State v. Price

IN THE SUPREME COURT v. PRICE STATE (1990)] [326 LEE RICKY STATE OF NORTH CAROLINA 585A87 No. (Filed 1990) February — (NCI3d| jury selection— Jury degree § 1. 6.4 first murder — concerning penalty death questions prose- err in a first murder degree The trial court did not selection by objection during jury the State’s sustaining cution juror whether a felt it would be question potential factors necessary aggravating for the State to show additional Although the death impose penalty. before he would vote to jurors whether can follow the law as proper inquire it is proper questions it is neither nor to ask charged, analogous jurors’ comprehen- or to test their designed gauge approval Moreover, into fitness to inquiry juror’s sion of the law. is within the discretion of trial court. serve 2d, Jury §§ Am 290. Jur (NCI3d)— § selection- Jury degree 2. 7.14 first murder — to death peremptory challenges jurors opposed penalty use of — of a defendant in a first rights degree constitutional by the use of murder were not violated State’s prosecution jurors peremptory challenges purge prospective penalty. reservations about the death Amendments expressing Constitution, I, S. Article Six and Fourteen of U. § of the North Carolina Constitution. 2d, Jury §

Am Jur 237. (NCI3d)— Jury —jury murder degree 7.12 first selection- penalty reservations about death for cause —excusal degree prose- The trial court did not err a first murder jurors expressed cution for cause two who reser- excusing they without whether penalty asking vations about death conscientiously the law as the court apply charged could despite objections. their The trial court did not err con- that those fit the cluding jurors profile jurors appropriately Texas, excludable for cause as described in Adams v. furthermore, it is from progeny; apparent U.S. and its prospective jurors of both here that could response

STATE v. PRICE not have considered the penalty death objectively any under circumstances. 2d,

Am Jury Jur §§ 290. — (NCI3d) 4. § Criminal Law 34.8 first degree murder —other — offenses admissible The trial court did not err in a first degree murder prose- by cution testimony admitting two describing instances of prior misconduct involving prior a murder and a hostage taking. Testimony regarding “virtually identical murder” committed seventy-two less than hours before the murder for which de- fendant was on trial lends more ballast to the act than to actor, the character of the testimony regarding an incident less occurring than forty-eight hours after the second murder in which defendant having admitted killed more than once similarly of substantive value and patently tipped the away any Moreover, scales from unfair prejudicial effect.

trial court was careful to jury’s divert away attention from character and towards purposes which the evidence 404(b). 8C-1, was deemed by admissible N.C.6.S. Rule § 2d, Am §§ Jur Homicide 310-313. (NCI3d)— § Criminal Law 34.8 first degree prior murder — — misconduct admissible

The trial court did err in a first degree prose- murder by cution admitting testimony from a woman with whom de- fendant had previously lived that she had heard defendant home, call her name outside the bedroom of her mobile her, frightened had and that she had discovered the next morning that the screens had been removed from the two bedroom windows. The temporal proximity the incident to murder, the crime charged, to another and to a hostage-holding, plus the fact that it was an intrusion upon privacy of a former girlfriend, clearly demonstrate its admissibility for 404(b). 8C-1, purposes several cited in N.C.G.S. Rule § 2d, Am §§ Jur Homicide 310-313. (NCI4th)—

6. Criminal Law 357 degree first murder —witness embraced family victim’s member —motion to strike — testimony denied The trial court in did not err a first degree murder prose- cution denying defendant’s motion to strike identification

STATE v. by a who was embraced member testimony from a witness shared testifying. after The embrace family the victim’s impact statements condemned with the victim no similarities 496; only reference Maryland, Booth v. U.S. after indicates that occurred the record the embrace that it was viewed over and there is no indication court was jury. denying trial court concluded by members of the family witness strike that the motion to no and that the embrace was acquainted member were not gratitude. encouragement display more than 2d, 536, 537. §§ Homicide Am Jur (NCI3d)— degree —photo- § 7. Law 66.9 first murder Criminal likelihood of misidenti- identification —no substantial graphic fication by officers procedure identification used photographic unnecessarily sug- degree prosecution murder was

in a first to substantial likelihood of misiden- but did not lead a gestive display random where the entailed a procedure

tification depicted wedding the first set six photographs; two sets white pair second was a of black and couples; groups blowup which of defendant’s face one of photographs, all but the defend- wedding photograph; photograph from his inches; eight-by-ten his bride in the first set measured ant and inches; only four-by-six and photo defendant’s measured from of each male other than defendant differed appearance were to officers. The conditions general description given to have had for two witnesses an excellent amply beneficial physique; view both opportunity profile defendant’s acutely they seeing; what were both concentrating were on general physical facial and in remarkable detail salient described seen; they of the man had both were so certain features man that each testified that de- they right had identified he an look- was he unless had double or identical fendant alike; thirty passed seeing than hours between their and less selecting photographs. the man in the woods and defendant’s identify permitted was not defendant A third witness only on to describe the man he saw but was allowed court murder, not tainted description of the morning wedding photographs the witness was shown because face into duplication not experience and did man saw description The witness’s and white. black STATE v. PRICE

was general to be enough perfectly consistent with the view- of one point driving none of the past de- characteristics scribed were so noteworthy witness that it was more likely to originated have in a view of the photographs than a view of morning the crime. 2d, 371.4-371.8, §§

Am Jur Evidence 372. (NCI3d)— 8. Homicide 15.2 first degree murder —defendant’s history of mental illness —excluded—no error

The trial court did not err in a first degree prose- murder cution restricting defendant’s attempts to cross-examine two witnesses about what knew or had observed of de- history fendant’s of mental illness and aberrant behavior. When a defendant has made a tactical choice to exercise his defense, right to call witnesses or to present a it is well within the trial court’s discretion require that all of a document be offered into evidence rather than merely those self-serving balance, portions reflecting upon defendant’s mental and to hearsay testimony exclude of defendant’s hospitalization for problems. mental 2d,

Am §§ Jur Homicide (NCI3d|— §§ 9. Criminal Law degree first murder —tele- phone conversation with victim prejudicial —admission not error prejudicial

There was no error in a first degree murder prosecution from the testimony by admission of the victim’s parents that she had called them collect around 8:45 a.m. on killed; the morning that she was an officer’s testimony that he had traced the number of the telephone from which the Hill, call was made to a telephone booth in Chapel twenty-two found; miles from where the body victim’s or from a state- by ment defendant that he was with the victim when she her parents, called which the freely, court ruled had been voluntarily, and It understanding^ made. is well established identity that the may of a caller be by testimony established voice; that the witness the recognized testimony caller’s the possible could have had no prejudicial the impact on outcome of defendant’s trial when defendant he admitted that was with the victim when she parents; called her testimony officer’s utterly insignificant; the bill telephone was admissible to corroborate testimony parents of the victim’s about v. PRICE

STATE daughter; their the bill was they the call from when received under the purposes substantive admitted for properly there hearsay rule because exception business records foundation; of the bill for substantive and admission was no quantum in the face was not prejudicial purposes 8C-1, 803(6); Rule N.C.G.S. evidence. N.C.G.S. other § 15A-1443(a). § 2d, § 331. Am Homicide Jur (NCI3d)— photo- degree § 43.4 first 10. Criminal Law murder — — no error admission graphs degree prose- in first murder The trial did not err court where by photographs into evidence seven admitting cution limited to photographs were apparent it was not that defendant use when were introduced and illustrative contentions were objection, waived his and defendant’s arguably unobjectionable only with content regard baseless not use. to their restrained photographs but also 2d, § Am Homicide 416. Jur — (NCI4th)— degree first murder sentenc- 11. Criminal Law 1361 — limited for cor- drug use consideration ing— impeachment purposes or roborative during sentencing phase did not err The trial court testimony by degree prosecution limiting a first murder drug impeachment use for corroborative about defendant’s witness that he admission to the where defendant’s purposes no indefinite bore relevance past had used drugs by drugs throughout was affected possibility Moreover, murders. five-day included two period testify to permitted suggested witness was a demeanor that defendant, by periodic drugs use use and defendant’s drug mother, himself, by by his on the stand was described friend, psychiatrist. childhood 527, 598, 599, 2d, §§ Am Jur Criminal Law — (NCI4th)— degree first murder §§ Law 12. Criminal —prior involving convictions circumstances aggravating —course of conduct violence a phase degree of first sentencing The evidence in the circumstances prosecution aggravating supported murder STATE v. previous

of a involving conviction the use of violence to the person and that this part murder was of a of course conduct included the of commission other crimes of violence. is Although arguably arson not an inherently offense that in- volves violence against another or person persons in the absence inhabitants, of when inhabitants present are and the perpetrator fact, is of aware the act of their igniting dwelling is in- an disputably act of It apparent violence. from a review of the chronology of events that defendant’s actions were all five-day elements a by fueled rampage defendant’s overcom- mitment women. 2d, 527, 598, 599,

Am Jur §§ Criminal Law 628. (NCI4th)— § 13. Criminal Law 458 degree first murder —sen- tencing argument concerning parole permitted — —not

The trial court err did not during sentencing portion of a first degree murder prosecution by not permitting defense counsel to argue jury anything concerning possibility parole that the would judge empowered be to require a life sentence to commence the termination of life sentence defendant was then A Virginia. serving criminal defendant’s status the parole under laws is irrelevant ato determination of his sentence and an argument concerning effect con- secutive life upon period sentences defendant’s incarcera- tion is equally irrelevant. 2d, 627, 630;

Am §§ §§ Jur Criminal Law Trial 231. |NCI4th)— § 14. Criminal Law degree first murder —sen- tencing prosecutor’s argument of remorse — —lack

The trial err court did not during sentencing portion first degree murder prosecution failing intervene ex mero motu when prosecutor called the jury’s attention to defendant’s lack of remorse and his unwillingness admit guilt. The State never cited remorselessness to the aggravating conduct and urging jurors focus on their obser- vation that defendant showed no remorse relates to the de- meanor displayed throughout trial. Remarks rooted in observable evidence are not improper. 2d,

Am Jur Trial

STATE v. PRICE (1990)] [326 (NCI4th)— murder —sen- degree § 447 first 15. Criminal Law rights on of victim tencing prosecutor’s argument — of sentencing portion err in the trial court did not The by intervening not ex mero prosecution murder degree a first closing referred in his statement prosecutor when the motu family. qualities The personal of the victim and her rights family her wrought upon of victim and the devastation by words prosecutor’s not invoked by her death were case; subject were the of mere allusion in this these issues minimis; was de and by improper, if the error prosecutor; not to intervene ex it was well within the court’s discretion motu. mero 2d, §§ Trial 296-299.

Am Jur (NCI4th)— degree § 442 first murder —sen- 16. Criminal Law on tencing prosecutor’s argument sympathy — of sentencing phase trial did not err The court intervening not ex mero prosecution a first murder degree admonished the to allow prosecutor motu where the to inform their recommendation sympathy plainly properly admonishing The and prosecutor sentence. forgiveness and rooted jurors feelings sympathy may permit- not be in their hearts and not also the evidence verdict, absolutely prosecutor made to affect their and the ted in mitigation. offered no reference evidence 2d, §§ Am Trial 281. Jur — (NCI4th)— degree murder sentenc- § Criminal Law 1323 first 17. mitigating weighing aggravating ing—instructions —no factors error its in the sentencing portion

The trial court in instructions did not em- prosecution improperly murder degree a first circumstances phasize weight aggravating significance with its circumstances aggravating or tilt the scales toward mitigating circumstances. definition 2d, 598, 599, 628; §§ §§ Am Criminal Law Trial Jur 892-894. . |NCI4th)— degree first murder —sentenc- Criminal Law 1323 mitigating circumstances —instructions

ing aggravating — during sentencing portion trial court did not err in its instructions on prosecution a first murder degree IN THE SUPREME COURT

STATE where, weighing aggravating and mitigating factors read as whole, the trial court’s charge indicates no perceptible em- phasis on aggravating over mitigating circumstances. 2d,

Am 599, 628; Jur Criminal §§ §§ Law Trial 892-894. (NCI4th)— §

19. Criminal Law first degree murder —sen- tencing jury hung instructions —no abuse of — —additional discretion

The trial court did not abuse its discretion during phase sentencing of a first degree murder prosecution in- structing jury giving it additional time for delibera- tions after the foreman indicated that the jury was hung. The jurors had before them two aggravating circumstances circumstances; and ten mitigating nearly deliberated for four over days; hours two the trial all of judge heard factors, evidence in support aggravating and mitigating demeanor, jurors’ observed the according instructed them to the law as necessary he determined it to their comprehen- duty sion of their jurors; and the trial was then judge in the best position to determine how much time was reasonable for the jurors’ deliberations regarding recommendation for punishment under the facts of the case. 2d, 303;

Am § § Jur Criminal Law Trial 1109. (NCI4th)— § 20. Criminal Law degree first murder —sen- tencing mitigating —requirement unanimity factors —

Requiring unanimously mitigating find cir- cumstances the sentencing portion degree of a first murder prosecution does not violate a rights under the Eighth Amendment to the U. S. Constitution. 2d, 548, 553-555; 888, 892, §§

Am Jur §§ Homicide Trial 894. (NCI4th)— § 21. Criminal Law first degree murder —sen- tencing duty on to return death penalty —instruction

It is duty constitutional to inform a of its to return a recommendation of mitigating death when it finds cir- cumstances insufficient to outweigh aggravating circumstances sufficiently and the latter substantial to call for the death penalty. 2d, 548, 553-555;

Am §§ Jur Homicide §§ Trial 894.

STATE — (NCI3d) penalty excusing death Law 63 22. Constitutional — opposed jurors for cause —constitutional their opposi- who have stated jurors for cause Excusing constitutionally permissible. penalty tion to the death 2d, Jury §§ Jur Am (NCI4th>— murder —sen- degree § 1326 first

23. Criminal Law proof —burden of circumstances tencing mitigating — for first sentencing when defendant It is constitutional proving the burden place degree murder of the evidence by a preponderance circumstance mitigating each nonexistence of prove the State to require to not mitigating circumstance. proffered each 2d, §§ 599. Am Jur Criminal Law (NCI3d)— penalty § 80 death 24. Law Constitutional —constitutional statutes, N.C.G.S. penalty The death North Carolina -2003, are constitutional. through 15A-2000 § 628, 631; 2d, §§ Homicide §§ Law Am Jur Criminal (NCI4th)— degree § murder —sen- Law 1373 first 25. Criminal disproportionate than one murder —death tencing —more not im- a murder was penalty degree The for first death arbitrarily disproportionate and was not capriciously posed than once. had killed more where defendant 2d, §§ 552-554. Am Jur Homicide in result. concurring Justice FRYE 7A-27(a) a judg- from of N.C.G.S. right pursuant APPEAL J., at by Hobgood, of death entered ment the sentence imposing Court, PERSON Superior Session of 1987 Criminal September 14 December 1989. County. Supreme Court Heard McNeill, General, by Barry S. Attorney H. Thornburg, Lacy General, the State. Attorney Assistant for Hunter, Jr., Defender, Gordon .by Ray Appellate Malcolm Widenhouse, Defender, defendant-appellant. Appellate Assistant

IN THE COURT SUPREME STATE

WHICHARD, Justice. him a of charging tried on true bill indictment

Defendant was him guilty The found murder in the first degree. with scrutiny a sentence death. Our and recommended charged his trial reveals sentencing phases guilt the record error. prejudicial conducted without that both were Sunday, 10:00 on 21 October a approximately At a.m. spotted squatting man later identified as defendant Wrenn, Tony who been near Mills Anne and had woods Hurdle with The later testified that the man couple their son. walking suddenly, ground, a shirt from the jumped had snatched up Farrish, car on State Road Ray passenger travelling a in a fled. woods, that at about the same hour 1001 near same testified shirtless, male, as defend- white whom later identified he saw ant, the roadside. Mr. running light parked blue car on towards keys fumble with unlock attempt Farrish saw the man riding Mr. Farrish returned When the car which car door. later, gone. car was twenty minutes blue over the man had been crouched The Wrenns discovered that Smith, later testified body pathologist who a forensic Brenda “something with broad.” strangulation of ligature had died body shoestring. her with a brown hands were tied behind victim’s tending trial to show introduced at defendant’s Evidence was strangulation death ligature he had been for the responsible 19th, Danville, less than Brady in October Virginia, of Joan The and body was found. hands days Brenda Smith’s three before similarly with shoelaces. Brady Ms. been bound feet of had had romantic that defendant had evidence also revealed State’s recent female he had told a with each victim and that liaisons her, get to partly he wanted to move with that acquaintance away Brady. from Joan addition, been contact witnesses for the State who had

In body was found de- day after Brenda Smith’s with defendant uncle, Hardy, James at the house of defendant’s episode scribed an Monday, on Around 5:00 p.m. arrest. which resulted in defendant’s 1984, Darryl went to James Gammon defendant’s cousin October noises that he followed to Hardy’s house. testified Gammon Hardy bound Defendant gagged. and found and basement there at- knife. Gammon flashlight a with a a was behind curtain STATE v. tempted with a but threatened gun, restrain defendant knife, by with the gun him then forced Gammon release holding the knife to the throat of a fourth man. Police officers arrived, bay them for but defendant held five approximately interim, In and one-half hours before he was arrested. he ut- statements, of incriminating including tered number the admis- that people again, sions he had killed two and would kill and that good ring key with shoelaces. Both a class chain to Brenda were belonging person. Smith found An with been inmate whom defendant had incarcerated pend- his trial that ing killing testified defendant had admitted to Brenda Brady. Smith and Joan been dating Defendant confided he had women, many suffering too that he been from much pressure, had too somebody. and that he had felt he to eliminate had Jury Selection Issues Defendant’s first assignments error concern selection initially of a for trial. complains his Defendant that the trial erroneously court objection sustained State’s to the question whether a it potential juror necessary should be for the “[felt] State to show aggravating additional circumstances before would [he] vote to the death impose penalty.” Defendant that his argues ques tion was proper merely because its intent was plumb poten juror’s tial attitudes or it prejudices; impermissibly did “stake juror out” the his position what be might under a given Vinson, 326, 336, 60, state facts. State v. 287 N.C. 215 S.E.2d (1975), vacated, penalty death 428 U.S. 49 L. Ed. 2d 1206 (1976).He statutory contends the trial court’s action thwarted to conduct a voir right jurors dire examination of order “to cause; ascertain grounds whether there exist challenge for . . to. enable counsel intelligently to exercise the peremptory Allred, 554, 558-59, challenges allowed law.” State v. (1969) Brooks, (quoting State Mont. (1920)). 188 P. We disagree.

Although proper under appropriate circumstances to in- quire jurors whether can follow law as charged court, Texas, Adams v. 448 U.S. 65 L. Ed. 2d it is neither nor to ask analogous proper questions designed to gauge jurors’ approval or to test their comprehension of the Moreover, may law. while inquire diligently juror’s counsel into a serve, fitness to the extent and manner of that inquiry rests within 67

STATE v. PRICE Parks, 324 State v. of the trial court. the sound discretion (1989). 420, 423, to show Defendant has failed 378 S.E.2d of the trial court part on the either a clear abuse discretion resulting prejudice. or

under the ^[2] Defendant next raises sixth fourteenth amendments the issue that his constitutional to the United States rights I, section 19 of the Constitution and under article Constitution use of peremptory were violated the State’s of North Carolina reser prospective jurors expressing challenges purge Court, arguments This penalty. cognizant vations about the death Rice, 693 in Brown v. contrary, such as that articulated to the (W.D.N.C.1988), this consistently rejected position. F. See, has Supp. 125, 142-43, Quesinberry, v. e.g., State new reason for this Court presents Defendant no regard. its prior holdings now to the soundness of question potential Defendant also jurors contends that his abridged when two right to conduct jurors who had a voir dire ex were excused for penalty reservations about the death pressed whether, objections, such despite cause without asked being by the court.” “conscientiously the law as apply charged could Texas, jurors 589. Both at 65 L. Ed. 2d at Adams v. U.S. in unequivocal sentence their death expressed opposition terms, them. In both to rehabilitate attempt even after defendant’s to the State’s in the affirmative jurors instances the answered the death “would jurors’ feelings penalty whether the about question ability to vote for or substantially impair” their or prevent penalty. the death impose 139, 381 S.E.2d at at Quesinberry,

In State v. whether jurors in asking prospective that there was no error we held substantially or penalty “prevent views the death would their about effectively inquiry This “ability jury.]” their to sit on impair” [the in Wain- Supreme States Court mirrored the words United Witt, 851-52(quoting 83 L. Ed. 2d 469 U.S. wright 589), Texas, L. at that such Ed. 2d Adams v. U.S. if his views about death may removed for cause juror be substantially performance impair would penalty “prevent with instructions and in accordance juror of his duties as a his oath.” Wainwright narrowing similar

In this case the State’s might reservations jurors’ whether order determine inquiry IN THE SUPREME COURT STATE v. PRICE (1990)] [326 penalty inhibit their consideration of the death reiterates the essen- Further, Adams it Wainwright. tial set out language jurors from the that apparent responses prospective of both here penalty objectively could not have considered the death under circumstances, any the the guidance even under of trial court’s err in concluding instructions. The trial court did not that these the of jurors profile jurors fit excludable for cause appropriately Adams and its progeny. as described

Guilt Phase Issues Defendant assigns error to the admission of witnesses’ testimony describing two prior instances defendant’s misconduct —the murder Brady of Joan and the incident of holding hostage. his uncle The testimony first offense was through Brady’s recounted of Joan sister, body, who that of discovered an officer. investigating admitted, testimony This accompanied by was the trial court’s repeated instruction that such evidence was before it showing for the sole purpose knowledge. defendant’s Each appearance body, witness described the of the victim’s found bed, Friday, 19 October face-down her limbs with bound testimony, shoelaces. admission of the pathologist’s which add ed that victim had died as the result of a “soft ligature,” neck, like the handkerchief found similarly knotted around her was restricted purpose showing preparation, or plan, knowledge testimony only defendant. Defendant contends that was “minimally relevant” and that its prejudicial any effect outweighed value. probative testimony

Defendant restates this contention with regard others, Darryl his cousin Gammon and who recounted the details of defendant’s act of holding hostage day uncle after Brenda Smith’s death. Defendant error as well to the assigns admission of statements he in the presence made of officers who were sum- moned to the scene. These statements included defendant’s admis- sion he with “good “already shoelaces” had any killed two and one or two more wouldn’t make difference.” motion to Upon suppress evidence of both occur- rences, dire, the trial court conducted extensive voir after which testimony concluded that regarding the ligature strangulation Brady “virtually of Joan identical prior taking- misconduct” place days two and one-half before the murder of Brenda Smith. The trial court testimony held pathologist’s admissible

STATE v. 404(b) showing preparation, purpose N.C.R. Evid. under reflected. its later knowledge, charge plan statements defendant had made testimony reiterating Voir dire ruled also was relevant and hostage-holding incident during 404(b) showing the limited of purpose under Rule for admissible addition, motive, intent, In knowledge identity. or preparation, plan, it the applied balancing trial in its order that had reported the court the value of these probative in Rule 403 and found that test stated substantially outweighed any might effect prejudicial statements have. testimony complains of which defendant

Our of the appraisal admissibility its that the trial court’s assessment of convinces us 404(b) was This noted that Rule in- recently was accurate. Court 396, by Young, N.C. the observation State spired by a defendant prior that evidence of offenses only relevancy if is issue its to guilt is “inadmissible the to commit disposition the of the accused show character Artis, 325 charged.” State v. an offense of the nature one (1989) Young, 384 S.E.2d (quoting 635). 404(b), Young at Rule a codification of the rule, offenses prior might as to how provides specific guidance of such evidence and probative relevant. The weight otherwise be 404(b) by guided Rule two permitted its “use ... under dispari- Id. similarity temporal proximity.” Factual constraints: commonalities, probative and “the the of time dilute ty or stretch to character to the acts than the analogy value of the attaches less Conversely, testimony a murder that regarding the actor.” Id. seventy-two less hours “virtually committed than identical” on trial lends more murder which the defendant is before the actor. Under these act to character of ballast than circumstances, of such evidence is unassailable. probative value forty- than

Testimony occurring an incident less regarding murder, in admitted second which defendant hours after the eight once, similarly pro- than substantial having killed more any away from unfair patently tipped scales bative value 8C-1, Following Rule 403 effect. See N.C.G.S. prejudicial dire, admissibility of carefully the trial court assessed a voir statutory careful mandate and was testimony in accordance with and towards away from character jury’s divert the attention STATE v. PRICE for which is deemed Rule purposes evidence admissible 404(b). We in doing hold did err so. draw with regard testimony We the same conclusion [5] Janice Bates, a with whom woman defendant had lived from June 1983 to which September defendant contends was admitted tendency despite its irrelevance and its to serve as evidence of his Ms. bad character. Bates testified that she heard defendant call her name outside the bedroom her mobile home between 12:00 Monday, and 2:00 a.m. October and that this had “frightened” her. The next she morning discovered the screens had been removed from the two bedroom In response windows. objection, to defendant’s the trial again court conducted voir dire testimony, and limited the proffered ruling witness’ re that what mained was relevant tially its probative and that value was not substan by the

outweighed danger prejudice, of unfair confusing jury. issues or misleading Although the admissibility trial court did not assess the 404(b) testimony

Ms. Bates’ in terms of Rule it for had the Brady murder and the hostage-holding, it clear this act was similarly to prove preparation, plan offered The knowledge. Bates, temporal proximity the by of incident recounted Ms. not only to the crime but charged, Brady also the murder and the hostage-holding, plus the fact that it was an upon intrusion the privacy of a former girlfriend, clearly admissibility demonstrate its 404(b). for of the purposes several cited in Rule Its fit into this pattern of incidents lends it probative any value far exceeding tendency to prejudice jury, the for the latter is negligible at best where the by conduct exhibited defendant was so much less blameworthy than that of other two Although the incidents. there if any probative was little value to Ms. Bates’ that de- admission her,1 approach fendant’s “frightened” any, its if prejudicial impact, minimis, de was and could not have possibly any had effect on 15A-1443(a)(1988). jury’s the ultimate verdict. N.C.G.S. § ^[6] Defendant also contends that the trial court erroneously denied to suppress motion in-court identification or other identification by testimony by Ray the Wrenns and Farrish. His objections admissibility trial ruling The court admonished the witness its the testimony jury of her that she indicate to the the reason for that police fear —that officers had visited her home that afternoon their search divulged suspected defendant and had that defendant was in two murders. v. STATE First he notes fact Ms. Wrenn are twofold. testimony by was embraced a member Ms. Wrenn testifying,

that after proscrip- that this act violates family, argues and the victim’s 496, 96 L. Ed. 2d 482 U.S. Maryland, stated in Booth tions denied, L. against Ed. 2d U.S. reh’g commentary on the loss felt written before the putting in Booth of the stated family. application precepts This the victim’s no similarities A embrace shares spontaneous rationale. distorts its statements” impact of “victim presentation with Moreover, in the record only Booth. reference condemned over”; “after court was that it occurred to this embrace indicates by members record that it was viewed is no indication of there Wrenn’s motion to strike Ms. In jury. denying court concluded testimony on these the trial grounds, identification acquainted were not family Wrenn and the member that Ms. encouragement more than a display the embrace was no gratitude. Further, correctly. the trial court ruled We conclude that Wrenn, Tony rather than at the voir dire of after embrace, or made a objected that defendant alleged time of the A testimony. earlier identification to strike Ms. Wrenn’s motion the defendant at impression upon so little that made display prejudicial no conceivable its occurrence could have had time of jury. on the effect Second, contends the photographic identifica Ray Farrish for the benefit used officers procedure

tion and tainted suggestive impermissibly the Wrenns was the man had of defendant as in-court identification Wrenns’ body morning Smith’s vicinity of Brenda seen run from objected to which defendant procedure 1984.2 October The first photographs. of two sets of display random entailed a was a pair the second couples; wedding groups six depicted set blow-up was a of one of which photographs, of black-and-white set, the first Of wedding photograph. from his face defendant’s eight- measured and his bride of defendant photograph all but inches; only four- measured photograph by-ten wedding addition, other depicted, of each male appearance In by-six. defendant, Ms. Wrenn description from the general differed than objection the in-court identification trial court sustained defendant’s The Ray Farrish.

STATE that initially given had the officers. Defendant contends this meager size of the comparison photographs field of and the discrepancy from photograph Wrenns to select defendant’s both predisposed sets. Wrenn,

The court voir dire of Anne of the trial conducted description shortly seeing officer who heard her after the man woods, flee from the of the officer who conducted the photo- and fact, procedure. After extensive of making findings identification Ms. “ample opportuni- the trial court concluded that Wrenn had had ty woods, impression” a reliable of the man she viewed in the gain focussed,” her “strong that attention on man was and that her of the had description to officers man she seen was ac- defendant, of curate and matched the and physical characteristics Ms. lapse that the time between Wrenn’s observation of the man Sunday was morning long not so as to diminish her significantly ability to make a reliable strong following identification afternoon. With regard procedure, identification trial that, of high certainty court concluded given degree Ms. identification, procedure Wrenn’s the pretrial identification had not impermissibly been “so suggestive irreparable and conducive identification process mistaken as to constitute a denial of due of law.” procedure identification pretrial experienced independent- ly by virtually Wrenn Tony identical to that of his wife. Follow- Wrenn, Tony ing recognized voir dire trial court the striking of Mr. specificity woods, Wrenn’s initial observation man in the size, Mr. including Wrenn’s awareness of the man’s weight, musculature, beard, notable the color and neat his hair cut of a prominent nasal all of which were similar to bridge, defend- physical Tony ant’s characteristics. Based upon Wrenn’s excellent woods, man in opportunity observe the the high degree attention, of his and the minimal time that lapse between occur- identification, rence and the pretrial photo the trial court again pretrial procedure concluded Mr. reliable and that subsequent Wrenn’s in-court was not identification tainted impermissibly anything suggestive procedure. the pretrial evening On the October Mr. Farrish was shown only the group wedding photographs. Although time he identified the photograph defendant as the one most resem- before, man he bling the had seen the in court Mr. morning Farrish misidentified the photograph previously had selected. Based THE

IN SUPREME COURT

STATE v. testimony, Mr. Farrish’s voir dire upon trial court concluded although credibility the misidentification went to the admissibility witness rather than to the testimony, of his the in- court identification Mr. Farrish was not admissible because However, it did not appear independent to be of Mr. origin. Farrish permitted describe for the of the man appearance he had seen that for the trial morning, court did not find that by any observation had been tainted pretrial procedure.

The test to applied admissibility be when the of identification evidence is is to seek challenged facts that “reveal a pretrial iden- procedure tification so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification.” State (1987) 96, 99, v. Pigott, 357 S.E.2d State (quoting Harris, (1983)). 159, 162, Assuming arguendo that the use of photograph in both of two very limited sets and in size of discrepancy wedding from photograph five remaining eight-by-tens presented the Wrenns with photographic groups “unnecessarily that were sug- id., their gestive,” identification of defendant upon based their view of these photographs not inadmissible unless the procedure led to a “substantial likelihood misidentification.” This possibility tested weighing following factors against corrupting effect of the suggestive procedure itself:

1) opportunity witness to view the criminal at the crime;

time of the

2) attention; the witness’ degree

3) accuracy of the witness’ prior description; 4) confrontation; the level certainty demonstrated at the 5) the time between the crime and the confrontation. 99-100, Brathwaite,

Id. at 357 S.E.2d at 634 Manson v. (quoting (1977)). 432 U.S. 53 L. Ed. 2d theAs trial court in its findings observed of fact following Wrenns, voir dire of the the conditions amply were beneficial for each to have had an excellent opportunity to view the defendant’s profile physique, acutely both were concentrating on what they were seeing, both described in remarkable salient detail facial seen, general physical features they of the man had and both were so certain that had identified the right man that each 74

STATE v. PRICE (1990)] 56 [326 he, testified defendant was “unless he had a double” or an “identical look-alike.” thirty That less than passed hours had between their seeing man the woods and selecting defendant’s photographs also buttresses trial court’s conclusion that there was scant any likelihood that suggestiveness pretrial pro- identification cedure have could led to a misidentification of defendant Wrenns.

Because Mr. Farrish was not permitted identify to defendant in court but was only allowed to describe the man he saw the 1984, 22 morning of October only that description arguably was by a suggestive tainted pretrial procedure. We reject possibili- First, ty for two reasons. Mr. Farrish was shown the wedding He photographs. thus did not experience the suggestiveness black-and-white, the duplication of defendant’s face into which de- Second, argues fendant affected the Wrenns. the record reflects that Mr. Farrish’s description of the shirtless man he saw fumbling keys with general was enough to be perfectly consistent with the viewpoint of one driving past: Mr. Farrish described the man’s race, hair, height and approximate weight, his the color of his shirtless, the fact he was and his actions. None of these characteristics is so noteworthy that likely to have originated in a view of the photographs rather than in the view of defendant on the morning crime. Defendant next contends trial court improperly attempts

restricted his to cross-examine witnesses Janice Bates Holley and Detective about what knew or had observed of history of mental illness and aberrant behavior. Janice Bates was prevented from testifying that defendant had told her illness, of previous hospitalizations for mental Holley and Detective precluded from from the reading transcript tapes audio during made incident at the hostage-holding Hardy house. Detec Holley tive was permitted testify to as to his recollection of defend ant’s statements made at that time refresh that recollection from the transcript, but the trial court sustained the objec State’s tion from the reading unless it transcript was introduced in entirety. its The court added that it would permit defendant time, offer transcript into evidence at that but defendant’s deferred, counsel stating that he had made “a tactical choice that choice probably will be put not to on evidence.” Helms, Relying upon this Court’s in State v. language 322 (1988), McElrath, S.E.2d and in State v. 322 N.C.

IN THE SUPREME COURT

STATE (1988), “relatively which stresses the lax” standard evidence, McElrath, of relevant 322 N.C. at 366 S.E.2d at testimony defendant to show his argues tending mental im balance relevant the issue of whether he could have formed specific intent kill. “any Under a standard evidence allowing light upon calculated to throw the crime charged,” (quoting id. Huffstetler, State v. denied, (1985)),

cert. 471 U.S. 85 L. Ed. 2d accurately argues that evidence of his or impaired limited mental was relevant to the capacity issue whether he the capacity had deliberate, Shank, 243, 248, or premeditate to State v. 322 N.C. (1988). 639, 367 S.E.2d 643 evidence, however,

Not all relevant is Even admissible. rele- may vant evidence probative be excluded if its is outweighed value by may the that it danger jury. confuse or State v. mislead Knox, (1985). 493, 495, 154, 78 App. N.C. 337 S.E.2d 156 Although witnesses, an accused is the right assured to cross-examine adverse the trial court is granted broad discretion in its controlling scope. discretion, showing Absent a of abuse of rulings that such will 733, not be 743, appeal. disturbed on State v. 322 E.g., Herring, N.C. (1988). 363, 370 S.E.2d 368 When a defendant has made tactical choice not to exercise his call right to witnesses or to defense, present a it is well within the trial court’s discretion evidence, require that all of a document be offered into rather merely than those self-serving portions reflecting upon a defend- ant’s mental imbalance. It is likewise well within the trial court’s hearsay testimony discretion to exclude hospitaliza- problems tion for mental when defendant has made a tactical choice not to proffer impaired evidence of mental capacity possible and its ability effect on his premeditate and deliberate. Absent a context relate, to which such evidence considerably its relevance is might diluted, potential and its for confusion correspondingly enhanced. circumstances, Under such it is proper both and within the trial court’s discretion to bar the through admission such evidence cross-examination.

by Defendant next assigns victim’s parents that she had called them collect around error to the admission testimony 8:45 on 21 a.m. October of a telephone corroborating bill Although that fact. prohibited parents trial court victim’s call, from testifying phone contents it ruled that testimony that their daughter had cálled collect was material and THE IN SUPREME COURT

STATE v. N.C. time. An subse- she was alive at the officer relevant to show that testify he had the number that traced quently permitted was phone had been made to a of the from which the call telephone Hill, miles from where the victim’s twenty-two in Chapel booth In order the body morning. later the same the same found police officers that trial court ruled defendant’s statement her had been parents was with at the time she called Brenda freely, made. This conclusion voluntarily, understandingly soundly by competent evidence the record. supported admitting the court erred in Defendant’s contentions that wholly merit. It is testimony parents victim’s are without established identity may well that of a caller be established State the caller’s voice. testimony recognized witness Rinck, 551, 568, (1981); v. State v. 280 S.E.2d Williams, A witness’ 220 S.E.2d there hearsay voice is not because speaker identification of in that See implied is no “assertion” intended communication. 801(c) (1988). Peek, 8C-1, also N.C.G.S. Rule See State (1988) (defendant’s name App. printed envelope inscribed or or its contents address assertion). The fact call was collect telephone an Smith, within the Mr. who testified that knowledge first-hand of (1988). 8C-1, he had it. See Even accepted N.C.G.S. Rule § evidence, testimony the re- assuming erroneous admission of prejudicial impact the can have no garding possible call had when admitted that the outcome of defendant’s trial her parents; he was the victim when she called the officer’s with testimony by virtue of its insignificance. can have had none utter bill was the Smiths’ telephone admissible corroborate testimony they the call their daughter. about when received from 648; See 1 on North Carolina Evidence 3d 142 at Brandis § § (1988).However, the also offered the Smiths’ bill substan- State tively: with victim’s call coinciding the number recorded as the the call parents to her led an officer to the booth from which court, The trial records originated. relying upon had “business 803(6) 8C-1, rule, hearsay to the N.C.G.S. Rule exception” § (cid:127) in the bill telephone determined that information contained in which inherently reliable because of the routine manner universally prepared. such records are . A is a . . in the course compilation kept bill “data telephone activity” meaning regularly of a conducted business within THE IN SUPREME COURT

STATE v. PRICE exception hearsay the business records rule. N.C.G.S. 803(6) (1988). 8C-1, such, Rule As it is admissible when “a proper ... of a is testimony foundation laid witness who familiar . . with the . and the records methods under which were methods, so satisfy made as to the court that sources information, and the time of preparation render such evidence trustworthy.” State v. Springer, 283 N.C. case, No such witness in this testified and absent admission, of a foundation its laying telephone Smiths’ bill was not properly admitted for substantive purposes.

Data bill included enabled an officer to trace the victim’s call testify had been generated from a location twenty-two miles where body from her was found one and one-half later. hours This fact did nothing support defendant’s averred However, evidence, innocence. in the quantum face of the of other including inculpatory presence statements made in the officers police admission that made, was with the victim the phone when call was evidence their location at the time was of little We moment. thus hold that the error admitting telephone bill without a is not prejudicial foundation so any there is possibility reasonable that a different verdict would have been reached the trial had court barred the bill’s admission. 15A-1443(a) (1988). N.C.G.S. § Defendant next takes issue with the admission into evidence of seven use photographs, charging that their was excessive and inflammatory and their effect repetitious unfairly prejudicial. initially When the were photographs introduced into evidence to Wrenn, testimony illustrate the of Anne the trial specifically court defense if he any objection asked counsel had to the tender of photographs into evidence. He that he had none. Defend replied however, not fail object, ant did when the subse photographs were quently subject testimony made the of the photographer who took them purposes.” and tendered “for all The trial court the value of their probative balanced the tenden photographs against cy to inflame the emotions of the with jury accordance N.C.G.S. 8C-1, objection. Rule 403 and overruled defendant’s not err apparent The trial court did in its conclusions. It is not from when the were photographs the record that first introduced evidence, their to their use. purpose into was limited illustrative thus waived his to substan- arguably objection subsequent Defendant

STATE v. PRICE Gladden, 398, 414-15, tive use. See State 673, 684, denied, However, cert. 479 U.S. 93 L. 2d 166 Ed. if subsequent objection even is understood to focus review the upon prejudicial repetition, subject matter of the for photographs and the occasions their use reveals that defendant’s of error nevertheless lacks merit. assignment there is no line test for at what Although bright gauging excessive, Hennis, the use of becomes see State v. point photographs the illustrative substantive use of the seven photographic exhibits in this case noninflammatory Only falls well within limits. two photographs of the victim at the crime scene jury were before the —one a shot back, body of her from the the other a shot of her bound hands only —and these were neither nor otherwise gory gruesome. The five of the remaining photographs primarily crime scene were itself, physical body in which setting figured only the victim’s incidentally. The were photographs later reintroduced for substan- they tive when were purposes authenticated the photographer, contents, testimony but his description did not include a of their illustratively record does not reflect were used to the jury any exhibited other reason at that time. Exhibit 1, which depicted body, victim’s full was used on two other — occasions for illustrative to purposes accompany testimony once pathologist forensic who performed autopsy,3 and once testimony accompany of the officer who responded to a call from the Wrenns. These facts reveal defendant’s contentions to have been baseless with to the regard unobjectionable content of the but photographs, also to their restrained use. Defend- ant’s of error assignments pertaining to this issue are thus overruled.

Sentencing Phase During the sentencing phase of his trial defendant called Janice Bates to the to testify stand about defendant’s use of drugs throughout period they had cohabited. Ms. Bates admitted that she had no personal knowledge of defendant’s use of drugs, but object admitting autopsy photographs 3. Defendant did not into evidence testimony, pathologist’s object to illustrate being but he did to their exhibited jury. accordingly, prohibiting viewing The trial court ruled from apparent photographs them at that time. It is not from the record that these view, given during were ever even its deliberations. IN THE SUPREME COURT

STATE v. PRICE (1990)]

[326 that testified defendant had told her drugs that had used past. Upon the State’s objection, trial court instructed the jury testimony only that could consider this purpose of cor- roborating or impeaching testimony. This limitation on the substantive use of defendant’s statements was reiterated during jury. trial court’s final charge Defendant argues restricting that portion of Ms. testimony Bates’ to its use impeachment corroboration or denied him his right constitutional to offer mitigating evidence a See sentencing proceeding. Eddings Oklahoma, (1982). 104, 113-14, v. U.S. L. Ed. 2d

This Court capital has held that in a sentencing proceeding hearsay by a statement a by defendant or a witness for defense that relevant to a sentencing issue and that bears “suitable reliability indicia under a process due standard” must be admit- Barts, 181-82, ted. State v. case, however,

In this defendant’s statements to Ms. Bates need trustworthiness, analyzed not be for their for defendant’s admission use of in the drugs past indefinite bore no relevance to possibility by that he drugs was affected throughout the five- day period that included two murders. The suggestion past use indicate might inebriation issue is during period at tenuous best, and the trial court properly restricted its consideration by the jury to corroboration.

Moreover, any assuming arguendo, relevance error in the restric- testimony tion Ms. Bates’ beyond was harmless a reasonable 15A-1443(b)(1988). doubt. N.C.G.S. the trial Following court’s instruction, limiting Ms. testify Bates was that on permitted day in September 1984 when she asked defendant to move out, his demeanor from when differed he was either sober or drunk— speech his silly, was slurred and “he acted smiled a lot.” use, only testimony Not did this suggest drug but defendant’s periodic use of drugs by described the stand himself, mother, his a childhood and by psychiatrist. friend Ten mitigating circumstances were submitted for the jury’s consideration in recommending penalty for defendant’s murder of Brenda Smith. family found one—that defendant’s history had mental Only illness and emotional distress. two aggravating unanimously circumstances were submitted and found by the jury: in reference to his conviction for the murder of Joan COURT IN THE SUPREME

STATE felony a had convicted of previously been Brady, that defendant 15A-2000(e)(3) N.C.G.S. person, the use of violence involving § and, (1988); Clay, Elaine against committed in reference to offenses Gammons, Davis, Tony the murder that Hardy, James Robbie course of conduct that included part Smith was of a of Brenda 15A-2000(e)(ll) violence, of other crimes of N.C.G.S. the commission § (1988). to the support fails that the evidence argues Defendant to presented A of the evidence latter circumstance. review perception. of.defendant’s the error jury penalty phase proves phase Clay, during guilt-innocence who had testified Elaine her had asked to move with of defendant’s trial that defendant Brady, penalty in the away to from” Joan was recalled “get in order early hours of 22 Oc- morning to the events of the phase recount son were nine-year-old she and her tober 1984. She testified that They the smoke detector. left burn- awakened the sound of after the fire had been ing morning house and returned the next floor damage, including joists to find structural charred extinguished who fire fire marshall investigated beneath her bedroom. The from a He also pile that it had boxes. originated determined An ex- something gasoline.” he “smelled like testified that had also Investigation the State Bureau of who perienced agent for it set opinion in his had been investigated the fire testified that intentionally. testimony State introduced the

In addition this evidence the occupa- a who at defendant’s forceful present officer was police The officer related that evening. tion his uncle’s house the next down, and talking burning about a house defendant had “started . Clay’s . . and stated that a friend he stated it was Elaine house it, . killed her himself.” just had and . . that he should have done Clay if he knew whether Ms. was in Asked the witness time, “yes, she Another responded at the defendant had was.” house Hardy’s at house testified that defendant present officer James Clay’s Ms. house to the ground had said earlier that had burned Only boy in with her at the time. later and that her little it the fire” Ms. say that friend had set and that did defendant “a Clay what she deserved.” “got jury beyond instructed the if found

The trial court had at time doubt that committed arson reasonable bed, Clay ag- son were in it would find the when Elaine and her defendant had killed Brenda Smith circumstance that gravating THE COURT IN SUPREME STATE v. that these argues same course Defendant part of the of conduct. did require were because

instructions erroneous person “violence another against to find that this crime involved 15A-2000(e)(ll) (1988). that arson N.C.G.S. He reasons persons.” that it error to submit inherently is not violent crime and an present when the State failed circumstance or threat of violence addition substantial evidence the use the fire’s fact of occurrence. dwelling “the wilful burning Arson is and malicious Vickers, 90, 100, 291 house State v. person.” of another presupposes dwelling This definition inhabited, if its are absent the time of the even inhabitants absence, offense arguably id. In their arson is not an offense. See inherently per- that involves against person “violence another However, when present perpetrator sons.” inhabitants are and fact, indisputably his act their is igniting dwelling aware of of violence, the house damage an act of its force intended not its injure but also to inhabitants. the trial was sufficient: charge

We hold that court’s with the fact by dwelling the fact that was coupling occupied comprehended of a “wilful and malicious” the instruction burning, cir- aggravating to human that statute’s well-being threat 429-30, Hunt, v. 323 contemplates. cumstance State N.C. Cf. (1988) (absence 400, 414-15 of the house 373 evidence that S.E.2d time for trial dynamiting provided at the basis occupied not involve that these did striking grounds court’s convictions on person). threat of violence to a use or Monday Clay’s early burning Whether of Elaine house Monday Hardy the events the home of James and morning included were of the course conduct part same evening factors, depends upon of Brenda Smith number murder another, of the to one among temporal them the events proximity reasons. by modus motivation the same operandi, a recurrent and 465, 528, 279, 316, Robbins, 356 cert. See v. 319 State denied, Although L. Ed. 2d U.S. Brady of Joan admonished not to consider murder properly Goodman, conduct, see State part of this course review it is from a apparent Thursday, October chronology beginning events Monday 22 October that defendant’s culminating evening, and STATE v. PRICE Clay Hardy actions with to Elaine and James were all regard five-day by elements of a rampage fueled defendant’s overcommit- ment to women. afternoon, Thursday Clay’s

On defendant at Elaine stopped away house asked to move in with her in from “get and order Brady.” . . . Brady’s He was at Joan house at 9:00 p.m. Joan Brady and at Brenda Smith’s 11:30 p.m. Joan was found dead apartment Friday, in her the afternoon of 19th. October On Satur- day afternoon defendant drove Brenda Smith from her house Danville, Virginia evening Greensboro. Later appeared alone at the Statesville home of a former whom girlfriend, years, he had not seen in four to tell her that he wanted her picked up nearby “to meet his fiancee.” Defendant later Brenda at a him, convenience store where she had been waiting Greensboro, drove back pulling towards off the road around 9:00 Saturday p.m. spending her car. Smith night Brenda called her at 8:42 a.m. and was parents found dead little more than an Danville, hour later. Defendant returned in Brenda’s car to where walking Clay. he was seen down the street and greeted Elaine Sometime midnight Sunday, appeared after at Janice Bates’ home, calling Monday mobile her name. Around 1:45 a.m. he ignited Clay’s Monday the boxes under Ms. bedroom. evening defendant at the home of Hardy, arrived his uncle James bound gagged uncle, poured on his lighter attempted fluid head and to ignite it, Tony and held a knife to the throat of police Gammon. The arrived at 7:05 p.m. bay and were held at for five and one-half hours. violent,

Not all of these occurrences were but all occurred five-day over a span and involved either contact with a former or, in girlfriend the case of the hostage-holding, admissions about time, In their fates. addition to their in proximity all demonstrated subject common matter of defendant’s romantic liaisons and anxiety his mood of intense juggling about these relationships. being “good Comments about with shoelaces” during made hostage-holding and the role of shoelaces in the murders of Brenda Brady Smith and Joan evoke a common modus operandi. arson Clay’s of Elaine house with the coupled attempt ignite his uncle (or with lighter fluid and comments made at the time about his friend’s) setting Clay fire to the house also reveal commonalities. 1984, Defendant’s Thursday, activities from 18 October through 1984, Monday, October increasingly describe an frenzied pattern contacts, of both inconsequential and violent all apparently motivated STATE v. PRICE in part by least “pressure” brought upon his

overinvolvement with women. We hold firmly that these facts sup- port the submission to the jury of the aggravating circumstance the murder of Brenda Smith on Thursday, 18 October part a course of conduct involving the commission of other violence, crimes of to wit: the arson of Elaine Clay’s house and the hostage-holding Monday, 22 October 1984. Defendant next assigns error to several issues arising out

of the parties’ closing arguments. He first contends there was error counsel, pertaining to the closing remarks of his own who was barred the trial court from arguing “anything concerning possibility of parole.” He also asserts that the trial court erred in disallowing proffered argument if the jury returned sentence, a recommendation of a life the trial court was empowered to require the sentence to commence at the termination of the life sentence he was presently serving Virginia.

Defendant argues that informing of the legal effect of a life sentence upon parole eligibility North Carolina and assuring jurors that the trial court empowered to impose a life sentence consecutive to another would have value. mitigating Thus, even though such evidence would relate to neither defend- ant’s culpability for the crime nor the circumstances of its commis- sion, defendant perceives his license to present these matters to comprehended in his constitutional right put before the jury “any relevant mitigating Skipper evidence.” v. South Carolina, (1986) 1, 4, 476 U.S. 90 L. Ed. 2d (quoting Eddings Oklahoma, 9). 455 U.S. at 71 L. Ed. 2d at Defendant also perceives his entitlement argue these issues under N.C.G.S. (1985), 84-14 which regulates the practice law this State “In provides: jury trials the whole case as well of law as may of fact argued be to the jury.”

While it is generally true that counsel’s argument should not reason, White, be impaired without good Watson v. 309 N.C. 308 S.E.2d “good one reason” to limit argument is its irrelevance. [may argue principles of law not “[CJounsel not] Monk, relevant to the case.” State v. 125, 131 This many Court has noted times that a criminal defendant’s status under the parole laws is irrelevant to a deter- mination of his sentence and that it cannot be the considered Robbins, 518, jury during sentencing. E.g., State v. 319 N.C. at THE 84 IN SUPREME COURT

STATE v. muster the United under holding passes 356 S.E.2d at 310. That implicit Supreme in the United States Court’s States Constitution “[m]any improper state have held it recognition that courts or or to through argument the to consider be informed— — commutation, pardon parole.” or possibility instruction the n.30, 1171, Ramos, 992, L. 2d 463 U.S. Ed. v. California (1983) Robbins, 520, n.30 319 N.C. at 356 S.E.2d (quoted 311). words, permits argument In such at other Constitution Robbins, instruction, constitutionally required. it is not but 519, at 356 S.E.2d at 311. of consecutive life sentences Argument concerning effect is, guise, incarceration in another upon period of a defendant’s sentence. argument legal parole upon about the effect of It is to a his sentence. equally irrelevant determination correctly court both disallowing arguments. trial acted occasions Defendant during also contends that the prosecutor’s closing argument trial court erred on its failure three rectify motu which de improprieties to intervene ex mero and wide object. argu fendant failed to Counsel are allowed latitude cases, hotly Huffstetler, at ing contested State v. 322 S.E.2d and the of this is left to the scope privilege court, trial court Although appellate sound discretion of the id. may review error or in the State’s alleged impropriety argument an for the flag the defendant’s failure to the error notwithstanding court, . . must be in order impropriety gross trial “the . indeed judge for this Court to hold that a trial abused his discretion in not ex mero motu an which recognizing correcting argument was when defense counsel did not believe apparently prejudicial Artis, he heard it.” State v. 325 N.C. at 384 S.E.2d at Johnson, (quoting State (1979)). prose-

On the occasion of complains, first which defendant remorse jury’s cutor called the attention to defendant’s lack of his “He remorse. He admit shows no unwillingness guilt: no confession. He asks no He is a stone-cold gives repentance. killer.” contends cir- aggravating Defendant that because heinous, cumstance that the murder was atrocious or cruel not before jury, opened because defendant had not otherwise, by asserting door to issue of remorselessness he felt “exploited” the issue irrelevant and mention his constitu- its by right plea guilty. tional to remain silent or to stand THE IN 85 SUPREME COURT

STATE v. PRICE (1990)] 56 N.C.

[326 An argument identical in proffered the defendant State 179, Brown, 199-200, 1, 15-16, denied, v. 320 358 S.E.2d cert. N.C. (1987). 970, 484 U.S. 98 L. Ed. 2d 406 Although remorselessness statutory is not a aggravating may argued circumstance and not be such, see, Brown, 199, 15, e.g., 320 at 358 at N.C. we noted in and we that case note here that the State never again cited this characteristic as an to the aggravating circumstance Moreover, verbally either Id. specifically or on verdict sheet. we in jury’s held State v. Artis that an calling the attention to absence of perceptible remorse does not unconstitutionally “exploit” a de Artis, fendant’s unwillingness guilt. silence at trial or his to admit 327, 325 at 384 N.C. S.E.2d at 498. Urging jurors focus on their that observation defendant “shows no remorse” relates displayed by demeanor the defendant trial. throughout “ evidence,” Thus in’ ‘rooted observable such are not im remarks 328, Id. at 384 proper. Myers, S.E.2d at 498 State v. 299 (quoting 671, (1980)). Defendant also maintains the trial court erred in failing to intervene ex mero motu on the prosecu a second occasion—when in closing tion referred statement to the the victim rights of family: and those of her

What about the victim’s What about the Brenda rights? rights Smith? in her bring family We weren’t allowed to a lot of you and her pictures a lot of friends and show Brenda you Smith while she was alive tell her background or to about was and value type person what she what the to be life placed society on her was.

Defendant these rendered un- contends words his sentence constitutionally way impact unreliable the same that victim sentencing in Booth jury during capital statements introduced held Maryland, 482 U.S. L. Ed. 2d were to be irrelevant to the and their to create sentencing decision admission constitutionally jury may impose “a risk that unacceptable Id. arbitrary capricious manner.” penalty death an L. has come Supreme Ed. 2d at 448. United States Court similar remarks characteriz- regarding prosecutor’s conclusions Gathers, Carolina v. ing personal qualities. victim’s South --- ---, ---, denied, reh’g U.S. 104 L. Ed. 2d U.S.

L. Ed. 2d 636

STATE v. PRICE Gathers, in Booth placed Unlike evidence before however, of the victim and the personal qualities devastation family by simply her her death were not invoked wrought upon prosecutor’s words this case. It is true that the “rights family of the victim” those of her are relevant proper upon focus of the character of the sentencing arguments See, Brown, criminal or the circumstances of the crime. State v. e.g., 202-03, 320 at 358 at 17. See also South N.C. S.E.2d Carolina Gathers, —, 490 at 104 L. at 883. But U.S. Ed. 2d these issues were the subject prosecutor: mere allusion if improper, de error was minimis. It was well within the trial court’s discretion not to intervene and the error ex mero recognize motu. Brown, 203, 320 358 at 18. Nor does the trial court’s failure imply to intervene an abrogation defendant’s constitu- Artis, tional for as we rights, have held State v. such “mere family allusion to the loss the victim’s feels does not threaten to sweep juror arbitrary ruminations into the realm of the Artis, 327, capricious.” 325 N.C. at 384 498. S.E.2d at Given the evidentiary solid foundation for the two aggravating circumstances found we jury, any hold that error in the arguable trial beyond court’s failure to intervene was harmless a reasonable doubt. 15A-1443(b)(1988);Artis, N.C.G.S. 325N.C. at 384 S.E.2d at court The third occasion upon which defendant alleges the trial erroneously failed to intervene was during following por tion of the prosecutor’s argument: says

Jesus in the prayer, Lord’s “Forgive us our trespasses us,” as we those who forgive trespass you but against have no right you may under the law. forgive And trespasses life, your personal you may forgive those trespasses, you but have no right as a sworn in the juror State of North Carolina forgive trespasses the State of North against Carolina. your That is to have no part deliberations. You cannot forgive defendant for what he did Brenda Smith. And verdict, death, your be it life or be it should be no reflection any on or sympathy forgiveness any religious feelings you have about this case.

Defendant rests his argument solely upon the prosecutor’s admoni- tion in the last sentence jurors above that must not allow sympathy to inform their recommendation as to defendant’s sentence. These words were not the subject of an objection they at trial nor were 87

STATE v. PRICE included amongst designated comprising exceptions Despite of error. his failure to assignments object, defendant con failure tends trial court’s to intervene constituted plain 10(c)(4)(1989); Odom, P. App. error. N.C.R. 660, State v. This may Court review such alleged when errors their “amounts to of a gravity a denial fundamental Odom, right accused.” N.C. at 300 S.E.2d at 378 (4th McCaskill, Cir.), United States v. (quoting F.2d (1982)). denied, cert. U.S. L. Ed. 2d 513 however, The review scope this Court’s “is appeal, con- fined a consideration of those of error assignments set out in 10(a) (1989). the record on P. appeal.” App. N.C.R. Such assignments are of error sufficient when the attention “direct appellate court particular question error about which the made, with specific clear and record or transcript references.” 10(c)(1)(1989). P. App. N.C.R. error assignment addressing argument in brief this defendant’s does not contain an exception record, transcript or reference to the or the question and raised is therefore not before this properly Court.

Nonetheless, cases, appellate may ... an court capital “[i]n review the even prosecution’s argument, defendant raised though trial,” Brown, 179, 194, objection no v. 358 State 320 S.E.2d N.C. (1987) 1, Johnson, 355, 369, 13 v. 298 259 (quoting State S.E.2d (1979)), 752, 761 though may and even an of error assignment Chance, be See v. presented improperly appeal. State 279 N.C. (1971) (“in 227, 236 S.E.2d cases we review capital error”). the record and ex mero motu take prejudicial notice of thus argument. We consider defendant’s

Defendant asserts the to rest urging jury not its verdict feeling violates the upon prohibition eighth against the amendment Brown, cruel and unusual In punishment. v. U.S. California 934, 93 L. Ed. Supreme 2d the United States constitutionally held that it for permissible Court a trial court sentiment, swayed the be jury by conjec- to admonish not to “mere ture, sympathy, or passion, prejudice, public opinion public feeling.” “mere” jury The Court reasoned that indicated to the that it was from responding appeals to avoid to emotional divorced an eviden- Brown, basis. tiary eighth defendant’s amendment According are when jeopardized jury urged ignore the is such rights by feelings that are facts in the record. supported COURT IN THE SUPREME

STATE the similarly urged jurors prosecutor v. Artis the In State sympathy; . . . and without prejudice without try “to case Artis, 325, 384 325 N.C. at this lawsuit.” strictly on the facts of import the apparent that because at 497. This Court held are circumstances “[rhjitigating was that the words prosecutor’s emotion,” evidence, by language such by the not supported to be eighth under the amendment rights not contravene did Id. at S.E.2d at the States United Constitution. us, words import prosecutor’s the the In the case now before than apparent thus more propriety more their is even clear and in Artis. The argument meaning prosecutorial of the same the blatantly but religious the not evidence by prosecutor context cited admonishing plainly and prosecutor properly predisposition: rooted sympathy forgiveness jurors feelings not may permitted in the evidence be hearts and also their made prosecutor In the above argument to affect their verdict. by mitiga- offered absolutely no reference to evidence tion, by may ap- jurors be sympathetic appraisal about which Oliver, See State v. propriate. actually very error thus avoided the prosecutor defendant. of which is now accused structed Defendant on the next contends law, improperly that the trial court emphasizing erroneously in significance In describing circumstances. weight aggravating circumstances, trial significance aggravating “a of facts group such a circumstance as fact court defined particularly specific deserving which tend to make a murder terms prescribed law.” Defendant punishment maximum misstatement of gratuitous prejudicial this definition a because, view, finding single aggravating in his it that a suggests law a of the death “particularly deserving” circumstance makes murder the jury it does make clear that must determine penalty, and not any substantially outweighs aggravating the circumstance mitigating circumstances. of of the is reading portion charge

Defendant’s strained First, the reasons. the trial court instructed fallacious several instruction, jury 150.10 jury according pattern N.C.P.I.—Crim. trial court virtually in identical those used words Hutchins, 321, 351, 279 in State v. 303 N.C. proper and found absolute, Second, the court did not state an word qualified the statement with the suggests, as defendant but STATE v. PRICE

“tend,” serve, contribute, which a leaning, means “to have [to] way or conduce in some or other.” Law Dictionary Black’s (rev. 1979). Third, 5th we repeatedly ed. have stated that a be charge contextually must construed and that portions isolated of will not be held prejudicial charge when the a whole as is Lee, E.g., correct. State (1970).Finally, very next sentence the trial charge court’s reiterated and emphasized qualification, “Our iden- stating: law tifies aggravating may circumstances which might justify —which whole, a sentence of death.” Heard as a these two sentences could not have possibly misled as to the of significance finding an circumstance. aggravating

Defendant that the adds trial court defined a mitigating cir- cumstance as “a fact or . . group may facts . which be considered or extenuating reducing the moral culpability killing making it less deserving say extreme To punishment.” facts [of] avers, “may” be considered in mitigation, defendant is equivalent the trial court’s allegedly prejudicial definition of an aggravating circumstance as one that “tends” make a murder Thus, insists, particularly deserving of the death penalty. the trial court’s instruction is a thumb pressing upon the scales which the aggravating circumstances rest. Here defendant tortures syntax to shore an argument. oversubtie We see no distinction of any significance between the two there can be no qualifiers; question any similarly such nuance was lost jury. on the Defendant also complains following language in the trial court’s charge illustrating process weighing aggravating against mitigating upon circumstances deciding recommending imposition penalty: of the death

After considering totality of the aggravating and circumstances, mitigating you beyond must be convinced reasonable doubt that the imposition penalty the death is justified appropriate you this case before can answer yes. the issue you

In doing, applying so are not formula. mathematical example, For three do circumstances of one kind not automatical- ly necessity and of one outweigh circumstance of another kind. number of circumstances one found consideration in determining which circumstance others or in deter- outweighs mining which circumstances others. outweigh IN THE COURT SUPREME

STATE v. PRICE one circumstance more may very emphasize properly You must the relative You consider particular than another a case. the substantiality persuasiveness existing aggravating this determination. mitigating making circumstances the example the trial court’s reinforced Defendant asserts that that he in other perceives circumstances upon aggravating emphasis taken These words are charge. Again, disagree. the we portions of instructions, —Crim. 150.10 directly (1983), jury N.C.P.I. pattern from the in State set out this Court language and mirror denied, 1, 34-35, 308, 327-28, cert. McDougall, as example appropriate 78 L. Ed. 2d 173 “an U.S. according weight aggravating on the issue of instructions” whole, charge Read the trial court’s circumstances. as mitigating mitigating over cir emphasis aggravating perceptible indicates contentions otherwise are We that defendant’s cumstances. hold meritless.

penalty The last of the errors phase of defendant’s trial concerns the alleged to have occurred period during jury’s jury had deliberated deliberations. The trial court noted that day, and from 9:30 until 11:20 2:55 until 5:00 the first p.m. from At informed the trial court: point a.m. the next. foreman after a recess it would hung.” “We’re The court then stated that jury 15A-1235 and allow instruct from N.C.G.S. § subsequent Defendant’s ob some additional time for deliberations. overruled, recognize the trial court jection was and his motion that life sentence inability impose to reach a verdict and jury’s 15A-2000(b)was a brief denied. After N.C.G.S. permitted as follows: the trial court instructed recess you I jury, ask that resume going Members of am return a recommendation. your attempt an deliberations already you your recommendation must I have instructed unanimous, is, you on the agree each of must recom- be you I additional instructions. give mendation. shall these First, duty consult with one another and your it if reaching with a view to a recommendation to deliberate to individual judgment. be done without violence can Second, your you the case and recom- each of must decide yourself, impartial an but after considera- mendation your jurors. with fellow tion of the evidence STATE v. (1990)]

[326 Third, in your you course of deliberations should not hesitate to your reexamine own views and change your opinion you if hand, become convinced it is erroneous. On the other you should not hesitate to your hold to own views and opinions if you remain convinced are correct.

Fourth, you none of should surrender an honest conviction as to the weight or effect of the solely evidence because of opinion your fellow jurors or for the mere purpose of returning a recommendation.

Please be mindful that am in way I no trying to force you coerce a reach recommendation. I recognize the fact that there are why sometimes reasons jurors cannot agree. Through these additional I just instructions given you, have I merely want to emphasize your that it is duty to do whatever you can to reason the matter over together as reasonable people your and to reconcile if differences such is possible without the surrender of conviction to reach conscientious a recommendation. The resumed its deliberations at 11:47 a.m. and returned courtroom at 12:45 with p.m. the unanimous recommendation the trial court sentence the defendant to death. The jury’s recommendation was based its upon finding a single mitigating circumstance, which it sufficiently concluded substantial to outweigh the two aggravating circumstances found. Defendant that, contends despite the trial court’s stated effort not to force verdict, the jurors to a the effect of its them requiring to resume deliberations after what defendant avers was a “reasonable time” was coercive.

Defendant apprehends similarity between the trial court’s reiterated jury’s admonition that the verdict must be unanimous Smith, here charge and a in State v. 358 S.E.2d which this Court probable concluded had the effect of coercing recommendation of death. Defendant is mistaken: the circumstances of this charge no suggest parallel with unique facts Smith. In that the jury, case having been instructed previous- ly that a unanimous recommendation of death would result in a sentence of death and a unanimous recommendation of life prison would result a sentence of life imprisonment, returned after three hours of deliberations and asked: “If the jurors’ decision unanimous, is not is this automatic life imprisonment or does the SUPREME COURT IN THE

STATE v. PRICE Smith, 320 regardless?” unanimous decision to reach a jury have This Court stressed at 338. “[i]n were probably the instructions jury’s inquiry, context of unanimity.” Id. at in coerced resulted misleading probably S.E.2d at 339. sub in the case trial court’s instructions context however, instruc- that in Smith. The radically from differs judice, with the requisite concerned question a prompted tions were not was “in deliberately that court stated unanimity. The trial of to reach a recommenda- way jurors] force or coerce trying no tion,” [the such to “reconcile differences urged them [their] if without the surrender possible conviction[s]” [their] conscientious added). that, telling jury a in Smith is The lesson (emphasis unanimous, must be punishment as to that its recommendation jurors that whatever vigilant must be to inform the trial court not to imply must be unanimous and they do make recommendation the trial The context of a must be reached. that recommendation former falls within the patently in this case court’s instruction context, jury findings that its reminding a category, and in such proper. is perfectly must be unanimous recommendations jury “If punishment state: capital provisions governing time, cannot, unanimously to its sentence agree within a reasonable recommendation, life imprison- shall a sentence of judge impose (1988). 15A-2000(b) frequent- This Court has noted ment.” N.C.G.S. § jury time’ for deliberation a ‘reasonable ly that “what constitutes court’s discre- be left to the trial should sentencing phase in the Johnson, at 259 S.E.2d at 762. 298 N.C. E.g., State v. tion.” to deter- position is in the best judge “the trial This is so because specific the facts of a time is reasonable under mine how much S.E.2d Kirkley, v. case.” State one- seven and spanned deliberations Kirkley jury’s In hours, twice for meals interrupted time it was during which half Its deliberations included further instructions. twice for ag- and one circumstances mitigating of fourteen contemplation circumstance, sentencing to make required and it gravating convictions. This Court separate two murder recommendations for was within jury resume deliberations requiring that concluded “We cannot the circumstances: discretion under the trial court’s judge that the trial abused of this case say from the facts capital impose a life sentence each by refusing discretion sentence not reach unanimous that the could case on the basis STATE v. PRICE

recommendation within a time period.” reasonable Kirkley, at 158. In Johnson the deliberated thirty-nine for three hours and minutes before it announced it could not reach a verdict. This Court held it could not agree with the period defendant that this was unreasonable and held that the trial court had not abused its discretion in coming to the same conclusion. jurors

Here the before had them two aggravating circumstances and ten mitigating They circumstances. had deliberated these issues and the question of a sentencing nearly recommendation four hours over a two period days. The trial judge heard all the circumstances, evidence in support mitigating and aggravating demeanor, jurors’ observed the and instructed them according to the law necessary as determined comprehension their duty jurors. their He thus “in the best position to determine how much time jurors’ reasonable” for the re- deliberations [was] garding a recommendation for punishment under facts case. State Kirkley, N.C. at We at 158. facts, hold that in the context of these the trial court did abuse its discretion in instructing to law according in and it requesting to resume its deliberations.

Preservation Issues attempts Defendant to upon resuscitate several issues which recently this Court has ruled. As proffers defendant no new or reason to convincing question holdings, reject these we the follow- ing authority contentions on the case law: cited ^[20] Requiring jury unanimously to find mitigating circumstances a

does not violate a defendant’s eighth rights. amendment State v. 30-42, 1, 12, (1988), McKoy, 323 N.C. 372 27-36 S.E.2d cert. granted, --- (1989). ---, U.S. 103 L. Ed. 2d 180 ^[21] Informing of its “duty” to return a recommendation of death when it finds to mitigating circumstances insufficient outweigh sufficiently aggravating circumstances and the latter substantial to call for death penalty passes constitutional muster. 336, Artis, 503; State v. E.g., 325 N.C. at 384 S.E.2d at State 34, v. 308 at McDougall, 301 S.E.2d at 327-28.

[22] Excusing for cause jurors who have stated opposition penalty constitutionally death was held permissible Lockhart McCree, 162, (1986), v. 476 90 L. by U.S. Ed. 2d 137 and this

94

STATE v. 337, 313, Oliver, 307 S.E.2d at and v. 309 N.C. at Court State 336, Artis, 384 S.E.2d at recently v. 324 N.C. at more State (1989). 909, McNeil, 33, 57, 503-04, 923 375 State v. 324 N.C. S.E.2d ^[23] Placing the burden on defendant prove each mitigating converse the evidence and not preponderance circumstance proffered the nonexistence each ly prove State requiring doubt was held con beyond circumstance reasonable mitigating 306, 354, in, Barfield, 259 e.g., v. 298 S.E.2d State stitutional 907, 1137, 510, denied, reh’g 65 L. Ed. cert. U.S. 2d (1980). denied, Ed. 448 U.S. 65 L. 2d stated 544, ^[24] Finally, in, e.g., State v. Barfield, urges this Court 298 N.C. to reverse its 259 S.E.2d at holding, statutes, 15A-2000 present penalty death N.C.G.S. § -2003, this invitation through again are constitutional. We decline progeny. the reasons stated in that case its

Proportionality Review or sentencing phase Having concluded of defendant’s that no prejudicial trial, error marred the Court’s statutory guilt that the death in this case was responsibility penalty ascertain 15A-2000(d)(2) arbitrarily capriciously. nor N.C.G.S. imposed neither (1988). (1) the record This assessment entails whether determining (2) jury, circumstances found supports aggravating passion, under imposed whether the sentence was the influence (3) factor, arbitrary or some other whether prejudice, penalty disproportionate imposed sentence is excessive Artis, 325 N.C. at 384 S.E.2d at in similar cases. State Williams, 335, 355, 504; cert. State v. denied, denied, reh’g 464 U.S. L. Ed. 2d U.S. 78 L. Ed. 2d statutory responsibility is as serious

Cognizant shoulder, Jackson, 309 any e.g., must State v. appellate an court 26, 703, 46, 305 717 we undertaken a sober N.C. S.E.2d have record, and transcripts, review of the exhibits scrupulous and orally. scrutiny in the This has presented briefs arguments fully jury’s finding to us that the record supports revealed submitted. It has further aggravating of two circumstances arbitrary or other prejudicial, impermissibly no emotional revealed trial upon recommendation or court’s upon jury’s influence of the sentence of death. imposition 95

STATE v. review Proportionality entails this case to comparing all cases 1 arising since June 1977 that capital have been tried as cases and that have been affirmed as to of phases by both the trial Jackson, 45, this Court after appellate review. 309 at N.C. 305 Williams, 79, (quoting at 717 State v. 308 N.C. at 301 S.E.2d 355). at This includes not a reappraisal of the relative weight circumstances, of aggravating mitigating but also a scrutiny case, of the entire for record all the of circumstances including the manner of the commission of the crime and the defendant’s character, background, and mental physical condition. State Artis, 338, 505; v. 325 N.C. at 384 McLaughlin, S.E.2d at State v. 68, 109, 323 N.C. 372 S.E.2d doWe not feel compelled Artis, every cite case E.g., consulted. State v. 325 N.C. at 384 S.E.2d at 505.

The two aggravating circumstances submitted and found by the jury were that previously defendant had been convicted felony of a involving the use or threat of violence to the person, 15A-2000(e)(3), N.C.G.S. and that of murder Brenda Smith § defendant, part had occurred as of course of violent conduct 15A-2000(e)(ll). N.C.G.S. mitigating Ten circumstances were sub mitted to the but it found jury, only one to exist —that defendant’s family history had a of mental illness. The specifically rejected mitigating circumstances that defendant was under the influence of mental illness or emotional disturbance and that his capacity to conform his conduct to the requirements of the law was impaired illness, depression, manic schizophrenic instability, emotional (cid:127) abuse, illness, drug drug-induced mental or mixed personality testimony disorder. The of certain witnesses the defense sup ported the mitigating submission of these circumstances jury, consideration but it was “the jury’s duty to decide believe,” what State at 372 S.E.2d McKoy, Smith, 691, 705-06, 27 273-74, State v. (quoting 292 S.E.2d denied, (1982)); cert. L. Ed. U.S. 2d duty credibility not the this Court. “Determining evidence is at the heart of the Id. fact-finding function.” State v. (quoting Jones, (1983)).

It is useful in proportionality compare review to the case under scrutiny to three clusters cases in the cases pool resulting —those imprisonment a sentence life which the aggravating same occurred, circumstances those “death affirmed” cases in which the occurred, same aggravating circumstances and those cases in which COURT THE SUPREME IN 96 v. STATE 56 N.C. In so disproportionate. death sentence has found this Court in the imposed the sentence whether apparent it becomes doing, excessive, it whether or judice disproportionate is sub case cases general parameters given appropriate be appears akin. factually to which two classes the first distinguishing characteristic

The single has killed fact that the defendant last is the cases from before, repeating, and it bears We have remarked than once. more in a case disproportionality found never this Court has than of more for the death guilty found which the defendant victim. one disproportionate the death sentence This Court has found 318, Benson, 517 v. 323 N.C. 372 S.E.2d State

in seven cases. (1987); Stokes, 1, (1988); 653 State 352 S.E.2d v. 319 N.C. State (1986), 203, 713 overruled on 341 S.E.2d Rogers, 316 N.C. v. Vandiver, 570, 364 S.E.2d 321 N.C. other State v. grounds, (1985); 669, (1988); 312 325 S.E.2d 181 v. N.C. Young, 373 State 465, (1984); Hill, State v. 311 319 S.E.2d 163 State v. N.C. Bondurant, 674, (1983); v. 309 S.E.2d 170 and State 309 N.C. (1983). Jackson, 26, In of these 309 305 S.E.2d 703 none N.C. convicted of than one murder. cases was the defendant more 59-60, McNeil, S.E.2d v. 324 N.C. at 375 State are, however, There a number of cases in of those group review, were in which appellate where death sentences affirmed Many life one victim. the defendant has taken the of more than these from the case before us appear distinguishable circumstance that the murder commit presence aggravating heinous, especially ted was atrocious or cruel. N.C.G.S. 15A-2000(e)(9)(1988). See, 1, Huff, State v. 325 381 e.g., N.C. § 33, (1989); McNeil, 909; v. State 375 S.E.2d 68, 49; McDowell, McLaughlin, State v. 372 S.E.2d State v. N.C. denied, 271 S.E.2d 286 cert. U.S. denied, 68 L. L. reh’g Ed. 2d U.S. 68 Ed. 2d 865 Nevertheless, a number of other cases in the pool share characteristic of multiple murder with the case before us. In Robbins, State found circumstance, prior felony violent aggravating N.C.G.S. 15A-2000(e)(3), also but murder which the defendant was on trial had been committed while the defendant engaged COURT

IN THE SUPREME STATE v.

[326 N.C. ^[56] (1990)] 15A-2000(e)(5). the robbery, Although in N.C.G.S. committing § under the in- in that defendant had been jury mitigation found the or emotional disturbance at the time of fluence of a mental criminality of his capacity appreciate murders and that his acts had been this Court concluded that it was “clear impaired, from his convictions of deliberate murder that premeditated and Robbins, 529, human life meant little to Robbins.” 319 at N.C. 356 at 316. S.E.2d This Court did not fail to note the gravity circumstance that Robbins with this aggravating shares case: “A heavy factor Robbins is that he against multiple is a killer.” Id. 1, 12,

In McKoy, State v. 323 372 N.C. S.E.2d the single ag- gravating jury circumstance found prior addition to the felony violent circumstance was that the murder was committed against a sheriff deputy while in the engaged performance of his 15A-2000(e)(8)(1988). official duties. N.C.G.S. The jury found two circumstances in mitigation. This Court with regard noted earlier murder supporting prior felony violent circumstance this “unlawful of another killing human with being malice . . . . . . among many most serious of the felonies ‘involving ” the use or threat of violence to person.’ 323 McKoy, N.C. (citations 48, omitted). 372 38 S.E.2d at

A third case in analogous which a prior conviction for murder was before as an aggravating circumstance was State 181, v. 323 Cummings, N.C. S.E.2d 541 This is the only case in the proportionality in which pool killing second 15A-2000(e)(2). designated as “another capital felony” under N.C.G.S. § 197, Cummings, 323 N.C. at 372 S.E.2d at 552. The Court remarked (e)(2) upon the unique status of the two aggravating circumstances (e)(3) as being circumstances that “reflect upon a recidivist,” id., defendant’s character as a and cited the following above, three cases in addition to those described in which the defendant had been convicted of a prior felony violent resulting 68, the victim’s death: State v. McLaughlin, 323 N.C. 49 (previous conviction of involuntary manslaughter); Taylor, State v. (1981), denied, S.E.2d 761 cert. 463 U.S. denied, 77 L. Ed. 2d reh’g 463 U.S. 77 L. Ed. 2d 1456 (1983) (previous conviction of murder in the first degree); State McDowell, 271 S.E.2d 286 (previous conviction of murder in the second degree). In three of the four cases cited in Cummings some found; mitigating circumstances had been Cummings jury found none. v. PRICE

STATE Withers, The Court from State v. distinguished Cummings in which a multiple murder yet occurred the defendant received a sentence of life imprison- In ment. Withers the defendant shot and killed fiancee’s twelve- year-old daughter after an argument concerning her accusations abuse, of sexual then years shot his fiancee and himself. Sixteen before, he had been convicted of murder in the first degree, and paroled serving years had been after thirteen in prison for that crime. The found same two aggravating circumstances in Withers as were in the found case before us—that defendant had been previously felony convicted of a violent and that Withers, however, murder was part of a course of violent In conduct. also jury found one or more of the ten mitigating circumstances The Cummings submitted.4 Court in found Withers distinguishable from the other cases in which a multiple underlay murder jury’s finding prior felony a violent capital felony other because of this “substantial State mitigation.” Cummings, v. 323 N.C. at 196, 372 S.E.2d at 553. A similar distinction applies to the case now before us: a although single circumstance mitigating was found family history had a of mental illness— —that this was not mitigation” “substantial underlying appropriateness Rather, of a life sentence. compared to the number and significance of the circumstances jury specifically rejected, its mitigating appears effect slight. McNeil, 33, 60, 909, 925,

In State v. 324 N.C. 375 S.E.2d Court noted three other cases involving in multiple murders which juries returned life sentences: State v. 316 King, 340 (1986); Whisenant, S.E.2d 71 State v. 308 N.C. 303 S.E.2d (1983); Crews, (1979). 784 and State v. 296 N.C. cases, however, in killings each of these appear less heinous deliberate, senseless, than the sequential underlay murders that death, this defendant’s sentence of both of which in resulted convic- tions of murder the first In degree. King, the defendant shot into the house where his former girlfriend was hiding, not killing the girlfriend, but her mother and sister. He was convicted of murder, murder in the first degree on the basis of felony Whisenant, on the basis of premeditation and deliberation. In specify 4. Because the there failed to mitigating which of the ten cir applied, purposes proportionality cumstances we must assume for review that Lawson, all ten circumstances were found. State denied, cert. 471 U.S. 86 L. Ed. 2d

STATE v. defendant was convicted of elderly- murder the first of an degree man, but murder degree second of the victim’s Crews, In housekeeper. two victims died when the defendants lured them to their campsite, but each died at the hands of a different defendant. readily

It is apparent the facts and circumstances sur rounding defendant’s murder Brenda Smith reveal very a dif ferent kind of killing than those in the cases in which the jury a returned sentence of life. Defendant was a man who admitted ato cellmate that he been many had too women dating and suffering too much pressure, causing him to feel he had to “eliminate” somebody. With this end in he Brady by mind murdered Joan that, ligature strangulation, torturous mode of death like manual is strangulation, prolonged process “during which the victim’s life quite literally in the hands of the assailant . . . the [and] death, victim is rendered aware helpless, of impending utterly but Artis, incapable of preventing it.” State v. days

S.E.2d at Two later defendant took the life of Brenda exactly Smith in way. the same night That ignited house girlfriend, of a third intending for her and her young son to burn to death in the fire. These grossly excessive attempts disentangle commitments, himself from overabundant romantic shortly followed uncle, after an evening of threatening and terrorizing were so depraved as graphically “demonstrate a disregard callous for the value of human life.” State v. 323 Cummings, N.C. at Worse, 372 S.E.2d at 553. the murders attempted and murder of girlfriends who had cared for been and intimate with de —women fendant and who at the time of defendant’s assault them upon had no with apparent quarrel him—were “especially cold-blooded any because of the absence of motive of the sort usually which is powerful enough to cause one human being destroy another.” Greene, 594, 614-15, State v. denied, 365 S.E.2d cert. --- ---, (1988). U.S. 102 L. Ed. 235 2d We have scrupulously reviewed record and measured de- fendant’s contentions of error in both the guilt phase and the penal- ty phase of his trial against law. We conclude that prejudicial no error either phase. tainted Our careful comprehensive review of other capital cases since 1 June arising 1977 reveals that the facts and circumstances of defendant’s crime and character are more like those in similar cases in which a sentence of death has been affirmed than like those in cases which the perpetrator THE

100 IN SUPREME COURT BIRCH ASSOCIATES v. CITY OF RIVER RALEIGH N.C. life We thus cannot hold imprisonment. received a sentence of imposed death recommended that the sentence of excessive disproportionate in this case is by the trial court of law. as a matter

No error. in the result. concurring

Judge Frye relates of the issues raised preservation One decision Supreme of the United States Court’s applicability U.S. —, (1988), 100 L. Maryland, in Mills v. Ed. 2d unanimity circumstances in deter requirement mitigating appropriate punishment given whether death is the mining pending Supreme This issue is now before the Court case. v. 372 S.E.2d 12 McKoy, States. See State N.C. United — —, 103 L. While granted, cert. U.S. Ed. 2d Carolina, see v. I to North State applicable believe that Mills 301, 364 vacated and remanded on Lloyd, 321 — —, 18, reinstated, 323 other U.S. 102 L. Ed. 2d grounds, (1988)(Exum, C.J., J„ Frye, dissent I nonprejudicial error would find the error ing), assuming arguendo, circumstances of this case. peculiar under and RIVER RIVER CITY OF RALEIGH BIRCH BIRCH ASSOCIATES ASSOCIATION, HOMEOWNERS INC.

No. 291PA89 (Filed 1990) February (NCI3d)— § subdivision ordi- Municipal Corporations 30.10 nance-conveyance recreation area to homeowners’ association 160A-372 to authority

A under N.C.G.S. city has conveyance open space of an by ordinance for provide in accordance to a homeowners’ association recreation area city. approved plat previously with a subdivision 2d, 32; Planning §§ Zoning Am Dedication Jur 123,

Case Details

Case Name: State v. Price

Court Name: Supreme Court of North Carolina

Date Published: Feb 7, 1990

Citation: 388 S.E.2d 84

Docket Number: 585A87

Court Abbreviation: N.C.