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ered authoritative.
STATE OF NORTH CAROLINA v. JONATHAN EARL LEEPER
No. 256A00
(Filed 28 June 2002)
1. Evidence_character_reference to previous experience with
Miranda warnings_not prejudicial
There was no prejudice in a first-degree murder and armed
robbery prosecution from a reference in an officer's testimony to
defendant's previous experience with Miranda warnings because
defendant acknowledged shooting both victims.
2. Indictment and Information_short-form indictments_firearms
enhancement holding
The firearms enhancement holding in State v. Lucas, 353 N.C.
568, does not conflict with the North Carolina Supreme Court's
holdings on short-form murder indictments.
3. Sentencing_capital_use of juvenile adjudications_effective
date
A 1992 juvenile adjudication could be used as an aggravating
circumstance for first-degree murder even though defendant
contended that the amendments concerning confidentiality of
juvenile records and allowing the use of juvenile adjudications
pertained only to offenses committed on or after 1 May 1994. The
effective date of the amendments pertain to sentencing for crimes
committed on or after that date, not to the date of the prior
adjudications. N.C.G.S. § 15A-2000(e)(3).
4. Sentencing_capital_evidence_circumstances of prior
conviction
There was no error in the sentencing phase of a capital
prosecution for first-degree murder in the introduction of
evidence that defendant had obtained a gun used in a prior
robbery from a purse stolen two days before the prior robbery.
Although defendant contended that this evidence was beyond the
scope of N.C.G.S. § 7B-3000(f), the State in a capital sentencing
proceeding is entitled to prove the circumstances of prior
convictions and is not limited to the record of the conviction.
5. Sentencing_capital_aggravating
circumstances_instructions_course of conduct
The trial court did not err in a capital sentencing
proceeding for a 1996 murder in its instruction on the course of
conduct aggravating circumstance where defendant contended that
the instruction permitted the jury to consider a 1992 juvenile
adjudication and a 1992 purse snatching. One may not reasonably
infer that a juror would stretch on or about to encompass aspan of over four years. Moreover, the court instructed the
jurors that the juvenile acts introduced to support the prior
violent felony circumstance could not be used as the basis for
the course of conduct circumstance.
6. Constitutional Law_ex post facto prohibition_use of juvenile
adjudication in capital sentencing
The use of juvenile adjudications as an aggravating
circumstance does not violate ex post facto prohibitions.
7. Sentencing_capital_death sentences not disproportionate
Sentences of death imposed upon defendant for two first-
degree murders were not disproportionate where defendant was
convicted on the basis of premeditation and deliberation and
under the felony murder rule; the jury found as aggravating
circumstances (1) that defendant had previously been adjudicated
delinquent in a juvenile proceeding for an offense that would
have been a felony involving violence to the person had defendant
been an adult, N.C.G.S. § 15A-2000(e)(5), and that the murders
were part of a violent course of conduct, N.C.G.S. § 15A-
2000(e)(11); either of the statutory aggravating circumstances,
standing alone, have been held sufficient to support a sentence
of death; defendant planned to rob the first victim, shot the
victim as he was driving his vehicle and immediately fled the
scene; only a short time later, defendant targeted the second
victim shot him and robbed him of a large amount of case; and
defendant offered no help to the victims.
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from
judgments imposing sentences of death entered by Caldwell, J., on
22 February 2000 in Superior Court, Mecklenburg County, upon
jury verdicts finding defendant guilty of two counts of first-
degree murder. On 30 May 2001, the Supreme Court allowed
defendant's motion to bypass the Court of Appeals as to his
appeal of additional judgments. Heard in the Supreme Court
11 February 2002.
Roy Cooper, Attorney General, by Ellen B. Scouten, Special
Deputy Attorney General, for the State.
Staples Hughes, Appellate Defender, by Benjamin Dowling-
Sendor, Assistant Appellate Defender, for defendant-
appellant.
BUTTERFIELD, Justice.
On 30 March 1998, defendant was indicted for the first-
degree murders of Travis James Flowe and Clayton Eugene Foster,
robbery with a dangerous weapon, and attempted robbery with a
dangerous weapon. On 25 April 1998, defendant was also indicted
for conspiracy to commit robbery with a dangerous weapon.
Defendant was tried capitally before a jury at the 19 January
2000 session of Superior Court, Mecklenburg County. The jury
found defendant guilty of both murders on the basis of
premeditation and deliberation and under the felony murder rule.
The jury also found defendant guilty of conspiracy to commit
robbery with a dangerous weapon, robbery with a dangerous weapon,
and attempted robbery with a dangerous weapon. Following a
capital sentencing proceeding, the jury recommended a sentence of
death for each of the first-degree murder convictions. On
22 February 2000, the trial court sentenced defendant
accordingly. The trial court also sentenced defendant to terms
of imprisonment to be served concurrent with the sentences of
death but consecutive to each other as follows: 77 to 102 months'
imprisonment for the robbery with a dangerous weapon conviction,
77 to 102 months' imprisonment for the attempted robbery with a
dangerous weapon conviction, and 29 to 44 months' imprisonment
for the conspiracy to commit robbery with a dangerous weapon
conviction. Defendant appealed his sentence of death to this
Court as of right. On 30 May 2001, this Court allowed
defendant's motion to bypass the Court of Appeals as to his
appeal of the noncapital convictions and judgments. At trial, the State's evidence tended to show that in the
early morning hours of 18 April 1996, defendant was driving
around Charlotte, North Carolina, with two men, defendant's
cousin Laquette Kelly and a man Lamont (last name unknown), and
two women, Shakena Billings and Krashana Davis. Billings drove
the group to a Bi-Lo grocery on Freedom Drive. The group had
previously discussed robbing someone. Defendant went over to a
taxi and asked the driver, Travis Flowe, for a ride. Defendant
was armed with a .380-caliber Lorcin pistol. As agreed upon
earlier, the other individuals followed the cab in which
defendant was traveling. Defendant pointed the pistol at Flowe
and told him to [g]ive up the goods. Defendant stated that
Flowe flinched or jumped. Defendant fired his pistol at
Flowe multiple times and jumped out of the taxi while the taxi
was still moving. The taxi crashed into a tree. Defendant
joined the others in the other vehicle. He did not take anything
from Flowe. Flowe died as a result of gunshot wounds to his lung
and aorta.
As the group drove back to the Springfield neighborhood,
where defendant then lived, they spotted a known drug dealer,
Clayton Foster, at a car wash pay phone. Billings stated,
That's a lick [robbery]. Defendant told Billings to turn
around and return to the car wash. Billings parked the car at a
bank across the street. Defendant left the car and walked up to
Foster, gesturing that he wanted to buy some marijuana from
Foster. Foster shook his head, indicating he had none to sell or
did not want to sell defendant marijuana. Defendant turned andshouted Foster's name. Foster began to run. Defendant fired his
pistol at Foster several times. Foster died of multiple gunshot
wounds.
Defendant drove Foster's vehicle across the street to the
bank. Kelly joined defendant in Foster's vehicle, and the others
followed them to Clanton Park. Defendant removed a pistol and
rifle from Foster's vehicle and put them in the other vehicle.
Defendant also took Foster's jacket. The group then returned to
the area of the car wash. Defendant found Foster lying on his
stomach in one of the car wash bays. Defendant removed Foster's
wallet from his back right pocket and found a large sum of cash.
The wallet, which defendant took with him, was later determined
to contain ten thousand dollars. Defendant gave the two females
three to four hundred dollars each and told them not to tell
anyone about the shootings and robbery. Defendant hid the rifle
and sold the pistols.
More than a year later, in May 1997, Charlotte-Mecklenburg
law enforcement officers received information about the
shootings. In December 1997, law enforcement officers spoke with
the two females involved. On 16 March 1998, defendant confessed
to both murders while being interviewed by law enforcement
officers.
GUILT-INNOCENCE
[1]In his first assignment of error, defendant contends
that the trial court erred in overruling his objection to a
portion of a law enforcement officer's testimony in which the
officer referred to defendant's previous experience with Mirandawarnings. The record reveals the following colloquy between
Charlotte-Mecklenburg Police Department Investigator R.G. Buening
and the prosecutor:
Q. At that point did you start to basically talk to
him about what you had him there for at the police
department?
A. That's correct.
Q. Explain to us how you started that procedure with
him.
A. I informed Mr. Leeper that myself and Investigator
Jackson wanted to talk to him about some crimes that
had occurred in Charlotte that we believed he was
involved in.
Q. And -- go ahead; I'm sorry.
A. And at that point I advised Mr. Leeper that I
needed to advise him of his Miranda Rights, at which
time I began advising Mr. Leeper of his Miranda Rights
according to the U.S. Constitution. And I asked
Mr. Leeper if he had ever been advised of his Miranda
Rights in the past.
Q. And what if any response did you get?
A. In response to that question Mr. Leeper indicated
that he estimated that he had been advised of his
rights --
MS. ATKINS: Objection.
THE COURT: Overruled.
Q. Go ahead.
A. Mr. Leeper in response, again, indicated that he
estimated that he had been advised of his rights six
times prior to this date.
Q. Did you have any form at the time that the police
department used to advise a suspect of their rights?
A. Yes, ma'am. There's a standard Miranda, a waiver
of rights form that the Charlotte-Mecklenburg Police
Department uses.
Very similar testimony had been given earlier during voir direwhen the prosecutor was establishing the voluntariness of the
confession for purposes of admissibility. Defendant argues that
the testimony given by Investigator Buening regarding defendant
having previously been given Miranda warnings was an attempt by
the prosecutor to introduce evidence of defendant's character.
The State argues that the evidence was offered for the purpose of
proving the credibility of the confession. Defendant contends
that this evidence amounted to prejudicial error for which he is
entitled to a new trial.
The ultimate test of the admissibility of a confession is
whether the statement was in fact voluntarily and understandingly
made. State v. Davis, 305 N.C. 400, 419, 290 S.E.2d 574, 586
(1982), quoted in State v. Fernandez, 346 N.C. 1, 10, 484 S.E.2d
350,356 (1997). This Court has established that [t]he State has
the burden of showing by a preponderance of the evidence that the
defendant made a knowing and intelligent waiver of his rights and
that his statement was voluntary. State v. Thibodeaux, 341 N.C.
53, 58, 459 S.E.2d 501, 505 (1995). Whether the confession was
voluntarily made is a question of law, and the trial judge is not
required to submit the issue of voluntariness to the jury. State
v. Barnett, 307 N.C. 608, 622-23, 300 S.E.2d 340, 347-48 (1983).
In State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966),
this Court stated, If admitted in evidence, it is for the jury
to determine whether the statements referred to in the testimony
of the witness were in fact made by the defendant and the weight,
if any, to be given such statements if made. Id. at 273, 145
S.E.2d at 836. The United States Supreme Court has stated thatthe circumstances surrounding the taking of a confession can be
highly relevant to two separate inquires, one legal and one
factual. Crane v. Kentucky, 476 U.S. 683, 688, 90 L. Ed. 2d 636,
644 (1986). In addition to the legal issue of voluntariness to
be decided by a trial judge, the Supreme Court has stated that
the physical and psychological environment that yielded the
confession can also be of substantial relevance to the ultimate
factual issue of the defendant's guilt or innocence. Id. at
689, 90 L. Ed. 2d at 644. Therefore, the factual issue of
credibility for a jury's consideration stands apart from the
issue of voluntariness that is decided as a question of law by a
trial judge.
We note that defendant acknowledged shooting both victims
and did so consistent with this Court's requirements under State
v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), cert. denied,
476 U.S. 1123, 90 L. Ed. 2d 672 (1986). Assuming arguendo that
defendant is correct in his contentions and that the prosecutor's
question was not relevant, any error was harmless error beyond a
reasonable doubt. See N.C.G.S. § 15A-1443(b) (2001). Therefore,
we overrule this assignment of error.
[2]In another assignment of error, defendant raises the
short-form indictment issue and acknowledges that this Court has
previously held contrary to his position on this issue.
Defendant suggests that State v. Lucas, 353 N.C. 568, 548 S.E.2d
712 (2001), may conflict with our prior holdings on this issue.
We do not believe that the portion of the Lucas holding
addressing sentencing pursuant to a firearm enhancement statute,upon which defendant relies, is pertinent to a first-degree
murder case that is tried capitally. Therefore, we find no
compelling reason to depart from our prior holdings and overrule
this assignment of error.
SENTENCING
By another assignment of error, defendant contends that the
trial court erred by: (1) allowing the State to introduce a
large amount of evidence about defendant's juvenile criminal
activity in 1992; (2) by submitting the aggravating circumstance
contained in N.C.G.S. § 15A-2000(e)(3) based on defendant's
juvenile adjudication for armed robbery in 1992; and (3) by
giving instructions on N.C.G.S. § 15A-2000(e)(11), which
permitted the jury to base its finding of the course of conduct
aggravation circumstance on defendant's 1992 juvenile
adjudication. We disagree.
[3]Defendant argues that the 1992 juvenile adjudication for
armed robbery could not be used to submit the N.C.G.S. §
15A-2000(e)(3) aggravating circumstance because the 1994
amendment to N.C.G.S. § 15A-2000(e)(3) pertains only to
offenses committed on or after 1 May 1994. Defendant's reading
of the amending Act's effective date provision is incorrect.
N.C.G.S. § 15A-2000(e)(3) provides as follows:
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) (2001). Section 7 of the amending Actreads as follows:
Section 6 of this act becomes effective on the date
that G.S. 15A-1340.16 becomes effective and applies to
offenses committed on or after that date. The
remainder of this act becomes effective May 1, 1994.
Sections 1, 2, 4, and 5 of this act apply to offenses
committed on or after that date. Section 3 of this act
applies to trials begun on or after that date.
Act of Mar. 8, 1994, ch. 7, sec. 7, 1993 N.C. Sess. Laws (Extra
Sess. 1994) 10, 14. Defendant contends that the term offenses
is ambiguous and could refer to the offense for which a defendant
is being sentenced, the prior offense to be used as an
aggravating circumstance under N.C.G.S. § 15A-2000(e)(3), or both
the murder and the prior offense.
Defendant's arguments concerning ambiguity and statutory
construction are unpersuasive. There is no ambiguity in
section 7 of the Act. Section 7 sets the effective date for the
various sections within the Act. Section 5, which amended
N.C.G.S. § 15A-2000(e)(3), became effective on 1 May 1994 and
applied to all capital offenses committed on or after that date.
Defendant questions the legislature's use of the word offenses
rather than a more specific word such as murder. In addition
to amending N.C.G.S. § 15A-2000(e)(3), the Act amended statutes
dealing with the sentencing of other crimes. By using the word
offenses, the legislature referred to all crimes subject to
sentencing under the Act. The effective date pertains to the use
of the prior adjudications in sentencing for crimes committed on
or after 1 May 1994 and not to the date of the prior
adjudications themselves.
Defendant also contends, in this same assignment of error,that the trial court erred in allowing evidence surroundi
ng
defendant's 1992 juvenile adjudication for armed robbery.
Defendant argues that the same ambiguity applies to the
confidentiality of juvenile records. The predecessor to N.C.G.S.
§ 7B-3000, which deals with the confidentiality of juvenile
records, was N.C.G.S. § 7A-675. In the same act that amended
N.C.G.S. § 15A-2000(e)(3), the legislature amended N.C.G.S. §
7A-675 to allow juvenile records to be examined and used in
subsequent criminal proceedings. Applying the same analysis as
used above, the use of juvenile records pertains to the use of
the prior adjudications in sentencing for crimes committed on or
after 1 May 1994 and not to the date of the prior adjudications
themselves.
[4]In this same assignment of error, defendant contends
that evidence, indicating that defendant had obtained the gun he
used in the 1992 armed robbery by taking it from a purse he stole
two days prior to the robbery was beyond the scope of N.C.G.S. §
7B-3000(f). Defendant has cited no authority for this argument
other than to contend that introducing the evidence violated
N.C.G.S. § 7B-3000(f) and was highly prejudicial. This Court has
held that the State is entitled to present witnesses in the
penalty phase of the trial to prove the circumstances of prior
convictions and is not limited to the introduction of evidence of
the record of conviction. State v. Roper, 328 N.C. 337, 365,
402 S.E.2d 600, 616, cert. denied, 502 U.S. 902, 116 L. Ed. 2d
232 (1991). We find defendant's argument unpersuasive.
[5]Defendant, in this same assignment of error, contendsthat the trial court erred in instructing the jury on the
N.C.G.S. § 15A-2000(e)(11) aggravating circumstance. Defendant
argues that the instruction permitted the jury to consider
defendant's 1992 juvenile adjudication and defendant's 1992 purse
snatching as evidence to support this course of conduct
aggravating circumstance. We do not agree. The trial court gave
virtually the identical instruction regarding the course of
conduct aggravating circumstance as to each murder:
Now, Members of the Jury, a murder is a part of such
course of conduct if you find from the evidence beyond
a reasonable doubt that in addition to killing the
victim, in this case the victim Clayton Eugene Foster,
the defendant on or about the alleged date was engaged
in a course of conduct which involved the commission of
another crime of violence against another person, and
that this or these other crimes were included in the
same course of conduct in which the killing of the
victim Clayton Eugene Foster was also a part, 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.
One may not reasonably infer that a juror would stretch the
phrase on or about to encompass a span of over four years in
order to find this aggravator.
Additionally, after setting out the aggravators as to each
case, the trial court instructed the jurors that they could not
use the same evidence as a basis for finding more than one
aggravating circumstance. This instruction clarified that the
juvenile acts introduced in support of the (e)(3) aggravating
circumstance could not be used as a basis for finding the (e)(11)
aggravating circumstance. There is no merit in defendant's
argument.
[6]Defendant also contends that the use of juvenileadjudications as an aggravating circumstance violates the ex
post
facto prohibitions of the United States and North Carolina
Constitutions. For the reasons set forth in State v. Wiley, ___
N.C. ___, ___, ___ S.E.2d ___, ___, slip op. at 39 (June 28,
2002) (No. 100A01), we find these arguments to be without merit.
The trial court properly admitted defendant's juvenile
adjudication records and related evidence in support of the
N.C.G.S. § 15A-2000(e)(3) aggravating circumstance, properly
submitted the circumstance to the jury, and properly instructed
the jury on N.C.G.S. § 15A-2000(e)(11). This entire assignment
of error is overruled.
PRESERVATION
Defendant raises six additional issues for the purpose of
permitting this Court to reexamine its prior holdings and also
for the purpose of preserving these issues for possible further
judicial review: (1) the trial court erred by denying
defendant's motion to permit voir dire of prospective jurors
regarding parole eligibility; (2) the trial court's instructions
defining the burden of proof applicable to mitigating
circumstances violated defendant's constitutional rights because
they used the vague term satisfies; (3) the trial court
committed reversible error in its instructions that permitted
jurors to reject a submitted mitigating circumstance because it
had no mitigating value; (4) the trial court committed reversible
error in its instructions as to the mitigating value of statutory
and nonstatutory mitigating circumstances; (5) the trial court
erred in instructing that each juror may, rather than must,consider any mitigating circumstances the juror determin
ed to
exist when deciding sentencing Issues Three and Four; and (6)
the North Carolina death penalty statute is unconstitutional. We
have considered defendant's arguments on these issues and find no
compelling reason to depart from our prior holdings. Therefore,
we reject these assignments of error.
PROPORTIONALITY REVIEW
[7]Finally, this Court has the exclusive statutory duty in
capital cases to review the record to determine (1) whether the
record supports the aggravating circumstances found by the jury;
(2) whether the death sentence was entered under the influence of
passion, prejudice, or any other arbitrary factor; and
(3) whether the death sentence is excessive or disproportionate
to the penalty imposed in similar cases, considering both the
crime and the defendant. N.C.G.S. § 15A-2000(d)(2). Having
thoroughly reviewed the record, transcripts, and briefs in the
present case, we conclude that the record fully supports the
aggravating circumstances found by the jury. We find no evidence
that the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary consideration. Thus,
we turn to our final statutory duty of proportionality review.
In the present case, the jury found defendant guilty of two
counts of first-degree murder on the basis of premeditation and
deliberation and under the felony murder rule. At defendant's
capital sentencing proceeding, the jury found the existence of
the three aggravating circumstances submitted for its
consideration as to each murder: that defendant had beenpreviously adjudicated delinquent in a juvenile proceeding for an
offense that would have been a felony involving the use of or
threat of violence to the person had defendant been a adult,
N.C.G.S. § 15A-2000(e)(3); that the murders were committed while
defendant was engaged in the commission of attempted robbery with
a firearm (as to victim Flowe) or robbery with a firearm (as to
victim Foster), N.C.G.S. § 15A-2000(e)(5); and that the murders
were part of a violent course of conduct, N.C.G.S. §
15A-2000(e)(11).
Three statutory mitigating circumstances, including the
catchall, were submitted as to each murder for the jury's
consideration: defendant's capacity to appreciate the
criminality of the conduct or to conform his conduct to the
requirements of law was impaired, N.C.G.S. § 15A-2000(f)(6);
defendant's age at the time of the murder, N.C.G.S. §
15A-2000(f)(7); and the catchall, N.C.G.S. § 15A-2000(f)(9). Of
these, the jury found the existence of only the (f)(9) mitigator
for each murder. Of the thirty-two identical nonstatutory
mitigating circumstances submitted by the trial court for
consideration in each murder, one or more jurors found twenty-
nine to exist and have mitigating value.
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 deathpenalty. 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).
In our proportionality review, we must compare the present case
with other cases in which this Court has ruled upon the
proportionality issue. State v. McCollum, 334 N.C. 208, 240,
433 S.E.2d 144, 162 (1993), cert. denied, 512 U.S. 1254, 129 L.
Ed. 2d 895 (1994).
We have determined the death penalty 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). We conclude that this case is not
substantially similar to any case in which this Court has found
the death penalty disproportionate.
Several characteristics of this case support this
conclusion. Defendant was convicted of two counts of first-
degree murder on the basis of premeditation and deliberation and
under the felony murder rule. We have recognized that a finding
of premeditation and deliberation indicates 'a more calculated
and cold-blooded crime.' State v. Harris, 338 N.C. 129, 161,
449 S.E.2d 371, 387 (1994) (quoting State v. Lee, 335 N.C. 244,297, 439 S.E.2d 547, 575, cert. denied, 513 U.S. 891, 130 L. E
d.
2d 162 (1994)), cert. denied, 514 U.S. 1100, 131 L. Ed. 2d 752
(1995). In none of the cases held disproportionate by this Court
did the jury find the existence of the (e)(3) aggravating
circumstance, as the jury did here. The (e)(5) aggravating
circumstance found by the jury here was also found in Young.
However, in only two cases has this Court held a death sentence
disproportionate despite the existence of multiple aggravating
circumstances. In Young, this Court considered inter alia that
the defendant had two accomplices, one of whom finished the
crime. Young, 312 N.C. at 688, 325 S.E.2d at 193. By contrast,
defendant in the present case had several accomplices who helped
defendant only by driving him from location to location and
handling the property stolen from one of the victims.
The (e)(11) aggravating circumstance found here by the jury
was also found in Bondurant and Rogers. In Bondurant, this Court
weighed the fact that the defendant expressed concern for the
victim's life and remorse for his action by accompanying the
victim to the hospital. Bondurant, 309 N.C. at 694, 309 S.E.2d
at 182-83. In the present case, defendant shot both victims and
immediately fled the scenes. Defendant did return to victim
Foster, but only to rob him of the approximate ten thousand
dollars in cash Foster was carrying. After the killings,
defendant went to a drug house and slept. In Rogers, this Court
held that it was not error for the trial court to submit the
(e)(11) aggravating circumstances where after the defendant
killed one person, he fired at another person with the intent tokill that person. Rogers, 316 N.C. at 234, 341 S.E.2d at 731.
Although Rogers was found disproportionate, in that case only the
(e)(11) aggravating circumstance was submitted. Id. at 236, 341
S.E.2d at 732. Here, the (e)(3), (e)(5), and (e)(11) aggravating
circumstances were submitted to and found by the jury.
We also consider cases in which this Court has held the
death penalty proportionate; however, we will not undertake to
discuss or cite all of those cases each time we carry out that
duty. McCollum, 334 N.C. at 244, 433 S.E.2d at 164. We
conclude that this case is more similar to cases in which we have
found the sentence of death proportionate than to those in which
we have found it disproportionate.
This Court has consistently held the death penalty
proportionate in cases in which the defendant was convicted of
killing more than one person. State v. McNeill, 349 N.C. 634,
655, 509 S.E.2d 415, 428 (1998), cert. denied, 528 U.S. 838, 145
L. Ed. 2d 87 (1999). Further, there are four statutory
aggravating circumstances that, standing alone, this Court has
held sufficient to support a sentence of death; the (e)(3),
(e)(5), and (e)(11) statutory circumstances, which the jury found
here, are among those four. State v. Bacon, 337 N.C. 66, 110
n.8, 446 S.E.2d 542, 566 n.8 (1994), cert. denied, 513 U.S. 1159,
130 L. Ed. 2d 1083 (1995).
In the present case, defendant planned to rob victim Flowe,
shot the victim as he was driving his vehicle, and then
immediately fled the scene. Only a short while later, defendant
targeted victim Foster, shot him, and robbed him of a largeamount of cash. Defendant offered no help to the victims. The
crimes of which defendant was convicted and the circumstances
under which they occurred manifest an egregious disregard for
human life. Accordingly, we conclude that the sentences of death
recommended by the jury for the murders and ordered by the trial
court are not disproportionate.
We conclude that defendant received a fair trial and capital
sentencing proceeding, free from prejudicial error. Accordingly,
the sentences of death recommended by the jury for the murders
are left undisturbed.
NO ERROR.
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