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ered authoritative.
STATE OF NORTH CAROLINA v. TERRY LAMONT ROBINSON
578A00
(Filed 5 April 2002)
1. Criminal Law_change of venue_pretrial publicity--specific
prejudice not shown
The trial court did not err in a capital prosecution for
first-degree murder by denying defendant's motion for a change of
venue based upon pretrial publicity where a great number of
jurors had prior knowledge of the murder, defendant exhausted his
peremptory challenges, and a juror to whom defendant objected sat
on the jury, but all of the seated jurors stated unequivocally
that they could put aside pretrial publicity and defendant did
not establish specific and identifiable prejudice from five
newspaper articles about the murder. N.C.G.S. § 15A-957.
2. Criminal Law_ruling on objection_not summary
A first-degree murder defendant's contention that the trial
court ruled summarily on his motion for individual voir dire
without allowing defendant to argue the motion fully was not
supported by the record.
3. Jury_peremptory challenges_additional challenges not granted
The trial court did not abuse its discretion in a first-
degree murder prosecution by not granting defendant additional
peremptory challenges where defendant did not allege that the
specific juror whom he contended should have been removed for
cause had formed or expressed an opinion on guilt or innocence,
and there was nothing in the record to suggest that the jurors
could not put aside any pretrial information.
4. Jury_selection_questioning_court's supervision_defendant not
hindered
The trial court in a capital first-degree murder prosecution
did not improperly limit defendant's questioning and examination
of prospective jurors. The court sought to supervise the use of
the court's time by preventing repetition, but made an express
effort to ensure that defendant was satisfied, and defendant
cited no instances in the record where he was hindered in his
examination of a prospective juror.
5. Jury_selection_questions about parole eligibility
The trial court did not err in a capital prosecution for
first-degree murder by refusing to allow defendant to conduct
voir dire of prospective jurors about parole eligibility on a
life sentence. A defendant does not have a constitutional right
to so examine prospective jurors and the court instructed thejury that a sentence of life imprisonment means life without
parole.
6. Evidence_DNA testimony_witness not qualified as
expert_allowed
The trial court did not err in a first-degree murder
prosecution by allowing testimony concerning DNA analysis where
the witness was never qualified as an expert but defendant made
only a general objection, defendant engaged in extensive cross-
examination regarding the source of the DNA evidence, and
defendant did not demonstrate the basis for the objection or the
grounds upon which the testimony should have been excluded.
7. Evidence_photograph_defendant wearing particular
shirt_admissible
The trial court did not abuse its discretion in a capital
prosecution for first-degree murder by admitting into evidence a
photograph of defendant wearing a particular shirt to show that
defendant had owned such a shirt and to illustrate testimony.
8. Evidence_examination of witnesses_inconsistencies
The trial court did not err in a capital prosecution for
first-degree murder where defendant was not allowed to ask
questions in a form which called for a witness to vouch for the
veracity of another witness. Defendant was free to ask about
inconsistencies, and did so.
9. Evidence_failure of another to identify mug-shots_hearsay
The trial court did not err in a capital first-degree murder
prosecution by sustaining the State's objection to a question as
to whether someone who didn't testify had identified anyone from
mug-shot books. Any response would have been hearsay and
defendant did not identify any exception which would have allowed
a response.
10. Evidence_testimony about other testimony
The trial court did not err in a capital first-degree murder
prosecution by sustaining the State's objection when defendant
asked a witness if he had heard another's testimony, the witness
replied that he had, and defendant asked, And, do you recall her
stating that....
11. Homicide_first-degree murder_premeditation and
deliberation_sufficiency of evidence
There was substantial circumstantial evidence for the jury
to conclude that defendant intentionally killed the victim with
premeditation and deliberation where defendant carefully planned
a robbery of a restaurant with an accomplice, stashed clothingto change into after the robbery, pointed his weapon at the
victim after entering the restaurant, shot the victim in the head
after an exchange, told the accomplice that the victim had
killed himself by trying to grab him, and told his cousin that
the victim had refused to give defendant the money and that
defendant had shot him.
12. Robbery_attempted armed_intent_overt act_ sufficiency of
evidence
There was substantial evidence that defendant had the intent
to rob by the use of a dangerous weapon and that he committed an
overt act in furtherance of that intent so as to support a charge
of attempted armed robbery where defendant pointed a gun at the
victim and told him to put the money in the bag.
13. Criminal Law_prosecutor's argument_defendant's impeachment
of witness
There was no plain error in a first-degree murder
prosecution where the trial court did not intervene ex mero motu
during the prosecutor's closing remarks about defendant's
impeachment of a witness. The prosecutor's zealous advocacy and
hyperbolic statements attempting to mitigate the damage done by
defendant's impeachment did not merit the court's intervention.
14. Sentencing_capital_combined mitigating circumstances
There was no error in a capital sentencing proceeding where
defendant contended that the court's combination of requested
mitigating circumstances excluded some of the submitted
circumstances, but a careful review of the record revealed that
the court's final list of mitigating circumstances subsumed the
proposed circumstances and omitted none.
15. Sentencing_capital_aggravating circumstances--prior
robberies_stipulation_inherently violent
The trial court did not err in a capital sentencing
proceeding by submitting to the jury three separate statutory
aggravating circumstances that defendant had been previously
convicted of three separate crimes of common law robbery where
defendant stipulated to the judgments and commitments for three
prior common law robbery convictions. Although defendant
contended that he never stipulated to the existence of the use of
violence in those convictions, common law robbery is a crime
involving the use or threat of violence.
16. Sentencing_capital_aggravating circumstance_underlying
felony_conviction based on felony murder and premeditation
The trial court did not err in a capital sentencing
proceeding by submitting the aggravating circumstance that the
murder was committed during an attempted armed robbery. Therewas sufficient evidence to support the robbery conviction, and
the underlying felony may be submitted as an aggravating
circumstance when a defendant is convicted of felony murder and
murder with premeditation and deliberation.
17. Sentencing_capital_curative instruction not given_not
requested
The trial court did not err in a capital sentencing
proceeding by not giving a curative instruction after sustaining
an objection where defendant did not request a curative
instruction or ask that the witness's testimony by stricken.
18. Sentencing_capital_death sentence not arbitrary
There was no evidence that a sentence of death was imposed
under the influence of passion, prejudice, or any other arbitrary
consideration.
19. Sentencing_capital_death sentence proportionate
A sentence of death was proportionate where defendant was
convicted based on premeditation and deliberation and jury found
multiple aggravating circumstances, including the (e)(5) and
(e)(3) circumstances, which have been held sufficient to support
a sentence of death standing alone. Defendant instituted and
carefully planned the robbery of a Pizza Inn with his accomplice,
showed no remorse when telling others what had happened, and the
crime and its circumstances manifest an egregious disregard for
human life.
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a
judgment imposing a sentence of death entered by Brown
(Frank R.), J., on 10 April 2000 in Superior Court, Wilson
County, upon a jury verdict finding defendant guilty of
first-degree murder. On 15 May 2001, the Supreme Court allowed
defendant's motion to bypass the Court of Appeals as to his
appeal of an additional judgment. Heard in the Supreme Court
13 November 2001.
Roy Cooper, Attorney General, by William P. Hart, Special
Deputy Attorney General, for the State.
Thomas R. Sallenger for defendant-appellant.
BUTTERFIELD, Justice.
On 7 September 1999, defendant was indicted for first-degree
murder and for attempted robbery with a dangerous weapon.
Defendant was tried capitally before a jury at the 3 April 2000
Criminal Session of Superior Court, Wilson County. The jury
found defendant guilty of first-degree murder on the basis of
premeditation and deliberation and under the felony murder rule.
The jury also found defendant guilty of attempted robbery with a
dangerous weapon. Following a capital sentencing proceeding, the
jury recommended a sentence of death for the first-degree murder
conviction. On 10 April 2000, the trial court sentenced
defendant to death. The trial court also sentenced defendant to
a consecutive sentence of 133 to 169 months' imprisonment for the
attempted robbery conviction. Defendant appealed his sentence of
death for first-degree murder to this Court as of right. On
15 May 2001, this Court allowed defendant's motion to bypass the
Court of Appeals as to his appeal of the attempted robbery
conviction and judgment.
At trial, the State's evidence tended to show that on 16 May
1999, defendant told Ronald Bullock that he wanted Bullock to
help him rob the Pizza Inn in Wilson, North Carolina. Bullock
agreed to the plan. The two began preparing for the crime by
getting some clothes and weapons to use during the robbery.
Defendant and Bullock then went to visit defendant's cousin,
Jesse Hill. Hill indicated that he would not participate in the
robbery. Nightfall was approaching as defendant and Bullock
dropped Hill off at his grandmother's house.
Under cover of darkness, defendant and Bullock parked nearthe Pizza Inn carrying with them the clothes they planned
to
change into after the robbery. Defendant was armed with a nine-
millimeter Ruger automatic pistol. Bullock was armed with a
.380-caliber automatic pistol. At 9:00 p.m., the two entered the
Pizza Inn through the take-out entrance.
With their faces covered and their weapons drawn, defendant
and Bullock neared the cash register. John Rushton, the victim
and manager of the Pizza Inn, approached the cash register from
the rear of the restaurant. Defendant pointed his weapon at
Rushton and ordered him to put the money in a bag. Rushton said,
What are you going to do if I don't? Defendant replied, Do
you think I'm playing? Defendant pointed his weapon at the
floor and fired. Defendant then shot Rushton in the head as
Rushton moved forward. Defendant and Bullock fled. According to
the medical examiner, Rushton died from a gunshot wound to the
head.
As defendant and Bullock fled, they stopped to change
clothes. Bullock did not, however, put on shoes. Bullock also
dropped his weapon as he ran. The two ran in separate directions
through a nearby housing area. Both the shoes and the weapon
were recovered by the police.
At approximately 10:00 p.m., defendant appeared at Andre
Foster and Crystal Dawn Baker's home approximately five blocks
from the Pizza Inn. Defendant appeared sweaty and nervous.
Defendant went to the bathroom, washed his hands, and asked for a
bandage for a cut on his finger on his left hand. Baker noticed
a few drops of blood in the sink after defendant used it. Around midnight, defendant and Bullock returned to Jesse
Hill's house. Defendant told Hill that he had shot a man after
he asked the man to give him the money. Defendant also told Hill
that he had almost shot his own hand when he shot the victim.
Hill did not believe defendant until the next day when he heard
the news accounts of the murder. Hill called police to arrange a
meeting with them to inform them of what he knew about
defendant's and Bullock's involvement with the murder.
Additional facts will be presented as needed to discuss specific
issues.
PRETRIAL
[1]First, defendant contends that the trial court erred in
denying his motion for a change of venue or the selection of a
special venire. Defendant alleges that the trial court did not
properly consider his motion and that the trial court's denial
was summary and an abuse of discretion. We disagree.
The evidence presented to the trial court in support of
defendant's motion consisted of five newspaper articles published
in the Wilson Daily Times from 16 May 1999 through 24 May 1999.
Defendant argues that these newspaper articles constituted
extraordinary pretrial coverage of the murder and, as such, made
it impossible for defendant to receive a fair and impartial trial
from a jury drawn from Wilson County. The applicable statutory
requirements for a change of venue or special venire are codified
in N.C.G.S. § 15A-957, which provides in part:
If, upon motion of the defendant, the court
determines that there exists in the county in which the
prosecution is pending so great a prejudice against the
defendant that he cannot obtain a fair and impartialtrial, the court must either:
(1) Transfer the proceeding to another county in
the prosecutorial district as defined in G.S.
7A-60 or to another county in an adjoining
prosecutorial district as defined in G.S.
7A-60, or
(2) Order a special venire under the terms of
G.S. 15A-958.
This Court has stated that pretrial publicity, in and of itself,
does not dictate a change of venue if the publicity consists of
factual news accounts regarding the commission of a crime and
pretrial proceedings. State v. Soyars, 332 N.C. 47, 53, 418
S.E.2d 480, 484 (1992); State v. Madric, 328 N.C. 223, 229, 400
S.E.2d 31, 35 (1991). The test adopted by this Court to
determine whether a motion for a change of venue should be
granted is whether it is reasonably likely that prospective
jurors would base their decision in the case upon pretrial
information rather than the evidence presented at trial and would
be unable to remove from their minds any preconceived impressions
they might have formed. State v. Jerrett, 309 N.C. 239, 255,
307 S.E.2d 339, 347 (1983).
In State v. Yelverton, we stated, The determination of
whether a defendant has carried his burden of showing that pre-
trial publicity precluded him from receiving a fair trial rests
within the trial court's sound discretion. State v. Yelverton,
334 N.C. 532, 540, 434 S.E.2d 183, 187 (1993). Absent a showing
of abuse of discretion, [the trial court's] ruling will not be
overturned on appeal. Madric, 328 N.C. at 226-27, 400 S.E.2d at
33-34. In order to meet this burden, defendants must ordinarily
establish specific and identifiable prejudice against them as a
result of pretrial publicity. State v. Barnes, 345 N.C. 184,204, 481 S.E.2d 44, 54, cert. denied, 522 U.S. 876, 139 L.
Ed. 2d
134 (1997), and cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473
(1998). It is well settled that in meeting his burden a
defendant 'must show inter alia that jurors with prior knowledge
decided the case, that [defendant] exhausted his peremptory
challenges, and that a juror objectionable to [defendant] sat on
the jury.' State v. Wallace, 351 N.C. 481, 510, 528 S.E.2d 326,
345 (quoting State v. Billings, 348 N.C. 169, 177, 500 S.E.2d
423, 428, cert. denied, 525 U.S. 1005, 142 L. Ed. 2d 431 (1998))
(alterations in original), cert. denied, 531 U.S. 1018, 148 L.
Ed. 2d 498 (2000).
Before granting a change of venue or special venire, a trial
court must find that there exists in the county in which the
prosecution is pending so great a prejudice against the defendant
that he cannot obtain a fair and impartial trial. N.C.G.S. §
15A-957 (1999). Defendant argues that the five newspaper
articles satisfy this requirement. A careful review of the
record reveals that the newspaper articles reported on the
murder, the arrest of Ronald Bullock, the arrest of defendant, an
editorial decrying the rise of the use of firearms and calling
the murder senseless, and an article describing a fund-raiser
held for the victim's family. Only the two articles concerning
the arrests mention defendant's name. We do not believe that
this is sufficient to constitute a showing of abuse of discretion
on the part of the trial court. While defendant did show that a
great number of the jurors had prior knowledge of the murder,
that defendant exhausted his peremptory challenges, and that ajuror to whom he objected sat on the jury, he has not established
specific and identifiable prejudice against him as a result of
pretrial publicity. We have carefully reviewed the record and
found that all of the jurors seated stated unequivocally that
they could put aside any pretrial publicity and decide the case
solely on the evidence presented in court. Therefore, this
assignment of error is overruled.
JURY SELECTION
[2]Defendant next raises an assignment of error in which he
contends that the trial court summarily denied his motion for
individual voir dire without being afforded an opportunity to
argue the motion fully. The record reveals that the trial court
entertained the motion and heard argument from defendant's
counsel. After defense counsel's brief comments, the trial court
denied the motion. There is no suggestion in the record that
defense counsel's opportunity to expound on the matter was
curtailed. There is also no suggestion in the record that
defense counsel asked to be heard further on the matter.
Defendant puts forward many of the same arguments as in the
assignment of error above regarding the motion for change of
venue. A defendant does not have a right to examine jurors
individually merely because there has been pretrial publicity.
State v. Burke, 342 N.C. 113, 122, 463 S.E.2d 212, 218 (1995).
At the time defense counsel addressed this issue, he said, I
just think it's the best way to proceed in this case, given the
facts of this case, and the conditions surrounding this case.
Faced with this generalized argument in support of individualvoir dire, the trial court denied defendant's motion.
Defendant's contention that the trial court ruled summarily
without hearing defendant's complete articulation is unsupported
by the record. This assignment is without merit.
[3]In a similar assignment of error, defendant next argues
that the trial court erred in not granting him additional
peremptory challenges. In his argument, defendant restates many
of the same arguments that he put forward in his previous
assignments of error. Specifically, defendant argues that
prospective juror Ada Perkins should have been removed for cause,
that the trial court's refusal to remove Perkins was error, and
that he required additional peremptory challenges because Perkins
could not qualify as a disinterested and impartial juror. While
defendant did properly preserve the issue for appeal, he has not
shown that the trial court abused its discretion in denying the
challenge for cause. Defendant contends that Perkins was one of
the thirty-five prospective jurors who had either read, heard, or
seen accounts of the circumstances surrounding the murder.
However, defendant has not alleged that Perkins had formed or
expressed an opinion as to the guilt or innocence of the
defendant. N.C.G.S. § 15A-1212(6) (1999). As with defendant's
change of venue argument, there is nothing in the record which
indicates that each of the jurors could not put aside any
pretrial information and be a fair and impartial juror. The
trial court, based on its observation and sound judgment, has the
discretion to determine whether a juror can be fair and
impartial. State v. Kennedy, 320 N.C. 20, 26, 357 S.E.2d 359,363 (1987). Where the trial court can reasonably conclude from
the voir dire . . . that a prospective juror can disregard prior
knowledge and impressions, follow the trial court's instructions
on the law, and render an impartial, independent decision based
on the evidence, excusal is not mandatory. State v. Green, 336
N.C. 142, 167, 443 S.E.2d 14, 29, cert. denied, 513 U.S. 1046,
130 L. Ed. 2d 547 (1994). As there is no showing that the trial
court abused its discretion, we overrule defendant's assignment
of error.
[4]In another assignment of error, defendant contends that
the trial court improperly limited defendant's questioning and
examination of prospective jurors. The trial court stated:
To the attorneys for the State and the defendant,
the Court instructs you not to introduce persons
already introduced by the Court, not to pose questions
of law or hypothetical questions, not to repeat
questions, and not to ask for information already
included on the questionnaire. And, you are directed
to pose questions to the entire panel whenever
possible.
Based on this instruction, defendant argues that he was precluded
from meaningful questioning of venire members. The record
indicates otherwise. Prior to giving the above instruction, the
trial court had introduced many people+ in the courtroom who were
expected to testify. The trial court asked the prospective
jurors if they knew or were acquainted with any of these
individuals. Clearly, the trial court sought to supervise the
use of the trial court's and prospective jurors' time by
preventing repetition.
We observe from the record that defense counsel did have the
opportunity to probe prospective jurors' fitness. The recordreveals the following colloquy between defense counsel, a
prospective juror, and the trial court:
Q. And, I believe you also indicated [on the
questionnaire] that you have a family member or a close
friend that's been the victim of a crime?
A. Juror Number Eleven: Yes.
Q. And, it was a breaking and entering, I believe,
and the intruder was shot but not charged, sort of
explain that to me, and the Court?
A. Juror Number Eleven: I don't remember what it
was.
Q. You also said somebody was convicted -- was
charged and convicted?
THE COURT: It says no conviction on mine.
Q. No conviction?
A. Juror Number Eleven: Yes (nods).
THE COURT: Isn't that what it says on your's?
[DEFENSE COUNSEL]: I think it says -- I could be
wrong, Judge, but I think it says, yes on mine. Was
anyone charged, arrested or convicted[?]
THE COURT: It's written on mine: He was charged
but no conviction.
[DEFENSE COUNSEL]: Okay.
THE COURT: Anyway you can ask him about it if
you're not satisfied.
. . . .
Q. But, you don't remember anything about it is what
you said?
A. Juror Number Eleven: No, sir.
Q. You think that event in your life would prevent
you from giving either side a fair and impartial trial?
A. Juror Number Eleven: No, sir.
The above exchange reveals that the trial court could not haveharbored the intent to curtail defendant's meaningful
questioning of prospective jurors. Instead, the exchange
demonstrates that the trial court made an express effort to
ensure that defendant was satisfied. Furthermore, defendant
cites to no portion of the record where he was hindered in his
examination of a prospective juror. Defendant attempts to
support his contention with a slightly modified restatement of
his change of venue and peremptory challenge arguments. His
attempt, as such, is insufficient to call the trial court's voir
dire into question. This assignment of error is without merit.
[5]Defendant also assigns error to the trial court's
refusal to let him conduct voir dire . . . of [prospective]
jurors regarding their misconceptions about parole eligibility on
a life sentence. Defendant premises his argument on the notion
that it is common knowledge that jurors believe that defendants
who receive life sentences without parole are subject to release.
This argument must fail. This Court has examined this issue on
numerous occasions and has consistently held that neither this
Court nor the United States Supreme Court has ever held that a
defendant has a constitutional right to so examine prospective
jurors. State v. Neal, 346 N.C. 608, 617, 487 S.E.2d 734, 739-40
(1997), cert. denied, 522 U.S. 1125, 140 L. Ed. 2d 131 (1998).
Furthermore, the trial court fully complied with N.C.G.S. §
15A-2002 by instructing the jury in words substantially
equivalent to those of this section, that a sentence of life
imprisonment means a sentence of life without parole. N.C.G.S.
§ 15A-2000 (1999). This assignment of error is overruled.GUILT-INNOCENCE
Defendant asks this Court to consider his argument that the
trial court committed plain error in the instructions given on
the two theories of first-degree murder applied in the case sub
judice in that they confused the jury. As defendant recognizes,
defense counsel did not preserve this issue for appeal as
required by North Carolina Rule of Appellate Procedure 10(b)(2).
Also, defendant did not preserve the issue for appellate review
as plain error under Appellate Rule 10(c)(4) in that no plain
error was alleged in the assignment of error upon which defendant
seeks to rely. Defendant has not properly preserved this issue
for our review. Therefore, we overrule this assignment of error.
[6]Next, defendant assigns error to the trial court's
overruling his objection to testimony of Special Agent Boodeè of
the State Bureau of Investigation. Agent Boodeè testified that
he had examined a cutting from a camouflage neck hood and had
determined that it contained DNA bands consistent with a mixture
originating from multiple donors, of which the victim and two
suspects may be included. Defendant contends that the testimony
was prejudicial to him. Defendant also contends that the witness
was never qualified as an expert for any purpose in this case.
Defendant does not argue plain error.
Although defendant argues that the witness was never
qualified as an expert, he contends that the evidence was
speculative and did not assist the trier of fact in understanding
the evidence or in determining a fact in issue and that it was,
therefore, prejudicial. This argument is unpersuasive. If thewitness is not to be considered an expert, as defendant contends,
then the standards of expert testimony under North Carolina Rule
of Evidence 702 upon which defendant relies are inapplicable. We
examine the testimony as nonexpert testimony. Defendant did not
need to demonstrate that the evidence did not assist the trier of
fact. Instead, defendant's burden was to show that the testimony
should have been excluded on some other grounds. This, he has
not done.
Defense counsel offered only a general objection to the
witness' statement concerning the DNA found on the hood and did
not ask to be heard on the objection. After the trial court
overruled defendant's objection, the witness continued to testify
without objection. Defense counsel then engaged in extensive
cross-examination of the witness regarding the source of the DNA
evidence about which the witness testified. Defendant has failed
to demonstrate the basis for the objection or upon what
appropriate grounds the testimony should have been excluded.
This assignment of error is overruled.
[7]By two further assignments of error, defendant contends
that the trial court erred by admitting into evidence a
photograph of defendant's Mecca tee shirt and a photograph of
defendant wearing a Mecca tee shirt and by publishing these
photographs to the jury. Defendant has chosen to argue these two
assignments of error together. We, however, must examine each
piece of evidence separately. There appears to be some
misunderstanding in the State's brief to this Court of exactly
which pieces of evidence introduced at trial are the subjects ofthese assignments of error. The State's argument focuses on a
tee shirt with the word Mecca on it that was found in the woods
near the murder scene. The State argues that the introduction of
this tee shirt was proper because it was identified by
defendant's accomplice, Ronald Bullock, as the shirt defendant
was wearing when they committed the attempted robbery at the
Pizza Inn. One of defendant's assignments of error refers to the
admission of defendant's Mecca t-shirt. This and defendant's
combined argument may have led to the confusion appearing in the
State's brief. After careful review, it is apparent that
defendant is not challenging the introduction of the tee shirt
itself. From the transcript references in his assignments of
error, defendant cites only to that portion of the trial where a
photograph of defendant wearing a tee shirt with the word Mecca
on it and a photograph of the tee shirt with the word Mecca on
it that was found in the woods near the murder scene and that was
previously introduced into evidence were at issue. The trial
court conducted a voir dire out of the presence of the jury prior
to the introduction of these photographs. These photographs are
the subject of our review.
The photograph of defendant wearing a Mecca tee shirt was
taken on 29 April 1999 by the witness, David Jones, who testified
during the introduction of these photographs. The witness stated
that he had taken the photograph on 29 April 1999 and that he had
also taken a photograph, in the morning of the day he testified,
of the Mecca tee shirt that had previously been introduced.
Defendant argues that the photographs were not relevant and, evenif relevant, should have been excluded under North Carolina Rule
of Evidence 403 as more prejudicial than probative. Defendant's
argument is unpersuasive.
The introduction of the photograph of defendant wearing a
Mecca tee shirt seventeen days prior to the murder was relevant
to show that defendant had at one time been in the possession of
such a shirt. Under North Carolina Rule of Evidence 401,
relevant evidence is evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence. N.C. R. Evid. 401. Just as the testimony
of defendant's accomplice tended to show that defendant was
wearing a shirt similar to the one found in the woods behind the
murder scene, the photograph tended to show that defendant had
worn a similar shirt seventeen days prior to the murder.
Likewise, the photograph of the tee shirt already admitted into
evidence was helpful in illustrating the witness' testimony.
'Photographs are usually competent to be used by a witness to
explain or illustrate anything that is competent for him to
describe in words.' State v. Watson, 310 N.C. 384, 397, 312
S.E.2d 448, 457 (1984) (quoting State v. Cutshall, 278 N.C. 334,
347, 180 S.E.2d 745, 753 (1971)). The decision of whether to
exclude relevant evidence under Rule 403 rests in the discretion
of the trial court. State v. Murillo, 349 N.C. 573, 601, 509
S.E.2d 752, 768 (1998), cert. denied, 528 U.S. 838, 145 L. Ed. 2d
87 (1999); State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56
(1990). Defendant argues that the photographs were highlyprejudicial under Rule 403. We find no abuse of discretion and
overrule defendant's assignments of error.
[8]In two additional assignments of error, defendant
contends that he was prohibited from impeaching one witness and
from hearing the answer to a highly relevant and material
question from another. Defendant questioned witness Crystal
Baker concerning statements she made in court and statements she
made to a detective, who also testified. Defense counsel asked
witness Baker, But, if he [the detective] testified that you
told him that, he would be telling the truth, wouldn't he,
Ms. Baker? The trial court sustained the State's objection.
Defendant also sought to elicit testimony from witness Ronald
Bullock. Defense counsel asked witness Bullock, And, if Jesse
Hill testified that he saw you at 6:00 on Monday afternoon, he
would be mistaken then? The trial court sustained the State's
objection.
In both instances, defendant sought to have the witnesses
vouch for the veracity of another witness. This form of
questioning is not proper. A lay witness' testimony is limited
to those opinions or inferences which are (a) rationally based
on the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a fact in
issue. N.C. R. Evid. 701. Defendant was free to, and did,
question the detective about statements made by witness Baker and
was then free to argue, which he did, any inconsistencies between
Baker's statements. Defendant was also free to argue any
inconsistencies between the testimony of witnesses Bullock andHill. Even if witness Bullock could have rationally perceived
that witness Hill was mistaken, the question called for an
opinion that would not have been helpful to the jury. In neither
instance was it proper for defendant to ask the questions in the
above form, which called for the witness to vouch for the
veracity of another witness. These assignments of error are
overruled.
[9]Defendant raises an assignment of error in which he
contends that the trial court erred in sustaining the State's
objection when defendant sought to elicit information from
witness Steven Gardner as to whether Jennifer Aycock had
identified anyone when shown mug-shot books. Defense counsel
asked witness Gardner, Ms. Aycock didn't identify anyone, did
she? Ms. Aycock did not testify at trial. Defendant's question
called for a hearsay response.
'Hearsay' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. N.C. R.
Evid. 801(c). A 'statement' is (1) an oral or written assertion
or (2) nonverbal conduct of a person, if it is intended by him as
an assertion. N.C. R. Evid. 801(a). An act, such as a gesture,
can be a statement that is subject to the rules of evidence
regarding hearsay. State v. Satterfield, 316 N.C. 55, 58, 340
S.E.2d 52, 54 (1986). Clearly, any statement by Ms. Aycock would
have been hearsay if allowed. Defendant did not identify any
hearsay exception that would have allowed a response from the
witness. This assignment of error is without merit. [10]In the second assignment of error, defendant contends
that the trial court erred by sustaining the State's objection to
his question of whether a witness recalled a portion of another
witness' testimony. Defendant argues specifically that by
sustaining the objection, the trial court prevented him from
hearing the answer to a highly relevant and material question.
The record reveals otherwise. Defendant asked witness Steven
Gardner if he had heard witness Crystal Baker's testimony.
Gardner responded that he did hear her testimony. Defendant then
asked, And, do you recall her stating that ----. The trial
court sustained the State's objection. Immediately thereafter,
defendant resumed his examination of the witness that he had
started before asking the above question. Defendant asked the
witness what Baker had told him when he interviewed her. The
record does not reveal any suggestion that defendant was
prohibited from fully examining what Baker told Gardner. The
trial court properly sustained the State's objection when
defendant tried to refer to Baker's testimony rather than the
more relevant and material issue of what Baker had or had not
told Gardner. See N.C. R. Evid. 403 (1999). This assignment of
error is overruled.
[11]Defendant next assigns error to the trial court's
denying his motions to dismiss the charges of first-degree murder
and attempted robbery with a dangerous weapon. Defendant argues
that the evidence was insufficient to satisfy a rational fact
finder of the existence of the elements beyond a reasonable doubt
for each offense charged. The law governing a trial court's ruling on a
motion to dismiss is well established. [T]he trial
court must determine only whether there is substantial
evidence of each essential element of the offense
charged and of the defendant being the perpetrator of
the offense. State v. Crawford, 344 N.C. 65, 73, 472
S.E.2d 920, 925 (1996). Evidence is substantial if it
is relevant and adequate to convince a reasonable mind
to accept a conclusion. State v. Vick, 341 N.C. 569,
583-84, 461 S.E.2d 655, 663 (1995). In considering a
motion to dismiss, the trial court must analyze the
evidence in the light most favorable to the State and
give the State the benefit of every reasonable
inference from the evidence. State v. Gibson, 342 N.C.
142, 150, 463 S.E.2d 193, 199 (1995). The trial court
must also resolve any contradictions in the evidence in
the State's favor. State v. Lucas, 353 N.C. 568, 581,
548 S.E.2d 712, 721 (2001). The trial court does not
weigh the evidence, consider evidence unfavorable to
the State, or determine any witness' credibility. Id.
State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001).
Defendant contends that the State's evidence was
insufficient to prove that defendant intentionally killed the
victim with premeditation and deliberation. Defendant also
contends that there was insufficient evidence of an overt act in
furtherance of an intent to commit robbery with a dangerous
weapon to support the charge of attempted robbery with a
dangerous weapon. Attempted robbery with a dangerous weapon was
the underlying felony for the felony murder conviction.
We stated in State v. Laws as follows:
A killing is 'premeditated' if the defendant
contemplated killing for some period of time, however
short, before he acted. State v. Williams, 334 N.C.
440, 447, 434 S.E.2d 588, 592 (1993), judgment vacated
on other grounds, 511 U.S. 1001, 128 L. Ed. 2d 42
(1994). A killing is deliberate if the defendant
formed an intent to kill and carried out that intent in
a cool state of blood, free from any 'violent passion
suddenly aroused by some lawful or just cause or legal
provocation.' Id. (quoting State v. Fields, 315 N.C.
191, 200, 337 S.E.2d 518, 524 (1985)). Premeditation
and deliberation are mental processes and ordinarily
are not susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial
evidence. State v. Brown, 315 N.C. 40, 59, 337 S.E.2d
808, 822-23 (1985), cert. denied, 476 U.S. 1164, 90 L.
Ed. 2d 733 (1986), overruled on other grounds by State
v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988).
Circumstances from which premeditation and deliberation
may be inferred include:
(1) lack of provocation on the part of the
deceased, (2) the conduct and statements of the
defendant before and after the killing,
(3) threats and declarations of the defendant
before and during the occurrence giving rise to
the death of the deceased, (4) ill-will or
previous difficulties between the parties, (5) the
dealing of lethal blows after the deceased has
been felled and rendered helpless, (6) evidence
that the killing was done in a brutal manner, and
(7) the nature and number of the victim's wounds.
State v. Keel, 337 N.C. 469, 489, 447 S.E.2d 748, 759
(1994) (quoting State v. Gladden, 315 N.C. 398, 430-31,
340 S.E.2d 673, 693, cert. denied, 479 U.S. 871, 93 L.
Ed. 2d 166 (1986)), cert. denied, 513 U.S. 1198, 131 L.
Ed. 2d 147 (1995).
State v. Laws, 345 N.C. 585, 593-94, 481 S.E.2d 641, 645 (1997).
Here, there was substantial circumstantial evidence for the jury
to conclude that defendant intentionally killed the victim with
premeditation and deliberation.
Defendant carefully planned the robbery with his accomplice,
Ronald Bullock. The two stashed clothing in the woods to change
into after the robbery to aid their getaway. After entering the
Pizza Inn, defendant pointed his weapon at the victim and ordered
him to [p]ut the money in the f---ing bag. The victim
hesitated and asked, What are you going to do if I don't?
Defendant replied, Do you think I'm playing? Defendant pointed
his weapon at the floor and fired. Defendant then shot the
victim in the head as the victim moved forward. When asked by
Bullock why defendant had killed the victim, defendant respondedthat the victim had killed himself by trying to grab him.
Defendant also told his cousin, Jesse Hill, that the victim had
refused to give him the money and that he had shot him. When
viewed in the light most favorable to the State, there existed
substantial evidence for the jury to conclude beyond a reasonable
doubt that defendant killed the victim with premeditation and
deliberation.
[12]Defendant contends, in these same assignments, that
there was insufficient evidence of an overt act to support the
charge of attempted robbery with a dangerous weapon and,
therefore, no underlying felony for the application of the first-
degree felony murder rule. The two elements of an attempt to
commit a crime are: first, the intent to commit the substantive
offense; and, second, an overt act done for that purpose which
goes beyond mere preparation but falls short of the completed
offense. State v. Smith, 300 N.C. 71, 79, 265 S.E.2d 164,
169-70 (1980). Defendant contends that the testimony of Ronald
Bullock -- that defendant pointed a nine-millimeter Ruger at the
victim and told him to [p]ut the money in the f---ing bag -- is
suspect at best. This argument goes to the weight and
credibility of the witness' testimony. As stated earlier from
Lucas, the trial court does not weigh the evidence or determine
any witness' credibility. There was substantial evidence that
defendant had the intent to rob by use of a dangerous weapon and
that he committed an overt act or acts in furtherance of that
intent. These assignments of error are meritless and are,
therefore, overruled. [13]Defendant asks this Court to find plain error in the
trial court's failure to intervene ex mero motu during the
prosecutor's closing argument remarks about defendant's
impeachment of witness Jesse Hill. The prosecutor said:
Now, Jesse Hill. If you wondered why people don't
want to come forward and testify in cases when they
witness things, or they know things in a crime? If you
ever wondered why? Because this man gets up there and
he is trying to tell you the truth. And, all the
defense can do is malign him to go and try to trip him
up on times, which don't matter, because he said it was
light or dark or whatever, and then act like:
You've got worthless check convictions?
As if that would somehow equate with what happened
in Boulder, Colorado when the Ramsey girl disappeared.
Or, maybe a Bosnian war criminal.
You have worthless check [sic]? You have eight
worthless check convictions? You've been charged with
carrying a concealed weapon?
It is clear from the transcript that the prosecutor was
attempting to mitigate any damage done by defendant's impeachment
of witness Hill. At no time did the prosecutor suggest that
defendant's actions were linked to the events in Colorado or
Bosnia. We stated in State v. Johnson:
In capital cases, however, an appellate court may
review the prosecution's argument, even though
defendant raised no objection at trial, but the
impropriety of the argument must be gross indeed in
order for this Court to hold that a trial judge abused
his discretion in not recognizing and correcting ex
mero motu an argument which defense counsel apparently
did not believe was prejudicial when he heard it.
State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979).
We do not believe that the prosecutor's zealous advocacy and
hyperbolic statements merited the trial court's intervention and
that the trial court did not abuse its discretion in allowing theargument. This assignment of error is overruled.
SENTENCING
Defendant asks this Court to consider his three arguments
that the trial court committed plain error in (1) giving
peremptory instructions on nonstatutory mitigating circumstances
that were not consistent with North Carolina law, did not
constitute a true peremptory instruction, and deprived defendant
of his federal and state constitutional rights; (2) failing to
give a peremptory instruction for the (f)(2), (f)(6), and (f)(7)
statutory mitigating circumstances; and (3) failing to give a
peremptory instruction for each nonstatutory mitigating
circumstance. As defendant recognizes, trial counsel did not
preserve these issues for appeal as required by North Carolina
Rule of Appellate Procedure 10(b)(2). Also, the issues were not
preserved for review as plain error under Appellate Rule 10(c)(4)
in that no plain error was alleged in the assignments of error
upon which defendant seeks to rely. Defendant has not properly
preserved these issues for our review. Therefore, these
assignments of error are overruled.
[14]Defendant submitted forty-two mitigating circumstances
at the charge conference. The final list included fourteen
nonstatutory mitigating circumstances and five statutory
mitigating circumstances, which included the N.C.G.S. §
15A-2000(f)(9) catchall mitigating circumstance. Defendant
assigns as error the trial court's combining of the requested
mitigating circumstances and the exclusion of some submitted
mitigating circumstances. After a careful and thorough review ofthe record, we hold that the trial court's final list of
mitigating circumstances subsumed the proposed mitigating
circumstances to the exclusion of none.
This Court has held that '[t]he refusal [of a trial judge]
to submit proposed circumstances separately and independently
. . . [is] not error.' State v. Hartman, 344 N.C. 445, 468, 476
S.E.2d 328, 341 (1996) (quoting State v. Greene, 324 N.C. 1, 21,
376 S.E.2d 430, 443 (1989), sentence vacated on other grounds,
494 U.S. 1022, 108 L. Ed. 2d 603 (1990))(second, third, and
fourth alterations in original), cert. denied, 520 U.S. 1201, 137
L. Ed. 2d 708 (1997). We have also stated that [i]f a proposed
nonstatutory mitigating circumstance is subsumed in other
statutory or nonstatutory mitigating circumstances which are
submitted, it is not error for the trial court to refuse to
submit it. State v. Richmond, 347 N.C. 412, 438, 495 S.E.2d
677, 691, cert. denied, 525 U.S. 843, 142 L. Ed. 2d 88 (1998).
For each of the omitted proposed mitigating circumstances, a
corresponding mitigating circumstance that subsumed the proposed
one was submitted to the jury. Also, the jury could have availed
itself of the opportunity to consider any evidence of mitigating
value under the (f)(9) catchall mitigating circumstance.
Defendant has failed to demonstrate any omission or any improper
combination of mitigating circumstances inconsistent with the
holdings of this Court. These assignments of error are
overruled.
[15]In his next assignment of error, defendant alleges that
the trial court erred in submitting to the jury for itsconsideration three separate statutory aggravating circumstances
that defendant had been previously convicted of three separate
prior convictions for common law robbery. Defendant contends
that he never stipulated to the existence of the use or threat of
violence in any of the convictions. However, common law robbery
is inherently a crime involving the use or threatened use of
violence. State v. Jones, 339 N.C. 114, 163-64, 451 S.E.2d 826,
854 (1994), cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873
(1995). The record reveals that defendant did stipulate to the
exhibits introduced through the Clerk of Superior Court, Wilson
County, which were the judgments and commitments for each of the
common law robbery convictions. This assignment of error is
overruled.
[16]Defendant assigns error to the trial court's submission
of the (e)(5) aggravating circumstance that the murder was
committed during the commission of an attempt to commit robbery
with a dangerous weapon. A person commits the felony offense of
attempted robbery with a dangerous weapon if that person, with
the specific intent to unlawfully deprive another of personal
property by endangering or threatening his life with a dangerous
weapon, does some overt act calculated to bring about this
result. State v. Allison, 319 N.C. 92, 96, 352 S.E.2d 420, 423
(1987).
Where a jury convicts a defendant of first-degree murder
under the theory of premeditation and deliberation and under the
felony murder rule, and both theories are supported by the
evidence, the underlying felony may be submitted to the jury bythe trial court as an (e)(5) aggravating circumstance. State v.
Davis, 340 N.C. 1, 27, 455 S.E.2d 627, 641, cert. denied, 516
U.S. 846, 133 L. Ed. 2d 83 (1995). Here, defendant was convicted
under both theories of first-degree murder. Defendant was also
convicted of attempted robbery with a dangerous weapon.
As we stated earlier when discussing defendant's motion to
dismiss the charge of attempted robbery with a dangerous weapon,
there was substantial evidence to support the charge and the
conviction. Defendant's argument that there was no overt act
because defendant never touched any money or the cash register is
not meritorious. The evidence presented that defendant pointed
his weapon at the victim, demanded money, and then fired his
weapon clearly supported the submission of the (e)(5) aggravating
circumstance. This assignment of error is without merit.
[17]In another assignment of error, defendant contends that
the trial court abused its discretion in not intervening ex mero
motu and issuing a curative instruction after it sustained
defendant's objection to a question from the prosecutor during
the sentencing proceeding. Defendant introduced a photograph of
defendant when he was approximately six or seven years old. The
prosecutor asked defendant's mother on cross-examination if she
was aware that the victim had children about that same age. The
trial court sustained defendant's objection. Defendant did not
ask that the comment be stricken or that a curative instruction
be given.
This Court has held that where the trial court sustains
defendant's objection, he has no grounds to except, and there isno prejudice. State v. Trull, 349 N.C. 428, 446, 509 S.E.2d 178,
190 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999);
State v. Quick, 329 N.C. 1, 29, 405 S.E.2d 179, 196 (1991). This
Court has also held that a defendant cannot complain that no
curative instruction was given where he did not request one.
State v. Williamson, 333 N.C. 128, 139, 423 S.E.2d 766, 772
(1992). Therefore, defendant's assignment of error is without
merit.
PRESERVATION
Defendant raises several 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: the short-form indictment was insufficient to
charge defendant with first-degree murder in that it failed to
allege all of the elements of first-degree murder; the trial
court erred in instructing the jury regarding the definition of
mitigation; the trial court erred in instructing the jury that
defendant had the burden of proving mitigating circumstances by a
preponderance of the evidence; the trial court erred in
instructing that each juror was allowed, rather than required, to
consider any mitigating circumstances the juror determined to
exist when deciding sentencing Issues Three and Four; the North
Carolina death penalty statute is unconstitutionally vague and
overbroad, results in unconstitutional verdicts, and is imposed
in a discretionary and discriminatory manner; the trial court
committed reversible error in its instructions that the jury had
a duty to recommend death; the trial court erred in instructingthe jury on Issues Three and Four that it may consid
er
mitigating circumstances that it found to exist in Issue Two; the
trial court committed reversible error in its instructions as to
what each juror may consider regarding the mitigating
circumstances in Issues Three and Four; the trial court erred by
instructing the jury concerning the unanimity requirement in
various jury decisions; the trial court erred in its instructions
that the answers to Issues One, Three, and Four must be
unanimous; and the trial court committed reversible error in its
instructions that permitted jurors to reject a submitted
mitigating circumstance because it had no mitigating value. 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
[18]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 ofpassion, prejudice, or any other arbitrary consideration. Thus,
we turn to our final statutory duty of proportionality review.
[19]In the present case, the jury found defendant guilty 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 four aggravating circumstances submitted for its
consideration: three separate aggravating circumstances that
defendant had been previously convicted of a felony involving the
use or threat of violence, N.C.G.S. § 15A-2000(e)(3), and that
the murder was committed while defendant was engaged in the
commission of robbery with a firearm, N.C.G.S. § 15A-2000(e)(5).
Five statutory mitigating circumstances, including the
catchall, were submitted for the jury's consideration: defendant
has no significant history of prior criminal activity N.C.G.S. §
15A-2000(f)(1); defendant committed the murder while under the
influence of a mental or emotional disturbance, N.C.G.S. §
15A-2000(f)(2); 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)(2) mitigator.
Of the fourteen nonstatutory mitigating circumstances submitted
by the trial court, one or more jurors found the following four
to have mitigating value: that defendant had no male guidance or
father figure in his formative years; that defendant witnessedfamily violence and the death of two cousins; that defendant was
neglected by his mother and was exposed to alcohol use by others
beginning at an early age; and that defendant has not had a
strong, continued, affirmative guidance and support system.
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).
In conducting 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; 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 first-degree murder on
the basis of premeditation and deliberation. 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. Ed. 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 one accomplice who
fled the scene before defendant and never fired his weapon. 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 the victim in the head and immediately fled thescene.
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 previously held proportionate a death sentence
based, as in the present case, on the (e)(3) and (e)(5) statutory
aggravating circumstances. Davis, 340 N.C. 1, 455 S.E.2d 627.
Further, there are four statutory aggravating circumstances that,
standing alone, this Court has held sufficient to support a
sentence of death. State v. Warren, 347 N.C. 309, 328, 492
S.E.2d 609, 619 (1997), cert. denied, 523 U.S. 1109, 140 L. Ed.
2d 818 (1998). Both the (e)(3) and (e)(5) 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 instituted and carefully
planned the robbery of the Pizza Inn with his accomplice.
Defendant showed no remorse when telling his accomplice and
others what happened after having shot and killed the victim.
The crime of which defendant was convicted and the circumstances
under which it occurred manifest an egregious disregard for human
life. Accordingly, we conclude that the sentence of death
recommended by the jury and ordered by the trial court is notdisproportionate.
We conclude that defendant received a fair trial and capital
sentencing proceeding, free from prejudicial error. Accordingly,
the sentence of death recommended by the jury is left
undisturbed.
NO ERROR.
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