair, and impartial jury is impaneled.” State v.
Conaway, 339 N.C. 487, 508, 453 S.E.2d 824, 837-38, cert. denied,
516 U.S. 884, 133 L. Ed. 2d 153 (1995). In reviewing a trial
court's rulings on voir dire questions, this Court has stated
that
while counsel may diligently inquire into a juror's
fitness to serve, the extent and manner of that inquiry
rests within the trial court's discretion. Moreover,
in order to establish reversible error, a defendant
must show prejudice in addition to a clear abuse of
discretion on the part of the trial court.
State v. Parks, 324 N.C. 420, 423, 378 S.E.2d 785, 787 (1989)
(citation omitted). Both defendant and the State have the right
to question prospective jurors about their views on capital
punishment. See State v. Wilson, 313 N.C. 516, 526, 330 S.E.2d
450, 458 (1985). However, the extent and the manner of such
inquiry rests within the trial court's discretion. See Bond, 345
N.C. at 17, 478 S.E.2d at 171; State v. Taylor, 332 N.C. 372,390, 420 S.E.2d 414, 425 (1992).
In the instant case, the trial court did not abuse its
discretion by disallowing defendant's question to prospective
jurors. Defense counsel established through a series of
questions that prospective juror West: (1) knew that defendant
had pled guilty to two murders; (2) could possibly vote for life
imprisonment under either theory of first-degree murder, after
defense counsel had defined first-degree murder and explained the
theories of both felony murder and premeditated and deliberated
murder; (3) could possibly vote for the death penalty; (4) could
consider, without hesitation, mitigating circumstances;
(5) understood the legal requirement that aggravating
circumstances must be proven beyond a reasonable doubt; whereas,
mitigating circumstances need only be proven by a preponderance
of the evidence; (6) was willing to make an individual decision
about mitigating circumstances regardless of other jurors'
decisions; and (7) would express his views and opinions about the
evidence even if they differed from those of other jurors.
Notwithstanding prospective juror West's indication that he could
perform his legal duties as a juror and recommend either a death
sentence or life imprisonment, defendant contends the trial court
should have allowed defense counsel's question. Defendant argues
that, contrary to the State's contention, the proposed inquiry
was not an improper stake-out question. Assuming, without
deciding, that defendant's stake-out question was permissible
under these facts, the trial court still had discretion to
disallow the question. See State v. Richmond, 347 N.C. 412, 425,495 S.E.2d 677, 683-84, cert. denied, 525 U.S. 843, 142 L. Ed. 2d
88 (1998). As we held in Richmond, the trial court is not
required “to allow any or all voir dire questions premised on
uncontroverted facts, regardless of their tendency to stake out
or indoctrinate jurors.” Id. at 425, 495 S.E.2d at 684. We also
note that defense counsel's proposed question to prospective
juror West was redundant and superfluous. Prospective juror West
had already clearly indicated his ability and intention to
perform his legal duties as a juror, including recommending the
sentence required by law under the facts of this case.
Therefore, the trial court did not abuse its discretion in
disallowing defense counsel's proposed question. This assignment
of error is overruled.
[9]By assignment of error, defendant contends the trial
court erred by preventing defendant from asking prospective juror
James Eubank whether he could consider residual mitigation under
the catchall circumstance, which gives the jury an opportunity to
consider “any other circumstance arising from the evidence which
the jury deems to have mitigating value.” N.C.G.S. §
15A-2000(f)(9). We disagree.
As previously noted, “the extent and manner of questioning
during jury voir dire is within the sound discretion of the trial
court,” State v. Richardson, 346 N.C. 520, 529, 488 S.E.2d 148,
153 (1997), cert. denied, 522 U.S. 1056, 239 L. Ed. 2d 652
(1998), and “in order to establish reversible error, a defendant
must show prejudice in addition to a clear abuse of discretion on
the part of the trial court,” Parks, 324 N.C. at 423, 378 S.E.2dat 787. During voir dire, “'[c]ounsel should not fish for
answers to legal questions before the judge has instructed the
juror on applicable legal principles by which the juror should be
guided.'” Braxton, 352 N.C. at 179, 531 S.E.2d at 440 (quoting
Phillips, 300 N.C. at 682, 268 S.E.2d at 455). Defense counsel's
questions must “amount to a proper inquiry into whether the juror
could follow the law as instructed by the trial judge.” Id.; see
also State v. Robinson, 339 N.C. 263, 273, 451 S.E.2d 196, 202
(1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).
In the instant case, prospective juror Eubank responded
appropriately to questions from defense counsel by stating that
he “could listen to and consider mitigating circumstances that
[he] had been instructed upon.” Moreover, after the evidence was
heard, the trial court properly instructed the jury on the
catchall circumstance:
Now, ladies and gentlemen, we come to possible
mitigating factor number eleven. In this possible
mitigating factor, you may consider any other
circumstance or circumstances arising from the evidence
which you deem to have mitigating value. If one or
more of you find from a preponderance of the evidence
any other mitigating factor and you deem it to have
mitigating value, you will have your foreperson so
indicate by writing “yes” after this possible
mitigating circumstance on the issues and
recommendations form. And if you were to find that
other mitigating factors existed from the evidence
which you deem to have mitigating value, then you would
answer number eleven yes.
The trial court's instruction was in accordance with the pattern
jury instructions. See N.C.P.I.--Crim. 150.10. Because
prospective juror Eubank indicated that he could follow the law
as instructed by the trial court and the trial court properly
instructed the jury regarding the (f)(9) catchall mitigatingcircumstance, the trial court did not abuse its discretion by
disallowing defense counsel's question to prospective juror
Eubank. This assignment of error is overruled.
[10]By assignment of error, defendant contends the trial
court committed structural error by reassigning prospective juror
Kelly Parker to a later panel of prospective jurors. Defendant
argues the trial court's action violated N.C.G.S. § 15A-1214 and
that the violation entitles defendant to a new sentencing
hearing. We disagree.
The North Carolina jury selection statute provides, in
pertinent part, as follows:
(a) The clerk, under the supervision of the
presiding judge, must call jurors from the panel by a
system of random selection which precludes advance
knowledge of the identity of the next juror to be
called. When a juror is called and he is assigned to
the jury box, he retains the seat assigned until
excused.
N.C.G.S. § 15A-1214(a) (1999). In this case, the trial court
divided the venire into several panels and seated each panel
separately for voir dire. Defendant contends that this procedure
resulted in advance notice of the identity of the next juror to
be called when only one prospective juror remained in each panel.
Defendant further argues that, by reassigning prospective juror
Parker to another panel rather than simply excusing her, the
trial court destroyed the required randomness of the procedure.
Defendant did not object to the jury selection procedure at
trial. However, “'[w]hen a trial court acts contrary to a
statutory mandate, the defendant's right to appeal is preserved
despite the defendant's failure to object during trial.'” Braxton, 352 N.C. at 177, 531 S.E.2d at 439 (quoting State v.
Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807, 815 (2000)); see also
State v. Jones, 336 N.C. 490, 497, 445 S.E.2d 23, 26 (1994). In
any event, a defendant's challenge to the jury must satisfy
N.C.G.S. § 15A-1211, which provides that a challenge:
(1) May be made only on the ground that the jurors
were not selected or drawn according to law.
(2) Must be in writing.
(3) Must specify the facts constituting the ground of
challenge.
(4) Must be made and decided before any juror is
examined.
N.C.G.S. § 15-1211(c) (1999); see also Braxton, 352 N.C. at 177,
531 S.E.2d at 439.
In the instant case, defendant never complied with N.C.G.S.
§ 15A-1211(c). Defendant “never challenged the jury panel
selection process and never informed the trial court of any
objection to the allegedly improper handling of the jury
venires.” Braxton, 352 N.C. at 177, 531 S.E.2d at 439; see also
State v. Workman, 344 N.C. 482, 499, 476 S.E.2d 301, 310 (1996).
In fact, the following colloquy took place on 20 January 1999:
THE COURT: . . . . The Court has received the
following document from the clerk. Its letterhead says
Fayetteville Ambulatory Surgery Center, Inc., here in
Fayetteville. It's dated 1/20/99. Reads as follows:
To whom this may concern, Kelly Parker was at our
facility to provide transportation and postoperative
care for Roy Parker. Any questions, please feel free
to call, and it's signed S. Henley. This juror is one
of the jurors on panel three. My suggestion is to have
the clerk notify Ms. Parker that she is to report on
Monday.
[PROSECUTOR]: I don't have any objection to that,
Your Honor.
THE COURT: Just deal with it that way.
[DEFENSE COUNSEL]: Yes, sir. No objection.
THE COURT: It's an ambulatory surgery. That
indicates to me that the person is obviously her
husband and we can just deal with it -- if there's some
health problem involving the husband next week, I don't
see delaying court or anything this morning.
[DEFENSE COUNSEL]: No, sir.
[PROSECUTOR]: Just defer her until Monday.
THE COURT: Until Monday. Is that agreeable with
all parties?
[DEFENSE COUNSEL]: It is, Your Honor.
[PROSECUTOR]: That's agreeable with the [S]tate.
THE COURT: All right. If you could notify her.
THE CLERK: All right.
The transcript demonstrates that not only did defendant never
object to the jury selection process, he expressly approved the
reassignment of prospective juror Parker. Based on defendant's
failure to follow the procedures for jury panel challenges and
“his failure to alert the trial court to the challenged
improprieties,” Braxton, 352 N.C. at 177, 531 S.E.2d at 439; see
also State v. Atkins, 349 N.C. 62, 103, 505 S.E.2d 97, 122
(1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999),
we conclude that defendant failed to preserve this issue for
appellate review. This assignment of error is overruled.
[11]By assignment of error, defendant contends the trial
court erred by allowing the prosecutor to argue, outside of the
evidence, that both victims' blood was found on defendant's
clothing. We disagree.
Counsel is allowed wide latitude in the argument to the
jury, see Johnson, 298 N.C. at 368, 259 S.E.2d at 761, and “may
argue the facts in evidence and all reasonable inferencestherefrom,” State v. Sanderson, 336 N.C. 1, 15, 442 S.E.2d 33, 42
(1994). The “scope of this latitude lies within the sound
discretion of the trial court.” Gregory, 340 N.C. at 424, 459
S.E.2d at 672. When defendant fails to object during closing
argument, as was the case here, “the standard of review is
whether the argument was so grossly improper that the trial court
erred in failing to intervene ex mero motu.” State v. Blakeney,
352 N.C. 287, 320, 531 S.E.2d 799, 822 (2000); accord State v.
Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert.
denied, 528 U.S. 835 , 145 L. Ed. 2d 80 (1999). “[T]he trial
court is not required to intervene ex mero motu unless the
argument strays so far from the bounds of propriety as to impede
defendant's right to a fair trial.” Atkins, 349 N.C. at 84, 505
S.E.2d at 111, quoted in Blakeney, 352 N.C. at 320, 531 S.E.2d at
822. “[O]nly an extreme impropriety on the part of the
prosecutor will compel this Court to hold that the trial judge
abused his discretion in not recognizing and correcting ex mero
motu an argument that defense counsel apparently did not believe
was prejudicial when originally spoken.” State v. Richardson,
342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S.
890, 136 L. Ed. 2d 160 (1996), quoted in Blakeney, 352 N.C. at
320-21, 531 S.E.2d at 822.
In the instant case, the record reveals that Agent Milks
examined the black ninja pants that defendant wore on the night
of the murders. Agent Milks' examination revealed the presence
of human blood on defendant's pants consistent with that of both
defendant and Mrs. Kutz. Agent Milks did not discover evidenceof Mr. Kutz's blood on defendant's clothing. Therefore, the
prosecutor's statement that the victims' blood was found on
defendant's clothing is not wholly supported by the record.
Nonetheless, the challenged statement was not so “grossly
improper” as to require the trial court to intervene ex mero
motu. Blakeney, 352 N.C. at 322, 531 S.E.2d at 822; see also
State v. Gladden, 315 N.C. 398, 424, 340 S.E.2d 673, 689
(prosecutor's factual argument, though not supported by the
evidence, was not so grossly improper as to warrant ex mero motu
action by the trial court), cert. denied, 479 U.S. 871, 93 L. Ed.
2d 166 (1986). In any event, the statement at issue in no way
prejudiced defendant. Prior to his capital sentencing
proceeding, defendant pled guilty to both murders. Therefore,
defendant's guilt was not at issue in this case. Moreover, the
challenged comment was minor in the context of the prosecutor's
entire closing statement. See State v. Moseley, 338 N.C. 1, 50,
449 S.E.2d 412, 442 (1994), cert. denied, 514 U.S. 1091, 131 L.
Ed. 2d 738 (1995). In short, the prosecutor's comment in no way
impeded defendant's right to a fair capital sentencing
proceeding. This assignment of error is overruled.
By assignments of error, defendant contends the trial court
committed reversible error by submitting the N.C.G.S. §
15A-2000(e)(9) aggravating circumstance, that the murders were
“especially heinous, atrocious, or cruel.” N.C.G.S. §
15A-2000(e)(9). The jury found the (e)(9) circumstance in each
case. Defendant contends new sentencing is required based on two
separate grounds: (1) the (e)(9) circumstance isunconstitutionally vague, and (2) submission of the (e)(9)
aggravating circumstance was not supported by the evidence. We
disagree.
[12]This Court has consistently rejected defendant's
argument that the (e)(9) aggravating circumstance is
unconstitutionally vague, see State v. Anderson, 350 N.C. 152,
187, 513 S.E.2d 296, 317, cert. denied, 528 U.S. 973, 145 L. Ed.
2d 326 (1999); State v. Lee, 335 N.C. 244, 285, 439 S.E.2d 547,
568-69, cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994), and
we decline defendant's invitation to reconsider our prior
holdings.
[13]Defendant further contends the evidence does not
support submission of the (e)(9) aggravating circumstance.
Defendant does not contest that the murders in this case were
especially heinous, atrocious, or cruel. Rather, he argues the
jury was improperly permitted to vicariously apply the (e)(9)
aggravating circumstance based on the conduct of his accomplice.
Defendant contends the trial court should have instructed the
jury to consider only conduct that it believed beyond a
reasonable doubt had been committed by defendant.
“In determining whether evidence is sufficient to support
the trial court's submission of the especially heinous,
atrocious, or cruel aggravator, we must consider the evidence 'in
the light most favorable to the State, and the State is entitled
to every reasonable inference to be drawn therefrom.'” State v.
Flippen, 349 N.C. 264, 270, 506 S.E.2d 702, 706 (1998) (quoting
State v. Lloyd, 321 N.C. 301, 319, 364 S.E.2d 316, 328, sentencevacated on other grounds, 488 U.S. 807, 102 L. Ed. 2d 18 (1988)),
cert. denied, 526 U.S. 1135, 143 L. Ed. 2d 1015 (1999); accord
State v. Brewington, 352 N.C. 489, 525, 532 S.E.2d 496, 517-18
(2000). “'[C]ontradictions and discrepancies are for the jury to
resolve; and all evidence admitted that is favorable to the State
is to be considered.'” State v. McNeil, 350 N.C. 657, 693, 518
S.E.2d 486, 508 (1999) (quoting State v. Robinson, 342 N.C. 74,
86, 463 S.E.2d 218, 225 (1995), cert. denied, 517 U.S. 1197, 134
L. Ed. 2d 793 (1996)), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d
321 (2000). This Court has also held that “'capital sentencing
must focus on the individual defendant, his crimes, personal
culpability, and mitigation.'” Brewington, 352 N.C. at 525, 532
S.E.2d at 517 (quoting State v. Gibbs, 335 N.C. 1, 67, 436 S.E.2d
321, 359 (1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881
(1994)). Accordingly, determination of whether submission of the
(e)(9) aggravating circumstance is warranted depends on the
particular facts of each case. Id.
The evidence presented in this case, when considered in the
light most favorable to the State, was sufficient to warrant
submission of the “especially heinous, atrocious, or cruel”
statutory aggravating circumstance based on defendant's
participation in the murders. The record reveals that defendant
discussed his participation in the murders with Dale Wyatt. At
the time, Wyatt was a soldier at Fort Bragg who was in the
Cumberland County jail waiting to appear in court on a worthless-
check charge. Defendant initially told Wyatt that defendant's
clothes were being held as evidence in a double homicide. Defendant later told Wyatt that defendant and his “partner”
dressed in ninja suits and entered the victims' home through a
window. Defendant further stated that he saw Mr. Kutz, shot him
with a blowgun dart, then stabbed him with a butterfly knife.
Wyatt's testimony was corroborated by the testimony of
Dr. Ginn, the forensic pathologist who performed an autopsy on
the body of Mr. Kutz. Dr. Ginn testified that he found “on the
front surface of the left shoulder a small punctate mark of the
size that would be made by a needle or dart.” Dr. Ginn also
testified that he observed sixteen visible stab wounds on the
body of Mr. Kutz. When asked about the “mechanics of death,”
Dr. Ginn stated, “I would think that between half a minute to
five minutes could have elapsed before” Mr. Kutz died from the
effects of the stab wound to his heart. Dr. Ginn further opined
that Mr. Kutz “could have been conscious any of that time up to
the maximum” and that Mr. Kutz would have been capable of feeling
pain and suffering during that time.
The record further reveals that when defendant was arrested,
the authorities discovered in the red pickup truck a receipt for
the purchase of a butterfly knife from Black Dragon Knife Shop.
The authorities also found in defendant's wallet a business card
from Black Dragon Knife Shop. When defendant and Thompson were
detained at Fort Bragg at 1:00 a.m. on 2 December 1986, a
military police officer observed a black-handled knife in an open
glove compartment directly in front of defendant. The officer
noticed the knife when defendant reached into the same glove
compartment to retrieve his identification card. During the ensuing investigation, human bloodstains,
consistent with the blood of both victims, were found on the
black-handled butterfly knife. In addition, Agent Bendure, a
forensic chemist with the SBI, tested the black-handled knife and
observed light-brown polyester fiber that was determined to be
consistent with the upholstery of the chair in which Mr. Kutz was
sitting when his throat was cut. Agent Bendure also testified on
direct examination that fibers from the pink nightgown that
Mrs. Kutz was wearing could be associated with both knives.
Finally, Agent Bendure testified that fibers associated with the
blanket and sheets in the bedroom were found on the clothing worn
by both defendant and Thompson.
Considering the evidence in the light most favorable to the
State, we conclude there was sufficient evidence from which the
jury could conclude that defendant personally participated in the
killing of both victims. In addition, defendant pled guilty to
both first-degree murders. Further, defendant does not dispute
that the manner in which both victims were murdered is sufficient
to warrant submission of the (e)(9) aggravating circumstance.
Because the evidence tends to show that defendant personally
participated in both of these especially heinous, atrocious, or
cruel murders, we conclude the trial court did not err in
submitting the (e)(9) aggravating circumstance in this case.
This assignment of error is overruled.
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