Lead Opinion
The defendant was convicted of the first degree murder of Edna Cordell Powell and sentenced to death. He brings forward assignments of error relative to the guilt-innocence phase of his trial and the sentencing phase. Having considered with care the entire record and each of the assignments, we find no prejudicial error in either phase of the defendant’s trial. We do not disturb the defendant’s conviction or the sentence of death.
The evidence as presented by the State tended to show that in December 1982 the defendant, David Earl Huffstetler, and his wife, Ruby Huffstetler, lived in a trailer on Highway 161 in Kings
Another daughter of the deceased, Barbara Shannon, visited her mother at about 8:00 p.m. on December 31. During the time Mrs. Shannon and her family were visiting, Mrs. Powell received a telephone call. After the call, Mrs. Powell phoned her granddaughter, Ruby Huffstetler’s daughter Debbie Sutton, who lived with the Huffstetlers. Mrs. Powell asked her granddaughter where Mrs. Huffstetler was. After ending the conversation with her granddaughter, Mrs. Powell called the police. Mrs. Powell then went with the Shannons to their home in Gastonia to spend the night.
On January 1, 1983, at approximately 6:00 a.m., Mr. Shannon took Mrs. Powell back to her home in Kings Mountain. He left after checking throughout the trailer and finding nothing suspicious.
A friend of Mrs. Powell’s from work, Miller Eugene Hughes, drove her to First Union Bank in Kings Mountain to do “some banking” on December 31, 1982. He also made plans with Mrs. Powell to take her to the Veterans Hospital in Asheville early on the morning of January 1 so that she could visit her husband. Mrs. Powell asked him to call her before he came by to pick her up on the morning of January 1. He called Mrs. Powell’s trailer three times at about 7:50 a.m. on January 1, 1983. He received no answer. He called two more times after that, thirty to forty minutes apart, but never got a response.
Paul Glenn Sisk was working for the Yellow Cab Company on the morning of January 1. At about 8:00 a.m. a call came in to the dispatcher for the company, and Sisk answered the phone. Sisk recognized the defendant’s voice. The caller identified himself as David Huffstetler. The caller asked that a cab be sent to a point on Highway 161 about two miles out of Kings Mountain at two
Alice Cantrell testified that the defendant was a friend of hers and that he came to visit her on January 1, 1983 at about 10:00 a.m. He came into the room where she was sleeping and asked if she wanted to shoot pool. Ms. Cantrell and the defendant stayed together all day long at the home of Ms. Cantrell’s sister. The two worked on a car most of the day. The defendant, Ms. Cantrell and her two sons spent the night of January 1 in a motel in Kings Mountain. Ms. Cantrell and the defendant stayed together for two days after January 1 spending the second night in Ms. Cantrell’s mother’s home.
Debbie Sutton, the granddaughter of the deceased, testified that on January 1, 1983 she was living in the trailer where her mother Ruby Huffstetler lived with the defendant. She saw the defendant leave with her mother and her sister on December 31. Her mother came back home without the defendant. She later saw her mother on the evening of December 31 at a New Year’s Eve party, but the defendant was not with her mother. Ms. Sutton returned to her mother’s trailer around 4:00 a.m. on the morning of January 1, 1983. She stated that she went to bed and got up late the next day. She did not leave the trailer again that day.
The deceased’s daughter, Mrs. Shannon, began to try to call her mother at her mother’s trailer between 4:00 and 4:30 p.m. on January 1. She received no answer and continued to call every thirty minutes until 6:00 p.m. After a final unsuccessful attempt to reach her mother, she called Deborah Sutton and asked her to go to Mrs. Powell’s trailer and tell Mrs. Powell to come to the phone. Ms. Sutton went next door to her grandmother’s trailer. She opened the unlocked door, entered and found the body of Mrs. Powell lying on the floor of the kitchen. She testified that she could tell her grandmother was dead because her head was “bashed in.”
The police were called at 7:15 p.m. on January 1 and arrived at the Powell residence shortly thereafter. Officer Richard Red-ding of the Gaston County Police Department testified that after being called to the Powell residence, he went inside the de
Law enforcement officers searched the area surrounding the victim’s home and found a black plastic garbage bag containing bloodstained clothes approximately two-tenths of a mile from the victim’s trailer. The bag contained a pair of jeans and a shirt identified by Mrs. Huffstetler as belonging to her husband, the defendant. The bag also contained a bloody crumpled bank envelope from First Union Bank and a pair of gloves identified by the defendant’s wife as similar to a pair owned by her husband.
An S.B.I. hair analyst testified that several hairs found on the gloves were microscopically consistent with hairs taken from the victim. An S.B.I. forensic serologist testified that blood samples taken from the clothes found in the bag were consistent with the blood type of the victim and inconsistent with the blood type of the defendant.
Officers found a broken cast-iron skillet and its handle approximately a hundred feet from the defendant’s trailer. The skillet was bloodstained and bore hairs microscopically consistent with the hair of the victim. The metal fragment found beside the head of the victim in her trailer fit into the broken skillet.
A pathologist, Dr. Phillip Leone, performed an autopsy on the body of the deceased. He testified that Mrs. Powell had multiple wounds and lacerations about her head, neck and shoulders. He found more than fourteen lacerations on her head and body. Both eyes were massively bruised and swollen shut, and blood was found in both nostrils and in her mouth. The victim’s jaws were broken on both sides so that the lower jaw moved freely. The victim’s spine and neck were fractured, as was her left collarbone. There was a large head wound behind the right ear in which the skull had been pushed into the brain. The pathologist also described a bilateral skull fracture and a “tremendous”
The defendant did not testify or offer evidence at the guilt-innocence phase of the trial. The jury found him guilty of murder in the first degree.
Prior to the sentencing hearing, the trial court disallowed the State’s attempt to offer evidence that the defendant was involved in an armed robbery on the day of the murder. The State offered no further evidence but requested that the trial court submit as an aggravating circumstance that the killing was an especially heinous, atrocious or cruel murder under N.C.G.S. 15A-2000(e)(9).
The defendant testified in his own behalf at the sentencing hearing. He stated that he was taking $150 to $200 worth of the drug dilaudid per day at the time of the murder. He supported himself with money he got shoplifting and working.
On December 31, 1982, he went to the Yellow Cab Company and drank some liquor with employee Bill Wilde. He stole some money from the Yellow Cab Company at that time. He then went to a house in East Gastonia and injected two crushed up dilaudid pills. He got a ride home to his trailer on Highway 161 at about 10:00 p.m. on December 31. He drank some whiskey after arriving home and went to sleep. On rising the following morning, he injected two more dilaudid pills and drank more liquor.
The defendant testified that about 8:00 a.m. on January 1, 1983, he went next door to visit the deceased, his mother-in-law. After talking with Mrs. Powell a little, the defendant asked her whether she knew where his wife was. Mrs. Powell said that she did not and asked whether the defendant had been drinking. The defendant told Mrs. Powell that he had to have a drink around there to find out where his wife was because nobody would tell him anything. Mrs. Powell replied, “David, you’re a darned liar. I don’t know where she’s at. All I know is you called me and said all hell was going to break loose if somebody didn’t come and pick
The defendant testified that “we was just arguing, and I grabbed a frying pan and started hitting her.” The defendant did not remember how many times he struck Mrs. Powell but testified that he was not angry with her. He stated that “it just happened in an argument.” The defendant then left the trailer, went to his own trailer to change clothes and got a pair of gloves. He went back to his mother-in-law’s trailer, picked up the frying pan while wearing the gloves, and threw the pan away. He put his bloodied clothes in a plastic trash bag and threw the trash bag away nearby. He then got a ride to the house where Alice Cantrell was staying. He stayed with Ms. Cantrell until his arrest on January 3.
Other members of the defendant’s family testified that the defendant was not a violent or mean man when he was growing up. They had noticed little animosity between the defendant and his mother-in-law Mrs. Powell, the deceased.
The trial court instructed the jury that it could find as an aggravating circumstance that the murder was especially heinous, atrocious, or cruel. The trial court instructed that the jury could find in mitigation that: (a) the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired; (b) the killing occurred contemporaneously with an argument between the defendant and the victim, a person whom he knew by virtue of the domestic relationship, and by means of an instrument acquired at the scene and not taken there; (c) the defendant did not have a history of violent conduct; and (d) any other mitigating circumstance arising from the evidence.
The jury found the murder of Edna Powell to be especially heinous, atrocious or cruel. They found the existence of the following mitigating circumstances: (1) that the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired; (2) that the killing occurred contemporaneously to an argument and by means of an instrument acquired at the scene and not taken there; (3) that the defendant did not have a history of violent conduct. The jury specifically found that there were no other circumstances which it
Guilt-Innocence Phase
The defendant first contends that the trial court erred when it denied his motions for individual voir dire of the jury venire and for sequestration of the jury venire. He also contends that the trial court erred when it denied his motion to prohibit jury dispersal. The defendant concedes that these matters are within the trial court’s discretion and that error may be found only upon a showing of abuse of discretion. State v. Stokes,
The defendant next contends that the procedure of “death qualifying” the jury for the guilt-innocence phase of his trial resulted in a guilt prone jury and deprived him of a fair trial. We have repeatedly rejected such arguments. E.g. State v. Murray,
The defendant also contends that the trial court erred by its failure to hold unconstitutional the North Carolina statutes providing for the imposition of the death penalty. On numerous occasions we have upheld the constitutionality of our death penalty statutes. E.g. State v. Jackson,
[3J The defendant next contends that the trial court made an inaccurate and prejudicial statement in its opening remarks to potential jurors. The trial court’s statements were as follows:
Now, members of the jury, first degree murder is a crime for which the death penalty may be imposed. Should the defendant be found guilty of first-degree murder by the jury, then in such event the court will be required to conduct a separate sentencing hearing before the trial jury to determine whether the defendant shall be sentenced to death or life imprisonment. It would be your duty to, after such sentencing hearing, recommend to the court whether the*102 defendant shall be sentenced to death or life imprisonment. Such a recommendation would be binding upon the court and that would be the sentence of the court. Before that time should occur, however, the sole responsibility of the trial jury is to determine from the evidence, beyond a reasonable doubt, that being the burden upon the State, whether the defendant is guilty of first degree murder or some lesser included offense about which the jury may be instructed, or not guilty.
(Emphasis added.) The defendant argues that this statement was inaccurate as it assumed that evidence of aggravating circumstances would be presented and a sentencing hearing required.
Although N.C.G.S. 15A-2000(a)(l) states that upon the adjudication of guilt of a capital felony, the trial court “shall” conduct a separate sentencing hearing, the trial court is not required to hold a separate sentencing hearing if it is clear that no evidence of aggravating circumstances has been or will be introduced. State v. Johnson,
The defendant has not shown how the statement of the trial court complained of in any way prejudiced him. The statement by the trial court merely had the effect of informing potential jurors that the jury’s function might involve both a determination of guilt or innocence and a determination of the appropriate sentence. Since a sentencing hearing in fact was required, it is clear that the statement complained of did not prejudice the defendant. It is apparent that counsel for the defendant did not think the substance of this statement by the trial court harmful to his client, since he made almost identical statements to certain prospective jurors during the selection of the jury. The defendant having failed to show any prejudice resulting from the trial court’s statement, his contentions concerning it are without merit and are rejected.
The defendant next contends that the trial court erred in excluding certain prospective jurors for cause as a result of answers they gave concerning their views on capital punishment. The defendant argues that the questions asked these prospective jurors by the prosecutor did not address the issue of whether the pro
Although the prosecutor’s questions included the incorrect assumption that under current North Carolina law a verdict of guilty of murder in the first degree standing alone might result in the imposition of the death penalty, the trial court did not err in excusing the prospective jurors for cause. The transcript of the jury voir dire reveals that each juror excused for cause as a result of his or her views on capital punishment clearly indicated that he or she would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed in the present case. Therefore, the trial court properly excused these jurors for cause. Witherspoon v. Illinois,
The defendant next contends that the trial court erred by preventing counsel for the defendant from discussing the meaning of a bill of indictment during the voir dire examination of prospective jurors. The defendant attempted several times to inform prospective jurors about the significance of a bill of indictment. Each time the trial court sustained the State’s objection.
It is well established that the extent of the inquiry of a prospective juror rests within the trial court’s discretion and will not be found to be reversible error unless an abuse of discretion is shown. State v. Phillips,
The defendant further contends that the trial court erred in sustaining an objection to his question to a prospective juror as to whether she had previously had any occasion to discuss her views on the death penalty. The question was repetitious, since the prospective juror had already given a negative answer. The trial court did not abuse its discretion or commit error by preventing repetitious questions to prospective jurors.
The defendant next contends that the trial court erred by admitting into evidence two photographs which depict the area in the victim’s trailer where her body was found. The photographs, although gruesome, illustrate the testimony of Officer Richard G. Redding as to conditions at the crime scene when he arrived there shortly after the body was discovered. The fact that a photograph shows a horrible and gruesome scene does not render it incompetent. When properly authenticated, “photographs showing the condition of the body when found, its location when found, and the surrounding scene at the time the body was found are not rendered incompetent by the portrayal of gruesome events which the witness testifies they accurately portray.” State v. Elkerson,
The defendant next contends the trial court erred by admitting into evidence items of clothing which allegedly belonged to the defendant. The defendant argues that his wife did not identify the items as the defendant’s with sufficient certainty to make them admissible.
It is axiomatic that any evidence calculated to throw any light upon the crime charged is admissible in criminal cases. State v. Hunt,
The real thrust of the defendant’s arguments in support of his assignments and contentions concerning these items of clothing, however, seems to be that the defendant’s wife should not have been permitted to testify that the clothing belonged to him, because her identification of the clothing as his was not sufficiently certain. This argument is equally without merit.
As to two of the items of clothing, a shirt and a pair of trousers, the defendant’s wife could not have testified more clearly and unequivocally that they were the defendant’s. There was no error in the admission of her testimony in this regard.
As to the remaining clothing, a pair of brown cotton gloves, the defendant’s wife stated that: “David had a pair like that.” No objection or motion to strike this testimony was made at trial. Therefore, the defendant is deemed to have waived the right to raise this alleged error on appeal. State v. Oliver,
The defendant next contends that the trial court’s admission into evidence of the opinion testimony of forensic serologist Brenda Bissette was error. After being properly qualified as an expert in the field of forensic serology, Ms. Bissette testified that based on the results of ten blood tests performed at the S.B.I. laboratory, her opinion was that the blood found on the clothing identified as the defendant’s was consistent with the blood of the victim. She further stated that six-tenths of one percent of the population of the United States is known to share the characteris
The defendant objected to the opinion testimony on grounds that the expert had not actually conducted some of the tests. The defendant contends that because he could not cross-examine the person who actually performed some of the tests, he was deprived of the right to confront his accusers guaranteed by the Sixth Amendment to the Constitution of the United States.
It has been held traditionally that an expert’s opinion is not admissible if based on hearsay evidence. Cogdill v. North Carolina State Highway Commission,
In State v. DeGregory,
(1) A physician, as an expert witness, may give his opinion, including a diagnosis, based either on personal knowledge or observation or on information supplied him by others, including the patient, if such information is inherently reliable even though it is not independently admissible into evidence. The opinion, of course, may be based on information gained in both ways. (2) If his opinion is admissible the expert may testify to the information he relied on in forming it for the purpose of showing the basis of his opinion.
In general, the admission of “inherently reliable” information to show the basis for an expert’s opinion has occurred in cases involving medical or psychiatric experts. See, e.g. State v. Jackson,
The rule permitting experts to testify to opinions they have formed based on information not itself admissible as substantive evidence is not limited to opinions of physicians and other medical experts. Under the standard set forth in Wade, the standard applicable to this case, the tests forming the basis of the serologist’s testimony are sufficiently reliable to support the admission of her expert opinion based upon those tests.
We note here that, effective July 1, 1984, N.C.G.S. 8C-1, Rule 703 provides that:
*108 The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
(Emphasis added.) Several commentators have suggested that there is little difference in the “inherently reliable” standard adopted by this Court in Wade and the “reasonably relied upon” standard of the new rule. See Blakey, Examination of Expert Witnesses in North Carolina, 61 N.C. L. Rev. 2, 26-27 (1982); 1 Brandis on North Carolina Evidence, § 136 (2d rev. ed. Supp. 1983). It is also clear that the new rule is not confined in its application to medical and psychiatric expert testimony.
The admission into evidence of expert opinion based upon information not itself admissible into evidence does not violate the Sixth Amendment guarantee of the right of an accused to confront his accusers where the expert is available for cross-examination. U.S. v. Williams,
Before the question of a defendant’s guilt may be submitted to the jury for its consideration, the trial court must find that substantial evidence has been introduced tending to prove each essential element of the offense charged and that the defendant was the perpetrator. State v. Powell,
First degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. N.C.G.S. 14-17. State v. Fleming,
Since premeditation and deliberation are processes of the mind, they are not ordinarily subject to direct proof but generally must be proved if at all by circumstantial evidence. State v. Buchanan,
The evidence in the present case shows the extremely brutal slaying of a sixty-five year old woman in her home. Mrs. Powell died as a result of numerous wounds to her face, head, neck and shoulders inflicted over a period of some time. There is substantial evidence from which it is reasonable to infer that many of the blows were inflicted after the deceased had been felled and rendered helpless. There is no evidence of provocation on the part of the deceased. The removal of the telephone from its socket is further evidence tending to support an inference of premeditation or deliberation.
The evidence in support of premeditation and deliberation justified submission of the charge of first degree murder to the jury. The defendant’s contention is without merit.
The defendant next contends that prejudicial error occurred during the prosecutor’s closing argument before the jury. The defendant argues that the prosecutor’s comments constituted improper references to the defendant’s decision not to testify during the guilt-innocence phase of his trial. During the closing arguments the attorney for the defendant argued as follows:
Now, of course, when a defendant is accused of a crime and he is brought to trial, if the State — if the defendant does not present any evidence the defendant doesn’t present any evidence, then his counsel has the right of the opening argument, just as I am doing now, and closing argument. That is, Mr. Hill will argue to you after I’m finished here. Then Mr. Clark will argue to you, a closing argument for the defendant. The defense argues this is a very important argument and certainly something the defendant considers when he decides not to present any evidence.
Mr. Harris, when he opened his argument to you, gave to you some reasons that he made up, but yet you haven’t heard any evidence as to why. That he must have a great value on his, he and Mr. Clark’s, ability to stand before you and orate, make a great moving speech which will outweigh the evidence you heard last week in this trial. It’s just pure vanity, ladies and gentlemen. This is not a game, as he indicated to you. When you came to sit as a juror in this case, it was said to you individually and you heard us repeat it to other jurors, that you could consider in your deliberations only that evidence that you hear here in the courtroom, and the only evidence that you heard was the evidence presented by the State. It would seem to me a rather vain thing on behalf of Mr. Harris and Mr. Clark to get up and to argue to you that the reason that they did not offer evidence was so that they could have the final argument. I don’t think — believe—that you’re such short-minded people —
Mr. HARRIS: Objection.
THE COURT: Overruled.
Mr. HILL: —that you can’t remember thirty minutes what occurred and they can talk to you and explain the evidence that they contend is consistent with his innocence. Ladies and gentlemen, there is no evidence that you heard in this case that is consistent with his innocence. No reasonable theory that is consistent with his innocence.
Arguments of counsel are largely in the control and discretion of the trial court. The appellate courts ordinarily will not review the exercise of that discretion unless the impropriety of counsel’s remarks is extreme and is clearly calculated to prejudice the jury. State v. Taylor,
Having reviewed the arguments of both parties, we hold that the argument of the prosecutor did not improperly refer to the defendant’s failure to testify. The prosecutor argued that “there
The defendant also contends that another argument made by the prosecutor was prejudicial error. The defendant’s contention centers on the prosecutor’s argument that the defendant “didn’t have the common decency to leave Alice Cantrell long enough to bury his mother-in-law.”
As we have stated, counsel will be allowed wide latitude in the argument of hotly contested cases. State v. McKenna,
The trial court in this instance acted within the bounds of its sound discretion in allowing the contested argument. Alice Cantrell’s testimony was that at approximately 10:00 a.m. on the day of the murder, the defendant came to be with her. The two stayed together constantly from that time until the defendant’s arrest two days later. The prosecutor’s remarks, although touching upon
The defendant next contends that the trial court erred in its final instructions to the jury during the guilt-innocence phase of the trial. The defendant’s contention is that the court erred in failing to mention that a sentencing hearing would be held only if there was evidence of an aggravating circumstance. The defendant did not object to the instructions. Where a defendant fails to object to jury instructions prior to the jury’s retiring, our review is limited to examining the record for “plain error” or error so fundamental or prejudicial that justice cannot have been done. State v. Oliver,
The defendant next argues that the trial court committed prejudicial error during the guilt-innocence phase of the trial when it allowed the jury to take photographs which had been admitted into evidence to the jury room over the defendant’s objection. After retiring to deliberate in the guilt-innocence phase of the trial, the jury returned and requested “the pictures of the trailers” and a repetition of the definitions of first and second degree murder. The trial court repeated the requested instructions and ordered that the requested photographs be sent to the jury room. The defendant made a timely objection.
Exhibits 6, 8, 9, 10, 14 and 20 were sent to the jury room. Exhibits 6, 8 and 20 were outdoor photographs showing, respectively, the place where a plastic bag containing clothing was found, the trailers inhabited by the defendant and the victim, and the thicket where parts of the metal skillet were found. Exhibits 9, 10 and 14 were photographs which showed, respectively, the overall view of the interior of the victim’s trailer and the location of the
The defendant cites N.C.G.S. 15A-1233(b) for his argument that the trial court erred in allowing the jury to take the pictures into the jury room over his objection. That statute provides:
(b) Upon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence. If the judge permits the jury to take to the jury room requested exhibits and writings, he may have the jury take additional material or first review other evidence relating to the same issue so as not to give undue prominence to the exhibits or writings taken to the jury room. If the judge permits an exhibit to be taken to the jury room, he must, upon request, instruct the jury not to conduct any experiments with the exhibit.
(Emphasis added.) In dicta, this Court in State v. Barnett,
Under N.C.G.S. 15A-1443(a), a defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States only when “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant.” We are not persuaded that the defendant has met his burden of showing such prejudice.
Sentencing Phase
The defendant contends that the trial court erred during the sentencing phase in this case by submitting for the jury’s consideration as an aggravating circumstance that the killing was especially heinous, atrocious or cruel. N.C.G.S. 15A-2000(e)(9). It is the defendant’s contention that this aggravating circumstance could not be submitted to the jury because the State offered no evidence as to whether the victim was alive or conscious during any substantial portion of the assault. We do not agree.
In State v. Oliver,
The defendant next contends that the trial court erred in the sentencing hearing in refusing to permit the defendant’s sister to testify to his nonviolent nature. This contention is without merit. Even if it is assumed arguendo that it was error to exclude this testimony, the error was harmless beyond all doubt. Both the defendant’s mother and his wife testified that the defendant was not violent. His sister’s testimony would have been repetitive. More significantly, the jury was convinced by the evidence admitted and found the defendant’s nonviolent past to be a mitigating circumstance.
The defendant also contends that the trial court erred by its refusal to charge the jury that it could find as a mitigating circumstance: “That during the sentencing phase, the defendant testified under oath and admitted his role in the victim’s death. That this admission of wrongdoing reflects a potential for rehabilitation.” In State v. Pinch,
The defendant maintains that his testimony during the sentencing phase is evidence of a first step toward his rehabilitation. A review of the defendant’s testimony and the evidence presented in the sentencing hearing does not support this view. The defendant’s testimony, though a confession of guilt, came only after a jury had convicted him of first degree murder and was deciding between a life sentence and the death penalty. Much of his testimony sought to limit his personal responsibility by showing that drugs and alcohol played a part in his killing of his mother-in-law. The defendant indicated during his testimony that he had wanted to keep quiet during the sentencing hearing but that his wife and family wanted him to tell the truth. The evidence was not sufficient to require the submission of the re
Statutory Review of Sentence By Supreme Court
Having found no prejudicial error by the trial court during either the guilt-innocence or sentencing phases of the trial, we turn to the duties reserved by statute exclusively for this Court in reviewing the judgment and sentence of death. Under N.C.G.S. 15A-2000(d)(2) we must determine whether the record supports a finding of the aggravating circumstance on which the sentencing court based its sentence of death; whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factor; and whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
We have thoroughly examined the record, transcripts and briefs in this case. As stated previously, we find the record supports the submission of the aggravating circumstance which was considered and found by the jury. Further, we find no indication at all that the death penalty was imposed under the influence of passion, prejudice or arbitrary factors.
We turn then to our final statutory duty of proportionality review. This duty requires us to determine whether the sentence of death in this case is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. For purposes of proportionality review, we use all of the cases in the “pool” of similar cases announced in State v. Williams,
Having compared the crime and the defendant in this case to those in the pool of similar cases, we do not find the sentence of death entered here to be disproportionate. The evidence presented at trial supports the view that the sixty-five year old female
No evidence was introduced tending to show that the victim made any threat or assaulted the defendant in any way before he beat her to death with the skillet. The defendant himself testified that he was not angry at the time he beat the victim to death.
After beating the victim, the defendant went to his trailer next door to change his bloody clothes. He put on a pair of gloves before returning to the scene so that he would leave no fingerprints. After disposing of his clothes and the skillet he used as the murder weapon, the defendant left the victim on the floor in a pool of her own blood and went to visit a woman with whom he had previously engaged in shoplifting. He spent the night of the murder in a motel with this woman and stayed with her until his arrest two days later.
Thus, the record before us reveals a senseless, unprovoked, exceptionally brutal, prolonged and murderous assault by an adult male upon a sixty-five year old female in her home. Having compared the defendant and the crime in this case to others in the pool of similar cases, we conclude that the sentence of death entered by the trial court is not disproportionate.
We hold that no prejudicial error was committed in either the guilt-innocence phase or the sentencing phase of the trial and that the sentence of death entered by the trial court was not disproportionate. Further, we hold that this is not a proper case in which to exercise our statutory authority to set aside the sentence of death. We leave the sentence of death undisturbed.
No error.
Concurrence Opinion
concurring.
Except as herein set out, I concur in the well reasoned majority opinion and in the result reached. With respect to the ruling of the trial judge allowing the jury to take certain exhibits to the jury room, counsel did not brief or argue the constitutionality of N.C.G.S. 15A-1233(b). However, upon considering that issue, I find the statute constitutionally suspect as a violation of the doctrine of separation of powers. N.C. Const, art. I, § 6 and art. IV, § 1. The legislature cannot control the actions of the courts over what exhibits, properly admitted, can be carried by the jury into its jury room during its deliberations. Such action by the legislature is an unconstitutional intrusion and interference with the internal workings of the trial of a jury case. What evidence should or should not be taken to the jury room is a matter peculiarly within the knowledge and discretion of the trial judge on a case by case basis. The trial judge’s duty to seek after justice should not be hampered by requirements that evidence cannot be taken into the jury room except by consent of all counsel. It is the duty and responsibility of the trial judge to supervise and control a trial in order that injustice to any party may be prevented. State v. Spaulding,
I repeat my views concerning the extension of the plain error doctrine to evidentiary matters. State v. Black,
Dissenting Opinion
dissenting as to sentence.
Believing there is reversible error in the trial court’s failure to submit a requested mitigating circumstance and that the death penalty is disproportionate, I respectfully dissent from so much of the majority opinion which concludes to the contrary.
I.
Defendant testified during the sentencing hearing that he had known Mrs. Powell, his mother-in-law and the victim, “way before my marriage, probably about all my life.” He said, “Me and my mother-in-law had a good relationship.” At this point in the testimony defendant lost his composure and was excused “for a
Defendant’s wife, daughter of the victim, testified that defendant and her mother “got along real well. They only argued over me. That wasn’t that much because I always insisted mother let me live my own life, and what David did was between me and him.” The witness said, “David’s not mean and he’s not vicious. He’s got a drug habit that he couldn’t control, but he was not mean.” She said David had sought professional help for his habit a number of times but that the help had been unsuccessful. The witness said that after defendant’s arrest and while he was in jail, he told her about the murder. The following colloquy ensued:
Q. Do you recall when he told you what happened?
A. It has been since he’s been in jail, and it has just been in bits and pieces, virtually what he has said today, but a two-minute conversation, there can’t be much said.
Q. Did you have to force David or talk David into telling you the truth about what happened?
A. No, I did not.
*121 Q. How did it come about?
A. He just called me one day, and I answered the phone and he started crying and saying he was sorry, and then after that, when he would call, if I answered the phone, we talked whatever length of time he had.
II.
Defendant requested in writing at the sentencing hearing that the trial court submit, among others which were submitted, the following mitigating circumstance:
That during the sentencing phase, the defendant testified under oath and admitted his role in the victim’s death. That this admission of wrongdoing reflects a potential for rehabilitation.
The trial court refused to submit the circumstance. I am satisfied this was error entitling defendant to a new sentencing hearing.
Not to permit a jury to consider any relevant mitigating circumstance is an error of constitutional dimension. Eddings v. Oklahoma,
Whether this murder was premeditated and deliberated is a close question, although I agree with the majority that there is enough evidence in the guilt phase to carry the question to the jury. Further, even if one concludes, as does the majority, that a sentence of death is not disproportionate, a conclusion with which I disagree, this is not a compelling case for the death penalty. Therefore I cannot say that failure to submit the tendered mitigating circumstance was harmless beyond a reasonable doubt.
The majority says that because defendant admitted his guilt only after he had been convicted by a jury, told the jury that he was under the influence of drugs and alcohol when he committed the murder, and had indicated to his family that he did not want to testify, the fact that he ultimately did testify and admit his guilt cannot as a matter of law be considered a mitigating circumstance.
I disagree. Defendant was exercising his Fifth Amendment right not to be a witness against himself during the guilt phase. He should not be penalized for the exercise of this right when at the penalty phase he decides to forego the right and admit his guilt. There was plenary corroborative evidence of defendant’s addiction to drugs and alcohol other than defendant’s own testimony. This formed the basis of the mitigating circumstance that defendant’s capacity to appreciate the criminality of his conduct was impaired. That defendant so testified is no reason to say that his admission of guilt cannot be considered as a mitigating circumstance. Finally, defendant’s admission that he had not at first wanted to testify is no reason to hold as a matter of law that his ultimate decision “to tell the truth” cannot be considered by the jury as a mitigating circumstance.
III.
I conclude that the death sentence is excessive and disproportionate “to the penalty imposed in similar cases, considering both the crime and the defendant.” N.C.G.S. 15A-2000(d)(2).
The majority deals with this aspect of the case perfunctorily. It refers to the “pool” of similar cases and says that it has compared the defendant and the crime to these cases without saying which of the cases in the pool it finds similar or to which cases it has compared the instant case. The majority simply describes the crime, without describing the defendant, and concludes that the sentence of death is not disproportionate. The majority seems to treat the issue as being one exclusively within this Court’s unbridled discretion.
I think the question of proportionality of any death sentence is more serious than this. It is not a question for the unbridled discretion of this Court. We do not sit as a super jury on this issue. Whether a death sentence in any case is disproportionate is a question of law. In State v. Jackson,
The purpose of proportionality review is to serve as a check against the capricious or random imposition of the death penalty. State v. Hutchins,303 N.C. 321 ,279 S.E. 2d 788 (1981). We repeat that we consider the responsibility placed upon us by N.C.G.S. 15A-2000(d)(2) to be as serious as any responsibility placed upon an appellate court. State v. Rook,304 N.C. 201 ,283 S.E. 2d 732 (1981), cert. denied, 455
*124 U.S. 1038 (1982). In carrying out our duties under the statute, we must be sensitive not only to the mandate of our legislature but also to the constitutional dimensions of our review. Id. We have, therefore, carefully reviewed the record, briefs, and oral arguments presented.
The foregoing was quoted with approval in Hill,
In both Hill and State v. Lawson,
In essence, our task on proportionality review is to compare the case at bar with other cases in the pool which are roughly similar with regard to the crime and the defendant, such as, for example, the manner in which the crime was committed and defendant’s character, background, and physical and mental condition. If, after making such a comparison, we find that juries have consistently been returning death sentences in the similar cases, then we will have a strong basis for concluding that a death sentence in the case under review is not excessive or disproportionate. On the other hand if we find that juries have consistently been returning life sentences in the similar cases, we will have a strong basis for concluding that a death sentence in the case under review is excessive or disproportionate.
I think the approach used on proportionality review in Hill, Lawson, and Jackson is the proper one. When it is employed here, the conclusion is inescapable that the death sentence is disproportionate.
Although I concur in the majority’s conclusion that the evidence at the guilt phase, considered alone, is enough to be submitted to the jury on the element of premeditation and delibera- ^ tion, defendant’s testimony at the sentencing hearing, if believed, goes a long way toward depriving this crime of that essential element of first degree murder. The jury believed this testimony because they found as a mitigating circumstance that the killing occurred “contemporaneously to an argument between the defendant and the victim, a person whom he knew by virtue of a domestic relationship, and by means of an instrument acquired at the scene and not taken there.”
For deliberation, a necessary element of first degree murder, to be present, the specific intent to kill, also a necessary element of the crime, “must arise from ‘a fixed determination previously formed after weighing the matter.’ ” Hill,
There being no actual evidence of a fight between the prisoner and deceased, the jury were left to grope in the dark as to their duty in case they were not satisfied by the State beyond a reasonable doubt that the prisoner acted upon a fixed purpose to kill, distinctly formed in his mind. If [the jury] concluded that there was a quarrel or argument, and in the heat of sudden passion, engendered by disagreeable language, which would not have been provocation sufficient to bring the offense within the definition of manslaughter, the crime . . . was murder in the second degree.
Id. at 1124,
The jury’s conclusion after the sentencing hearing that this killing occurred “contemporaneously to an argument between the defendant and the victim” makes this case, for proportionality review purposes, much like Hill,
Given the somewhat speculative nature of the evidence surrounding the murder here, the apparent lack of motive, the apparent absence of any simultaneous offenses, and the incredibly short amount of time involved, together with the*127 jury’s finding of three mitigating circumstances tending to show defendant’s lack of past criminal activity and his being gainfully employed, and the unqualified cooperation of defendant during the investigation, we are constrained to hold as a matter of law that the death sentence imposed here is disproportionate within the meaning of G.S. 15A-2000(d)(2).
Id. at 479,
The jury here found as mitigating circumstances that defendant did not have a history of violent conduct, that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, and that the victim in this case was a person whom defendant knew by virtue of a domestic relationship.
In every case so far, affirmed on appeal, where murders have arisen out of prior close or domestic relationships and where there was evidence of impaired capacity arising from drug or alcohol abuse, except for State v. Noland,
In every case so far, affirmed on appeal, where murders have arisen out of prior close or domestic relationships, except State v. Boyd,
Boyd and Martin are easily distinguishable from the instant case. In Boyd, the victim (defendant’s girlfriend) died as a result of thirty-seven stab wounds inflicted by defendant. In addition to the especially heinous aggravating circumstance, the jury found that defendant had previously been convicted of a violent felony. Most importantly, the Court in Boyd said at the close of its proportionality review that “scanty evidence of emotional or mental disorder, which together with defendant’s significant history of criminal convictions and the heinous nature of the crime, including suffering of the victim, provide the basis for a penalty of death.”
In summary, this case, because of the closeness of the deliberation issue and the absence of any prior violent conduct of defendant, is quite similar to Hill in which we set aside the death penalty as disproportionate. It is much like all the other cases where the killing arose out of a close or domestic relationship and was the product, in part, of drug and alcohol abuse, in which our juries have consistently imposed life imprisonment. The death sentence here, therefore, is disproportionate.
For the reasons given I vote for a new sentencing hearing and, failing that, I vote to remand the case for entry of a sentence of life imprisonment.