State v. Harris

STATE v. HARRIS (1994)] N.C. 129 [338 proven that it was never as to which firearm the defendant fired. Nevertheless, Brown, as in in light regard- the evidence “[v]iewed ing the nature of defendant, the crime and the character of the we diminishing culpability find the evidence minuscule insufficient disproportionality.” to a holding warrant Id.

We conclude that the circumstances of the numerous cases cited in defendant which the sentence, returned life or in which this disproportionate, Court held a death sentence distinguish those present case; cases pool from Brown is case in com- most parable present light Brown, case. In especially and of the cold, calculated, unprovoked here, nature the offense can- we say not death sentence disproportionate, was excessive or considering premeditated both the nature of the crime—a and delib- erated, lying in killing wait the character of the defendant. —and pro-

We hold that a fair defendant received trial and sentencing ceeding, prejudicial free of error. In comparing this case to similar penalty imposed, cases in which the considering death was and in both the crime we cannot as a law hold matter of penalty disproportionate the death or excessive. NO ERROR.

STATE OF NORTH BOBBY CAROLINA LEE HARRIS

No. 345A92 (Filed 1994) 3 November 1. (NCI4th)— Evidence and Witnesses § assertion

right to counsel — further communication initiated subsequent confession admissible defendant — Defendant initiated further communication with the sheriff counsel, right after he had earlier asserted and his confes- capital trial, sion the sheriff was admissible where jail; sheriff allowed defendant’s brother to visit defendant in then brother went to the sheriff’s office and told him; sheriff that talk defendant wanted to with sheriff brought office; to his sheriff began the conference by asking regard defendant whether he wanted to with him talk COURT IN THE SUPREME

STATE he wanted to happened; defendant answered that what to do so. seq.; 749 2d, §§ Law 788 et Evidence §§

Am Jur Criminal seq. et right of

Duty to to assistance advise accused as to 3 counsel. ALR2d 1003. right to counsel follow-

What constitutes assertion ing warnings 83 ALR4th 443. cases. Miranda — state (NCI4th)— Miranda warn- § 2. Evidence and Witnesses ings right communica- to counsel — further — assertion warnings defendant — additional tion initiated unnecessary properly of his Miranda

Where defendant had been advised right approximately twelve rights and had asserted his to counsel sheriff, he initiated communications with hours before required again of his Miranda was not advise defendant sheriff subsequent him, interrogating and defendant’s con- rights before sheriff sheriff was not inadmissible because the fession questions if decided to answer failed to advise defendant that he any if wanted stop at and failed to ask defendant he he could time lawyer time. at that 2d, seq.; §§ Law 788 et Evidence §§ Am Jur Criminal seq. et right

Duty to assistance to advise accused as to 3 ALR2d counsel. 1003. right counsel

What constitutes assertion follow- ing warnings 83 ALR4th 443. Miranda cases. — state closing argument prose- (NCI4th)— § 3. Law 434 Criminal — probation support- cutor’s statement about — ing evidence robbery-murder attorney’s argument in a The district already crime, probation that defendant was for another case per- doing, what he was and that don’t have that he knew “[w]e supported never substan- son who been trouble” [has] improper in his and was where defendant stated tive evidence not confession, played jury, for he was which was recorded money probation revoked and he needed afraid that his would be STATE town, to leave and this evidence showed defendant’s motive to rob and murder victim. 2d,

Am Jur Trial 626. § Supreme Court’s to what views as courtroom state- by prosecuting attorney during ments made criminal trial process violate due or constitute denial trial. of fair L. Ed. 2d 886.

4. (NCI4th)— § Criminal Law 951 ineffective assistance appropriate

counsel — motion relief — determination hearing without judge by failing

The trial did not err to a hearing conduct on appropriate defendant’s motion for relief guilt at the end of the phase capital ground a trial on the that he had ineffective as- sistance of counsel where the motion contained a general allega- that, tion because counsel had bone marrow cancer and was in pain, meaningful meetings he did not conduct with defendant or his adequate co-counsel and that the went to trial case without only preparation; specific allegations as to ineffective assist- preparation ance of counsel because lack of of this concerned suppress part counsel’s motion to a of defendant’s confession and delivery report psychologist’s attorney; to the district judge trial was able to determine effect of these two matters evidentiary without an hearing; judge (1) trial found that part guilt phase of defendant’s was confession irrelevant to the prejudiced by exclusion, the trial and defendant not its (2) attorney was no there evidence the district used report any way prejudiced by and defendant was not delivery report to him. 2d, Statutory

Am Jur Coram and Allied Nobis Remedies 59. §

Modern status of rules and standards in state courts as adequacy representation to of defense counsel’s of crimi- nal client. ALR4th 27.

Adequacy representation of defense of crimi- counsel’s regarding nal client confessions and related matters. ALR4th 180. COURT IN THE SUPREME

STATE v. HARRIS sentencing ques- (NCI4th)— capital Criminal Law 1315 § 5. — refusal to work — favorable tion about prejudiced not answer —defendant capital not err sentencing hearing in a did The trial court permitting defendant’s brother cross- the State ask work, just will he?” where the examination, “Yourbrother won’t sick, say that he defendant is testi- witness answered mony would question and the added was not unfavorable to already testimony character. little to elicited as to defendant’s 2d, Am Jur Criminal Law 599. §§ sentencing capital (NCI4th)— § 6. Criminal Law — court’s expression inquiries relevancy about of evidence —no opinion testimony not that the trial court did intimate capital sentencing mother was not relevant

of defendant’s hearing interrupted during he twice her extensive testimo- when ny inquire relevancy testimony concerning of her about testimony day she decided to leave her first husband and con- cerning during of a born her second mar- daughter birth defects court, upon riage being where the assured defense counsel relevance, permitted lines of that the evidence those testi- mony 8C-1, without Rule § continue further comment. N.C.G.S. 611(a)(2). 2d, seq. §§

Am Jur Trial 276 et capital sentencing opin- (NCI4th)— § 7. Criminal Law — credibility gross impropriety ion on of witness — no credibility prosecutor opinion as The stated his of a argued witness violation of N.C.G.S. 15A-1230when he § capital sentencing hearing in a that “I’m sure [defendant’s light tried to color this as best she can in the that is has mother] most favorable to “I’m that and that not certain all of [defendant]” way happened exactly things these has testified she about she they However, properly argue prosecutor said could did.” likely’ will knowledge it is a matter of common a mother testimony son, favorably her her the error of shade stat- opinion ing argument in the form of an was de minimis and require did not the trial court to intervene ex mero motu. seq. 2d, §§ Am Jur Trial 692 et STATE Supreme Court’s views as to what courtroom state- by prosecuting attorney during ments made criminal trial process violate due or constitute denial of fair trial. 40 L. Ed. 2d 886.

8. Criminal (NCI4th)— capital Law sentencing § — argument mitigating to offer certain evidence —failure prosecutor’s jury argument capital in a sentencing hear-

ing any that defendant previous had not offered evidence from employers or former teachers which would show that he was a good good worker or a student did not involve facts not in evi- proper dence but was a comment on the failure of defendant to offer evidence might mitigated punishment. which have prosecutor’s comment on the fact that defendant was not mental- ly proper retarded was also a comment on a lack of evidence which might mitigated punishment. 2d,

Am seq. Jur Trial §§ 590 et presumption Adverse party’s or inference based on fail- produce ure to employment or examine with witness rela- tionship party cases. 80 ALR4th 405. —modern

Supreme Court’s views as to what courtroom state- by prosecuting attorney during ments made criminal trial process violate due or constitute denial of fair trial. 40 L. Ed. 2d 886.

9. Criminal Law (NCI4th)— capital § 454 sentencing jury—

argument slap sentence like on wrist —life prosecutor

It was not capital error for the argue in a sen- tencing hearing “slap that a life sentence was like a on the wrist” “pat or a back,” on the argument since the effect of the was that imprisonment life punishment enough not a severe for the crime defendant had committed. 2d, seq.

Am Jur Trial 572 et §§ Supreme Court’s views as to what courtoom statements by prosecuting attorney during made criminal trial violate process due or constitute denial fair trial. 40 L. Ed. 2d 886. COURT IN THE SUPREME

STATE HARRIS sentencing jury (NCI4th)— capital § 10. Criminal Law — by imagi- only argument mitigating limited circumstances — impropriety gross nation —no may overstepped the bounds of prosecutor While the in a prove mitigating circumstances could for what defendant he was limited in capital sentencing hearing argued when he that imposition justifying he could submit the circumstances except penalty no limit that of their own death but that there was attorneys could submit in mit- imagination as to what defendant’s punishment, grossly was not so igation argument of his process. improper violate due as to seq. 2d, Trial 554 et §§

Am Jur Supreme as to what courtroom state- Court’s views attorney during trial by prosecuting criminal ments made process fair trial. 40 due or constitute denial of violate 2d L. Ed. 886. capital sentencing (NCI4th)— §

11. Criminal Law — expert opinion argument com- — inaccurate — basis gross impropriety ment —no capital prosecutor’s argument sentencing in a hear- psychiatrist expert in ing that all a forensic who was an addiction about defendant was what defendant had told medicine knew psy- him, completely accurate as to the basis of the although not require improper diagnosis, grossly chiatrist’s was not so as to new trial. 2d,

Am Jur Trial 695. § Supreme Court’s views as to what courtroom state- attorney during by prosecuting criminal trial ments made process due or constitute denial of fair trial. 40 violate L. Ed. 2d 886. sentencing aggra- (NCI4th)— capital

12. Law 1337 § Criminal — felony involving vating vio- circumstance — conviction plain ambiguous error instruction —no lence — capital sentencing hearing in a The trial court’s instruction should find the circumstance felony previously involving for a defendant had been convicted beyond “that on or about if it found a reasonable doubt violence

STATE (1994)] N.C. 129 [338 robbery alleged date the defendant had been convicted of and robbery” that the defendant killed the victim after he committed permit aggravating did not to find this circumstance conjunction robbery in based on the that occurred with the mur- plain der for trial and which defendant was on was not error previous light of the court’s instruction in the sentence that defendant’s conviction must have been based on conduct that occurred before the events out of which the murder arose. 2d,

Am Jur Criminal Law §§ 599. Sufficiency purposes evidence, penalty, of death statutory to establish circumstance previously defendant was convicted of or other committed history posed offense, conduct, violent of violent con- tinuing society, post-Gregg threat and the cases. like — 65 ALR4th 838. (NCI4th)— impaired capacity mitigat- 13. Criminal Law 1361 § ing requiring finding circumstance — instructions alcoholism and intoxication requiring

The trial court did not err to find both suffering that defendant was from the disease of alcoholism and capacity impaired that he was intoxicated in order to find the mit- attorney igating (1) agreed circumstance since defendant’s at the charge charge, any so conference that the court would error error, expert charge (2) was invited wit- history ness testified that a “clear of alcoholism and active drink- up period question” ing right of the offense in caused did, defendant to act as he and there was no evidence that either support the disease or defendant’s intoxication alone would finding of this circumstance. 2d, Law §§

Am Jur Criminal 599. capital sentencing (NCI4th)— 14. Criminal Law 1323 § — non- instructions—finding statutory mitigating circumstances — mitigating value capital instructing the in a The trial court did not err nonstatutory consider miti- sentencing proceeding that it could mitigating value. gating circumstances which it found to have seq. 2d, Am Jur Trial 1441 et §§ IN THE SUPREME COURT

STATE v. HARRIS (NCI4th)— capital sentencing— 15. Criminal Law § weighing aggravating mitigating circumstances — use of “may” in instruction by capital instructing trial court did not err in a that, in

sentencing hearing weighing aggravating circum- juror “may” against mitigating circumstances, stances each any mitigating consider circumstance or that circumstances juror by preponderance determines to exist of the evidence. 2d, seq.

Am Jur Trial §§ 1441 et (NCI4th)— first-degree 16. Criminal Law § murder— penalty disproportionate death not imposed upon

A of first-degree sentence death defendant for disproportionate penalty murder was not excessive or imposed cases, in considering similar both the crime and the defendant, where defendant was convicted on the basis of both premeditation felony murder, and deliberation and underlying felony robbery; being armed aggravating found as cir- previously cumstances that defendant had been convicted of a felony involving person the use or threat of violence to the capital felony that pecuniary was committed for gain; the only statutory nonstatutory found one mitigating and seven cir- cumstances; and the evidence at trial tended to show: defendant accomplice they and his shrimpers; worked for the victim as planned to rob the victim to obtain funds and a vehicle to flee the consequences state and avoid the activities; of other criminal victim, by boat, while on his was stabbed defendant three times back, robbed, in the and thrown overboard near the shore while alive; lay pile oyster he was still the victim on a of shells for sev- found; eral hours before he was the victim operating died on the rescued; table from loss of blood some five hours being after wounds suffered the victim need not have been fatal if he had treatment; help received earlier and defendant failed to seek for leaving the victim afer him in the though water even he had sev- eral chances to do so. 2d,

Am Jur § Criminal Law 628. Sufficiency evidence, purposes of penalty, for of death statutory aggravating to establish circumstance previously defendant was convicted of or committed other history offense, conduct, posed violent of violent con- STATE HARRIS turning society, post-Gregg threat and the cases. like — 65 ALR4th 838.

Sufficiency evidence, purposes penalty, for of death statutory aggravating to establish mur- circumstance pecuniary gain, der was committed as consideration or receiving expectation something monetary in value, post-Gregg and the cases. 66 ALR4th 417. like — Validity penalty, death Constitution, under Federal mitigating as affected consideration or Supreme Court cases. Ill L. Ed. 2d 947. circumstances — concurring part part. Chief Justice Exum dissenting Frye joins concurring opinion. Justice in this and dissenting Appeal pursuant as of right 7A-27(a) judg- N.C.G.S. from § imposing ment a sentence of (Joe F), J., death entered Britt at the July 13 Superior Court, County, 1992 Criminal Session of Onslow upon jury a guilty robbery verdict of first-degree murder, of with a dangerous weapon, second-degree burglary, larceny truck, of a and larceny firearm, April a during the 27 1992 Criminal Session of Superior Court, County, Strickland, J., Onslow presiding. The defend- bypass ant’s Appeals non-capital motion to the Court of as to the May cases allowed 27 Supreme was 1993. Heard the 15 Court March 1994. trial defendant, Bobby

The evidence at tended to show that the Harris, Simpson employed by Lee and victim, Joe were John the Redd, fishing days, in his business. For several the defendant and Simpson possibility stealing discussed the the victim’s and truck driving Georgia. August 1991, On the night the three men fishing p.m. went According around 11:00 to the defendant’s confes- sion, plan Simpson the the was for restrain Redd while They going bound him. were then him rob and leave him on the defendant, Simpson, shore. The and drinking during Redd been evening (the and for whatever reason blamed Redd’s “griping”), defendant stabbed Redd with than Redd’s knife rather merely was restraining containing him. Redd robbed of his wallet approximately $80.00 keys, and of his from then was either thrown placed oyster pile Shortly dumping boat or on shells. after Redd, Simpson returning as the defendant and were to the dock they a.m., stopped game around 2:30 were for warden and cited COURT IN THE SUPREME

STATE v. HARRIS dock, its returning the boat to traveling running lights. After without truck, Simpson took victim’s drove vic- defendant and They keys house. house, victim’s and entered the tim’s used the pis- .12-gauge shotgun and a .22 for and found the victim’s searched house, they beer tol, Taking both of which took. some from Georgia. left and drove to The defendant and two men the house Georgia August on Simpson authorities after surrendered to learning of Redd’s death. in the back. He was found on

The victim was stabbed three times He oyster along Inlet around 6:15 a.m. pile of shells Bear’s Lejeune Hospital Camp and died on the transported to Naval at noon, identifying the defendant operating table around but not before exsanguina- Simpson as assailants. The cause of death was equiv- tion, bleeding to The victim’sblood alcohol level was the death. breathalyzer alent of .263 test. Attorney General, by Crumpler, B. Easley, F. William

Michael General, Attorney State. Associate Medlin, Jr., Henry Charles H. and Charles K. for defendant- appellant. WEBB,Justice.

[1] The defendant’s first two assignments error deal with the admissibility made Ed of a statement the defendant to Sheriff Brown. suppress this and a The defendant made a motion to statement hear was held on motion. ing hearing

The evidence at this showed the defendant Joe department County, Simpson to the sheriff’s of Haralson surrendered Whitney County Depart- Lt. Sheriff’s Georgia. Mack the Onslow to and three other law enforcement officers went Haralson ment .County, Georgia, return the men to North Carolina. On the two Whitney met morning August Lt. the defendant at County Whitney fully Lt. advised the defendant of his Haralson Jail. pursuant Arizona, 384 U.S. 16 L. Ed. to Miranda 2d 694 rights attorney interroga- said he wanted an and no The defendant (1966). signed the defendant was at that time. The defendant tion of fully he had of and understood acknowledging that been advised form Mr. the information that Redd’s rights. defendant volunteered Simpson’s grandmother with whom shotgun was at home of Joe STATE the two men staying they had been Whitney while were in Georgia. Lt. retrieved the shotgun and it returned to North Carolina. Whitney

Lt. and an agent SBI brought the defendant and- Joe Simpson put back to County Jacksonville and them in the Onslow Jail evening on the August of 27 During 1991. the evening, Sheriff Brown allowed the defendant’s brother to visit the defendant. The defend- ant’s brother then came to the sheriff’s office and told the sheriff that the defendant wanted to talk to him.

The sheriff had the brought defendant approxi- to his office at mately p.m. 11:20 August on 27 present 1991.Those in the office with the sheriff and the defendant Whitney, were Lt. the defendant’s brother and his tape brother’s wife. A cassette was used to record the conference. The sheriff began asking conference the defendant whether he wanted to come regard and talk to him in to what had happened and the defendant answered that he wanted to do so. The defendant started to make a statement and Sheriff Brown then inter- rupted him again advised him rights of his except under Miranda he did not advise him stop that he could answering questions any at time. The sheriff you also did not ask want a “[d]o lawyer now?” The defendant then made an incriminating statement.

The court made findings of fact consistent with the above evi- including dence a finding that Sheriff Brown did encourage not speak defendant to him. The court concluded that the freely, understanding^, voluntarily, knowingly, intelligently waived rights speak his Miranda agreed with Sheriff Brown presence attorney. without the of an The defendant’s motion was overruled. Arizona,

In Edwards v. 451 U.S. L. 68 Ed. 2d 378 Supreme United States Court request- held that once a defendant has counsel, may ed law enforcement officers again interrogate not him provided until he is with counsel unless he initiates further commu- nication with says the officers. The defendant the evidence showed plainly Sheriff Brown initiated a custodial interrogation of him in vio- says lation of totality Edwards. He that the circumstances, includ- ing family the involvement of a member removing as well as him from jail office, coupled friendlier confines of the sheriff’s with incomplete recital of the defendant’s constitutional rights, could not overcome his earlier right assertion of the to counsel. We dis- agree. clearly The evidence showed and the court found that the defendant initiated further communication with the sheriff. The fact

STATE Brown, message to Sheriff brother carried that the defendant’s him, to not mean the sheriff defendant wanted to talk does that the gave The answers the defendant initiated the conversation. clearly was the began show it defendant sheriff as their conference Brown who initiated conversation. and not Sheriff overruled. assignment This of error is not ^[2] adequately warned under Miranda because Sheriff In his second assignment error, defendant contends he was Brown did not any questions stop he could at if he decided to answer tell him that any lawyer ask if and ask for and the sheriff did not him he time lawyer acknowledges at time. The defendant that wanted a Whitney properly earlier, Lt. had warned approximately twelve hours County, rights Georgia. Miranda in Haralson him of his (1975), McZorn, S.E.2d 201 sentence State grounds, other 428 U.S. L. Ed. 2d 1210 we vacated on warning to give the need an additional Miranda after a discussed Sharp, writing proper warning given. has Chief for the been Justice said, Court, although warnings, is given,

The consensus Miranda once efficacy perpetuity,” not to be accorded “unlimited or where are elapses interrogations, between no inordinate time the sub- ject same, questioning matter of remains the there is no any- interrogations that in between evidence the interval the two repetition the first warn- thing warning, occurred dilute required. ings is not question

Id. 219 S.E.2d 212. The is at at ultimate whether full his knowledge legal rights, knowingly with intentionally relinquished them. defendant, having fully no reason been

There is to believe rights approximately properly advised his Miranda twelve hours Brown, forgotten his interview with Sheriff had them. Certain- before ly attorney right to an before he should known of he could right interrogated be officers for he exercised his on that day. necessary advise the It was not for Sheriff Brown to again rights Miranda. of his under assignment is overruled.

This of error trict ^[3] attorney’s defendant next argument to the assigns jury, error made certain over the portions objection the dis 141 STATE v. HARRIS (1994)] N.C. 129 [338 attorney argued defendant. The district defendant that the was already probation crime, for another that he what he knew was doing and, person any don’t have a who never been in “[w]e [has] trouble.” The did the defendant not take stand in this case and did not any reputation offer as to his own evidence and character. Tucker,

The relying on State 346 Miller, (1986) S.E.2d S.E.2d 335 says attorney allowing argue the district to did was as he error requiring Tucker, new trial. we ordered a new because the trial attorney testimony crimes, only argued district that former elicited impeach witness, the to defendant as should be considered sub- Miller, prejudicial stantive evidence for conviction. In was we held it breaking entering imply error a trial for or to the that defendants support were habitual storebreakers when there was no evidence to implication. says an by allowing such The that the defendant district attorney jury argument case, to make made in the the he this was him being inflamed to convict for crimes which he for was not tried. The distinction between this case and Tucker is and Miller case supports there was substantive evidence which the district attorney’s argument. In his Brown, recorded statement to Sheriff played jury, which was for the the defendant said was afraid he probation money revoked would be and he needed leave town. This was evidence that the defendant had a rob and motive to murder attorney’s proper. Redd. argument Mr. The district was assignment This of error is overruled. next assignments two of error involve motion appropriate guilt phase made

for relief the defendant after the trial, hearing. Timothy but E. sentencing before Merritt and represent appointed K. were Charles Medlin the defendant. While jury selected, was Mr. Mr. being Medlin became aware that Merritt pain. ill and in Mr. was responsibilities Medlin offered to take on more in-court declined, saying Mr.Merritt

but that the voir dire “kept pain.” days During selection, his mind off the the seven interrupted the court’s schedule was three times to Mr. accommodate Merritt’s need for medical treatment. proceeded seated, interrup-

After the was without trial However, phase completed was guilt sentencing tion. after the days hospitalization phase was for eleven because of continued diagnosis Merritt. at was cancer Mr. this time bone marrow COURT THE SUPREME IN

STATE as for relieved counsel was Mr. Merritt was prognosis terminal.1 replace him Henry appointed to H. and Charles which was continued. sentencing hearing, appropriate prior relief a motion for The defendant made contending he had assistance hearing, ineffective sentencing motion, which Mr. Merritt. In the of the illness of counsel because by Medlin, Mr. said believed the sickness Mr. Medlin he was sworn to ability adversely to pain affected his suffering Merritt was Mr. occasion, “Sunday were that on sessions” the trial. He said conduct was late them so strategy and Mr. Merritt for scheduled to discuss that strategy Mr. Medlin said in the motion that was discussed. little suppress advice, a motion in limine to Merritt, against Mr. his made confession, which the to move to part defendant’s led State a of the allowed, parts suppress confession. Both motions were other of the might which have second-degree which murder excluded evidence first-degree murder. second-degree a rather than led to conviction of procured Mr. also in the motion that Mr. Merritt had Medlin said report psychologist’s to the psychologist a evaluate defendant. opinions qualified give. was Mr. medical which he not to referred to attorney copy report dis- Merritt the to the district without gave psychologist cussing matter with Mr. Medlin. Mr. Medlin said for the defendant and should not have been considered as witness attorney. report been to the district should not have delivered Strickland, presided guilt phase R. at the of the Judge James who allegation trial, appropriate relief. As to the denied motion suppress part not have moved to that Mr. Merritt should Judge part that the of the confession, Strickland found prejudicial suppressed highly was to confession that would been phase part trial. guilt at the of the A the confession defendant phase to the the trial and the defendant was not guilt was irrelevant prejudiced by giving psychologist’s As of the its exclusion. attorney, was report Judge district Strickland found that there attorney report any way used no that the district evidence delivery report prejudice was shown no attorney. to the district Mr. showing was not a

Judge Strickland ruled that there deficient, if representation was or it was the defendant Merritt’s approximately months later as a result of the illness. 1. Merritt died nine Mr.

STATE prejudiced by evidentiary was it. He concluded that an hearing necessary not and denied the defendant’s motion.

[4] The defendant first says it was error for the court not to conduct motion, particularly a hearing allegations on his that Mr. Merritt failed meaningful meetings to conduct with co-counsel and the preparation defendant to trial discuss and that the case went to trial adequate preparation. without appropriate

The defendant made the pursuant motion for relief 15A-1414(b). regard N.C.G.S. § to motion made under this sec- tion, provides: 15A-1420(c) N.C.G.S. § Any party

(1) questions is hearing entitled to a of law or fact

arising any from the motion and supporting opposing or infor- presented mation unless the court determines that the motion determine, is without merit. The court must on the basis of requirements these materials and the subsection, of this evidentiary required hearing questions whether an is to resolve of fact.

(2) evidentiary required An hearing is not when the motion is made pursuant 15A-1414, may the trial court to G.S.§ but the court evidentiary appropriate

hold an if hearing ques- it is to resolve tions of fact. by

We cannot hold that the holding court committed error not an evidentiary hearing. general allegation The motion contained a illness, because of his Mr. Merritt did not conduct meaningful meet- ings with the defendant or his co-counsel and that the case went to adequate preparation. only specific trial without allegations as to preparation ineffective assistance of counsel because of this lack of suppress part dealt with the motion to of the defendant’s confession delivery psychologist’s report attorney. and the to the district Judge Strickland had conducted the trial and was able to determine evidentiary the effect of these two hearing. matters without an There specific required evidentiary were no hearing contentions that an questions resolve of fact. assignment

This of error is overruled. assigns The defendant next error to the court’s failure to find he had ineffective assistance of counsel. He concedes there is no evi- support because, dence in finding the record which would such a he says, evidentiary says hearing. the court did not conduct an He he IN THE SUPREME COURT

STATEv. HARRIS N.C.129 assignment preserve' made this of error to Although issue. we assignment error, overrule this may we note that the defendant appropriate amake motion for relief under N.C.G.S. § 15A-1415and present any may additional evidence he have as to ineffective assist- ance of counsel.

[5] The defendant next assigns error to the overruling of his objec question tion to a asked his brother the State on cross-examination during sentencing hearing. The defendant’s brother testified as to history, the defendant’s criminal largely which was inter-related with his own. The defendant’s brother testified further as to the defend ant’s cocaine, addiction to crack noting upon that on one occasion release of the defendant from program, one treatment he returned to the brother’s home and the brother’s television set and other valuable possessions missing. were soon On cross-examination, the State testimony, elicited objection, without that the defendant had been jobs. fired from colloquy several The following then occurred: just words, other he’s going work, he, not is [Mr. Andrews:] just Mr. work, Harris? Your brother won’t will he? Henry: Objection, Your Honor. Mr. Well,

The Court: you overruled if he knows. Do know the that, answer sir? say I would he is sick. He needs a doctor.

[Mr. Harris:] only purpose defendant contends question that the of this was to make the think person. the defendant is a shiftless Being shiftless, lazy says person, is not an aggravating cir cumstance 15A-2000, under N.C.G.S.§ and it was error to let the State create such a asking question. circumstance See State v. Brown, denied, S.E.2d cert. 484 U.S. L. Ed. 2d 406 (1987). testimony

The certainly elicited was not unfavorable to the defendant. The witness effect denied his brother was shiftless and lazy but question very said he was sick. The added little to the testi- mony that had been elicited as to the defendant’s character. assignment

This of error is overruled.

STATE HARRIS N.C.129 ^[6] defendant next assigns error to two instances in which the interrupted court the defendant’s counsel examining while he was a during penalty says witness hearing. interruptions He these inti testimony mated to the that the of the relevant, witness was not but capital because this is a case the would have to listen to it. says The defendant this is Holden, error. See State v. 280 N.C. (1972); Woolard,

S.E.2d 889 (1947). S.E.2d 29 mother, defendant called his Mode, Mrs. aas witness at the sentencing hearing. attorney opened The defendant’s questioning extensively inquiring about marriage. her first referring Other than ” boys’ comprehension problems to “the marriage, in the the first transcript eight pages testimony of Mrs. Mode’s fail to mention the defendant. The court’s first intervention occurred after the following sequence questions and answers:

Q. you day you finally Do recall the decided to leave David your Harris, your husband, first husband? Yes,

A. I do.

Q. happened day? What on that Well, A. he had—we had been arguing. He had slapping been me day. particular around that occasion, And on this gone I had to sit down living on the room couch and he had progressed with his years meanness over gotten and it had worse and worse. But particular day, away on this I had walked from him and had wanted to sit down couch; my on the and I television to right and a full-length coffee table in front of me. And I was— Medlin,

The Court: Mr. I interrupt, don’t want but how is this relevant to the issues involved in this lawsuit[?] Honor, up just second, you Your I’lltie that if Mr. Medlin: permit will me. right, go The Court: All ahead. questions

Counsel continued permitting to ask the witness to con- story break-up clude the marriage of the progressed on to marriage. the witness’ second marriage This resulted in the birth of handicapped daughter. extensively The mother next testified about problems the medical this child suffered. The second intervention the court occurred as follows: THE SUPREME COURT IN v. HARRIS

STATE (1994)] [338 Q. What, being about Jennifer bom? What, anything if me —tell with? any, complications was she bom if has several birth multiple handicapped child. She A. She is defects.

Q. they? areWhat problem. It arachnoidea. It is neurologic is called A. She has chocolate on a cake brain. Her brain is like covering on the And it has a lot of sen- places for her it doesn’t exist. and in some sory memory, balance, her her her into it and it affected nerves ability anything. do

Q. with? Any defects she was born other birth Yes, A. was born deaf. she

Q. Completely deaf? ear, but it is maybe 20, percent hearing in her left A. She has not usable to her.

Q. hearing? with the Does she have some assistance hearing aid. Yes, A. she does. She wears a Q. What, with? anything, if was she bom problem. growth problem. She has A. She has a heart She has a a vision defect. Medlin, Again, Mr. I assume this has some rele- The Court:

vancy here? to the issues Yes, sir, complete relevance to the issues it has Mr. Medlin: just apparent in a little while. here and it will become The Court: All right. fifty transcript examination, these pages note that in over of direct

We except only spoke questions were the times the court two brief response infrequent objections. comparing the events to the con- charged “exercis[ing] with trolling statute, we note that the trial court is interrogating and order of witnesses reasonable control over the mode consumption of as to . . . avoid needless presenting evidence so time____” (1992).Judge Britt did no 8C-1, 611(a)(2) Rule § N.C.G.S. that defense counsel was not more in either situation than ensure Once assured time with irrelevant material. consuming the court’s STATE relevance, permitted counsel that the evidence had court expressed no questioning to continue without further comment way opinion in no abused its discretion on the evidence. The court approached which would be error. nor the level of interference assignment

This of error is overruled. ^[7] The defendant next assigns error to several parts of the district attorney’s jury. objection at argument to the No was made them says trial, the court should have intervened ex but the defendant stopped with instructions to the to disre mero motu and them parts objection made, If no is we will not gard argument. those improper jury argument trial based on an unless it con order new impropriety which “so infected the trial with unfair gross stitutes process.” resulting a denial of due ness as to make the conviction 144, McCollum, 208, 224, v. 334 N.C. 433 S.E.2d 152 cert. State _U.S. denied, _, 895, (30 129 L. Ed. 2d 62 U.S.L.W.3871 June Wainwright, 168, 181,91 L. Ed. 2d 1994) (quoting Darden v. 477 U.S. 144, (1986)). 157 very to the bad con-

The defendant’s mother and brother testified argument was reared. In his ditions under which the defendant jury, attorney the mother’s testi- the district in an effort to counteract mony said: light color this as best she can in the

I’msure that she has tried to Bobby mean, I a mother would that is most favorable to Harris[.] that. do about things

I’m that all of these she has testified not certain they exactly way did. happened she said motu corrected the argument, At a later time in his the court ex mero attorney expressed opinion argument, but when he his district disregard argument. instruct the did not opinion stating his as to the agreeWe with the defendant that attorney credibility witness, N.C.G.S. the district violated Riddle, 734, (1984). 319 S.E.2d 250 See State v. 311 N.C. § 15A-1230. improp- however, grossly hold, argument that this was so We cannot as to make the result- that it “so infected the trial with unfairness er McCollum, N.C. process.” State v. 334 ing conviction a denial of due Wainwright, 477 U.S. 208, 224, 144, (quoting Darden v. 433 S.E.2d knowledge 168, 181, 144, 157). L. It is a matter of common 91 Ed. 2d favorably likely testimony for her son. will shade her that a mother 148. v.

STATE HARRIS attorney argue The district could this to the and the error of stat opinion ing McHone, it the form of his was de minimis. State v. 627, 640, (1993); denied,_U.S. 435 S.E.2d cert. _, 128L. Ed. (1994). 2d 220 The defendant assignment next contends under this of error that

[8]. attorney argued the district matters that were not in evidence. State Britt, 288 N.C. (1975); Monk, 220 S.E.2d 283 State v. 286 N.C. 509, 212 (1975); Smith, S.E.2d 125 181 S.E.2d attorney (1971). argued district that the defendant had not any previous employers offered evidence from which would have worker, shown a good he was or from former teachers which would good says have shown he was a student. The defendant this was an attempt by nonstatutory the State to create a aggravating circum stance, exemplary the lack of an background. work and educational argument by attorney This the district did not involve facts that were not evidence. It was a comment on the failure of the defendant to might punishment. offer evidence which have mitigated his This argu proper. Reid, ment was 551, 555, 434 S.E.2d (1993). error, Nor can we hold that it argued was as attorney for the district to comment on the fact that defendant was mentally not again retarded. This was a comment on a lack of evi might punishment. dence which have mitigated the defendant’s ^[9] The defendant for the district also contends it was error attorney argue “slap that a life sentence was “pat like a on the wrist” or a attorney the back.” We note that the defendant’s argued the severe punishment serving involved in a life arguments sentence. Both were proper. attorney The district argue prison could that life in was not a enough punishment severe for the crime defendant had committed and this in effect was what he was arguing.

[10] The defendant next contends it was error for the district attor ney argue that he was limited in the circumstances which he could justifying imposition submit penalty, of the death while there was except no limit imagination that of their own as to what the defend attorneys ant’s could in mitigation punishment. submit of his says only may circumstances which have mitigating value may any be may submitted to the and not circumstances that be product of the defendant’s imagination. Irwin, See State v. 93, 104, (1981). 282 S.E.2d attorney may overstepped

The district the bounds of what prove the defendant mitigating circumstances, could argu- but the

STATE improper grossly ment was not so that the conviction was a denial of process. due

[11] The defendant argues further, under this assignment error, attorney that the district in arguing misstated the evidence about the testimony Brown, psychiatrist of Dr. Thomas W. a forensic an .and expert in the field of Dr. addiction medicine. Brown testified about the defendant’s disease of alcoholism and how it affected his mental functioning killing. at the time of the The doctor had interviewed the defendant and had examined his medical records from the Onslow County Mental Health Center and Walter B. Jones Alcohol and Drug jury, attorney argument Treatment Center. the district said that all the doctor knew about defendant was what the attorney’s argument, defendant had told him. The district although completely diagnosis, not accurate as to the basis of Dr. Brown’s improper require grossly not so as to a new trial. assignment

This of error is overruled. ^[12] The defendant next assigns error to the following part charge during sentencing hearing: jury, robbery felony

Members of the is definition a involv- person. person ing the use or threat of violence to the A has been previously convicted, merely if he has been convicted and not charged and if his conviction is based on conduct which occurred before the events out of which this murder arose. you beyond

If find from the evidence reasonable doubt that alleged on or about the date the defendant had been convicted of robbery and that the defendant killed the victim after he commit- you robbery, ted would find .... aggravating this circumstance says The defendant that this instruction is erroneous because the jury paragraph first sentence of the second allowed the to find the previously aggravating circumstance that the defendant had been felony involving convicted of a the use or threat of violence robbery conjunction person, based on the in occurred with the object charge murder. defendant did not to the at the time it was request given and he did not additional instructions. We must review plain Gibbs, assignment this of error under the error rule. State v. 335 1, 49, denied,_U.S._, N.C. 436 349 S.E.2d cert. 2d_, (27 1994).

L. Ed. 62 U.S.L.W.3861 June THE COURT IN SUPREME

STATE evidence of the defendant offered that the State and the We note any robbery prior to of the in Oklahoma conviction of prior attorney conviction argued in this case. The district events We circumstance. finding as the basis to the to which the defendant ambiguous language not believe the do error, particularly light in plain rises to the level assigns error the defendant’s convic- previous sentence that instruction in the occurred before the based on conduct that must have been tion being tried arose. murder for which he out of which the events of error is overruled. assignment This the court ^[13] The defendant next said, “[y]ou would find assigns error to a this mitigating part circumstance charge in which if you suffering from the disease of alcoholism the defendant was find that offense, impaired and that this at the time of this and was intoxicated criminality his or to con capacity appreciate the conduct his says it requirements of law.” The defendant form his conduct to the prove of alcoholism and require him to both the disease was error to in order at the time of the crime the defendant was intoxicated mitigating find this circumstance. to have the difficulty is that the argument the defendant The first with this attorney, charge conference that defendant, through agreed at the If there feature of the case as it did. charge court would on this not review it was invited error and we shall charge, was error in the 719, 728, (1993). Williams, 430 S.E.2d it. State v. part charge. Dr. there was no error this We note that upon whom the defendant relied to establish Brown, the witness history circumstance, a “clear of alco- testified that it was mitigating up period right of the offense drinking holism and active to act as he did. We cannot question,” which caused the defendant any the disease or the defend- evidence in the record that either find support mitigating finding would of this ant’s intoxication alone jury. properly charge did not so The court thus circumstance. is overruled. assignment This of error the court ^[14] The defendant instructed next assigns that it could consider error to part nonstatutory charge in which miti mitigating value. He con which it found to gating circumstances mitigating circumstance that when the court submits tends candidly admits that we have it. The defendant jury, it must consider Hill, contrary position in v. 331 N.C. to his State determined this issue 151 THE COURT IN SUPREME v. HARRIS STATE 2d denied,_U.S._, 122L. Ed. 765, 780, cert. 387, 417, 417 S.E.2d Huff, (1993); 2d 503 denied,_U.S._, 123L. Ed. 684,reh’g other 635, judgment vacated on 1, 59, (1989), S.E.2d 669 325 N.C. 381 remand, 532, N.C. 1021, 777, on 328 grounds, 111 L. Ed. 2d 497 U.S. 371, S.E.2d Fullwood, 323 N.C. 373 (1990);and State v. 402 S.E.2d 577 1022, 108 grounds, 494 U.S. judgment vacated on other (1988), 233, (1991). remand, 329 N.C. 404 S.E.2d 842 L. 2d 602 Ed. question. to do so. requests We decline He that we reconsider error is overruled. assignment This

[15] The defendant next contends there is error in the following por charge: tion of the you mitigating or more circum-

If find from the evidence one against stances, you weigh aggravating circumstances must issue, deciding this each mitigating circumstances. When any circumstances juror may mitigating circumstance or consider by preponderance of the evi- juror determines to exist that the in two. dence issue “may” by in instruct- says the use of the word

The defendant circumstances, the court told mitigating how to consider ing the circumstances, mitigating to consider the that it did not have contrary question to the defendant’s answered this which is error. We 229, and State Jones, (1994) 443 S.E.2d 48 position in State v. (1994). assignment This error Lee, 244, 439 S.E.2d 547 v. 335 N.C. is overruled.

Proportionality Review required do N.C.G.S. sentence, we are reviewing as [16] § 1; v. Brown, 179, 358 S.E.2d State 15A-2000(d),State denied, 464 U.S. S.E.2d cert. Williams, 308 N.C. (1983), we denied, 1004,78 L. Ed. 2d 704 177,reh’g 464 U.S.

L. Ed. 2d transcript, record on thorough review have conducted counsel, and we conclude that briefs, arguments of appeal, and oral supported circumstance was jury’s finding of each suggests nothing in the record further conclude that the evidence. We influ while under the defendant to death that the sentenced the any arbitrary prejudice, factor. passion, or other ence of sentence was exces- whether the Our final task is to determine imposed first-degree in penalties other disproportionate to the sive or where the past, there are cases we have noted murder cases. As every character of the of the crime and the “nature THE 152 IN SUPREME COURT

STATE (1994)] [338 way pool.” in in distinguish instance case some from others the [the] Brown, 179,231, 1, N.C. S.E.2d 320 358 34. Wefind this to be below, noted one of those cases. As this defendant and this crime are clearly distinguishable pool from those in the cases which resulted in upon life or sentences based either a recommendation of life upon finding by imposed this Court that the death sentence was dis- proportionate. and The facts circumstances in “death affirmed” cases similarly are In a distinguishable. discussion of cases such as this and appellate proportionality courts’ duties to conduct thorough reviews, Supreme the United States Court stated: primary Eighth concern in the Amendment context has sentencing that be

been decision based on facts and cir- background, cumstances of the his and his crime. In penalty procedures scrutinizing Eighth death under the Amend- ment, emphasized objectives” Court has “twin of “mea- application sured consistent fairness It and to the accused.” .... appellate is a routine task of courts to decide whether the evi- supports capital dence in verdict and in “weighing” cases States, to consider whether the evidence is such that the sen- tencer could have arrived at the death sentence that was imposed. process ... weighing aggravating similar mit- [A] appellate igating proportionali- involved in evidence is an court’s ty Furthermore, review. repeatedly emphasized this Court has meaningful appellate promotes that review death sentences reliability consistency. important It is also note that state supreme authorizing penalty may courts in States the death well many typical review jurors, contrast, death sentences and that in only will serve during on one such case their lifetimes. Mississippi, 738, 748-749, Clemons 494 U.S. 725, 108L. Ed. 2d 738- (1990) (citations omitted). 39

In determining proportionality, impressed we are with the cal- lousness exhibited in defendant this case. defendant acknowledged purpose carrying that his out the crime was to legal problems. obtain the to flee wherewithal other The defendant companion planned robbery and his well in advance and the acknowledged knife, though he carried he indicated plan entail using did not the knife. The defendant evi- a degree attacking denced of cowardice in the victim without warn- ing rapid from behind, stabbing him three times succession. Greene, 1, See State v. judgment 376 S.E.2d 430

STATE v. HARRIS N.C. grounds, vacated on other 494 U.S. 108 L. 2d on Ed. remand, (1990).According S.E.2d 185 to the defend- seriously ant, he was aware that the victim wounded and he took steps to make victim more comfortable before the defendant was placed However, testimony shore. was contradicted victim’s rescuer who testified that the victim he had indicated been witness, out the “rolled boat.” This as aswell rescue and medical personnel, testified the victim was that cold and wet when found. The defendant himself stabbing noted that after the victim and then him, “help[ing]” companion the defendant and his the through went pockets keys. victim’s and his wallet and took The defendant further help confessed that he the sent, told victim that would the be but steps promise. defendant took never to fulfill this indi- The evidence officer, stopped cated the defendant could have the told wildlife who unloaded, the defendant’s boat moments after the victim had been stated, however, the about victim. The defendant “I think didn’t about telling happened what unless he of—if would he [the officer] yea me, I happened, detained would have told him what but I was hoping go.” that he would let me on defendant went to indicate áccomplice help, both that he and his intended call for but to neither myriad opportunities availed himself the their movements fur telephoned anonymously nished. The defendant could have “911” pay phone they passed along telephones from the road or from accomplice’s Instead, his or in house the victim’s house. the defend left ant the victim to suffer for some ten hours before was he rescued. Barfield, 306, denied, State v. 298 N.C. 259 S.E.2d 510 cert. (1979), 1137, 907, reh’g denied, 448 U.S. 65 L. 2d 918, Ed. 448 U.S. 65 (1980) L. Ed. 2d (defendant suffering 1181 saw her victim and no took cf., 674, him); Bondurant, action to save State v. 309 N.C. 309 S.E.2d help (1983) (defendant immediately sought 170 shooting victim). after suffering The duration the victim’s has to be signifi- been found E.g., 278, Artis, cant. 325 (1989), 384 S.E.2d 470 sentence vacated, 1023, (1990), remand, 494 U.S. 108L. Ed. 2d 604 329 N.C. (1991); Brown, 40, 406 S.E.2d 827 see State v. 315 N.C. 337 S.E.2d (1985), denied, Ed. cert. U.S. 90 L. 2d 733 over grounds, ruled on other (1988). S.E.2d 373 With marooned, accomplice proceeded victim the defendant and his home, keys enter, beer, guns victim’s used his to stole two and some Georgia. then headed for While defendant surrendered himself fully, cooperated the authorities and he after did so week the mur only der, victim, prior death, after that being informed to his police looking had identified name and that were THE SUPREME COURT IN STATE HAREIS by the vic- wounds suffered him. Evidence at trial indicated fifteen hours after fatal. The victim died some tim need not have been roughly as the result of five hours after rescue the attack and that he Though his confession loss. the defendant indicated blood noteworthy no member of the action, it is regretted his The evi- purported remorse. mitigating value in the defendant’s found had an extensive at trial indicated the defendant dence introduced robbery past activity on a mil- including an armed record of criminal Sill, itary at in 1986for which the defend- installation Fort Oklahoma years in a Correctional Institution. ant was sentenced to five Federal robbery previously, defendant confessed that the instant As noted flee planned obtain funds and a vehicle in order to in order to consequences avoid the of other criminal activities. state (1) that: the defend- found as circumstances felony involving use previously convicted of a or ant had been person; capital felony was com- (2) threat violence pecuniary gain. mitted for

Twenty-three to mitigating circumstances were submitted the jurors only by jury, eight found one or more eight. but found jurors capacity appreciate of to the (1) were: the the defendant require- criminality to his conduct or to conform his conduct the (2) impaired, 15A-2000(f)(6); law the § ments the was N.C.G.S. acknowledged guilt officers; his law defendant has to enforcement try responsibility killing for the and did not to (3) the defendant took culpability confession; (4) in his the minimize his the murder the defendant’s was consistent with evidence uncovered confession by department investigation; (5) the sheriff’s in the course their freely arrest, defendant, knowingly the waived his con- after the and attorney; (6) and right stitutional to remain silent to an environment; dysfunctional product (7) home defendant is a of repeated abuse, experienced in the form of verbal violence physical childhood; (8) defend- during and emotional abuse abuse early drug age. and abuse from an ant suffered from continual alcohol regarding childhood The defendant offered extensive evidence his part frequent and a lack of upbringing, asserting and moves We nurturing mitigated and his actions in this case. would note love and there was also neglect, that while there was evidence of abuse mother, ample to brother and other evidence indicate the every help provide loving guidance relatives effort to and made response drug problems. and alcohol his him overcome give undergoing fresh start after brother’s effort to the defendant a COURT IN THE SUPREME STATE v. HARRIS until his brother and sister- rehabilitation, the defendant waited drug TV,VCR, brother, “[m]y work, according then in-law left for my tapes, everything gone and out of money, albums, rent apartment in the “cracked out” apartment.” The defendant was found frequent pipe. that the moves holding a crack Evidence showed and military stepfather’s commitment the result of the defendant’s were appear frequency moves does not exces- and the number and for the to conclude sive. We find there was sufficient evidence mitigat- nonstatutory mitigating not found lacked circumstances ing value. proportionality review in his brief. In this

The defendant offered a comparison. He con- review, forth twelve cases for the defendant sets substantially cases, sentences, in life are these which resulted tends therefore, find the case and this Court should similar to the instant disproportionate impose a sen- penalty in the instant case death imprisonment. tence of life in which the first three cases cited the defendant are cases penalty disproportionate. Young, In State v.

death was found nineteen, age was one 325 S.E.2d decided, evening drinking, go to the vic- three men who after an they buy liquor. suggested that rob tim’s house to more The defendant plan, gained three men Following kill the man instead. they purchase liquor. Once indicating were there to entrance pulled the victim house, the defendant a knife stabbed inside knife, managed to remove the twice in the chest. When the victim in the attackers stabbed the victim five or six times another of the the house and The defendant and his cohorts then searched back. evidence indicated the victim died stole numerous valuables. Medical shortly pierced being a result of one wound which after stabbed as Young, key case. In distinguish Two factors the instant the heart. involving crime were limited to those the aggravating circumstances pecuniary is, defendant committed the murder for at hand—that the robbery. In engaged in the commission of armed gain and while of. bar, jury mitigating find the circumstance the case at the did not the circumstance that age aggravating and found the the defendant’s felony. previously committed a violent defendant had the victim Jackson, 26, (1983), N.C. 305 S.E.2d 703 In State v. 309 range. head at close This Court robbed, then shot twice in the was after the defend- was no evidence of the events indicated that there cir- together. aggravating The sole leaving victim were seen ant and IN COURT THE SUPREME 156

STATE N.C. ^[129] pecuniary gain. for was was that the murder committed cumstance his- significant had jury in that the defendant no mitigation The found statutory activity aggra- catch-all. The tory prior criminal of present having committed vating circumstance felony bar. this from case at prior distinguishes case violent Stokes, 1, v. 319 352 S.E.2d next cites State N.C. The defendant to be in which Court found the death sentence (1987), 653 Stokes, to rob disproportionate. In the defendant and others decided owner, 70, was as he left age of a warehouse. The attacked owner actually who his The defendant was one of two assailants business. they for victim with had carried that administered blows sticks ramp where purpose. They lying robbed victim and left him as some fourteen hours after the assault the assault occurred. He died co-assailant, injuries including a skull. head fractured The result of (see for role in the State Murray, received life sentence assault other Murray, 541, (1984), N.C. 313 S.E.2d 523 overruled on v. 310 518, 813, grounds by White, 506, v. N.C. 369 819 State S.E.2d theory. felony (1988)). guilty was under the murder Stokes found jury the crime sentencing found the circumstance that atrocious, or found the especially heinous, was cruel. also they presence specifying without what mitigating circumstances Lawson, that, we held did not were. In State v. “[s]ince specify specified that mitigating which circumstances it found it more,’ purposes proportionality found must assume ‘one or we sub- mitigating review that mitted____” found both circumstances Lawson, 632, 648, 493, 503 v. 310 N.C. 314 S.E.2d State denied, We re (1984), (1985). 471 U.S. 86 L. Ed. 2d 267 cert. Stokes, holding mitigating where twelve circum affirmed distinguishing In Stokes the instant stances were submitted. from case, only seventeen-years-old time was at the he we note Stokes history of criminal murder, significant committed the that he no activity, that he committed the crime while under the influence of Further, was not under mental or emotional disorder. he convicted theory premeditation and As the Court Stokes deliberation. noted, found in the aforementioned combination circumstances robbery generally resulted in life sentences. cases Holland, (1986), 350 S.E.2d overruled State grounds by Childress, 362 S.E.2d on other nudé, lying on the floor in the bedroom the victim found Valu- of his He had stabbed numerous times in his chest. house. been missing were from the house. The defend- ables and the victim’s car IN THE SUPREME COURT STATE relationship with the victim. in a homosexual ant had been involved theory premedi- trial, guilty was found under At the defendant jury guilty did not find the defendant tation and deliberation. found, that the felony circumstances were aggravating murder. Two engaged in commit- while the defendant was murder was committed weapon robbery and that the murder was com- ting dangerous with a However, subsequently vacated pecuniary this Court gain. mitted for robbery weapon. The dangerous with a underlying conviction circumstances, the defendant did jury mitigating two also found by his father. The arrest and that he had been abused not resist felony prior significant dis- of a conviction of a violent is absence and the case at bar. tinguishing factor between Holland Wilson, (1984), 316 S.E.2d 46 is the next 311 N.C. in that case upon the defendant relies. The evidence case which dropped residence off at the victim’s showed that the defendant picked up possible employment. When inquire he about so that could thirty later, the was armed with a approximately minutes money jewelry. pistol possession in and He stated .22-caliber and victim, Teel, was found man Teel.” The Mr. that he had killed “old in gunshot wound in the head and four dead in his home. He had one multiple gunshot upper He died as a result of the chest and abdomen. felony premeditation murder Both and deliberation wounds. solely they jury, but returned a verdict based were submitted to the rejected premeditation upon felony specifically murder and jury found the reaching sentencing, In a decision on deliberation. in the instant aggravating two circumstances as were found same felony previously been convicted of a (1) case: that the defendant had person; (2) that the murder involving the use of violence to the jury statutory pecuniary also found two and seven gain. was for nonstatutory In whether the mitigating circumstances. answer to outweighed mitigating circumstances aggravating circumstances life beyond doubt, the answered “no.”A sentence of a reasonable imprisonment imposed. distinguishing In Wilson from was then in this case found the defendant case, instant we would note only and also that the found guilty on both theories of murder statutory and found that the mitigating one circumstance outweighed mitigation. those circumstances Whisenant, 303 S.E.2d 784 State 79-year-old first-degree murder of defendant was convicted housekeeper. was found 66-year-old Each victim man and his female back of the head. The single gunshot wound to the to have died from STATE v. HARRIS (1994)] N.C. 129 [338 jury found guilty first-degree the defendant murder based on both premeditation felony jury and deliberation and murder. The regarding sentencing, unable to reach a unanimous verdict so as required by 15A-2000(b)(1988), imposed N.C.G.S. § court life sentence. Hunt, 238, upon (1982),

State 305 N.C. 287 S.E.2d 818 which the relies, Ray, defendant involves the death of Walter a man known to whiskey illegal keep run an large house and to sums of cash. The Ray’s expressed defendant had been to trailer before and had an “rip Ray. cash, intent to off’ In an get wearing effort to Ray’s gloves, grabbed entered trailer and him from behind. He forced Ray pocketed approximately into a bedroom where the defendant $400 pistol. Ray in cash pistol. He then threatened with the Ray pleaded After for the way, defendant not to kill him that permitted the victim pills. to drink alcohol and take some sluggish, Once the victim became the defendant used a knife to inflict vicinity wounds the victim’s forearms in the of his wrist. He later deepened the wounds and waited while the victim bled to death. Investigating officers first believed the wounds were self-inflicted. Later, spoke the defendant gave with a friend and a detailed recount- ing later, of the murder. Several months the friend informed authori- ties who arrested the defendant based on this information. As the notes, very State the details bar, of this crime are similar to the case at jury found three aggravating including: circumstances (1) previously felony defendant had been involving convicted of a the use person; (2) pur- violence to the the murder was committed for the pose of avoiding arrest; (3) a lawful the murder was committed while the engaged defendant was in the dangerous commission of a felony, wit, robbery dangerous weapon. jury with a did not reach the mitigating circumstances, issue of because it was deter- they unanimously beyond mined could not find a rea- sonable aggravating sufficiently doubt that the circumstances were imposition substantial penalty. to call for the of the death Murray, 541, In State v. 523, companion 310 N.C. 313 S.E.2d Stokes, case to State v. 319 N.C. 352 S.E.2d the defendant upon jury received a life sentence finding guilty that he was of mur- felony theory. der under the murder While the found the same aggravating circumstances as were in case, found the instant premeditation importance absence of and deliberation is of in com- paring the two cases.

STATE The defendant argues Bare, next 305 S.E.2d comparable is a Bare, case. In the victim was thrown down a mine shaft two different times and the second time rocks were thrown in way after him to ensure that he fell all the to the bot- tom. The revenge. motive Bare was The defendant was guilty found first-degree premeditation murder on the basis of and deliberation. found three (1) circumstances: that the defend- previously ant had felony been convicted of a involving the use of vio- lence person; capital (2) felony that the was committed while the defendant was engaged the commission of a kidnapping; and (3) especially that the murder heinous, atrocious, was or A cruel. life jury’s inability sentence resulted from unanimously the to find beyond a reasonable doubt that aggravating circumstances were sufficiently imposition substantial to call for penalty. of the death

In Prevette, 317 N.C. (1986), 345 S.E.2d 159 the vic- tim, age 61, being by suffocated after bound the defendant. The vic- tim was discovered in her home. She ankles, knees, was nude and her wrists, and mouth were bound various materials. The medical likely examiner concluded that the victim most died as a result of suf- focation gag caused tied around her mouth. Indications were that the victim was suffering from a sinus infection which made it impossible for her to through Complications breathe her nose. related to the sinus infection caused the gag virtually cloth to form a tight air likely seal on her mouth. thirty Death most occurred within minutes placed of the gag’s being across the victim’s mouth. The defendant prison met the victim while he was in through the victim’s involve- ment with the Fellows, religious Yoke a organization which conduct- ed Bible studies and held devotionals with inmates. The defendant guilty found of first-degree premeditation murder on the basis of was felony and deliberation as well as the murder rule. The found two of the three aggravating circumstances (1) which were submitted: defendant felony had been previously convicted of a involving the use person; or threat of violence to the and (2) the murder was committed while the defendant engaged was in the kidnapping. commission- of found mitigating none of the ten submitted, circumstances unanimously but recommended the defendant be sentenced to life imprisonment.

The defendant Wilson, also relies on State v. 313 N.C. S.E.2d 450 in which the defendant was convicted of first- degree felony murder based on murder. The victim was the manager Bishop of the inMotel Belmont. He was chest, stabbed once in the IN COURT THE SUPREME v.

STATE HARRIS resulting bleeding to death. punctured his heart his which wound present participated jury determined that the defendant fatal did find that he delivered the killing others, with but not in the deadly killed; contemplated that blow; the victim be or intended that robbery a dangerous with might used the course of the force weapon. be including: exist mitigating were found to Five circumstances obli- is father two minor children and is (1) that the defendant support abilities; (2) that the defend- gated to them the best of his experience, is upon his and work ant, based level education has of his capable rehabilitation; (3) that the defendant members family rehabilitation; (4) willing who are to assist in his in providing his man has manifested his concern for fellow Isley, right to Donald who was in need after unsolicited assistance Isley’s has life; Mr. that while the defendant tragedy (5) altered felony violence, prior involving the use of been convicted of While the involvement contained an element of self-defense. were insufficient mitigating determined that outweigh circumstances circumstances, aggra- it also found that the sufficiently vating circumstances were not substantial call for imposition penalty. death by the brought

The final case forward defendant is State Williams, Williams, defend- (1986). 338 S.E.2d 75 boyfriend daughter. her was the of the victim’s The victim and ant history physical During the daughter had a of violent confrontations. period murder, preceding girlfriend the the defendant and his had dis- argument, daugh- of a violent “getting cussed rid” the victim. After the spoke expressed the with the defendant and sentiment ter called and just a wished he would “do it.” The victim’s house evidenced that she acute struggle. ligature strangulation She died as result of and an injury. guilt girlfriend, but at head The defendant admitted his presented daughter the victim’s was the suggesting trial evidence The first-degree The defendant was convicted of murder. murderer. jury previously of determined that defendant had been convicted felony person, and that involving the use or threat of violence to the pecuniary gain. pre- murder was committed for was with that one or mitigating sented four circumstances determined specifically of mit- mitigating had value. In the absence denoted more circumstances, must find determined all four igating we that 648, Lawson, mitigating value. 310 N.C. at 314 S.E.2d at 503. jury ultimately that, determined while the circumstances they circumstances, were not outweighed mitigating were not sufficiently imposition penalty. call for the of the death substantial to 161 v.

STATE recently: heldWe factually fact that in one or more cases similar to the one

[T]he juries imprison- under review or have recommended life determinative, is standing alone, ment not of on issue whether penalty disproportionate death is in the case under review. Early process proportional- of our developing methods for ity review, similarity cases, we indicated no matter how many compared, are factors will not be allowed to “become the subject proportionality last word on the serving rather than as point inquiry.” Williams, an initial 47, v. 308 80-81, N.C. [State 335, Instead, 301 S.E.2d (1983).] plainly 356 we stated that the requirement constitutional of “individualized consideration” as to only proportionality could be served if the issue of whether the penalty disproportionate particular death in a case ultimate- ly upon “experienced judgments” rested of the members of Court, upon rather than comparisons mere numerical aggravators, mitigators Further, and other circumstances. the fact one, juries two, or several have returned recommendations imprisonment of life in cases similar to the one under review does automatically juries “consistently” not establish that have returned life sentences .... Green, 198,

State N.C. 142, 14, (1994). v. 336 443 46-47 S.E.2d past upon premedita We noted that conviction both felony tion and significant. deliberation and murder is theories State Artis, 278, 325 (1989), vacated, N.C. 384 S.E.2d 470 sentence 494 1023, remand, U.S. L. 679, 108 Ed. 2d 604 329 N.C. particular, (1991). finding premeditation S.E.2d and delib eration indicates “a more calculated and cold-blooded crime.” State v. Lee, 244, 297, 575, N.C. denied,_U.S._; 439 S.E.2d cert.

130L. Ed. 2d (3 1994) (citing Artis, 63 U.S.L.W.3264 October 470). jury’s 384 S.E.2d The State notes in brief its that the prior finding felony aggravating of a conviction violent circum significant finding is in proportionate. stance a death sentence See e.g., Artis, 278, 470; Brown, 325 N.C. 384 S.E.2d State v. 320 N.C. at 214, Recently, Rose, S.E.2d 24. agree. 358 at We in 335 State 301, 351, 518, 546, 439 denied,_U.S._, S.E.2d cert. L. Ed. 2d (27 1994), 62 U.S.L.W.3861 June we determined none of that cases in which the death sentence was determined this Court to be disproportionate have included this circumstance. THE COURT IN SUPREME

STATE v. HARRIS “all with this have able to find a case on fours” case. We not been proportionality pool, we believe that if examining cases in the particularly egregious in a manner is a murder is committed imposed. likely penalty the death be to return a recommendation that jurors so, not that does not mean are not If on occasion a does do penalty in which are similar recommending the death cases regularly cruelty. in their especially and cruel. The vic-

The murder in this case was callous robbed, and while still alive. He stabbed, tim was thrown overboard oyster stayed pile where he for several was able reach a shells been might before he was found. The defendant have able to hours any of the chances he save the victim if he availed himself one par- to do so he had left him in the water. Not to do so was had ticularly after in murder cruel. When the nature of the is considered com- record, past with we cannot hold that the bination the defendant’s disproportionate. sentence was death

NO ERROR. part part. concurring dissenting

Chief in Justice Exum by majority guilt phase I concur in the result on the reached However, given of this case. the manner which the crime com- mitted, subsequent conduct, precedents holding defendant’s our that disproportionate, similar death sentences under circumstances are compelling mitigating found circumstances consistently juries in this returned life sentences under State circumstances, penalty I as a similar conclude the death here matter disproportionate. is of law 15A-2000(d)(2) §

N.C.G.S. mandates we consider whether disproportionate penal sentence death is excessive or “the ty imposed cases, considering in similar both the crime and the requires comparison “the with defendant.” This case at bar other are [proportionality] pool1 roughly in the which similar with cases as, example, such the man regard to crime and character, and the ner in which the crime was committed Lawson, background, physical and mental condition.” State v. 632, 648, denied, 310 N.C. 314 S.E.2d cert. 471 U.S. Bacon, proportionality pool, see cases 1. For definition of those in the (1994). S.E.2d 542 THE

IN SUPREME COURT

STATE HARRIS (1994)] N.C. 129 [338 comparison A (1985). 86 L. Ed. 2d 267 of case to other capitally proportionality pool tried cases in our in which both crimes and in defendants are similar to the crime and defendant the instant compels case the conclusion that the sentence of death here is disproportionate. in

The State offered evidence defendant’s out-of-court confession to investigators. guilt proceed- It offered an during edited version ing an during sentencing proceeding. and unedited version confession, to the According unedited version defend- ant Simpson, accomplice, deceased, and Joe his both worked for Redd, they shrimper. John a For a talking about week had been about they day stealing go Georgia. Redd’s truck so could to On murder, Simpson They planned drinking. defendant and had been to shrimping, rob Redd while the shrimping. three them were While Simpson “dropped up. wrong.... defendant and the net was tangled It upset kept John . . . it got yelling about and he us. . . . Then at [Redd] Joe, you piece he hounding saying just shit, started are I’d rather plan . working Ida for me. . . never him. did did to kill We [W]e plan happened him. I guess got to rob What don’t I know. I tired of only I griping thought twice, and the man. I I stabbed stabbed him but him, lay after I we stabbed made him down He laid down boat. in the and I liquor, gave boat he asked me did he have his him his so liquor cigarette.” Simpson I lit him and and Defendant decided to beach; stuck, take got the deceased to “but we motor boat stuck drag out, got there, the sand and we had to but when we Joe helped the man off boat. I I told the man that would call some- body try somebody help to send to him him. ... We weren’t going up We going put to throw him overboard. to tie him and put him on bank. take . I Then his truck... When him down in you boys him, right. hurting, boat... I asked are all He I am said don’t you, again, going stick me kill me. I John to kill I don’t said I am not get you help. John, am going thought some I he we was tak- reckon ing dock, pulled up bank, him the because when we I said up, put O.K. John we’re He here. looked his hand on the side of the boat, up goes said we at the He no are dock? looked and he oh helped put don’t when him do that. That’s Joe him out the boat kept kept on the ... I I telling bank. Joe think I killed the man. Joe somebody saying we need to and tell he was at. We call them where any- anybody. anybody. never called Joe never called I never called body.” Defendant, “inside,” replied, when asked how he “Bad.” felt COURT IN THE SUPREME v. HARRIS

STATE August shortly 2:00a.m. on 1991. incident occurred before This fisherman, at 6:00 Mercer, discovered Redd alive about Norwood a Simpson the where defendant and apparently on or near bank a.m. and he had been robbed stabbed left him. Redd told Mercer that had biggest part night.” sitting of the Redd was on had been there “the and oyster water. pile edge at the a of shells Landing approxi- Redd at got back to Shell Rock with Mercer twenty min- mately squad arrived fifteen to 6:30 a.m. and the rescue' paramedic pale, was and He later. A noticed that Redd cold wet. utes The ambulance arrived at two stab wounds on Redd’s back. saw Hospital Camp Lejeune a.m. Lee at at 7:22 Detective Stevens Naval spoke 7:45 and Redd. Redd told Stevens that two arrived at a.m. to ago had him that persons whom he had hired two weeks accosted and had him robbed him. Redd said that his defendant stabbed and planned knife with which he was it but that the stabbed assailants “they to stabbed him twice and that belonged him. He said defendant said he would not me overboard.” Redd stated that defendant threw kill him. was the room at 10:20 a.m. Dr. operating

Redd taken to about in and Geiger, surgeon, a was called observed three stab David p.m. August in back. Redd at 12:46 wounds Redd’s died from the wounds. because blood loss stab premedi- Although was on the of both defendant convicted basis felony murder, underlying felony and and tation deliberation the robbery, barely enough being guilt armed there is evidence the carry question premeditation the phase to the and deliberation to jury. planned place spur fatal was not but took on the stabbing moment. While there is evidence that defendant intended to kill the that, him, when he also Redd stabbed the evidence shows after Simpson they stabbing occurred, defendant and took measures which They might stabbing Redd’s life. assisted after the thought save Redd place was, be Redd might left him alive in a where he rescued. and twenty-four fact, alive, he almost after rescued and lived for hours defendant stabbed him. voluntarily gave

Defendant surrendered himself and full con- prin- law His confession was the fession to enforcement authorities. cipal against evidence him at trial. Defendant showed some remorse although mitigating not find to be a confession; in his did circumstance.

IN THE SUPREME COURT

STATE HARRIS sentencing, found two circumstances— At previously felony involving of a had been convicted defendant felony person capital threat of violence to the and use or statutory pecuniary miti- gain. It also found committed appreciate capacity crim- that defendant’s to gating circumstance inality requirements to his conduct or to conform his conduct nonstatutory impaired. mitigat- of the law was found seven acknowledged law ing guilt Defendant has his circumstances: responsibility killing officers; took for the enforcement defendant try culpability; defendant’s confession did not minimize depart- with was consistent the evidence uncovered sheriff’s arrest, investigation; ment in the course of its after defendant freely right silent knowingly waived his constitutional to remain dysfunctional attorney; product have an is environment; experienced repeated in home violence defendant during abuse, physical form abuse and emotional abuse of verbal childhood; drug and and defendant suffered from continual alcohol early age. abuse from an course, justify circumstances, having

These do not severely wounds; punished be inflicted the fatal by and defendant should They do, I imprisoned he being for life for murder committed. egregious- to the believe, show that this murder does not rise level of juries returned, in have and we present ness in those cases which and the affirmed, Considering death both the crime sentences. impris- case like cases in which life is more murder imposed. onment has been proportionality pool, in the similar to the

There are several cases us, penalty in was one before which this Court concluded death disproportionate: Young, (1985), S.E.2d 181 the defend-

In State v. 325 and companions home both rob ant and two went victim’s compan- him. Because victim knew the defendant and his murder they were ions, they guise were allowed into home under surprised and buy liquor. The the victim going to some by five companion stabbing A him” him him twice. stabbed “finish[ed] killing, along with the or times. the defendant six more After They then searched his house valuables from the victim. others stole Young aggravat- The in found two his coin collection. stole circumstances, murder while defendant ing that the was committed v.

STATE HABEIS engaged robbery was in the commission of an armed and that it was pecuniary gain. committed for robbery Young and murder in robbery are similar to the

murder in this case in that in both factor, cases alcohol was a defend- advantage familiarity ants took victims, their with the stabbing was the means which the killings Indeed, were committed. killing Young aggravated planned was more because it was advance and some of the wounds were inflicted after the victim was helpless. only planned rendered Here defendant to rob the victim. It only was argument consumption after an and the of alcohol that the robbery escalated into murder. attempt Defendant also made some assist the stabbing. victim after the

In Jackson, 309 N.C. (1983), S.E.2d 703 another robbery similar case, conspired murder elderly three men to rob an man. The defendant tricked the giving victim into him a ride and then shot him twice in during the head robbery. the course of the found as an aggravating killing circumstance that the was committed pecuniary gain. The Court found the imposed death sentence disproportionate. Jackson was Benson, State 372 S.E.2d the victim

died of a cardiac arrest being after robbed and shot in the legs defendant. The found the aggravating circumstance that the crime was pecuniary committed for gain. In determining that the death sentence disproportionate, the Court noted that it appeared simply defendant was attempting to rob the victim. Defend- pleaded ant guilty during the trial and acknowledged his wrongdoing jury. before the case, Likewise in this I believe the evidence shows only planned that defendant to rob the victim. He turned himself in to responsibility authorities and took for his actions. robbery There are several murder cases in juries, which after finding the same two circumstances as here, those found have imprisonment. recommended life Howard, State v. 602, 334 N.C. 433 S.E.2d 742 (1993); Erlewine, State v. 626, 328 N.C. 403 S.E.2d 280 (1991); Darden, State v. 356, 323 N.C. 372 S.E.2d (1988); 539 State v. Clark, 215, 319 N.C. 353 S.E.2d (1987); Williams, 205 State v. 315 N.C. 310; (1986); 338 S.E.2d 75 Wilson, State v. 117, 311 N.C. 316 S.E.2d 46 (1984); Murray, and State v. 541, 310 N.C. 313 S.E.2d 523 (1984), over- grounds ruled on other White, 506, State v. 322 N.C. 369 S.E.2d 813 (1988). THE COURT 167

IN SUPREME

STATE v. HARRIS N.C. ^[129] Holland, 602, (1986), S.E.2d 56 overruled In State v. 318 N.C. 350 grounds by Childress, 226, N.C. 362 S.E.2d 263 on other State v. 321 death, victim to and the found two (1987), defendant stabbed the was while the aggravating circumstances: the murder committed robbery dangerous with a engaged committing defendant was pecuniary weapon gain. and murder was committed for imprisonment. recommended life appears

It thus that in cases where both the crime and the defend- ant crime and the defendant here either this Court are similar to the penalty disproportionate juries has declared the death to be or have imprisonment. majority returned sentences of life has not cited a penalty imposed similar case in which the death at trial and appeal, my affirmed on research has not revealed one. Lawson, 648, 314 503,

In State v. 310 N.C. at S.E.2d at we said that if, comparisons cases, considering with both making after similar them, the crimes committed the defendants who committed juries consistently returning we find that have been death sen- cases, strong tences in the similar then we will have a basis for concluding that a death sentence in the case under review is not disproportionate. if excessive or On the other hand we find that juries consistently returning been life sentences in the cases, strong concluding similar we will have a basis for death sentence in the case under review is excessive or disproportionate. consistently recently

This Court has made these kinds of com proportionality parisons conducting its reviews in death sentence Sexton, 321, (1994); cases. See State v. 336 N.C. 444 S.E.2d 879 State Syriani, Robinson, 78, (1994); N.C. 443 S.E.2d 306 State v. 333 denied, 341, L. 350, (1993), cert. 126 Ed. 2d 428 S.E.2d 1, 93-5077), reh’g denied, 126 (U.S.N.C., 1993) (No. USLW3319 Nov. 707, 10, 1994) (No. 93-5077); (U.S.N.C., L. Ed. 2d 62 USLW 3453 Jan. Hill, 387, denied, 122 (1992), 331 N.C. 417 S.E.2d 765 cert. (U.S.N.C., 22, 1993) (No. 92-6594), Feb. L. Ed. 2d 61 USLW3582 Apr. 19, reh’g denied, (U.S.N.C., L. Ed. 2d 61 USLW 3715 Roper, 337, 402 S.E.2d 600 1993) (No. 92-6594); and State v. (U.S.N.C., Oct. denied, cert. 116 L. Ed. 2d 60 USLW3266 7, 1991) (No. 91-5252). required to crime and as we are

Considering both the propor- by cases in our 15A-2000(d)(2), do N.C.G.S. and the other § STATE v. WATSON tionality pool in both the and which crime defendant are similar to here, I the crime imposed the defendant conclude the sentence of death disproportionate. in this case I vote is to remand the case to superior imposition court for the of a sentence of life imprisonment. Frye joins opinion. concurring

Justice in this and dissenting

STATE OF NORTH CAROLINA HENRY WATSON

No. 359A91 (Filed 1994) 3 November (NCI4th)— first-degree premedi- 1. § Homicide murder — quarrel tation and with victim deliberation — noncapital The trial first-degree court did not err in a murder prosecution denying motion to dismiss for lack of premeditation showing evidence and deliberation where defend- argued ant all of evidence showed that intent to kill the victim was provocation formed under the influence of the quarrel However, with victim. there was evidence tending preparedness part show of defendant to kill the victim the argument before between pro- them ensued in that defendant gun placed it cured his side in the truck where he was argument seated before the argument evidence that after the had ended and victim had withdrawn there was time for defendant’s blood shooting cooled before the occurred. anger Defendant’s mere at the victim is not alone sufficient to negate Moreover, deliberation. there was other evidence suffi- support jury’s cient finding both deliberation and premeditation. 2d, seq.

Am Jur §§ Homicide 437 et presumption premedita- Homicide: of deliberation or attending killing. tion from the circumstances ALR2d 1435.

Case Details

Case Name: State v. Harris

Court Name: Supreme Court of North Carolina

Date Published: Nov 3, 1994

Citation: 449 S.E.2d 371

Docket Number: 345A92

Court Abbreviation: N.C.