All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
20S
State v. Squires
No. 428A00
(Filed 7 November 2003)
1. Homicide--felony murder--sale of cocaine--motion to dismiss--sufficiency of evidence
The trial court did not err in a double first-degree murder case by denying defendant's
motions to dismiss related to the sale of cocaine as an underlying felony to support the felony
murder of one of the victims, because: (1) the evidence was sufficient for a reasonable juror to
find attempted sale of cocaine which is a lesser-included offense of sale of cocaine; (2) actions to
which defendant has admitted, including possession of the drugs and scales while attempting to
effectuate the sale, are sufficient to establish both intent and an act in preparation of an actual
transfer of cocaine; (3) defendant's contention that the language “sale of cocaine” on the verdict
sheet required the jury to find that a completed sale occurred is without merit when the trial court
instructed the jury that either a completed sale or an attempted sale of cocaine sufficed to support
a conviction for felony murder; and (4) although defendant contends some jurors may have found
a completed sale while others found an attempted sale, any member of the jury who found the
elements constituting a sale of cocaine must necessarily have found the elements of attempted
sale of cocaine.
2. Homicide--first-degree murder--short-form indictment--notice
The short-form indictment used to charge defendant with first-degree murder was
constitutional because it gave defendant sufficient notice of the nature and cause of the charges
against him.
3. Homicide--first-degree murder_-sufficiency of indictment
The trial court did not err by entering judgment upon defendant's convictions for first-
degree murder based on indictments purportedly alleging only second-degree murder because the
indictments were sufficient to charge first-degree murder, the crime for which defendant was
convicted.
4. Sentencing-_aggravating circumstances-_murder part of course of conduct
The trial court did not err in a capital sentencing proceeding following defendant's
conviction of one of two first-degree murders solely on the basis of the felony murder rule by
submitting the N.C.G.S. § 15A-2000(e)(11) aggravating circumstance that the murder was part of
a course of conduct including crimes of violence against others based on defendant's murder of a
second victim, because: (1) where the evidence supports a finding of more than one underlying
felony, the (e)(11) aggravating circumstance may be submitted since only one of the underlying
felonies merges as an element of the first-degree murder conviction; and (2) the murder of
another victim could properly be used to support submission of the (e)(11) circumstance for one
of the victims when the evidence supported a finding of the felony murder based on attempted
sale of cocaine.
5. Homicide--first-degree murder--short-form indictment-_failure to allege
aggravating circumstances
The short-form murder indictment is both statutorily and constitutionally sufficient
without the inclusion of the N.C.G.S. § 15A-2000(e) aggravating circumstances.
6. Homicide--first-degree murder--short-form indictment-_failure to allege elements
Although defendant contends his rights under the Eighth and Fourteenth Amendments
were violated by the trial court's entry of a death sentence under an indictment failing to allege
all of the elements of capital murder, our Supreme Court has already concluded that the crime of
first-degree murder and the accompanying maximum penalty of death are encompassed within
the language of the short-form murder indictment.
7. Sentencing-_aggravating circumstances-_felony involving use or threat of violence
The trial court did not err in a double first-degree murder case by submitting the N.C.G.S.
§ 15A-2000(e)(3) aggravating circumstance that defendant had been previously convicted of a
felony involving the use or threat of violence, because there is no requirement that the conviction
for the prior felony precede the occurrence of the capital murder itself.
8. Sentencing--nonstatutory mitigating circumstance--defendant's prison sentence for
another crime
The trial court did not err in a double first-degree murder case by failing to submit the
nonstatutory mitigating circumstance that defendant had been sentenced to 105 years'
imprisonment in the state of Georgia for his convictions of crimes that he committed there,
because defendant's prison sentence for another crime is not relevant as a mitigating
circumstance.
9. Sentencing--death penalty--proportionality
The trial court did not err in a double first-degree murder case by sentencing defendant to
the death penalty for one of the murders because: (1) the jury's finding of three distinct
aggravating circumstances submitted were supported by the evidence, and our Supreme Court
has deemed the N.C.G.S. § 15A-2000(e)(3) and (e)(11) aggravating circumstances standing alone
to be sufficient to sustain a death sentence; (2) nothing in the record suggested that defendant's
death sentence was imposed under the influence of passion, prejudice, or other arbitrary factor;
and (3) defendant was convicted of two first-degree murders, one on the basis of premeditation
and deliberation and under the felony murder rule, and the other solely under the felony murder
rule.
STATE OF NORTH CAROLINA
v.
MARK LORENZO SQUIRES
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from
a judgment imposing a sentence of death entered by Judge Jerry R.
Tillett on 15 May 2000 in Superior Court, Pitt County, upon a
jury verdict finding defendant guilty of first-degree murder. On
17 September 2002, 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 6 May 2003.
Roy Cooper, Attorney General, by William P. Hart,
Special Deputy Attorney General, and Amy C. Kunstling,
Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Benjamin
Dowling-Sendor, Assistant Appellate Defender, for
defendant-appellant.
PARKER, Justice.
On 27 July 1998 defendant Mark Lorenzo Squires was
indicted on two counts of first-degree murder in connection with
the deaths of Randy House and Erick Keech. Defendant was tried
capitally and was found guilty on both counts of first-degree
murder. For the murder of House, defendant's conviction was
based on premeditation and deliberation and felony murder with
the sale of cocaine as the underlying felony. For the murder of
Keech, defendant's conviction was based solely on felony murder
with both the sale of cocaine and House's murder as theunderlying felonies. Following a capital sentencing proceeding,
the jury recommended that defendant be sentenced to life
imprisonment without parole for House's murder and to death for
Keech's murder.
The State's evidence tended to show that on 4 July
1998, House, a drug dealer, was planning to make a $4,500
purchase of crack cocaine from defendant. The crack cocaine was
being purchased from defendant for both House and Keech. Keech
was known to drive a 1981 burgundy Oldsmobile.
On 5 July 1998 police responded to a call that led to
an abandoned 1981 burgundy Oldsmobile on Contentnea Street in
Greenville, North Carolina. The police found the windows of the
car rolled down on both the front and back driver's side. The
police also found a large quantity of blood on the back
floorboards and elsewhere in the car and a small bullet hole in
the top of the front driver's side door.
On 15 July 1998 men doing yard work on Atlantic Avenue
in Greenville found two bodies behind a shed. The decomposition
of the bodies suggested that they had been there for some time.
Police identified the bodies as Keech and House.
Defendant, identifying himself as William Ferrell,
voluntarily went to the Greenville Police Department on 20 July
1998 to speak with the police. Defendant told the police that he
had known House for approximately six months and had bought drugs
from him in the past. Additionally, defendant told police that
he wanted to buy “some smoke” from House on the night of 4 July
1998 but that House failed to appear for the exchange. On 23 July 1998 the New Bern police received a call
from Ellis Tripp, a local resident. Tripp told police that
defendant was at his home, that defendant was driving a tan Mazda
multi-purpose van with bloodstains on the seats, that defendant
had said the bloodstains were the result of a homicide in
Greenville in which defendant and someone else had murdered two
men and disposed of the bodies, and that defendant was taking the
van to Cape Carteret the next day to have the van reupholstered
and wanted Tripp to follow him as a shield. The following day,
24 July 1998, Tripp cooperated with the police, who subsequently
arrested defendant.
After he was arrested, defendant again reported to
police officers that his name was “William Ferrell”; but
defendant later told them his real name. Defendant told police
that he met House and Keech at the Player's Club Apartments on
the night of the shootings to collect a $5,000 debt from a past
drug transaction. Defendant said that he thought House and Keech
were going to rob and shoot him and that he shot the two victims,
dumped their bodies on Atlantic Avenue, and abandoned the car
near the river. When asked if anyone was with him during the
shooting, defendant responded that he did not tell on others.
Defendant testified on his own behalf at trial. His
testimony tended to show that he regularly sold cocaine and
marijuana to House. Defendant did not carry a gun, but Lucius
Gaston a/k/a Puppet, who accompanied him on drug transactions,
carried a weapon. On 4 July 1998 House called to arrange a drug
buy which was to take place at Players Club Apartments. Defendant and Puppet drove to the apartments in the Mazda van.
Defendant had with him the drugs and digital scales to weigh the
cocaine. House arrived in Keech's car with Keech driving and
House sitting in the passenger seat. Puppet got into the car
behind Keech, and defendant got into the car behind House.
Defendant asked House for the money twice. House “drew down” on
Puppet. Puppet grabbed House's gun, a nine-millimeter pistol,
and then shot House with his own gun, a .38-caliber “police
special.” Keech tried to grab Puppet, the two of them struggled,
and defendant heard three shots. Defendant drove Keech's car to
the shed on Atlantic Avenue where he and Puppet dumped the
bodies. Defendant wrapped Puppet's .38-caliber and House's nine-
millimeter weapons in a sock and plastic bag and disposed of them
behind a Pantry convenience store.
Defendant later told his cellmate that he had shot the
victims. Defendant did not mention Puppet. The police recovered
the nine-millimeter pistol behind the Pantry, but the .38 was not
found.
The pathologist who performed the autopsy on the bodies
of House and Keech determined that the men had probably been dead
for ten days when their bodies were found. The body of House had
two gunshot wounds. One was to the left side of the back of his
head and the other was to the left side of the back of his neck.
Keech's body had a gunshot wound to the right side of his face.
The pathologist determined that the cause of death for both House
and Keech was the fatal gunshot wounds to each of their heads.
GUILT-INNOCENCE PHASE
[1] Defendant first contends that the trial court erred
by denying defendant's motions to dismiss related to the sale of
cocaine as an underlying felony to support the felony murder of
Keech and in instructing the jury to consider sale of cocaine as
an underlying felony to support the felony murder of Keech. The
basis for this contention is that the evidence was insufficient
to show that defendant completed the sale of cocaine. We
disagree.
The jury convicted defendant of Keech's murder solely
on the theory of felony murder. The verdict sheet listed two
predicate felonies to support a finding of felony murder: (1)
“other murder” (that is, the murder of Randy House), and (2)
“sale of cocaine.” The trial judge instructed the jury on sale
of cocaine as follows:
If you find from the evidence beyond a
reasonable doubt that on or about the date
that's been alleged, the defendant . . .
committed or attempted to commit sale of
cocaine with the use or possession of a
deadly weapon, then it would be your duty to
return a verdict of first-degree murder under
the felony murder rule as to this alleged
felony.
(Emphasis added.) The jury found defendant had committed both
underlying felonies submitted to support a conviction of felony
murder for Keech's death.
Defendant argues that the State presented insufficient
evidence to prove a completed sale of cocaine in that the State
failed to prove that a transfer of cocaine took place on the
night in question. Defendant further argues that the words “sale
of cocaine” on the verdict sheet suggested to the jurors thatthey were required to find a completed sale rather than an
attempted sale of cocaine. Thus, according to defendant, the
verdict form improperly provided an opportunity for jurors to
find a predicate felony that was unsupported by the evidence.
In determining the sufficiency of the evidence to
withstand a motion to dismiss and to be submitted to the jury,
the trial court must determine “whether there is substantial
evidence (1) of each essential element of the offense charged, or
of a lesser offense included therein, and (2) of defendant's
being the perpetrator of such offense.” State v. Powell, 299
N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial evidence is
such relevant evidence as is necessary to persuade a rational
juror to accept a conclusion. State v. Frogge, 351 N.C. 576,
584, 528 S.E.2d 893, 899, cert. denied, 531 U.S. 994, 148 L. Ed.
2d 459 (2000). The trial court must review the evidence in the
light most favorable to the State, giving the State the benefit
of every reasonable inference to be drawn therefrom. State v.
Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993).
Viewed under this standard, the evidence in this case
was sufficient for a reasonable juror to find attempted sale of
cocaine, a lesser-included offense of sale of cocaine. The
elements of attempt are an intent to commit the substantive
offense and an overt act which goes beyond mere preparation but
falls short of the completed offense. State v. Robinson, 355
N.C. 320, 338, 561 S.E.2d 245, 257, cert. denied, 537 U.S. 1006,
154 L. Ed. 2d 404 (2002). In State v. Moore, 327 N.C. 378, 395
S.E.2d 124 (1990), this Court defined the sale of cocaine as the“'transfer of [cocaine] for a specified price payable in money.'”
Id. at 382, 395 S.E.2d at 127 (quoting State v. Creason, 313 N.C.
122, 129, 326 S.E.2d 24, 28 (1985)). Thus, to have sale of
cocaine submitted to the jury as an underlying felony, the State
was required to produce evidence that defendant intended to sell
cocaine and committed an overt act beyond mere preparation
towards the transfer of cocaine for a monetary price.
As defendant concedes, the evidence, viewed in the
light most favorable to the State, was sufficient to prove an
attempted sale of cocaine. Defendant testified that he had a
business relationship with House involving several drug
transactions over a six-month period of time and that House had
contacted him on 4 July 1998 to plan an exchange of drugs for
money that night at the Player's Club Apartments. Defendant and
Puppet went to the prearranged meeting place. Defendant brought
to the meeting both the cocaine and digital scales with which to
weigh the cocaine. When House and Keech arrived, defendant
entered Keech's car in order to effect the sale. According to
defendant, he asked House twice for the money, after which House
and Keech attempted to rob defendant and Puppet; and both victims
were then shot as an act of self-defense. The actions to which
defendant has admitted -- possession of the drugs and scales
while attempting to effectuate the sale -- are sufficient to
establish both intent and an act in preparation of an actual
transfer of cocaine. This evidence is sufficient to satisfy the
elements of attempted sale of cocaine. Defendant's contention that the language “sale of
cocaine” on the verdict sheet required the jury to find that a
completed sale occurred is without merit. The trial court
clearly instructed the jury that either a completed sale or an
attempted sale of cocaine sufficed to support a conviction for
felony murder. “We presume 'that jurors . . . attend closely the
particular language of the trial court's instructions in a
criminal case and strive to understand, make sense of, and follow
the instructions given them.' Francis v. Franklin, 471 U.S. 307,
324 n.9, 85 L. Ed. 2d 344, 360 n.9 (1985).” State v. Jennings,
333 N.C. 579, 618, 430 S.E.2d 188, 208, cert. denied, 510 U.S.
1028, 126 L. Ed. 2d 602 (1993). Accordingly, we can assume in
this case that the jury understood the notation on the verdict
sheet to be inclusive of both potential predicate felonies,
namely, a completed sale of cocaine or an attempted sale of
cocaine.
Defendant argues that some jurors may have found a
completed sale while others found an attempted sale. Even if
some jurors found a completed sale of cocaine rather than an
attempted sale, this discrepancy would not change the result.
When a jury finds the facts necessary to constitute one offense,
it also inescapably finds the facts necessary to constitute all
lesser-included offenses of that offense. See State v. Vance,
328 N.C. 613, 623, 403 S.E.2d 495, 502 (1991); State v. Jolly,
297 N.C. 121, 130, 254 S.E.2d 1, 7 (1979). Attempted sale of
cocaine is a lesser-included offense of the sale of cocaine.
Therefore, any member of the jury who found the elementsconstituting a sale of cocaine must necessarily have found the
elements of attempted sale of cocaine. Since the evidence at
trial was sufficient to prove attempted sale of cocaine and since
all jurors necessarily found an attempted sale, a determination
of whether the evidence supported a completed sale of cocaine is
not necessary to resolve this issue. We hold that the trial
court's submission to the jury of “sale of cocaine” as a
predicate felony to support defendant's felony murder conviction
for Keech's death was not error.
[2] Defendant next argues that his rights under the
United States and North Carolina Constitutions were violated when
he was tried for first-degree murder based on the short-form
murder indictments in that the indictments allege only the
elements of second-degree murder. The United States Supreme
Court has consistently declined to impose a requirement mandating
states to prosecute only upon indictments which include all
elements of an offense. See, e.g., Apprendi v. New Jersey, 530
U.S. 466, 477 n.3, 147 L. Ed. 2d 435, 447 n.3 (2000); Alexander
v. Louisiana, 405 U.S. 625, 633, 31 L. Ed. 2d 536, 543-44 (1972).
The Court has, however, held the Sixth Amendment due process
requirements to apply to the states. In re Oliver, 333 U.S. 257,
92 L. Ed. 682 (1948). Under the Sixth Amendment defendants have
the right “to be informed of the nature and cause of the
accusation[s]” against them. U.S. Const. amend. VI. This Court
has consistently held that the short-form first-degree murder
indictment serves to give a defendant sufficient notice of the
nature and cause of the charges against him or her. See, e.g.,State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert.
denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001); State v.
Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S.
1018, 148 L. Ed. 2d 498 (2000). Additionally, this Court held in
State v. Avery, 315 N.C. 1, 14, 337 S.E.2d 786, 793 (1985), which
involved an indictment identical in substance to the one in this
case, that “[t]he indictment in question complies with the short-
form indictment authorized by [N.C.]G.S. [§] 15-144 and is
therefore sufficient to charge first[-]degree murder without
specifically alleging premeditation and deliberation or felony
murder.” Id.; see also State v. Kilpatrick, 343 N.C. 466, 472,
471 S.E.2d 624, 628 (1996). We find no compelling reason to
depart from our prior holdings and conclude that the trial court
did not err by trying defendant under the bills of indictment
issued in this case.
[3] Next, defendant asserts that the trial court erred
by entering judgment upon defendant's convictions for first-
degree murder based on indictments purportedly alleging only
second-degree murder. Defendant argues that this deficiency
created a fatal variance between the verdicts and the indictments
and violated his Fourteenth and Fifth Amendment rights.
Defendant is correct that our case law requires
conformity between a charge and a judgment. State v. Hare, 243
N.C. 262, 264, 90 S.E.2d 550, 552 (1955). Nevertheless, in this
case no variance exists between the charges in the indictments
and the judgments entered. As noted above, the indictments were
sufficient to charge first-degree murder, the crime for whichdefendant was convicted. Accordingly, defendant's assignment of
error is overruled.
SENTENCING PROCEEDING
[4] Defendant next contends that the trial court erred
in submitting the (e)(11) aggravating circumstance, that the
murder was part of a course of conduct including crimes of
violence against others. See N.C.G.S. § 15A-2000(e)(11) (2001).
Defendant relies on the theory espoused in his first assignment
of error, that the sale of cocaine was improperly submitted as an
underlying felony. Assuming arguendo that defendant's argument
was correct, defendant's conviction for the felony murder of
Keech would rest solely on the murder of House. In State v.
Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), overruled on other
grounds by State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133
(1997), this Court held that “[w]hen a criminal defendant is
convicted of first[-]degree murder upon a theory of felony
murder, it is error to submit the underlying felony to the jury
at the punishment phase of trial as one of the aggravating
circumstances.” Id. at 262, 275 S.E.2d at 478; see also State v.
Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 770 (2002); State v.
Cherry, 298 N.C. 86, 113, 257 S.E.2d 551, 567-68 (1979), cert.
denied, 446 U.S. 941, 64 L. Ed. 2d 796 (1980). Thus, if the
murder of House were the only predicate felony supporting the
felony murder conviction for Keech's murder, the State in this
case would have been barred from having the (e)(11) aggravator
submitted. However, where the evidence supports a finding of
more than one underlying felony, the (e)(11) aggravatingcircumstance may be submitted since only one of the underlying
felonies merges as an element of the first-degree murder
conviction. Cherry, 298 N.C. at 113, 257 S.E.2d at 567-68.
As noted above, the jury in this case properly found
defendant guilty of felony murder for the death of Keech based on
attempted sale of cocaine. Accordingly, the murder of House
could properly be used to support submission of the (e)(11)
circumstance, and the trial court did not err by submitting it.
[5] Defendant next argues that this Court should
reconsider its prior holdings that the short-form murder
indictment, taken from N.C.G.S. § 15-144, is sufficient to give
the trial court jurisdiction over a capital defendant.
Specifically, defendant contests this Court's holding that
aggravating circumstances found at the sentencing proceeding in a
capital trial are used only as sentencing factors and not as
elements of a greater offense. See, e.g., State v. Golphin, 352
N.C. 364, 395-97, 533 S.E.2d 168, 193-94 (2000), cert. denied,
532 U.S. 931, 149 L. Ed. 2d 305 (2001). Defendant contends that
the United States Supreme Court in Ring v. Arizona, 536 U.S. 584,
153 L. Ed. 2d 556 (2002), held that aggravating circumstances are
elements of capital murder, a greater crime than first-degree
murder; thus, to comport with Article I, Section 22 of the North
Carolina Constitution, aggravating circumstances must be included
in an indictment in order to give a trial court jurisdiction over
a capital murder.
This Court addressed this issue in the recent case of
State v. Hunt, 357 N.C. 257, 277-78, 582 S.E.2d 593, 606 (2003),holding that, even after Ring, the short-form murder indictment
is both statutorily and constitutionally sufficient without the
inclusion of the N.C.G.S. § 15A-2000(e) aggravating
circumstances. As noted therein, the United States Supreme
Court's ruling in Ring contains nothing requiring reconsideration
of our earlier holdings that the short-form murder indictment was
an appropriate charging document. See, e.g., Braxton, 352 N.C.
at 173-75, 531 S.E.2d 436-38; Wallace, 351 N.C. at 503-08, 528
S.E.2d at 341-43. This assignment of error is overruled.
[6] In his next assignment of error, defendant contends
that his rights under the Eighth and Fourteenth Amendments to the
United States Constitution were violated by the trial court's
entry of a death sentence under an indictment failing to allege
all of the elements of capital murder. Defendant acknowledges
that the Court in Ring stopped short of deciding whether the
Fourteenth Amendment required aggravating circumstances to be
alleged in a criminal indictment. 536 U.S. at 597 n.4, 153 L.
Ed. 2d at 569 n.4. Nonetheless, he argues that this Court should
revisit its decision in Braxton, 352 N.C. 158, 531 S.E.2d 428,
under the logic employed in Ring. We decline to do so.
As defendant concedes, this Court has previously
considered this argument in Braxton and determined that “[t]he
crime of first-degree murder and the accompanying maximum penalty
of death . . . are encompassed within the language of the short-
form murder indictment.” 352 N.C. at 175, 531 S.E.2d at 437-38;
see also Wallace, 351 N.C. at 504-08, 528 S.E.2d at 341-43. The
United States Supreme Court in Ring, as pointed out by defendant,explicitly declined to consider the issue of the defendant's
indictment. 536 U.S. at 597 n.4, 153 L. Ed. 2d at 569 n.4. This
assignment of error is overruled.
[7] Defendant's next assignment of error pertains to
the trial court's submission of the (e)(3) aggravating
circumstance, that “defendant had been previously convicted of a
felony involving the use or threat of violence to the person.”
N.C.G.S. § 15A-2000(e)(3). Defendant contends that this Court's
interpretation of that aggravator in State v. Burke, 343 N.C.
129, 469 S.E.2d 901, cert. denied, 519 U.S. 1013, 136 L. Ed. 2d
409 (1996), and in State v. Lyons, 343 N.C. 1, 468 S.E.2d 204,
cert. denied, 519 U.S. 894, 136 L. Ed. 2d 167 (1996), was
incorrect under the plain language of the statute. In short,
defendant contends that for the (e)(3) aggravator to apply a
defendant must have been convicted of the violent felony before
the commission of the act for which he is currently on trial.
Assuming without deciding that defendant effectively
preserved this issue for appellate review, we do not agree that
the (e)(3) aggravating circumstance was improperly submitted. In
Burke, the defendant shot a man he believed testified against him
in a previous murder trial. 343 N.C. at 138, 469 S.E.2d at 904.
The prior felony for which (e)(3) was submitted in that case was
assault with a deadly weapon inflicting serious injury. Id. at
157, 469 S.E.2d at 915. As in this case the conviction for the
prior felony occurred after the murder for which the defendant
was being sentenced but before the defendant's conviction for the
murder. Id. The Court in Burke held as follows: [T]here is no requirement that the conviction
occur prior to the capital murder so long as
the conduct giving rise to the conviction
occurred prior to the events out of which the
capital murder arose. The “previously
convicted” language used by the legislature
in N.C.G.S. § 15A-2000(e)(3) simply
establishes a more reliable means of assuring
that the defendant is guilty of the violent
felony.
Id. at 159, 469 S.E.2d at 916.
In this case defendant was convicted of six qualifying
violent felonies on 12 August 1999. Defendant's trial for the
capital murders of House and Keech took place after that date.
We decline to impose a requirement that the conviction for the
prior felony precede the occurrence of the capital murder itself.
Thus, under this Court's precedent, the trial court's submission
of the (e)(3) aggravating circumstance was not error.
[8] Defendant next contends that the trial court
improperly declined to submit to the jury as a nonstatutory
mitigating circumstance that defendant had been sentenced to 105
years' imprisonment in the state of Georgia for his convictions
of crimes that he had committed there. More specifically,
defendant argues that fairness dictates that he be permitted to
use the convictions as mitigation, just as the State is permitted
to use them as aggravation to support a death sentence. We
disagree.
This Court has held that a defendant's prison sentence
for another crime is not relevant as a mitigating circumstance.
State v. Price, 331 N.C. 620, 634-35, 418 S.E.2d 169, 177 (1992),
sentence vacated on other grounds, 506 U.S. 1043, 122 L. Ed. 2d
113 (1993). In Price, this Court stated: “That [a] defendant iscurrently serving a life sentence for another unrelated crime is
not a circumstance which tends to justify a sentence less than
death for the capital crime for which defendant is being
sentenced.” Id. In keeping with this precedent, we hold that
the trial court correctly denied defendant's request to submit
the prior sentences as a mitigating circumstance. This
assignment of error is overruled.
PRESERVATION ISSUES
Defendant raises six additional issues that he concedes
have previously been decided contrary to his position by this
Court: (i) whether the trial court properly denied defendant's
request for allocution; (ii) whether the trial court used the
proper burden of persuasion for mitigating circumstances by
instructing the jury that defendant had the burden to prove
mitigating circumstances to the satisfaction of the jurors; (iii)
whether the trial court erred by instructing jurors that they
were permitted to reject mitigators on the basis that they did
not have mitigating value; (iv) whether the trial court erred by
instructing jurors they “may” consider mitigating circumstances;
(v) whether the trial court properly instructed the jury that the
death penalty may be imposed if the mitigating circumstances have
equivalent weight to the aggravating circumstances; and (vi)
whether the North Carolina death penalty statute is vague,
overbroad, and unconstitutional in that the death sentence is a
cruel and unusual punishment imposed in an arbitrary and
discriminatory manner. Defendant raises these issues for purposes of urging
this Court to reexamine its prior holdings. We have considered
defendant's arguments on these issues and conclude that defendant
has demonstrated no compelling reason for us to depart from our
prior holdings. We thus overrule these assignments of error.
PROPORTIONALITY
[9] 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. 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 conclude that
the jury's findings of the three distinct 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 boththe 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).
In the case at bar, defendant was convicted of two
first-degree murders -- one on the basis of premeditation and
deliberation and under the felony murder rule, for which he did
not receive the death penalty, and one solely under the felony
murder rule, for which he did receive the death penalty. As to
the Keech murder, for which defendant received a sentence of
death, the jury found all of the aggravating circumstances
submitted: (i) that defendant had been previously convicted ofsix felonies involving the use or threat of violence to the
person, N.C.G.S. § 15A-2000(e)(3); (ii) that the capital felony
was committed for the purpose of avoiding or preventing a lawful
arrest, N.C.G.S. § 15A-2000(e)(4); and (iii) that the murder was
part of a course of conduct in which defendant engaged and which
included the commission by defendant of other crimes of violence
against another person or persons, N.C.G.S. § 15A-2000(e)(11).
The trial court submitted one statutory mitigating
circumstance for the jury's consideration, 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 did not
find that mitigating circumstance to exist. The trial court also
submitted four nonstatutory mitigating circumstances; the jury
found one of these circumstances to exist and to have mitigating
value.
In our proportionality analysis we compare 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 eight occasions. State
v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002); 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.
We also consider cases in which this Court has found
the death penalty to be proportionate. Defendant in this case
murdered House during a drug deal and then shot Keech in the head
and chest. Defendant also has a history that includes prior
convictions for shootings and violent crimes. Furthermore, this
Court has deemed the (e)(3) and (e)(11) aggravating
circumstances, standing alone, to be sufficient to sustain a
sentence of death. 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). Viewed in this light, the present case is
more analogous to cases in which we have found the sentence of
death proportionate than to those cases in which we have found
the sentence disproportionate or to those cases in which juries
have consistently returned recommendations of life imprisonment.
Defendant received a fair trial and capital sentencing
proceeding, free from prejudicial error; and the death sentence
in this case is not disproportionate. Accordingly, the judgments
of the trial court are left undisturbed.
NO ERROR.
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