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ered authoritative.
STATE OF NORTH CAROLINA v. TIMOTHY LIONELL WHITE
No. 4A01
Filed 28 June 2002
1. Sentencing_capital_Rule 403 balancing test
The trial court did not err in a capital sentencing proceeding by
admitting evidence of defendant's satanic beliefs where defendant contended
that the holding that the Rules of Evidence do not apply in capital
sentencing proceedings is not consistent with N.C.G.S. § 15A-2000 and that
the court would not have admitted this evidence under a proper balancing
test. Any competent and relevant evidence which will substantially support
the imposition of the death penalty may be introduced at the capital
sentencing stage and the Rule 403 balancing test is not required.
2. Sentencing_capital_aggravating circumstances--especially heinous,
atrocious, or cruel_defendant's satanic beliefs
The trial court did not err in a capital sentencing proceeding by
admitting evidence of defendant's satanic beliefs where the State requested
submission of the especially heinous, atrocious, or cruel aggravating
circumstance, N.C.G.S. § 15A-2000(e)(9). Defendant's statements that the
murder was satanically motivated may show depravity of mind which may be
considered in determining if the killing was especially heinous, atrocious,
or cruel. Moreover, defendant himself solicited direct references to his
satanic comments, the court limited the State to the portion of the
evidence which showed a motive for the killing, and the failure of the jury
to find the aggravator is some indication that the jury carefully
considered the evidence and was not influenced by it.
3. Sentencing_capital_defendant's fascination with movie_properly
admitted
The trial court did not err in a capital sentencing proceeding by
allowing a detective to testify about of statements from a man incarcerated
with defendant (Nash) concerning defendant's fascination with the movie
Natural Born Killers. The detective's testimony corroborated Nash's
testimony, and, as to statements related by the detective to which Nash did
not testify, defendant lost the benefit of his earlier objection when
others testified to the same effect without objection.
4. Sentencing_capital_evidence that defendant sick-minded
There was no prejudice in a capital sentencing proceeding where the
State was allowed to elicit testimony from defendant's girlfriend that
defendant was a sick-minded person. Defendant presented substantial
evidence that he suffered from severe psychological disturbance and the
jury found the mental disturbance mitigator.
5. Sentencing_capital_introduction of disputed evidence
The trial court did not err in a capital sentencing proceeding by
allowing the State to introduce a newspaper allegedly found on the victim's
chest, even though the evidence was in conflict. Whether and when the
newspaper was placed on the victim's chest was for the jury to decide and,
even if the State did not lay a proper foundation, defendant did not meet
his burden of showing prejudice.
6. Sentencing_capital_aggravating circumstances_armed robbery and
pecuniary gain--not double counting
The trial court did not err in a capital sentencing proceeding by
submitting both the aggravating circumstance that the murder was committed
while defendant was engaged in an armed robbery and the aggravating
circumstance that the murder was committed for pecuniary gain. Independent
evidence supported both circumstances; defendant's evidence demonstrated
that he stole the victim's car for transportation and the theft of money
from her purse supported the pecuniary gain circumstance. Moreover, the
court properly limited the jury's consideration of the evidence supporting
the circumstances.
7. Sentencing_capital_aggravating circumstances--pecuniary gain_evidence
of motive
The evidence in a capital sentencing proceeding was sufficient to
submit the pecuniary gain aggravating circumstance even though defendant
contended that the evidence did not show that the killing was motivated by
pecuniary gain. Given the conflict in the evidence and taking the evidence
in the light most favorable to the State, the trial court properly left
determination of defendant's motive to the jury.
8. Sentencing_capital_testimony about defendant's family_not admissible
The trial court did not err in a capital sentencing proceeding by
excluding evidence from defendant's psychiatrist about the reaction of
defendant's parents to his treatment and whether it was important to the
psychiatrist to learn defendant's family history. The conduct of other
family members did not relate to any aspect of defendant's character or
record or to the circumstances of the offense and was not relevant to
mitigation; moreover, defendant had the benefit of comments on the same
subject from a different therapist when the witness answered before the
court ruled on the objection and the State did not move to strike.
9. Sentencing_capital_remorse
There was no prejudicial error in a capital sentencing proceeding
where the State asked a detective if she knew whether defendant had told
the victim's grandson and daughter that he was sorry. Any error was
harmless because the witness answered that she did not know.
10. Sentencing_capital_aggravating circumstances--prior violent
felony_juvenile tried as adult
The trial court did not err in a capital sentencing proceeding by
submitting the aggravating circumstance of a prior felony conviction
involving violence where he had been tried as an adult when he was 16 for a
felonious assault committed when he was 15. The age of the perpetrator is
irrelevant if the previous conviction meets the criteria for an (e)(3)
aggravating circumstance. N.C.G.S. § 15A-2000(e)(3).
11. Evidence_sentencing_capital_autopsy and crime scene photos_admissible
The trial court did not err in a capital sentencing proceeding by
denying defendant's pretrial motion to exclude autopsy and crime scene
photos which defendant contended were gruesome and inflammatory. Each of
the photos represented different aspects of the victim and the autopsy, the
number was not unduly repetitious, the photographs were not aimed merely at
arousing the passions of the jury, and each had illustrative and probativevalue.
12. Sentencing_capital_victim's memorial
The trial court did not err in a capital sentencing proceeding by
admitting a memorial cookbook dedicated to the victim where the evidence
merely reflected the high regard in which the victim was held and was not
unduly prejudicial. Nothing suggests that the jury based its decision
solely on this evidence, and none of the aggravating circumstances derived
from this evidence.
13. Sentencing_capital_death penalty--not disproportionate
A sentence of death imposed upon defendant for first-degree murder was
not disproportionate where defendant entered the elderly victim's home,
shot her in the chest, and stomped her head before leaving her to die;
defendant pled guilty to first-degree murder; and the jury found the (e)(3)
prior conviction of a violent felony and (e)(5) murder while engaged in the
commission of an armed robbery aggravating circumstances, either of which,
standing alone, is sufficient to sustain a sentence of death.
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment
imposing a sentence of death entered by Albright, J., on 31 August 2000 in
Superior Court, Forsyth County, upon defendant's plea of guilty of
first-degree murder. Heard in the Supreme Court 12 March 2002.
Roy Cooper, Attorney General, by Barry S. McNeill, Special Deputy
Attorney General, for the State.
Dudley A. Witt for defendant-appellant.
PARKER, Justice.
Defendant Timothy Lionell White was indicted on 25 October 1999 for
the first-degree murder of Evvie Lane Vaughn. On 7 August 2000 defendant
entered a plea of guilty to the charge of first-degree murder. After a
capital sentencing proceeding, the jury recommended that defendant be
sentenced to death; and the trial court entered judgment accordingly. For
the reasons discussed herein, we conclude that defendant's capital
sentencing proceeding was free from prejudicial error.
The State's evidence tended to show that defendant lived with his
parents in a mobile home on Tobaccoville Road in Forsyth County, next door
to the seventy-two-year-old victim, who was his great-aunt. On the morning
of 21 July 1999, defendant took four guns from his father's gun cabinet. Shortly after removing the guns, defendant began to play with
them in his
bedroom. Defendant then put one of the weapons, a .22-caliber handgun, in
his back pocket; walked next door; and when the victim opened the door,
pointed the pistol at her. In response the victim threw up her arms,
screamed, and reached for the gun. Defendant shot her in the chest. After
the victim fell to the floor, defendant attempted to shoot her again; but
his pistol jammed. Defendant then approached the victim and stomp[ed] her
in the head until he thought she was dead. Defendant removed
approximately $100.00 and a set of car keys from the victim's pocketbook;
started the victim's Cadillac, which was in the garage; and returned to his
home to pack some clothes and the rest of the guns in a duffle type bag.
He also wrote a note to his girlfriend acknowledging that he had done
wrong. Defendant returned to the victim's home. After locking the doors
from the inside, defendant exited through the garage. Defendant then drove
to West Virginia in the victim's Cadillac.
Defendant rented a motel room at a motel near Charleston, West
Virginia, and struck a conversation with a man, James Lefty Booker,
staying in another room. During the course of that conversation defendant
showed Lefty the guns and asked where he could get rid of them. Lefty took
defendant to a house where defendant traded the guns for crack cocaine.
Lefty later asked to borrow the Cadillac; defendant agreed; and Lefty left
and did not return. Defendant then stole another vehicle in West Virginia
and drove to New Orleans, where he was arrested on 25 July 1999 by New
Orleans Police Department detectives. After an extradition hearing,
defendant was returned to North Carolina.
Detective Elizabeth Culbreth of the Forsyth County Sheriff's
Department interviewed defendant in New Orleans, and defendant confessed to
the crime. Thereafter, defendant also made a written statement in which he
again set forth the circumstances surrounding the killing. Defendant told
Detective Culbreth that he [had] always wanted to know what it would feellike to kill someone.
The victim's grandson James Jay Tutterow, nine years old at the time
of the murder, lived nearby with his mother and father. On 22 July 1999
around 4:10 p.m., Jay rode his bicycle to see his grandmother. Jay entered
the house through the open garage door and an open side door into the
house. As Jay approached the kitchen, he saw his grandmother lying on the
floor in the area between the kitchen and den. Jay testified that he
noticed bruises on his grandmother's elbow; that a newspaper lay across her
chest; and that the phone, having been dragged into the kitchen, was right
beside her. When his grandmother did not respond to Jay's calling her
name, he became scared and ran across the street to the residence of Tammy
Bolen. After Jay alerted Mrs. Bolen to the situation with his grandmother,
Mrs. Bolen entered the house through the open garage and found the victim
lying on the floor with blood and a newspaper on her chest and with her
glasses knocked off her face. Mrs. Bolen used the victim's phone to call
the victim's daughter, Lynette Tutterow.
Mrs. Tutterow arrived at her mother's house at approximately the same
time as Charles White, Jr., defendant's father. Entering her mother's home
behind Mr. White, Mrs. Tutterow found her mother lying on the den floor.
She used the phone located beside her mother's body to dial 911. Mr. White
picked up the shell casing from the floor and said he knew who did this.
Sergeant Mickey Southern of the Forsyth County Sheriff's Department
was the first law enforcement officer on the scene. Sergeant Southern
testified that during his preliminary investigation he interviewed Charles
White, who was visibly upset. Charles told him that he had a son who had
recently been released from prison in Morganton and that his son had left
home and was missing. Sergeant Southern also testified that Charles stated
he was missing four pistols from his residence, including a .22-caliber.
Sergeant J.W. Boles from the detective division of the Forsyth County
Sheriff's Department arrived shortly after Sergeant Southern and alsointerviewed defendant's father. Sergeant Boles testified that Mr. Whi
te
advised him that defendant had just gotten out of jail approximately two
months before for stealing cars, theft of firearms, and breaking and
entering. When Mr. White realized his son was missing, he searched
defendant's room and found two empty gun cases. Mr. White then checked his
gun safe and discovered that four guns were missing.
The pathologist who performed the autopsy on the victim testified that
the cause of death was the gunshot wound to her chest but that the blunt
trauma to her head contributed to her death. The pathologist determined
that a small-caliber bullet entered the victim's chest just left of her
breastbone. Additionally, the pathologist estimated that the victim
suffered at least three blows to her face causing her broken nose and
injuries to her jaw and forehead. The pathologist also determined, based
on signs of a fresh hemorrhage in the soft tissues and swelling, that the
victim was alive at the time she sustained the blunt-trauma injuries.
Defendant presented numerous witnesses who detailed defendant's
history of psychological problems and inability to adjust in society.
Additional evidence will be discussed as needed to address the issues.
SENTENCING ISSUES
Defendant first argues that the trial court erred and abused its
discretion in allowing the State to introduce evidence of defendant's
purported satanic beliefs to establish defendant's motive for the murder;
that the State's attempt to show a satanic motive for the murder was
inconsistent with the submitted aggravating circumstances; that the undue
prejudice of this evidence outweighed its probative value; and that for all
these reasons, defendant's federal and state constitutional rights were
violated. We disagree.
Prior to trial defendant filed a motion in limine to preclude the
State from offering certain irrelevant and inflammatory evidence unrelated
to defendant's religious beliefs or practices at trial. Although thewritten motion did not specifically mention defendant's satanic belief
s or
practices, at the hearing on the motion, defendant argued that the State
should be precluded from introducing items of physical evidence suggesting
that defendant engaged in satanic practices. These items had been seized
during a search of defendant's bedroom. Defendant also sought to preclude
the anticipated testimony of State's witness Jeffrey Nash, who had been
incarcerated with defendant and with whom defendant had talked, and the
testimony of Detective Culbreth, who had interviewed Nash concerning
statements made to him by defendant about killing to get in good graces
with his lord, the lord of darkness.
In ruling on defendant's motion in limine, the trial court indicated
that aspects of the testimony had the potential to be inflammatory and
prejudicial and that the court would conduct voir dire before permitting
the testimony. The trial court noted that there may be some aspects that
will be admissible as to declaration of motive which would be a very
legitimate issue in the case. During the presentation of evidence, when
the State called Nash, the trial court conducted voir dire to determine the
admissibility of statements made by defendant to Nash to the effect that
defendant's motive in killing the victim was to get in good graces with
his lord, the lord of darkness. The trial court ruled that evidence of
the satanic references was admissible as long as it is interwoven with the
issue of motive and in that context. The court stressed that the ruling
was not a license for the State to offer some generalized episodes about
Satan worship.
Nash then testified, over objection, that defendant told him that the
police had the motive all wrong and that they thought he did it to rob
the lady but instead he was doing it as a service to his higher power.
According to Nash, defendant also stated that he was trying to get in good
. . . with the graces of the lord of darkness. Over defendant's
objection, Detective Culbreth was permitted to testify for corroborativepurposes as to statements that Nash had told her defendant had made
to him.
These statements were consistent with Nash's trial testimony.
On cross-examination of Detective Culbreth, defendant attempted to
introduce evidence of statements made by defendant to Detective Culbreth en
route from New Orleans to Winston-Salem. The trial court again conducted
voir dire. After noting that defendant's statements covered a wide range
of topics, including details of the crime, defendant's performance of a
satanic ritual, his rejection of the Christian faith, and his acceptance of
satanism, the court held that if defendant cross-examined Detective
Culbreth about any portion of the statements made to her, then the door
would be opened for the State to question this witness with regard to the
other details of the statement given at that time. The trial court then
ruled, however, that on account of the undue prejudice that could result
from some of the statements and the likelihood that the jury would be
unable to follow a curative instruction, the court would not permit
evidence or testimony concerning defendant's performance of satanic
rituals, his rejection of the Christian faith, his involvement in and
acceptance of the skinhead society, or his professed allegiance to Satan as
the lord of the underworld. Defendant did not pursue this line of
questioning with Detective Culbreth.
During defendant's case in chief, defense witness Phyllis Worrell, the
mother of defendant's girlfriend, mentioned that defendant had been drunk
one weekend and had been talking something about the devil and this
Satanic stuff that I didn't know about either at the time, and they were
sort of preaching to him about God. Let it come out, let it fly. You
know, getting him to rebuke the devil, I think. On cross-examination the
prosecutor asked, Did I hear you mention religion? The prosecutor
withdrew the question before the witness said anything further about
defendant's practice of satanism. The trial court ruled that the
prosecutor was entitled to delve into what the witness referred to. Thewitness then testified in answer to a follow-up question that she d
id not
hear defendant talk much about it.
[1]Defendant argues that this Court's holding that the North Carolina
Rules of Evidence do not apply in capital sentencing proceedings is not
consistent with N.C.G.S. § 15A-2000 and that under a proper balancing test,
the trial court should not have admitted testimony relating to defendant's
statements concerning his motive for the murder. Defendant contends that
this testimony does not support the State's theory of the case or the
aggravating circumstances submitted to the jury, namely, that the murder
was committed during the commission of a felonious robbery, N.C.G.S. §
15A-2000(e)(5)(2001), and that the murder was committed for pecuniary gain,
N.C.G.S. § 15A-2000(e)(6). Defendant's contentions are without merit.
This Court has consistently held that the North Carolina Rules of
Evidence do not apply to sentencing hearings. State v. Bond, 345 N.C. 1,
31, 478 S.E.2d 163, 179 (1996), cert. denied, 521 U.S. 1124, 138 L. Ed. 2d
1022 (1997); see also N.C.G.S. § 8C-1, Rule 1101(b)(3) (2001). However,
[a]ny competent, relevant evidence which [will] substantially support the
imposition of the death penalty may be introduced at this stage. Bond,
345 N.C. at 31, 478 S.E.2d at 179; see also N.C.G.S. § 15A-2000(a)(3).
Inasmuch as any relevant evidence may be introduced, 'trial courts are not
required to perform the Rule 403 balancing test during a sentencing
proceeding.' State v. Golphin, 352 N.C. 364, 464, 533 S.E.2d 168, 233
(2000) (quoting State v. Flippen, 349 N.C. 264, 273, 506 S.E.2d 702, 708
(1998), cert. denied, 526 U.S. 1135, 143 L. Ed. 2d 1015 (1999)), cert.
denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001).
[2]In the present case, the State requested submission of and the
trial court submitted to the jury the (e)(9) aggravating circumstance,
whether the murder was especially heinous, atrocious, or cruel. N.C.G.S.
§. 15A-2000(e)(9). Accordingly, the State was entitled to introduce any
competent, relevant evidence to support a finding of this aggravator. SeeN.C.G.S. § 15A-2000(a)(3). While defendant is correc
t that the satanic
references are irrelevant to the (e)(5) and (e)(6) aggravating
circumstances, defendant's contention that the trial court erred in
allowing the satanic evidence to establish motive is misplaced. In State
v. Golphin the defendant wrote a note during trial indicating that the
murders for which he and his brother were charged were racially motivated.
This Court held that the note was admissible at sentencing to support the
(e)(9) aggravator in that whether a murder was racially motivated may be
some indication of the 'depravity of defendant's character.' Golphin,
352 N.C. at 464, 533 S.E.2d at 233 (quoting State v. Moose, 310 N.C. 482,
500, 313 S.E.2d 507, 519 (1984)). This Court further noted that what makes
a murder especially heinous, atrocious, or cruel is 'the entire set of
circumstances surrounding the killing.' State v. Stanley, 310 N.C. 332,
338-39, 312 S.E.2d 393, 397 (1984) (quoting Magill v. State, 428 So. 2d
649, 651 (Fla.), cert. denied, 464 U.S. 865, 78 L. Ed. 2d 173 (1983)),
quoted in Golphin, 352 N.C. at 464, 533 S.E.2d at 233. Whether the killing
demonstrates a depravity of mind is a factor that may be considered in
determining if the killing was especially heinous, atrocious, or cruel.
Golphin, 352 N.C. at 464-65, 533 S.E.2d at 233; see also State v. Kandies,
342 N.C. 419, 450, 467 S.E.2d 67, 84, cert. denied, 519 U.S. 894, 136 L.
Ed. 2d 167 (1996). Similarly, defendant's statements that the murder was
satanically motivated may show depravity of mind and were, thus, properly
admitted for the jury's consideration in determining the existence of the
(e)(9) aggravating circumstance. Defendant's attempt to distinguish
Golphin on the basis that the note in Golphin was written by the defendant
during trial is unpersuasive.
Moreover, in this case, defendant on cross-examination of Nash
inquired, What day was it that y'all were over there that he supposedly
said this about the lord of darkness? In response Nash stated, I can't
recall the exact date. Further, defense witness Phyllis Worrell'stestimony referred to defendant talking about the devil and t
his Satanic
stuff. Hence, defendant lost the benefit of his objection. State v.
Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995) (holding that
[w]here evidence is admitted over objection and the same evidence has been
previously admitted or is later admitted without objection, the benefit of
the objection is lost). Having himself solicited direct references to his
satanic comments, defendant cannot now complain about the State's
introduction of the same or similar evidence.
Finally, we note that even though he was not entitled to it, defendant
received the benefit of the trial court's balancing the unduly prejudicial
effect of the evidence against its probative value under Rule 403 of the
North Carolina Rules of Evidence and limiting the State to that portion
which showed motive for the killing. The fact that the jury did not find
the (e)(9) aggravator is not relevant to the admissibility of the evidence,
but the failure to find the aggravator is some indication that the jury
carefully considered the evidence and was not influenced by it in rendering
its decision. Accordingly, these assignments of error are overruled.
[3]Defendant next contends that the trial court erred by allowing the
State to introduce the substance of Jeffrey Nash's statement to Detective
Culbreth to corroborate his previous testimony. We disagree.
The trial court allowed Detective Culbreth to read to the jury the
unsworn statement of Nash for the narrow purpose of corroborating Nash's
in-court testimony. Defendant first argues the inappropriateness of
Detective Culbreth's testimony relating Nash's statements for the same
reasons advanced in his previous argument. Defendant further contends that
Culbreth's testimony went beyond the scope of and did not corroborate
Nash's in-court testimony by including statements by Nash referencing
defendant's fascination with the movie Natural Born Killers.
As stated above, the North Carolina Rules of Evidence do not apply to
sentencing hearings, Bond, 345 N.C. at 31, 478 S.E.2d at 179; and the Statemay present any evidence that is competent and relevant t
o the submitted
aggravating circumstances, Golphin, 352 N.C. at 464, 533 S.E.2d at 233. In
this case Nash's statements were relevant to the (e)(9) aggravating
circumstance; Culbreth's testimony corroborated Nash's in-court testimony;
and admission of Culbreth's testimony was, thus, proper. Regarding
statements related by Culbreth as to which Nash did not specifically
testify, defendant has waived his objection. In cross-examining Billie
Johnson, defendant's girlfriend, the State, without objection, elicited the
fact that defendant signed many of his letters from Mickey, a reference
to the movie Natural Born Killers, which they both liked. Further,
defense witness Dr. James Hilkey testified without objection about
defendant's fascination with the movie and with killing. Thus, defendant
lost the benefit of his earlier objection. See Alford, 339 N.C. at 570,
453 S.E.2d at 516. These assignments of error are overruled.
[4]Defendant next argues that the trial court committed reversible
error by allowing the State to introduce testimony that referred to the
movie Natural Born Killers and characterized defendant as a sick minded
person. Defendant contends that this evidence was not relevant to any
aggravating circumstance and that its undue prejudice outweighed its
probative value. For the reasons discussed in the previous argument,
defendant's arguments relating to references to the movie Natural Born
Killers and to Dr. Hilkey's testimony about defendant's poem and
fascination with killing are without merit. As to the argument that the
State was improperly allowed to elicit hearsay testimony from Detective
Jason Swaim that defendant's girlfriend referred to defendant as a sick
minded person, assuming arguendo that admission of this evidence was
error, defendant has failed to show unfair prejudice entitling him to
relief. Defendant's expert testimony as to mitigating circumstances was
premised on defendant's being under the influence of mental or emotional
disturbance at the time of the murder, and defendant presented substantialevidence to show that he suffered from severe psychological distu
rbance.
Since the jury found the existence of this mitigating circumstance, the
girlfriend's shorthand, lay characterization of defendant's problems could
not have prejudiced defendant. See N.C.G.S. § 15A-1443(a) (2001).
Accordingly, these assignments of error are overruled.
[5]Defendant next argues that the trial court erred in allowing the
State to introduce a newspaper allegedly found on the victim's chest and
photographs of the victim's body showing the newspaper on her chest.
Defendant contends that the State failed to lay a proper foundation to show
that the newspaper was placed on the victim's body by defendant. Defendant
places great emphasis on the fact that the neighbor, Mrs. Tammy Bolen, who
the victim's grandson Jay Tetterow summoned after finding his grandmother,
gave a statement two days later in which she stated:
I told the detectives that the newspaper was lying across Evvie's
chest when I got there but now that I think about it the
newspaper was not lying across her when I got there because I
remember seeing the blood on her chest. I do not know who put
the newspaper on her.
At trial Mrs. Bolen testified that she saw a newspaper on the victim's body
and positively identified State's exhibits 8 and 9, photographs of the
scene, as illustrating her testimony. Mrs. Bolen explained that upon
seeing the photographs, she understood why she thought she had seen a
newspaper but then questioned whether she had seen the newspaper because
she remembered the blood on the victim's chest. Other witnesses, including
the grandson, the medical examiner and law enforcement officers, testified
to seeing the newspaper turned to the obituary page lying on the victim's
chest. However, the evidence was in conflict on this point. Charles
White, defendant's adoptive father, testified that he did not observe a
newspaper over the victim; and Detective Culbreth testified that defendant
denied placing the newspaper on the victim.
The State is entitled to present any competent, relevant evidence
pertaining to sentencing, N.C.G.S. § 15A-2000(a)(3); and the Rules ofEvidence do not apply to require a balancing test, Golphin
, 352 N.C. at
464, 533 S.E.2d at 233. Any evidence pertaining to the circumstances of
the crime and to defendant is relevant at sentencing. See Lockett v. Ohio,
438 U.S. 586, 604, 57 L. Ed. 2d 973, 990 (1978). The question of whether
and when the newspaper was placed on the victim's chest was for the jury to
decide. Even assuming arguendo that the State failed to lay a proper
foundation, defendant has not met his burden of showing how he was
prejudiced by the introduction of this evidence, N.C.G.S. § 15A-1443(a),
and these assignments of error are overruled.
[6]Defendant next contends that the trial court erred in submitting
both statutory aggravating circumstances that the murder was committed
while defendant was engaged in the commission of an armed robbery, N.C.G.S.
§ 15A-2000(e)(5), and that it was committed for pecuniary gain, N.C.G.S. §
15A-2000(e)(6). Defendant asserts that this error resulted in double-
counting, or the submission to the jury of two aggravating circumstances
based upon the same evidence, thereby violating defendant's federal and
state due process rights. Defendant further contends that this case is
distinguishable from other cases in which this Court has upheld the
submission of both of these aggravators in that the trial court failed to
limit the evidence that the jury could consider under the pecuniary gain
aggravating circumstance. We disagree.
North Carolina law provides that '[d]ouble-counting' occurs when two
aggravating circumstances based upon the same evidence are submitted to the
jury. State v. Call, 349 N.C. 382, 426, 508 S.E.2d 496, 523 (1998).
It is established law in North Carolina that it is error to
submit two aggravating circumstances when the evidence to support
each is precisely the same. Conversely, where the aggravating
circumstances are supported by separate evidence, it is not error
to submit both to the jury, even though the evidence supporting
each may overlap.
State v. Davis, 353 N.C. 1, 42, 539 S.E.2d 243, 270 (2000) (quoting State
v. East, 345 N.C. 535, 553-54, 481 S.E.2d 652, 664, cert. denied, 522 U.S.
918, 139 L. Ed. 2d 236 (1997)) (citations omitted), cert. denied ___ U.S.___, 151 L. Ed. 2d 55 (2001).
In this case, separate, independent evidence supported submission of
both the (e)(5) and (e)(6) aggravating circumstances. As in Davis and East
the theft of the keys and the automobile in the instant case supported the
armed robbery necessary for the (e)(5) aggravating circumstance. See
Davis, 353 N.C. at 42, 539 S.E.2d at 270; East, 345 N.C. at 554, 481 S.E.2d
at 665. Defendant's evidence demonstrated that he stole the victim's
Cadillac for transportation, not to sell it. Indeed, defendant told his
girlfriend that he would be riding in style in a Cadillac. Similarly,
defendant's theft of money from the victim's purse supported the (e)(6)
pecuniary gain aggravating circumstance just as the defendant's theft of
credit cards, checks, and a purse in Davis supported the (e)(6) aggravating
circumstance. See Davis, 353 N.C. at 42, 539 S.E.2d at 270.
Moreover, contrary to defendant's contention, the trial court properly
limited the jury's consideration of the evidence supporting the (e)(5) and
(e)(6) aggravating circumstances. Regarding the (e)(5) aggravating
circumstance, the trial court instructed the jury, [W]ith respect to this
particular aggravating circumstance, members of the jury, the property
which the State contends was taken and carried away allegedly is the
Cadillac automobile of the deceased. Regarding the (e)(6) aggravating
circumstance, the trial court, after instructing that pecuniary gain meant
that defendant has obtained or intends or expects to obtain money or some
other thing which can be valued in money, then instructed, [I]f you find
from the evidence and beyond a reasonable doubt that when the defendant
killed the victim, the defendant obtained money as a result, you would find
this aggravating circumstance and would so indicate by having your
foreperson write 'yes' in the space after this aggravating circumstance on
the Issues and Recommendation form. Pursuant to these instructions the
jury was not permitted to find both aggravating circumstances based upon
the same evidence. As in Davis each circumstance was supported bysufficient, independent evidence, and the instruction
to the jury was
proper. Id. at 43, 539 S.E.2d at 270. These assignments of error are,
therefore, overruled.
[7]Defendant next contends the trial court erred in submitting the
(e)(6) aggravating circumstance, that the victim's murder was committed for
pecuniary gain, in that the evidence was insufficient to support a finding
of this circumstance. Defendant argues that this aggravator examines a
defendant's motive for the killing, not just the fact that money or
something of value was taken at the time of the killing; and in this case,
the evidence, according to defendant, does not show that the killing was
motivated by pecuniary gain. Case law interpreting N.C.G.S. §
15A-2000(e)(6) states that
[t]he gravamen of the pecuniary gain aggravating circumstance is
that 'the killing was for the purpose of getting money or
something of value.' State v. Jennings, 333 N.C. 579, 621, 430
S.E.2d 188, 210 (quoting State v. Gardner, 311 N.C. 489, 513, 319
S.E.2d 591, 606 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d
369 (1985))[, cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602
(1993)]. This aggravating circumstance considers defendant's
motive and is appropriate where the impetus for the murder was
the expectation of pecuniary gain. For purposes of determining
the sufficiency of the evidence, the evidence must be considered
in the light most favorable to the State, and the State is
entitled to every reasonable inference to be drawn therefrom.
State v. Moore, 335 N.C. 567, 610-11, 440 S.E.2d 797, 822 (citations
omitted), cert. denied, 513 U.S. 898, 130 L. Ed. 2d. 174 (1994).
The evidence presented at trial tending to show that defendant killed
for financial gain included, but was not limited to, the following: (i) at
the time of the murder defendant was not working regularly at his painting
job; (ii) defendant's father, Charles White, told investigators that
defendant had no money and might have sold the weapons for cash to travel
to Las Vegas or to go see his girlfriend in Mt. Airy or Virginia;
(iii) following the shooting, defendant took approximately $100.00 and two
keys from the victim's pocketbook; and (iv) defendant fled in the victim's
car to a location near Charleston, West Virgnia, where he exchanged guns
for drugs. Considered in the light most favorable to the State, a rationaljuror could find from this evidence that defendant's motive for t
he murder
was, at least in part, to obtain money to finance his escapade. In talking
with Detective Culbreth, defendant indicated that once he pointed the gun
at the victim, he figured that he had committed a crime and that he might
as well shoot. Defendant also told Nash that he was not crazy but that he
would rather play crazy and be in an institution and that that was the only
way he could beat the death sentence. These statements suggest that
defendant may have fabricated the satanic, lord-of-darkness motive to mask
his true intention. Having been previously convicted of breaking and
entering and assault with a deadly weapon inflicting serious injury,
defendant was not unfamiliar with the criminal process. Given this
conflict in the evidence and taking the evidence in the light most
favorable to the State, the trial court properly left determination of
defendant's motive for the killing to the jury. This assignment of error
is overruled.
[8]By his next assignment of error, defendant argues that the trial
court erred in limiting the direct testimony of Dr. Halimena Creque,
defendant's psychiatrist at Charter Hospital, and the testimony of Tom
Desch, a licensed counselor who provided therapy to defendant after his
release from Charter. Defendant asserts that limiting this testimony
regarding defendant's family history to support mitigating circumstances
violated his federal and state due process rights. Specifically, defendant
attempted to ask Dr. Creque his opinion of how well [defendant's] mother
and father reacted to the treatment and therapy at Charter and whether
[it is] important to you as a psychiatrist treating an adolescent as [the
defendant] was at this point, to find out problems in family history, such
as alcoholism or violent tendencies. The trial court sustained the
State's objections to these questions. The trial court also sustained the
State's objection to comments by Mr. Desch that [t]his was a very hard
family to work with because there was so much going on and that his thirdgoal was to work with the family to help them parent [
defendant] in a way
that worked better for [defendant] as well as Mr. Desch's characterization
of defendant's maternal grandmother as overbearing.
As to the question put to Dr. Creque concerning defendant's parents'
reaction to defendant's treatment at Charter, defendant did not make a
record of what the answer would have been had Dr. Creque been permitted to
respond; hence, this Court cannot conduct appellate review as to possible
prejudice. See State v. Miller, 321 N.C. 445, 452, 364 S.E.2d 387, 391
(1988). However, the trial court properly noted in sustaining the
objection that the parents were not on trial and that their conduct was not
at issue.
The scope of mitigation in a capital sentencing proceeding is 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, 438 U.S. at 604, 57 L. Ed. 2d at 990. As this Court has
previously noted, however, this rule does not 'limit[] the traditional
authority of a court to exclude, as irrelevant, evidence not bearing on the
defendant's character, prior record, or the circumstances of his offense.'
State v. Bowman, 349 N.C. 459, 479, 509 S.E.2d 428, 440 (1998) (quoting
Lockett, 438 U.S. at 604 n.12, 57 L. Ed. 2d at 990 n.12), cert. denied, 527
U.S. 1040, 144 L. Ed. 2d 802 (1999); accord State v. Nicholson, 355 N.C. 1,
40, 558 S.E.2d 109, 136 (2002).
As in Nicholson the conduct of other family members did not relate to
any aspect of defendant's character or record or to circumstance of the
offense. Nicholson, 355 N.C. at 39, 558 S.E.2d at 136. Therefore, the
trial court did not err in excluding this evidence, which was not relevant
to mitigation. Moreover, with respect to Mr. Desch's comments, the witness
answered before the court ruled on the objection; and the prosecutor did
not move to strike. Thus, defendant had the benefit of this testimony.
This assignment of error is overruled. [9]Defendant next contends that the trial court erred in overruling
defendant's objection to a question asked of Jay Tutterow, the victim's
grandson, and of Lynette Tetterow, the victim's daughter, by the
prosecutor. Defendant contends that the court's failure to sustain his
objection to the question whether defendant had ever apologized for his
actions violated defendant's Fifth Amendment right against self-
incrimination and his due process rights under the North Carlina
Constitution. We disagree.
We note initially that the prosecutor asked neither witness if
defendant had apologized. Rather, the prosecutor asked Detective Culbreth
if she knew whether defendant had told either Jay Tutterow or Lynnette
Tutterow that he was sorry for what he had done to the victim. Detective
Culbreth answered that she did not know. Assuming arguendo that the
prosecutor's question was improper, the error was harmless beyond a
reasonable doubt inasmuch as the witness answered that she did not know,
and no further mention was made of remorse. See N.C.G.S. § 15A-1443(b).
Accordingly, this assignment of error is overruled.
[10]By another assignment of error defendant contends that the trial
court erred in submitting the (e)(3) aggravating circumstance, that
defendant had been previously convicted of a felony involving the use of
violence to the person. Defendant argues that, given defendant's age at
the time of the previous conviction, the use of this conviction to support
the death penalty violates defendant's Eighth, Fourteenth, and Fifth
Amendment rights under the federal Constitution and his rights under
Article I, Section 27 of the North Carolina Constitution. Defendant was
fifteen years old on 25 March 1993, the date of the assault with a deadly
weapon inflicting serious injury for which he was tried and convicted as an
adult on 6 October 1993; defendant was sixteen years old at the time of the
trial, having had a birthday on 16 June. Defendant presents no authority
in support of this argument. In a capital sentencing proceeding, the State must present evidence
sufficient to prove an aggravating circumstance beyond a reasonable doubt.
State v. Johnson, 298 N.C. 47, 75, 257 S.E.2d 597, 617 (1979); see also
N.C.G.S. 15A-2000(c)(1). The (e)(3) aggravating circumstance states:
The defendant had been previously convicted of a felony involving
the use or threat of violence to the person or had been
previously adjudicated delinquent in a juvenile proceeding for
committing an offense that would be a Class A, B1, B2, C, D, or E
felony involving the use or threat of violence to the person if
the offense had been committed by an adult.
N.C.G.S. § 15A-2000(e)(3). A conviction for assault with a deadly weapon
inflicting serious injury satisfies the requirement of a felony involving
the use or threat of violence to the person. State v. Rose, 335 N.C. 301,
338-39, 439 S.E.2d 518, 538-39, cert. denied, 512 U.S. 1246, 129 L. Ed. 2d
883 (1994), and overruled on other grounds by State v. Buchanan, 353 N.C.
332, 543 S.E.2d 823 (2001).
Felonious assault with a deadly weapon inflicting serious injury is a
class E felony. N.C.G.S. § 14-32(b) (2001). Thus, defendant's conviction
would have qualified as an (e)(3) aggravating circumstance even if he had
had a juvenile adjudication rather than being tried as an adult. The age
of the perpetrator is irrelevant if the previous conviction of a violent
felony or juvenile adjudication meets the criteria for the (e)(3)
aggravating circumstance. See State v. Wiley, ___ N.C. ___, ___, ___
S.E.2d ___, ___, slip op. at 39-46 (June 28, 2002) (No. 100A01).
[11]Defendant next contends that the trial court erred in denying his
pretrial motion in limine to preclude introduction of certain autopsy and
crime scene photographs. The photographs at issue involved four that
showed the victim's body from various angles at the crime scene and nine
taken during the autopsy of the victim. Relying on State v. Hennis, 323
N.C. 279, 372 S.E.2d 523 (1988), defendant contends that the photographs
were gruesome and inflammatory and had no probative value and that their
admission violated defendant's rights under the federal and state
Constitutions, Rule 403 of the North Carolina Rules of Evidence, and thisCourt's holding in Hennis.
As noted earlier, the Rules of Evidence are not applicable to a
capital sentencing proceeding; hence, the trial court was not required to
engage in the Rule 403 balancing test. Bond, 345 N.C. at 31, 478 S.E.2d at
179. In State v. Call we reiterated the holding in Hennis as follows:
In Hennis, this Court concluded that the admission into
evidence of photographs which have no probative value beyond that
of previously introduced photos constitutes reversible error
where their content is gory, they are redundant and repeatedly
shown to the jury, and there is a lack of overwhelming evidence
of an accused's guilt. [Hennis, 323 N.C.] at 286-87, 372 S.E.2d
at 528. However, we continue to recognize the long-standing rule
that photographs of a murder victim, though gory or gruesome, may
be introduced for illustrative purposes so long as they are not
used in an excessive or repetitious manner aimed exclusively at
arousing the passions of the jury. Id. at 283, 372 S.E.2d at
526. Moreover, the trial court must still balance the
prejudicial effect of relevant evidence, including photographs,
against its probative value before that evidence can be
introduced or excluded. N.C.G.S. § 8C-1, Rule 403 (1997).
Finally, what constitutes an excessive number of photos, given
the illustrative value of each, is a matter that falls within the
trial court's discretion. Hennis, 323 N.C. 279, 372 S.E.2d 523.
Call, 349 N.C. at 414, 508 S.E.2d at 516.
In the present case the trial court noted that each of the photographs
represented different aspects of the victim and the autopsy. From the
record before us, we conclude that the number of photographs submitted into
evidence was not unduly repetitious, nor were the photographs merely aimed
at arousing the passions of the jury. Each of the pictures submitted by
the State had illustrative and probative value and was, thus, properly
admitted into evidence. The trial court's denial of defendant's motion in
limine was not error. Accordingly, these assignments of error are without
merit.
[12]Defendant next contends that the trial court erred by allowing
the State to introduce into evidence a cookbook that was dedicated to the
victim. Relying on Payne v. Tennessee, 501 U.S. 808, 825, 115 L. Ed. 2d
720, 735 (1991), defendant argues that his sentencing was fundamentally
unfair as a result of admitted prejudicial evidence. We disagree.
This Court, relying on the Payne opinion, recently addressed theadmissibility of victim-impact statements as
follows:
In Payne v. Tennessee, 501 U.S. 808, 825, 115 L. Ed. 2d 720,
735 (1991), the United States Supreme Court held that victim-
impact statements are admissible and relevant to the jury's
decision whether to impose the death penalty. North Carolina has
adopted this rule to allow evidence of victim impact in
sentencing hearings. A victim has the right to offer admissible
evidence of the impact of the crime, which shall be considered by
the court or jury in sentencing the defendant. The evidence may
include . . . [a] description of the nature and extent of any
physical, psychological, or emotional injury suffered by the
victim as a result of the offense committed by the defendant.
N.C.G.S. § 15A-833(a)(1) (1999). The admissibility of victim-
impact statements is limited by the requirement that they not be
so prejudicial as to 'render[] the [trial] fundamentally
unfair.' [State v.] Smith, 352 N.C. [531,] 554, 532 S.E.2d
[773,] 788 [(2000)] (quoting Payne, 501 U.S. at 825, 115 L. Ed.
2d at 735) (first alteration in original)[, cert. denied, 532
U.S. 949, 149 L. Ed. 2d 360 (2001)].
Nicholson, 355 N.C. at 39, 558 S.E.2d at 135-36 (alterations in original).
In this case the memorial cookbook introduced was not unduly
prejudicial. The evidence merely reflected the high regard in which the
victim was held among her family and throughout her community. Moreover,
defendant presented evidence of similar import through the testimony of
defendant's mother, who stated that the victim was like my mama. As in
Nicholson nothing suggests that the jury based its decision solely on such
evidence; and none of the aggravating circumstances submitted to the jury
derived from such evidence. The trial court properly admitted the
cookbook, and this assignment of error is overruled.
PROPORTIONALITY
[13]Finally, this Court exclusively has the statutory duty in capital
cases, pursuant to N.C.G.S. § 15A-2000(d)(2), to review the record and
determine: (i) whether the record supports the jury's findings of the
aggravating circumstances upon which the court based its death sentence;
(ii) whether the sentence was imposed 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); see also State v. McCollum, 334 N.C. 208, 239, 433 S.E.2d 144,161 (1993), cert. denied, 512 U.S. 1254, 129 L. Ed.
2d 895 (1994).
After a thorough review of the transcript, record on appeal, briefs,
and oral arguments of counsel, we are convinced that the jury's findings of
three of the four aggravating circumstances submitted were supported by the
evidence. We also conclude that nothing in the record suggests that
defendant's death sentence was imposed under the influence of passion,
prejudice, or any other arbitrary factor.
Finally, we must consider whether the imposition of the death penalty
in defendant's case is proportionate to other cases in which the death
penalty has been affirmed, considering both the crime and the defendant.
State v. Robinson, 336 N.C. 78, 133, 443 S.E.2d 306, 334 (1994), cert.
denied, 513 U.S. 1089, 130 L. Ed. 2d 650 (1995). The purpose of
proportionality review is to eliminate the possibility that a person will
be sentenced to die by the action of an aberrant jury. State v. Holden,
321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S.
1061, 100 L. Ed. 2d 935 (1988). Proportionality review also acts [a]s a
check against the capricious or random imposition of the death penalty.
State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert.
denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980). Our consideration is
limited to those cases that are roughly similar as to the crime and the
defendant, but we are not bound to cite every case used for comparison.
State v. Syriani, 333 N.C. 350, 400, 428 S.E.2d 118, 146, cert. denied, 510
U.S. 948, 126 L. Ed. 2d 341 (1993). Whether the death penalty is
disproportionate ultimately rest[s] upon the 'experienced judgments' of
the members of this Court. State v. Green, 336 N.C. 142, 198, 443 S.E.2d
14, 47, cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547 (1994).
Defendant pled guilty to first-degree murder. The jury found three of
the aggravating circumstances submitted: (i) that defendant had been
previously convicted of another felony involving the threat of violence to
the person, N.C.G.S. § 15A-2000(e)(3); (ii) that the murder was committedwhile the defendant was engaged in the commission of rob
bery with a
firearm, N.C.G.S. § 15A-2000(e)(5); and (iii) that the murder was committed
for pecuniary gain, N.C.G.S. § 15A-2000(e)(6). A fourth aggravating
circumstance was submitted to but not found by the jury: that the murder
was especially heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9).
The trial court submitted four statutory mitigating circumstances for
the jury's consideration: (i) the murder was committed while defendant was
under the influence of mental or emotional disturbance, N.C.G.S. §
15A-2000(f)(2); (ii) defendant's capacity to appreciate the criminality of
his conduct was impaired, N.C.G.S. § 15A-2000(f)(6); (iii) defendant's age
at the time of the crime, N.C.G.S. § 15A-2000(f)(7); and (iv) the catchall
mitigating circumstance that there existed any other circumstance arising
from the evidence which the jury deemed to have mitigating value, N.C.G.S.
§ 15A-2000(f)(9). The jury found three of the statutory mitigating
circumstances to exist. The trial court also submitted twenty-one
nonstatutory mitigating circumstances; the jury found thirteen of these to
exist.
We begin our proportionality analysis by comparing this case to those
cases in which this Court has determined the sentence of death to be
disproportionate. This Court has determined the death sentence to be
disproportionate on seven occasions. State v. Benson, 323 N.C. 318, 372
S.E.2d 517 (1988); 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). This case is not substantially similar to any of the cases in
which this Court has found that the death sentence was disproportionate. In this case defendant pled guilty to first
-degree murder. As a
result, defendant admitted guilt 'upon any and all theories available to
the state,' including premeditation and deliberation and the felony murder
rule. State v. Meyer, 353 N.C. 92, 120, 540 S.E.2d 1, 18 (2000) (quoting
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)), cert. denied, ___ U.S. ___, 151 L. Ed. 2d 54 (2001). A conviction
under the theory 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).
We further note that the sentencing jury found three aggravating
circumstances in this case. Of the seven cases in which this Court has
found a death sentence disproportionate, the jury found multiple
aggravating circumstances to exist in only two. Young, 312 N.C. 669, 325
S.E.2d 181; Bondurant, 309 N.C. 674, 309 S.E.2d 170. We conclude that
this case is not substantially similar to either of those cases.
We also consider cases in which this Court has found the death penalty
to be proportionate. Defendant in this case entered an elderly victim's
home, shot her in the chest, and stomped her head before leaving her to
die. 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, 98 L. Ed. 2d
406 (1987)) (alterations in original), cert. denied, 522 U.S. 1096, 139 L.
Ed. 2d 878 (1998); accord Nicholson, 355 N.C. at 72, 558 S.E.2d at 155.
Further, both the (e)(5) and (e)(3) aggravating circumstances were found to
exist by the jury. This Court has held that either of these aggravating
circumstances, standing alone, is sufficient to sustain a sentence ofdeath. State v. Bacon, 337 N.C. 66, 110 n.8, 446 S.E.2d 542, 5
66 n.8
(1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995). Viewed in
this light, we conclude that the present case bears more similarity to
certain cases in which we have found the sentence of death proportionate
than to those in which we have found the sentence disproportionate or to
those in which juries have consistently returned recommendations of life
imprisonment.
Defendant received a fair capital sentencing proceeding, free from
prejudicial error; and the death sentence in this case is not
disproportionate. Accordingly, the judgment of the trial court is left
undisturbed.
NO ERROR.
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