State v. Robbins

IN THE SUPREME COURT v. State Robbins ROBBINS, v. JR. STATE PHILLIP THOMAS OF NORTH CAROLINA No. 599A83 1987) (Filed 2 June g Kidnapping 1. 1.2— evidence not sufficient kidnapping charge prose- in a support a The evidence was insufficient robbery, the record was barren of kidnapping, for and murder where

cution victim; up why got what indicating with the under how or evidence Raleigh; they what went to Durham from or occurred between circumstances apartment where were last the and the victim left the time defendant Moreover, was the time the victim shot. there seen in Durham and apartment, apparent- testimony indicating left that the victim was outside minutes; keys, ly possession his car for five that the victim sat of alone apartment no quietly a and made effort leave while defendant on sofa closed; appear with victim to be the door did not was in the bathroom nervous; apparent there was no reason that the victim could and that afraid apartment. 14-39. left N.C.G.S. not have § g g 162; Jury peremptory 7.14— racial discrimination use of Criminal Law 2. appellate objection challenges review trial — —no argument Supreme that the evidence considered defendant’s Court prima in the purposeful racial discrimination selec- a facie case of established —, though petit jury Kentucky, 476 U.S. even under Batson v. tion of the attorney’s peremptory objected to the district use of defendant neither challenge petit jury jurors a challenges made to the to remove black nor empaneled, on trial for his life and because defendant was before objection law it then existed. have been futile under the an would because g challenges prima peremptory facie Jury in use of 7.14— discrimination 3. — showing showing prosecu- in a prima of discrimination make out a facie In order to jurors raised the first time challenge potential the issue is for when tor’s he or she is a empaneled, defendant must show that after the discrimination; group cognizable a racial victimized of member defendant’s peremptory challenges to exclude members of prosecutor used race; raise an in- set in the record facts and circumstances out and that the discriminatory racially part of the State. intent on the ference g challenges prima peremptory facie case Jury in use 4. 7.14— discrimination — not established murder, robbery, prosecution degree armed first in a The defendant prima purposeful discrimina- facie kidnapping case did establish where, challenges although peremptory prosecutor’s use of tion in the group peremptory cognizable racial was a member of use, discriminatory attendant cir- the facts and challenges lend themselves challenges peremptory surrounding prosecution’s exercise of cumstances necessary racial discrimination. raise inference of did not Robbins right 75— Law to silence —not invoked 5. Constitutional 8 murder, prosecution kidnapping, in trial court did not err a for and by incriminatory robbery refusing suppress to statements made to theory law enforcement officers where defendant neither raised the nor questioning argued cease, the had his all in trial court that he manifested desire that you everything “I to a I did and statement detective that told know” questioning a not indicate desire that all cease and was not an invocation of right remain the Fifth Amendment to silent. photographic unnecessarily sug- 66.16— 6. Criminal Law identification —not 8 gestive independent origin —in-court identification — murder, robbery prosecution kidnapping, In a for and the trial court did by admitting photographic by not err a in-court and identification of defendant precious purchased ring belonged a a metals dealer who had class which had to supporting where victim there substantial evidence trial the court’s find- ing pretrial procedures of fact and conclusion of law the identification unnecessarily suggestive irreparable were not and conducive to misidentifica- tion, independent origin. and the witness’s in-court identification was of hearsay prejudicial 7. Law Criminal 73.1— 8 —admission murder, prosecution robbery kidnapping, In a for and the admission of testimony by body a detective of that a resident the area where one was found pointed place had out to him glasses the she had found the victim’s opened error harmless because defendant the for door the State and there was guilt. considerable evidence of defendant’s suspects 8. Law 33— Criminal of behavior other in other crimes —irrelevant murder, prosecution robbery, kidnapping, for armed testimony and by investigator suspects past an that other in the had told him that someone crime, irrelevant, totally though else had the incompetent, committed and lack- value, ing probative prejudicial was not completely because it was irrele- vant. testimony 15— concerning 9. Homicide prejudicial character of victims —not Testimony prosecution robbery, in a for armed kidnapping, and murder victims, general about the given characteristics of response the questions to appearance, prejudicial about their was not testimony because similar was ad- elsewhere, objection questions mitted without necessarily the did not call for a character, response regarding and defendant did not move to strike of one the answers. closing Law argument purpose 10.Criminal 102.1— felony of murder rule —not — improper murder, prosecution kidnapping, robbery, In a for and there was no error prosecutor’s closing argument felony the that the murder rule was aimed at against who eliminate criminals witnesses them because the one of reasons for felony the of enactment murder rule is poten- that often criminals do kill moreover, tial felony; witnesses the course of the commission of a prose- jury court, cution advised the that it would receive instructions from the trial jury court, apply trial court instructed given to the laws rule, accurately felony jury completely instructed the on the murder court possibility there was no reasonable that a different result would have argument had the not been made. been reached Robbery § at time threat 11. 5.2— instructions —intent steal robbery, prosecution kidnapping, The trial court did not err in a robbery pattern giving the instruction on armed rather than murder that, requested robbery, instruction convict defendant armed defendant’s property find to steal victims’ must intended endangered or their lives. The evidence time he threatened was sufficient to steal one car find that defendant had formed the intent victim’s either immediately killing her that defendant or after intended steal before ring possession the other victim’s automobile and and took class either after, before, immediately shortly after victim was killed. voluntary § intoxication —instruction not warranted 12. 8.1— Homicide robbery, prosecution kidnapping, in and murder did The evidence a voluntary on the effect of intoxication on the ele- not warrant an instruction no specific intent to kill where there was evidence that defendant’s ment of impaired by plan was and capacity and affected or intoxication to think summary testimony judge of the evidence most of included in trial requested. which defendant given § 117.2— interested witness —instruction not 13. Law Criminal robbery, judge kidnapping, prosecution for murder did The trial in a and per- by requested particular giving that a defendant’s instruction not err witness, may testimony might that the witness an interested based on son be charged, perpetrator with which was of the crimes defendant have been the gave general witnesses and the instructions on interested where the court testimony any jury might find weight witness whom to be afforded the any There was no cred- in the outcome. or to have interest trial’s to be biased allegation either the support that the witness was to defendant’s ible evidence the witness accomplice, was evidence that was perpetrator an there no crimes, testifying pur- relating he was charged to the offense with State, immunity grant of from the bargain or a plea a with the State to suant of the case. a subordinate feature instruction related to interested witness and premeditation sufficient § and deliberation —evidence 14. 18.1— Homicide support a reasonable inference of to was sufficient The evidence victims, had been shot multi- both who where premeditation and deliberation times, County, autopsies Durham of north in isolated areas ple were found face, back, neck, to and close or contact wounds that both had revealed ear, provocation either was left and there no evidence head behind victim. that defendant murderer —sufficient 21.4— murder —evidence 15. Homicide 8 prosecution degree murder a for first in was substantial evidence There were victims last where both was the murderer of both victims that defendant at an company; victim arrived defendant and one defendant’s alive in seen accompany him person to there to a apartment where defendant asked Robbins Greensboro; and the victim left and defendant returned alone and defendant car; gun driving warm defendant said that was because he had victim’s it; represented just person was identified as the who himself as shot defendant Greensboro; ring sold the victim’s class one was the victim and victim’s car Shopping Raleigh, belonging Mall in to abandoned at North Hills and car victim, center, shopping had the other whose destination been same Hillsborough; body, led site abandoned in officers to one of some car, belongings, and one of the victims’ and told them where find the car; cars; palm fingerprints defendant’s were on both other found defend- weapon; incriminating the murder made ant sold statements officers. Robbery robbery § 16. 4.3— armed sufficient —evidence support guilty was sufficient evidence a verdict of an armed rob- bery prosecution where the evidence showed that both victims had cashed employment days checks and their they had last been seen with defendant on the killed; rummaging through were defendant had been seen one victim’s handbag day; driving in the earlier defendant was car other victim's on the morning killing having going after said that the victim was to let him it; prints defendant’s borrow were later found several items inside itself, car and on the victim’s car which had left in the been same location from likely disappeared; pocket which the other victim the left rear of one victim’s out, pocket trousers and the other had been turned inside and his wallet and ring missing; high class ring defendant sold that victim’s school Greensboro and led to a officers location where found several items which had been his wallet. § Perjury 17. 5— perjured contention that testimony conviction obtained —no showing false, material, testimony knowingly used to obtain con- viction prosecution robbery, In a kidnapping, for and murder where defendant contended that the State obtained his murder conviction and death sentence by knowing by perjured testimony the use of the Chief Medical Examiner concerning on based inconsistencies the number of wounds in the victims’ testimony bodies this case and his in an sentencing hearing, earlier the carry not showing defendant did his burden of testimony that the was in fact false, material, knowingly intentionally and and used to obtain his conviction. § qualification 18. Constitutional 63— jury Law death of —constitutional prohibit The qualification jurors. constitution does not the death of 60; 3.3; § 19. Jury Jury Constitutional Law unrepresentative Grand jury 7.4— 8 8 pool error —no Supreme The opinion Court declined Avery, to reconsider its in 1, regarding 325 quash N.C. a motion to the bills of indictment because of systematic exclusion of grand jury jury nonwhites petit from the pools. and 20. penalty Constitutional 80— Law death 8 —constitutional The penalty North Carolina death statute is constitutional. N.C.G.S 15A-2000. § 469 aggra- sentencing hearing § on Law 135.7— Criminal 21. murder — —instructions vating mitigating factors and by jury instructing prosecution err in a The trial court did not murder duty mitigating jury’s of death if the to return a sentence it would be the outweigh and the aggravating circumstances were insufficient to factors sufficiently imposi- to for the aggravating substantial call circumstances penalty. of the death tion sentencing hearing § on burden Law 135.7— 22. Criminal murder — —instruction proof prosecution failing to instruct trial not err in a murder The court did jury proving the of each had the burden of nonexistence the State beyond placing mitigating a doubt and the burden circumstance reasonable by preponderance of the prove mitigating each circumstance on defendant evidence. sentencing hearing aggravating factor of Law 135.10— 23. Criminal murder — — robbery kidnapping kidnapping reversed —death sentence vacated and — murder, robbery prosecution kidnapping, jury in a Where the for aggravating the murders was committed circumstance that one of found robbery kidnapping, kidnapping engaged in a while defendant evidence, for the death sentence was reversed insufficient conviction possibility that was a reasonable the consideration vacated because there charge recommenda- jury kidnapping might have contributed to the penalty. tion of the death hearing eligibil- —sentencing Law 135.4— murder Criminal 24. —consideration ity parole for it penalty not unconstitutional because statute is North Carolina’s death eligibility parole. Even considering jury prohibits the from- defendant’s appeal, due properly preserved the issue for assuming had that defendant procedures parole out of concern require an process does instruction eligibility. misconceptions parole jury may have about parole hearing sentencing Law 135.4— 25. Criminal —consideration murder — eligibility Conner, 241 modify the rule of State v. Supreme declined Court only ad- minority require trial to not view court adopt the parole instruct as to disregard to also but monish regarding parole. truth closing hearing prosecutor’s ar- sentencing 135.4— Law 26. Criminal — murder — guments sentencing phase during closing arguments in the prosecutor’s remarks A context; may legally in- been improper in have not taken case were of a death trial; sup- objected were to at prejudicial; not not were but were accurate evidence; require improper action grossly as to by were so and ported by judge. the trial IN THE SUPREME COURT sentencing hearing aggravat- 27. Criminal Law 135.8— murder — —submission ing engaged robbery that murder committed in factor while error —no murders, prosecution kidnappings, error in for There was no a two and robbery aggravating robberies in the submission of armed as an factor for the robbery murders was no error in armed where there convictions. N.C.G.S. 15A-2000(e)(5). § robbery kidnapping voluntary 28. 138.40— Criminal Law armed and acknowl- — edgment early stage wrongdoing finding at error in not —no murder, prosecution kidnapping, robbery The trial court in a for and did by failing mitigating robbery to find as for kidnap- not err factor armed voluntarily acknowledged ping wrongdoing early stage at an grounds, kidnapping where the conviction was vacated other and defendant robbery appellate by waived review failing of the issue on the conviction timely by requesting make a failing object motion the circumstance and despite being given ample opportunity Although to do so. defendant did acknowledge night murder custody of one victim on the he was taken into body, and did take acknowledge officers the other did not he the robberies equivocated, gave conflicting contradictory and later accounts of the murders, 15A-1340.4(a)(2)(l) suppress and moved the statements. N.C.G.S. § 29. Criminal Law 135.10— proportionality murder —death review sentence — imposed degree A sentence of death dispropor- a first murder was not aggravating tionate where the two supported factors found evidence; by the there was no indication that the sentence was influenced factor; passion, prejudice, arbitrary other the evidence was that defend- nights ant on successive took his County victims to isolated areas of Durham head, back, face, chest; multiple where he shot them times in the accord- examiner, ing fatal, to the medical not all of the raising wounds were reasonable consciously inference that the victims could have suffered before ditches; dying; the shortly bodies were in hidden leaving apartment after an victim, with one acknowledged returned and just he had fired a warm; pistol, which still pistol the evidence was that the was used to kill victims; victims; both defendant stole the automobiles both and the evidence 15A-2000(d)(2). supported the motive of elimination of witnesses. N.C.G.S. § Meyer part concurring

Justice dissenting part. Appeal by defendant from judgments sentencing defendant to death for each of two convictions of murder in the first degree and to consecutive terms for convictions of robbery with a fire- arm and kidnapping the first degree, said judgments imposed (Robert), J., by Hobgood the 24 October 1983 session of Court, Superior Durham County. Heard the Supreme Court 10 February 1987. IN THE SUPREME COURT

N.C.J

State v. Robbins General, McNeill, by Lacy Thornburg, Attorney Barry H. S. General, Assistant the state. Attorney Hunter, Jr., Defender, Louis D. Ray Appellate Malcolm Bilionis, Defender, Assistant Appellate for defendant.

MARTIN, Justice. may For of this the evidence be summa- purposes opinion with to respect as follows. Additional evidence set forth rized issues. various early tends to show: June The state’s evidence nine-shot it pistol. kept owned a .22-caliber He Thompson Ernest Thereafter, his table beside the telephone. with bullets on defendant, bedside Robbins, Jr., Thomas who went the name of Phillip “Jackie,” Thompson home. When Thompson got up visited bathroom, said that he was to going get to the defendant go Thompson When out of bath- of beer. came six-pack another room, that his gone. Thompson defendant was then discovered its from holster. gun missing Williams, 12:30 on p.m. to Earlie Mae at about

According Quick, and co- longtime Anna Ms. Williams’ friend June worker, Raleigh-Durham Restaurant at to the Dobbs House drove Quick Mrs. re- After the women’s Airport pick up paychecks. Durham, purchased store and liquor she went turned to vodka, over Williams went and she and Ms. of Smirnoff bottle Later, Quick’s 6:30 dinner. about to talk and have Mrs. house They house. sat on the sister’s they Ms. Williams’ went to p.m., Ms. Williams’ sister and some with and drank and talked porch Quick Mrs. sitting porch, While people. other Williams, said, as he recognizing Ms. him.” “That’s Quick “Him, replied, and Mrs. who?” inquired, approached, Robbins, boyfriend.” Beverly’s [Quick’s daughter] “That’s Jackie Quick,” said, conversation. “Hey, joined Mrs. Defendant Quick’s Quick black- in Mrs. then went sit and defendant Mrs. Later, their conversation. and continued Dodge over-red Dart bathroom, Quick to use the into house gone Mrs. had after defendant, who was seated out and saw Ms. Williams came Quick’s backseat, Ms. Wil- green pocketbook. through Mrs. going Quick “money, little bit of kept Mrs. testified that liams pocket- in her she had” little items that she and other money had asked what was looking Ms. Williams he book. When for, cigarette, for a so Ms. Williams looking defendant said he was him a and a match it. Then bag gave cigarette took the and from Quick’s Williams, Quick, Mrs. and left in Ms. Mrs. car to the ABC store at Lakewood Center proceeded Shopping to store, buy liquor. they liquor more When arrived at some Quick bottle, buy go Mrs. asked defendant to in to and she money some her gave pocketbook. point, him from At that Ms. testified, car, hesitated, got Williams out of said this,” that he “couldn’t in like out go pulled “long gun” his belt and threw it into the front seat between Ms. Williams Quick. then into and Mrs. Defendant went store. De- liquor pint They fendant returned with a of Relska vodka. then went to Ms. home. 8:30 Williams’ At about after p.m., defendant had Williams, into a poured plastic some vodka cup Ms. he Quick Quick’s got and Mrs. back in Mrs. car. Ms. Williams said because, she “talked to Anna about drinking driving, you know, hot, home, police were kinda I you so told her go to and, course, Quick know said she she was.” Mrs. told Ms. Wil- liams, “I got to take him home and I’m going to Bernard get to said, wash my uniforms I’m going back.” Defendant “You I got ain’t to take me home. can get anywhere.” “They out drove off,” testified, Ms. Williams “and that was the I last time seen her.” Quick day,

The next Friday, June Mrs. was supposed Ms. pick they Williams up were scheduled to be at work be- Quick, tween 4:30 and 5:00 a.m. When Mrs. who had been late sev- eral but times who had failed to show up altogether only once in house, over years, ten did not arrive at Ms. Williams’ Ms. Wil- Quick’s liams her had sister her take Mrs. house. When a.m., got there about 4:45 they saw that the front-porch light Quick’s was on and Mrs. testified, car was Ms. gone. Williams “it know, strange you feeling, and we went on work and I my told bossman it.” about At 3:00 around p.m., Ms. Williams Quick’s Quick’s went Mrs. house. The house was neat. Mrs. son, Bernard, there, youngest who lived said he had not seen any sign Quick’s mother. Ms. Williams contacted Mrs. cousin in friend, an effort locate her but no one had seen her. response a telephone call she received from a early cousin June, Quick’s Saturday, Melton, Anna daughter, Phyllis began for her mother. searching She was unable to locate her and on 19 June Ms. Melton called in a missing persons report to the Dur- ham Police Department. She described her mother and the red 1975 automobile with a black top which one Clarence Holland had Quick. Mrs. loaned

At 8:00 about a.m. on Monday, 21 June Marvin Mangum was performing general road maintenance and cleaning ditches on Wilkins Road in north County. Durham In an isolated area about a mile and a half north of the Bahama and Wilkins Roads intersec- female, body tion he came across a of a black which was lying side, generally face down on its left in a ditch on the west side of the road. Mangum walked to the up body, ascertained that she dead, and immediately called the sheriffs department. In- vestigators who arrived at the site discovered a partial dental ditch, plate underneath weeds in the under the head of the par- tially body. decomposed Other physical evidence at the scene in- cluded an empty pint bottle of Relska vodka. Quick An autopsy performed body on the of Anna on June Hudson, by

1982 Dr. Page Chief Medical Examiner for the state of Carolina, Quick North revealed that Mrs. had been shot five Quick times. his opinion, Anna died of multiple gunshot wounds. In addition to the three bullets which Dr. Hudson recov- body, ered from the a loose bullet found the victim’s clothing was recovered at the time of the autopsy and turned over to the state as evidence. presented by

The evidence the state also tended to show that Friday, 18 June eighteen-year-old Darryl Wade Williams his left house between 8:15 8:30 in his p.m. light blue 1970 Plymouth Duster gold with racing stripes. At the time he was father, chemist, analytical last seen his an Darryl was wearing slacks, shirt, necktie, shoes, brown a white a brown brown a tie clip from Garner School High which he had received for being team, manager and statistician of the basketball a Garner High inside, School with the ring initials “D.W.W.” engraved gold and a just watch. He had paid been that afternoon and had deposited some of his in the bank. earnings His father Darryl estimated that wallet, $30 $80 had between in his in which he also carried license, card, his driver’s his high school identification his Social card, Security and some photographs Darryl his two sisters. THE SUPREME COURT IN Robbins . . . religious, man- “quiet his father at trial as was described nerable, drama, sports, kid. He had an interest just good a church, Mr. that he like this.” Williams testified and stuff religion they “if Darryl two were daughters and his had instructed by anyone handgun type with a knife or a ever confronted obey the do them some harm that should that could weapon car, more a important were Their life was than given. orders that Mr. Williams said he had last told money or whatever.” about two months previously. early 1982 and the of 19 night morning On the late June June, Hawes and his Hawes’ sis- girlfriend visiting Leonard ter, Webb, Cynthia boyfriend her at Ms. Webb’s apartment County. Durham Hawes and Ms. Webb had known the defendant midnight since childhood. Between Webb, and 12:30 a.m. to Ms. according apartment. They Jackie Robbins arrived Webb’s invited in, later, given him and he was beer. About five minutes defend- ant went outside and returned with a dude” “young back who was neatly wearing dressed and tinted glasses. stranger was of- and, them, after thanking fered a seat he sat down. Then defend- him, ant told Hawes he wanted to talk to and the two men went time, into the bathroom. At that pulled black .22-cali- ber nine-shot out of his target pistol belt and showed it to Hawes. When Hawes asked defendant if he gun, wanted to sell the de- no, hot, fendant said it and he returned the gun belt. Defendant also if asked Hawes he wanted to togo Greens- boro with him. Hawes asked defendant how he was going get Greensboro, to and defendant told Hawes guy that “the was go- to loan him his car.” ing replied Hawes that he was too to high drive to Greensboro go but that he would with defendant bathroom, next morning. Defendant came out of the announced back, he would be and he and the young man left. Ms. Webb during twenty testified that the fifteen to minutes defendant and man young her apartment, man young had a set keys in his hand. Hawes testified that the young man did not either appear frightened to be or nervous while he was there. Webb, According to Ms. 2:30 about a.m. defendant re- turned, alone. He and Hawes again went into the bathroom to talk. Defendant told Hawes that it was important that he go to Greensboro the next if he didn’t morning go that night. Defendant it, and Hawes looked at the gun again; Hawes decided to unload Bobbins and he removed four bullets the gun. from When he took the bul- out, testified, lets he noticed that the gun was warm. Hawes “Yeah, I him just asked about it. said he He had shot They it.” a drank beer while longer, finally and Hawes said he to go had Defendant, Hawes, home to some get sleep. and Hawes’ girlfriend went outside and into a got Plymouth Duster which defendant was driving. Hawes testified that man young who had been with the defendant earlier was not the car. Defendant drove them in the Duster to Hawes’ residence and then to Hawes’ girl- spend friend’s home to the night. slept Defendant on the sofa. got When Hawes sometime up between 10:00 and 11:00 a.m. on Saturday morning, gone. defendant was Darryl’s parents customarily stayed Though awake until home,

their Mr. got asleep children Williams fell the night of 18 a.m., June. 4:30 say At about wife wakened him to Darryl Darryl stayed was not home. had never before out all and night had failed parents never to call his when he to going get home than he planned. later had Mr. Williams got up, rode out to Darryl’s North Hills and to Darryl’s friends’ houses looking for car, home, returned and then to went station file police a report. Saturday morning,

On June defendant sold the High ring Garner School belonging Williams Joe who Campbell, was in the and buying selling antique business furniture, and used secondhand at his goods, gold silver store, General Headquarters, in downtown Greensboro. This will transaction be discussed in later in this opinion. detail Abrams testified he saw defendant Dwight walking Dorothy Tuesday, 8:00 9:00 a.m. 22 June. down Drive about or I dirty jacket, was dressed in “an think it was Defendant old I something. rust colored don’t know what kind of brown or on no He didn’t have shirt.” Abrams asked defendant pants. defendant that he was to the going, replied going where he store, buy Abrams asked defendant him beer. Abrams inside, into Sheila Dove’s apartment. then invited Once he him if pistol told Abrams wanted to sell asked anyone buy Abrams he in- he knew of who wanted to it. said defendant, yes, anybody buy if was some pistol would it formed Ray Holloway Kenneth whom two went to find and the good, buy gun. thought might Abrams June, Tuesday, Ray “Turf’ 9:30 Kenneth

At about a.m. on in his at the corner of and Simon Holloway Ridgeway was taxicab sitting in Durham to two friends. While he was talking Streets there, Dwight approached Abrams the cab. defendant Holloway, you,” “We so Hol- got something Abrams to show told Holloway’s in the loway get stepped them to cab. friends told got passenger from the cab defendant seat and back Holloway sat in the back. testified that defendant “had Abrams halfway no shirt jacket zipped up. jacket on a with about dirty-like.” pulled gun real Defendant then a .22-caliber from his buy Holloway Holloway and asked if he wanted to it. de- pants scribed the as “a and shoot nine times. It was gun long built on frame, ... long a real It didn’t look like a normal gun. Holloway a target gun more or less.” When asked the price, $18, Holloway $25. said said he give $2 could him plus then change, right pay and would the rest later. De- money, Holloway fendant took handed the gun, and reached pocket into his took out about five or six bullets which he Holloway. Holloway also gave to testified that “some of bul- [the were dark and some of them gold, about two of them in lets] Defendant and gold.” got Abrams out of the cab and proceeded to bought a store where Abrams a quart of beer and defendant some wine. bought

Abrams and defendant returned to Sheila Dove’s apartment where sat and drank the beer and wine. Abrams went out to look for his cousin while defendant and some other went people buy back to the store to some more beer and wine. When Abrams back to Dove’s got apartment, defendant him keys tossed the car and told him to move the car to a parking lot in the back of the car, it, apartment complex. Abrams got started and began Meanwhile, to back up. defendant had come yard, out into the street, pointed at a car which police coming up and began running back into the apartment. Abrams pulled back in driveway by. to let the police car drive As Abrams again started out, around, police first car had turned several more police arrived, officers, drawn, cars had and the guns with ordered Abrams out of the car. They made Abrams lie down in the street and searched him. County Durham Sheriffs Department In- IN THE SUPREME COURT why J. Dobies asked Abrams vestigator driving C. he was vehicle, and Abrams said that he just moving was it for a friend. friend, him When Dobies asked what replied, Abrams “Jackie.” then showed him a photograph Dobies of the defendant and asked, you’re “is this who about?” talking responded, Abrams Robbins.” “yeah, Jackie Abrams told them that he had been with since that morning, defendant that he had had a few drinks with defendant, that he had gone with defendant to sell a gun Holloway, “Turf’ and that defendant was in Dove’s apartment. Of- searched the apartment surrounding ficers and area but did not defendant. Abrams see day. find did not defendant again Abrams then officers to accompanied retrieve from gun Holloway. officers, car,

The with Abrams in the Holloway later stopped approached Holloway in his cab. Dobies and asked him if he had Holloway told him that bought gun, he had. Dobies asked Holloway if he get gun, Holloway could said he could and him it was under the front seat told cab. Dobies reached got gun. under the seat and custody was taken into law

Defendant June Durham County officers on an warrant for another Orange enforcement (See Robbins, which he murder for was later convicted. State v. (1983).) 309 S.E. 2d 188 Dobies testified that about office, magistrate’s 10:30 while he and defendant were p.m. rights Dobies reminded defendant that he had been advised of his had executed a written waiver of his rights and that defendant County Orange warrant. Dobies then told defend- regarding Quick. wanted to talk to him about Anna Dobies in- ant that he Quick body that the of Anna had been found on formed defendant and that she had been shot. Defendant pointed Wilkins Road said, this,” “I County warrant and didn’t do and when Orange Quick?” said, asked, “I “What about Anna did Dobies defendant, proc- who was magistrate then called that.” room, Later, ID into where he defendant was taken essed. Scene Michael Investigator Durham Crime fingerprinted Byers fingerprints, defendant’s defend- Byers. rolling While said, yet.” know about “I know where’s one at don’t ant replied, what?” and defendant “Another Byers “One inquired, defendant at that nor body.” Byers nothing point, said more to Shortly any further information. before volunteer did defendant Robbins Sheriff Gen- County Deputy Charles day, Orange on that midnight pick up in Durham to Liner arrived Investigator try Deputy Gentry began warrant. Liner outstanding on the Sheriffs County Department of the Durham with some talking testified, and, Jackie “in the course of events Gentry personnel looking Durham was carry us to a car that he would said that In- County Department Sheriffs and Durham Liner Raleigh.” in Orange front seat of the in the got Gooch vestigator Clarence backseat, in the and Gentry got County while car Road, followed a on Roxboro they Raleigh started towards and Detective Mc- by Dobies occupied vehicle police Durham 85, defendant were almost at Interstate When the cars Corkle. out, said, body.” the other go get we as well might “While we’re Gooch went back the car and talked to defendant. stopped Liner approached new Dobies development. notified Dobies of the car, defendant, about this other County asked the Orange “[w]hat body another in Durham body,” “there is replied, and defendant them to Bivins and County.” Defendant directed subsequently County car with Orange Liner positioned Umstead Roads. to the rear which defendant shining across field headlights body could be found. Dobies testified that soon as he said the car, body. he detected an odor of a decomposed out of the got directions, and Liner Pursuant to defendant’s Gooch went into a male, body fully of a young field and came across black lying drainage body clothed and face down ditch. The Darryl later identified as that of Williams. While defendant and area, officers were still in the Bivins Road defendant admitted said, I killing one woman and “but didn’t do the others. Somebody else acknowledged did.” Defendant that he was present Carroway County. but denied killed Annie having Orange However, Carroway. he never indicated who killed allegedly Durham, Gooch, Liner,

After other from notifying units Gen- and, try, and defendant proceeded Raleigh at defendant’s direc- tion, post went to the office lot parking behind the movie theatre Hills Shopping they at North Center where found the black-over- Quick. red Dart Dodge belonging to Anna While in Raleigh, de- fendant said that there was another car involved it “Station,” a behind the night spot Hillsborough. The officers radioed the Hillsborough Department Police and asked Lieuten- so, Larry ant Biggs proceed to that location. Biggs did pur- directions, suant to defendant’s Darryl and found Plym- Williams’ Durham, outh Duster on McAdams Upon Road. their return to defendant directed the officers to Lakeland Road and to other evidence, areas from which recovered various items of such Quick’s as Anna pocketbook and an identification card belonging Darryl Williams. The Greensboro Police Department contacted Joe Campbell about Williams’ school high ring Tuesday, 22 June. De- tective J. R. Evans with the Raleigh Police Department subse- quently Campbell’s came to store to pick up ring. When arrived, Evans him Campbell gave the Garner High ring School the person described who had sold him the ring. other Among things, Campbell “unruly said that the man was at the looking actually dirty, time. He was his hair was not combed in fash- ion at all and he had a beard and somewhat of a mustache.” The was introduced into evidence ring at trial and Campbell identified as the one the customer him ring sold on that date. Also from stand, Campbell the witness the defendant as that identified customer. Walker, Road,

26On June Mrs. Pat a resident of Bivins Darryl the tinted Wil- prescription eyeglasses belonging found heavy liams in on Bivins Road undergrowth some about five yards body east of where Williams’ had been found and turned in to them Dobies. body

Dr. autopsy eight- Hudson an on the Page performed 1982. een-year-old Darryl clothing Wade Williams on June necktie, shirt and a boxer body on the consisted of a short-sleeve were, dark socks. There pants, shorts and brown tan loafers and to the gunshot in the medical examiner’s five entrances opinion, Darryl body. gun- Dr. Williams died of Hudson determined back. shot wound to the redirect, Dr. to the similarities Hudson testified On Quick Darryl Williams. bodies of Anna

wound on the patterns very “They close-up a cl—a con- each had responded, Dr. Hudson a shot in the side of in the back of the head. Each had wound tact face, upper part wound in the perforating and each had neck, had a shot in the back.” or lower and each the chest IN THE SUPREME COURT Investigation Special Bureau of Steven Agent Thomas identification, in the expert an field of firearm testi- Carpenter, opinion body fied that in his one bullet taken from the and anoth- Quick body from the or clothing er bullet taken of Anna were nine-shot by fired .22-caliber Harrington and Richardson revolver which seized from the Holloway. taxicab of “Turf’ also examined the Carpenter four bullets and some bullet frag- body ments recovered from the Darryl Williams. Three of these bullets did not contain sufficient markings to enable Car- bullets, to make penter comparisons with test and the frag- bullet unidentifiable, similarly ments but Carpenter testified that opinion by one bullet was fired the revolver which defend- Holloway. ant sold to No latent fingerprints of comparative value were recovered from the gun itself. June,

On 23 SBI Special Agent Steven R. Jones processed Quick’s both Anna Williams’ automobiles for prints Quick’s Dart, and other evidence. From Dodge he forty- obtained itself, eight fingerprint lifts from the car and he also obtained fourteen fingerprint lifts off a Wild Irish Rose wine bottle found in the car. He submitted these lifts to SBI Agent L. Richard Cri- vello, who testified as an expert the field of identification and comparison received, of fingerprints. Of the prints he Agent Cri- vello determined that one print from the wine bottle was made the right finger index A defendant. latent right palm print on the bottle and another latent right palm print on the automo- bile were also determined to have been made by defendant. addition, a palm latent print on one paper bag and a latent finger- print were, on another bag found in the car in Crivello’s opinion, made defendant’s left palm and left ring finger, respectively. Agent Crivello found no fingerprints or palm prints of John Dwight Quick’s Abrams from the latent lifts taken from car and Duster, submitted Agent Jones. From the Jones obtained thir- lifts, ty-seven latent print including four latent lifts which were on the outside left front door glass on the driver’s side. Of these four latent prints, one lift was pointed downward on the top edge of the outside of the driver’s door window. Agent Crivello testi- fied that this print matched the left index fingerprint on an inked impression card of the defendant. Agent Crivello further testified that there were prints no of value taken from the Duster in which he identify could the known impressions Abrams; of John Dwight all of his identifications were of the prints of the defendant. Defendant presented two witnesses in his behalf at trial. The defense first presented the testimony of Investigator Gooch to the effect that upon Gooch’s suggestion to defendant’s brother himself, that defendant surrender turned himself in to the sheriffs department on June at 8:30 p.m., and that defend- ant was cooperative law with enforcement officers in volunteering them, to, Quick’s to show and in them directing and Williams’ cars and to 1-40 crossover where Williams’ identification card was found. Gooch further testified that at first defendant admitted Quick that he had shot Anna and that Dwight Abrams had shot Williams, Darryl but later that same night defendant said that he Darryl had shot Williams and Dwight Abrams had shot Anna Quick. Defendant also called Martha Trice as a witness. Ms. Trice testified that she had known the defendant for ten to fifteen years. She said that about a week before she heard of defendant’s arrest, defendant and another man whom she had never seen be- fore came to visit her at her house they stayed and that for fif- twenty Abrams, teen to minutes. She identified John Dwight who courtroom, was seated in the as that other man. The defendant did not take the stand.

On November found defendant guilty of mur- der in the first Quick of degree Darryl both Wade Williams and Anna premeditation

on the basis of and deliberation as well as felony under the murder rule in each case. also found de- guilty fendant of in the first kidnapping degree Darryl Wil- robbery liams and of armed guilty of both Williams and Quick. Anna trial, In the sentencing phase defendant offered the Dunn, testimony of Clarence his stepfather. Dunn testified that boy . . . good defendant was “a until he met young lady, then goin’ he started down.” He related a drastic change behavior beginning defendant rested; about six months before ar- lot, Dunn told the jury that defendant drinking “started runnin’ around with a . . . bad crowd stopped going church.” Dunn said that he knew defendant “was kind off a little bit and help.” needed He also said that he knew that defendant’s father problems had mental and had been “in and out of’ the state hos- Robbins, brother, at Butner. James pital defendant’s half testified natural father “was type defendant’s sort of a violent drinking who had James said that when person” problems. de- COURT IN THE SUPREME Robbins on the first started beatin’ just “he’d got angry, father fendant’s when had left home defend- that he himself and got he to” person he tired be- years got eleven old because or was about ten ant he saw defendant He that beaten. said ing physically testimony that defendant’s behav- Dunn’s day, and echoed every that defendant started James testified change. to began ior around, “drinkin’, stay at ... He just home. wouldn’t runnin’ nothin’, ... He hangin’ just for out. responsibility take the didn’t “rag- told that defendant became go.” James let himself didn’t clothes or he dirty change . . . didn’t shave or he gedy, [h]e or work.” He said that defend- how he looked wouldn’t care didn’t withdrawn, James “weird” and and that acting ant started problems possibility getting and the his mother discussed fact, said, defendant; he taking he even considered for help Shortly he knew of the charges to Butner. before defendant defendant, testified, went looking James he defendant against it was walking Although saw defendant the road. about up remarked, day, he defendant “was ninety degrees eighty he just stopped up down road and and he walking staring umbrella, coat an and that’s in the air with a leather on and there, like He said way he had been out for a week that.” car, when ran into the woods defendant saw defendant and he later, a few days could not catch him. One afternoon Gooch and man to serve a agreed another came warrant defendant. James defendant, finally find help to his half brother. When he found he him being “[j]ust described like a wild man.” first James took Butner, but it hours was after and defendant could admitted, said, finally be he so persuaded not James Dunn, him accompany to the sheriffs Alberta a department. long- defendant, friend described him as “very intelligent, time mid-1982, nice Karen very person.” McQuaig testified that de- had he had “changed” fendant “started drinking, sleeping truck, bath, caring in the not taking about hisself.” Betty Satterfield, sister, defendant’s half also testified that beginning 1982, defendant, May about had previously who been well-dressed neat, had began started drinking himself. He neglect withdrawn and kept became to himself.

The state offered evidence at the sentencing hearing that de- pleaded fendant had guilty rape the crime of in 1967 in Durham County. IN THE SUPREME COURT Quick, Darryl

As to the murders of Williams and Anna the in jury following aggravation: found the circumstances the defend- felony ant had been convicted of a the use of previously involving 15A-2000(e)(3), violence to person, threat of the N.C.G.S. and the § (Anna Quick) Darryl of Williams was committed while de- murder robbery of engaged fendant was the commission with a firearm (Anna 15A-2000(e)(5)(1983). Quick). Darryl of Williams N.C.G.S. § be following jury The circumstances were submitted to the considered in in each case: mitigation (Anna (1) of Darrel Wade Williams The murder [sic]

Quick) Robbins, while Phillip was committed Thomas Jr. the influence of mental or emotional disturbance. under (2) Robbins, The of Thomas Jr. to capacity Phillip ap- criminality of his conduct or to conform con- preciate of the law was requirements impaired. duct to (3)Any from arising other circumstance or circumstances you mitigating which deem to have the evidence value. exist but of these circumstances to The found least one one(s). beyond a unanimously finding Upon which specify did not circumstance(s) were insuffi- that the mitigating

reasonable doubt that the cir- circumstances and outweigh aggravating cient sufficiently to call for substantial aggravation cumstances a sen- jury recommended the death penalty, imposition were entered of execution Judgments in each case. tence of death to a term of also sentenced 1983. Defendant was 11 November on robbery of Anna armed years for the eighteen imprisonment Williams, Quick, Darryl robbery of armed years for the eighteen Wil- degree in the first twenty years kidnapping for the liams, consecutively. run all sentences to Phase

I. Guilt-Innocence his motion to dismiss ^[1] Defendant first argues kidnapping the trial court charge at the erred close of denying all the de charge on this in the indictment alleged It was evidence. him, “by unlawfully confining Darryl Williams kidnapped fendant another, him, place him from one removing restraining com- facilitating and for the purpose consent without his SUPREME COURT IN THE Robbing felonies; robbery dangerous weap- awith following mission of judge 14-39 trial N.C.G.S. See and murder.” § of kid- guilty find defendant jury that in order to instructed Williams, “unlawfully Darryl it must find napping twenty-two by use caliber Williams of a Wade restrained Shop- North Hills Darryl Wade Williams from carried pistol or County, and Road in Durham to Bivins ping Raleigh Center not consent to this restraint Darryl that Wade Williams did prove that the state failed to . . . .” contends removal Defendant Darryl or fraud removed Williams force that restrained or he will. that the evidence was insufficient agree We against this we charge, and for reason reverse support kidnapping conviction. kidnapping Darryl that Wil- in the record tends show

The evidence 8:30 p.m. go his house at on June to Quick’s night liams left at Hills Anna black- Shopping see a movie North Center. earlier, Dart, in which Dodge over-red defendant had been seen was found in same center. on subsequently Later shopping Cynthia appeared Williams Webb’s night, in Durham. The evidence is on apartment conflicting somewhat whether, door, first Williams when defendant came to Ms. Webb’s was him or not. State’s with witness Webb testified that defend- ant over to her apartment came sometime after midnight June and she thereafter follows: testified Q. And did one him? have with [defendant] Williams, Darryl young A. He had guy with him. Q. you Darryl At that time did know who Williams was? No, I A. didn’t.

Q. words, would, you ahead in your Go own if and describe what happened Darryl when defendant came in with Wil- liams. They my

A. came in and Jackie and went brother in the rest . room and talked and —. . we And offered a seat and he sat down and talked the bathroom for fif- about minutes teen and then came out and said he was [defendant] but he was leaving, going to come back he was com- back. ing IN THE SUPREME COURT Hawes,

However, brother, Leonard Ms. Webb’s testified on direct door, by examination state that defendant knocked at the in, down, beer, it, drinking came sat asked for a told Hawes began minute, wanted to talk with him for a men he the two went asked, “Now, time, into the bathroom. Hawes was then at this bathroom, you anybody any- went in the before else in—was answered, Mr. body else with Robbins?” Hawes “No.” Soon there- after, Hawes asked:

Q. Was there another there with him at the house? person A. Yes. now,

Q. person All when did that come in the house? right, A. we went into the bathroom. Before Q. you went the bathroom? Before into A. Yes.

Q. door or did Mr. Rob- person through that come [D]id him he in the house? get or how did go get bins him. A. went back outside and got He outside,” Q. you say, “he went back who are refer- you When to? ring him. got

A. went back outside Jackie state, in the most favorable to light the evidence taking Even is, initially apart- Williams entered the defendant and that that time, testimony in this nothing same there is ment at the Darryl apartment. was forced or tricked into the that indicate Darryl was offered a seat and testified that Cynthia Webb also and Hawes talked in the bath- while defendant he sat down eyeshot of the bathroom door within She said that the room. were but that Darryl sitting, and the others where living room while the two men door was closed the bathroom she believed any- Darryl having remember said Webb could not were in there. there, that he thanked except possibly while he was at all thing him to sit down. On cross-examination they invited after them Darryl twenty minutes fifteen to that of the Webb testified Robbins there, Hawes “almost spent testify She on to talking in the bathroom. went whole time” as follows: cross-examination

Q. in the he the time that during And [defendant] brother, Williams was seated on your Mr. bathroom with your living room? couch in

A. Yes.

Q. talking? around other were seated there people And Right. A.

Q. you Do know what kind of car arrived in? Well, —I A. I for them I see the opened when the door didn’t car, any- I didn’t see color or shape saw the but that, thing night like because it was at and it was late. Q. Darryl I Williams had the car And believe time keys, is that correct?

A. Right.

Q. during the time that Williams was seated And your room he or living appear frightened did not be scared, like that? upset anything A. No. sat there. just He

Q. quiet? And he was

A. Right.

Q. your knowledge, To was there reason he could not have and left gotten up apartment after time? No, left, know, A. I I guess, you don’t think —He could have if he to. wanted Jackson, Our in holding supported by our decision (1983). Jackson, defendant, 309 S.E. 703 N.C. 305 2d in- victim,

tending to rob the engine difficulty as a feigned ruse to Jackson, him get victim to a in his give ride automobile. who was armed with a pistol, got they into the victim’s car and drove away. The victim was later in his car found on side road. He had been and shot twice robbed in the head. We held in that case that 487 only supported conjecture the evidence a mere that Jackson used confine, restrain, or misrepresentation remove victim his will from the time the defendant entered the victim’s against until the time the victim was shot. The state failed to prove car confined, defendant beyond a reasonable doubt that had re- strained, meaning or removed the victim within the of N.C.G.S. Similarly, 14-39. in the case the record is barren of evi- present § Williams, why un- indicating got up dence how or with Durham, what circumstances went to or what occurred der time Williams and left Webb’s apartment between the Indeed, testimony time Williams was shot. we do have in- and the Williams was left outside Webb’s dicating apartment, ap- minutes; keys, in of his car for five possession alone and parently sofa and quietly that Williams sat on Webb’s made no effort to closed; was in while defendant the bathroom with the door leave nervous; did not to be afraid or and that appear that Williams reason that Williams apparent was no could not have left there Any determination that defendant restrained or apartment. against Williams force or fraud his will would be removed Thus, we conclude that the state speculation. based on mere beyond a reasonable doubt that defendant re- prove failed to confined, strained, within the mean- or removed Williams charge 14-39.The conviction of defendant on the ing N.C.G.S. § is reversed. kidnapping convicted and sentenced argues being Defendant also in first kidnapping degree murder the first for both Freeland, 316 See State v. jeopardy. him double degree placed (1986). the con- Because we have reversed 340 S.E. 2d error is assignment kidnapping charge, on the viction moot.

[2] establishes The defendant prima facie case of next argues purposeful the evidence racial discrimination in this case the standards enunciated under petit selection of —, Although 90 L.Ed. 2d Kentucky, U.S. Batson v. in Batson the rule judice was tried date prior sub the case announced, since this case has of Batson to applicability —, 93 L.Ed. 2d 479 U.S. v. Kentucky, settled been Griffith (1987), appli has retrospective that the rule which mandates yet direct which appeal all cases pending cation IN THE SUPREME COURT Robbins v. Thus, the in Batson applies final when Batson was decided. rule to this case.

Initially we note in Batson the defendant en that whereas of all timely objection prosecutor’s a at trial to the removal tered venire, to objected the defendant here neither persons black on to re attorneys’ peremptory challenges district the use of the to petit jury before jurors challenge nor made a move black Normally, object failure to at trial empanelled. our of this issue. 15A- preclude would consideration N.C.G.S. §§ (1983 (b) 1985); 1446(a), see State v. McDougall, & Supp. Cum. 865, 308, denied, 1, 464 U.S. 78 L.Ed. 2d 173 301 S.E. 2d cert. denied, State, 29, 513, (1983); 74 S.E. 2d cert. Miller v. 237 N.C. (1953). However, 930, 97 L.Ed. 2d 1360 defendant claims 345 U.S. would been futile under the law of objection such have that futility time. Although as it existed at the North Carolina at trial cannot alone constitute cause objection an presenting 107, Isaac, 130, v. 456 U.S. 71 L.Ed. 2d Engle a to object, failure (1982), to that defendant has we find it difficult hold he did not know existed at the time trial. right which waived a Moreover, life, was, here, his defendant as trial for where the ordinarily argument. to compelled feel consider we ^[3] Batson, Supreme Court held that a prosecutor’s chal solely of their or on the jurors on account race potential to lenges partial race would be to jurors that defendant’s assumption Const, protection is clause. U.S. equal violative defendant XIV, a the Court held that Specifically, 1. amend. § upon of invidious discrimination facie case may prima establish a use of chal peremptory concerning prosecutor’s evidence standards set out The assessment at trial. lenges as follows: Court case, first must show

To such a establish v. racial Castaneda cognizable group, of a he is a member Partida, prosecutor has exercised and that at supra, from the venire members challenges remove peremptory Second, the defendant entitled race. of the defendant’s fact, no rely dispute, there can be on the to which practice selection challenges constitute peremptory who of mind are “those discriminate permits Finally, Georgia, supra, 562. Avery discriminate.” must show that these facts any other relevant circumstances raise an inference that the prosecutor used to exclude the practice veniremen from petit jury the of their account race. This combination of factors in the em- venire, panelling petit jury, as in the selection of the necessary raises the inference of purposeful discrimination. —, U.S. at L.Ed. 87-88. 2d at In its holding, the Court directed that “all relevant circumstances” should be considered by court in the trial determining whether the defendant has required raised the inference discriminatory of purpose. These include, to, may circumstances but are not limited such things as of strikes “pattern” against jurors in the venire who are of the defendant, same race as the or questions and by statements made the voir prosecutor during dire examination exercising may which either peremptories support lend to or in- refute an ference of discrimination. If a defendant is able to make the necessary the showing, burden then shifts to the state to come with a forward neutral of explanation its challenges to those jurors. Such explanation “need not rise to the level ex- justifying cause,” —, challenge ercise of a id. at 90 L.Ed. 2d at but may prosecutor the not rebut the facie case prima by de- simply any discriminatory motive nying saying that he challenged jurors those on a hunch —a “feeling they his bones” —that might be biased favor of the defendant because were of race; rather, prosecutor actually defendant’s must “articulate explanation a neutral related to the case to particular be tried.” Id.

Our task to decide whether defendant has made out a facie case under the prima ruling Batson which would require go the state to forward and neutral reasons produce for the chal case, lenging jurors. of Under the facts of this we are con view the strained to at the time empanelling.1 articulating applicable emphasize here that we are rule in a case 1. We objected grounds alleged has on the Batson violations at where the defendant during prior being empanelled, selection of the to its nor are we trial objec- commenting procedures when such on the to be followed trial court an raised; Supreme expressed United States in Batson no view on tion is Court procedures. procedures expressly such 476 U.S. declined to formulate such — n.24, at 90 n.24. 90 L.Ed. 2d at Robbins Batson, showing not specify did Court Supreme discrimination, stat facie case necessary prima to establish in su judges, experienced trial “We have confidence ing, dire, if the circumstances to decide will be able voir pervising creates challenges of peremptory use prosecutor’s concerning 476 U.S. jurors.” black against of discrimination facie case a prima case —, to the applicable 88. We have looked 2d at 90 L.Ed. have which jurisdictions other state courts and in the federal law facie case whether a prima rule to determine Batson applied State, See, 716 S.W. 2d 290 Ark. Clay e.g., has been made. 1009, Cannon, (1986); 502 N.E. 2d 150 Ill. 3d App. v. 751 People 720, (1986); Lester, N.E. 1278 495 2d 145 Ill. 3d App. 345 v. State, People (Ind. 1986); (1986); N.E. 1295 App. 498 2d Ct. Wilder v. (La. 1986); Newman, v. 491 174 State App. So. 2d v. (1986); 508, Gilmore, v. A. 1150 Commonwealth 103 511 2d N.J. 64, (1986), McKendrick, 144 514 A. 2d appeal 356 Pa. Super. 1987). (Pa. denied, that the defendant A. 558 We conclude 522 2d out his facie case when following making prima the must show the first time the has Batson issue is raised for after First, that the defendant is a as in this case: been empanelled, by victimized discrimination. cognizable group member of a racial here, have been clearly met as blacks held to be This criterion Partida, 482, Batson; 430 51 v. U.S. L.Ed. such a Castaneda group, (1977), 498 and the defendant in the case before us is black. 2d Second, used to ex prosecutor peremptory challenges case, prose members of defendant’s race. In the present clude Third, seven black peremptorily challenged persons. cution circumstances, they and other relevant facts and are set these record, racially inference of in discriminatory out raise an circumstances,” Such “relevant part tent state. circumstances, be, to, may facts but are not limited special the fact that are following: peremptory challenges prone use, Batson, —, 89; discriminatory 476 90 U.S. at L.Ed. 2d at (5th Erwin, 1986), denied, v. 793 F. 2d 656 Cir. United States cert. — —, (1986); intentional, 93 590 an U.S. L.Ed. 2d regular, repeated peremptory challenges use to blacks which would a “pattern” tend to establish of strikes blacks in the against (see (4th Hunter, 1972), F. venire United States v. 459 2d 205 Cir. denied, 934, 189, denied, 409 34 cert. U.S. L.Ed. 2d 413 U.S. reh’g 923, (1972), 37 L.Ed. 2d 1045 for a definition of “pattern”); use of a prosecution’s disproportionate number of peremptory IN THE SUPREME 491 COURT case; in a challenges jurors single questions to strike black prosecutor during jurors remarks the examination of the Batson, of his 476 U.S. at peremptory challenges, and the exercise —, 88; Gilmore, 508, 90 103 511 A. L.Ed. 2d see State v. N.J. (assistant 1150 that he exercised his prosecutor’s explanation 2d all peremptory challenges venirepersons exclude seven black from the because he assumed that petit predomi nately belatedly was a contrived excuse for Baptists acts of both discrimination); religious group racial and victim(s) the fact defendant(s) races, see, and the are of different e.g., —, (1986); 476 U.S. 90 L.Ed. 27 Murray, Turner v. 2d United (N.D. 1986) 642 F. 222 rel. v. Ill. Kyles O’Leary, Supp. States ex (held: demonstrated); had facie case under Batson been prima inextricably up where racial issues are bound with the conduct Carolina, trial, 524, Ham v. South 409 U.S. 35 46 e.g., L.Ed. 2d (1973); “systematic exclusion racial cognizable group] case [of time,” Gilmore, 103 period after case over an extended 508, 536, N.J.

511 A. 2d 1165. A finding of invidious discrimina may tory intent be raised either direct or circumstantial Arlington Heights Housing evidence. Metropolitan Corp., (1977); 252, 266, Clark v. City U.S. L.Ed. 2d of act of (D. 1986). 645 F. Even a single Conn. Bridgeport, Supp. may basis for an equal protec invidious discrimination form the violation. tion

jury voir dire ^[4] We have closely order to determine scrutinized the record this issue. From the evidence transcript it, has reviewed we have concluded that defendant as we have facie case of discrimination. prima purposeful failed to establish a defendant, black, clearly has met the first criterion Although test, is, of a racial cognizable that he is a member the Batson ad Supreme while we in mind the Court’s have borne group, be used lend themselves to challenges that peremptory monition so, inclined to do we are discriminatory fashion those in a sur the attendant circumstances that these facts and convinced the nec raise peremptories exercise of rounding prosecution’s racial discrimination. essary inference of reveals that the record in this case examination of the

Our of the two only persons. of white One composed was trial seventy-six jurors, potential was black. Of the jurors alternate fill a in order to individually on voir dire questioned were who COURT SUPREME IN THE v. Robbins these, seats, ten were were black. Of twenty-one of fourteen total N.C.G.S. under state by for cause successfully challenged 15A-1212(8) the death opposition unequivocal to their due § penalty selected); (one had been members jury panel the first twelve after mo- on its own court cause were excused for two Quick’s Harris, sons Anna victim he and because Dennis tion: Kendall, buddies,” apparent- she because Wanda “school were ly charged had been from publicity was aware (see County Rob- in Orange occurred which murder with another 188); bins, peremptorily S.E. 2d seven 309 N.C. state; as an alternate who was considered one by the challenged by the challenged was peremptorily but by the state was passed defendant; an additional but was denied requested and defendant sec- as the ultimately seated black who another challenge to juror. ond alternate we challenges, use of its peremptory state’s to the Turning a total exercised prosecution transcript from the discern against six blacks and against seven challenges, such of thirteen by the state challenged black to be peremptorily The first whites. In selecting panel examined. thirty-fourth person was the

twelve, challenges peremptory exercised five prosecution about their serious reservations who persons expressed against death; per- three of these a recommendation of ability to return female was a rela- were black. One black were white and two sons witnesses; elderly white woman defendant’s one of two of the tive sure she could sit she stated she wasn’t excused after trial; by the and two blacks were dismissed through protracted jurors, potential as were the other being questioned, after state their back- pretrial publicity, personal exposure their about Nothing the death feelings penalty. their about grounds, exercise of or statements questions prosecutor’s any discriminatory evinced motive. challenges these jurors, the state used three selecting the two alternate opposition who challenges against persons expressed peremptory white, and being being one black and two penalty, to the death (now Hudson, Attorney Orlando himself Judge) District Assistant black, one additional black male after challenged peremptorily male, Rowland, a black passed The state John questioning.2 some Court, Attorney Orlan- 2. in its brief to this “it was District As the state notes black, Hudson, peremptory challenges himself a who exercised two of the State’s do jurors. jurors during in of the alternate It cannot excuse two black the selection Robbins struck him but the defendant after Rowland indi- peremptorily cated that he had lived two houses down from Investigator Gooch years, that he had newspaper for ten read accounts of the case and had discussed it with various in persons, and that he believed Walker, male, penalty. by the death Clarence a black was passed ultimately state and juror. seated as the second alternate Not only pass did state to the defendant for approval two black jurors during jurors, selection of the alternate we also nothing in the or perceive prosecutors’ questions statements to any potential jurors of these which would indicate that were discriminatory to a peremptorily challenged pursuant intent. carefully We have scrutinized and considered the evidence in in any this case order to discern whether there is indication what- the prosecutors peremptory challenges soever that exercised blacks from the because of their race. In petit strike addition above, black, set we to the facts out note that the victims were defendant. We also take notice of the facts first is that the black thirty-fourth challenged by to be the state was the peremptorily only examined and that had used eleven of the person him the a peremptories accepted fourteen allotted time he fill petit jury. jurors white male to the twelfth seat on the The time, case were selected one at a individual voir dire. upon venire was kept grand The record indicates that the into the courtroom one at potential jurors brought room and time, many neither the state nor the knew how so juror in the venire or which would be ex- present blacks were and whether he or she was black or white. amined next in the juror examination of each was conducted potential state’s attorney and assistant format: introduction of the district same defendant; summary attorney; charges against district (em- information about the examinee seeking general education, questions and so family, memberships organizations, ployment, forth); if with the juror determine was familiar questions to trial; victims, defendant, ques- of the witnesses in the explanation pretrial publicity; general about exposure tions cases, followed death- capital to be applied of the law with juror’s prior experience about the questions qualification; Attorney Hudson argued that Assistant District good the Defendant faith be against of his own race.” members a mind to discriminate’ ‘of THE SUPREME COURT IN 494 Robbins v. had juror concerning whether system; questions judicial essentially the The state posed of a crime. ever been victim seventy-six jurors examined potential to all questions same exercise virtually in the same order. questions asked those basical- challenge, prosecutors employed both each peremptory of Honor, questions “Your without further same ly language: or name],” [juror’s we would excuse thanks of the State with Honor, excuse of this trial the state would purposes “Your for the arise on facts that reasonable inference can these juror.” No racially any in of the black striking motivated the state was jurors. Batson, concurring As White wrote in his in opinion Justice unconstitutional, more, to more is not without strike one or

“it —, 476 U.S. 90 L.Ed. 91. Accord jury.” from at 2d at blacks (5th 1986), Ratcliff, 806 F. 2d cert. United States Cir. — — — (1987). denied, —, by U.S. L.Ed. 2d echoed This was Justice O’Connor in her concurrence to the denial of certiorari — Carolina, —, (1986), Brown v. North U.S. 2d L.Ed. where she wrote: touch, indeed, clearly

Batson it . . . or- does reaffirms dinary may prosecutor rule that a exercise his peremptory any strikes for reason all.

— —, U.S. 93 L.Ed. 2d at 374. She went on to prose- note that may expressed cutors “take into account the concerns cap- about factor, any punishment by jurors, ital or prospective other . . . .” exercising Id. We peremptory challenges nothing detect or prosecutors’ any comments to questions of the blacks pe- remptorily challenged give rise to an inference of discrimina- intentional, tory no There were purpose. regular, and repeated which challenges blacks would tend to establish a of “pattern against jurors strikes” black in the particular included venire. No other factors or circumstances either support refute the notion jurors that black racially challenged pursuant discrimi- natory purpose. Defendant us no gives specific in his examples discriminatory brief instances of the use of peremptories part prosecution, nor does he present us with discriminatory evidence of intent. The mere allegation naked infirmity constitutional asserted prospective defendant —-that jurors black were excluded the petit from the state’s se- IN THE SUPREME COURT Batson, lective use of its peremptory challenges violation of evidenced the fact that of twelve defendant’s case panel entirely was composed not enough. Merely showing whites —is that defendant is of a cognizable racial that members of his group, race were peremptorily and that no challenged, members of his panel race sat on the not twelve does establish a facie prima (5th 1986) case, McCotter, see v. Esquivel 791 F. 2d 350 Cir. (defendant Mexican-American). The defendant should have ar- circumstances,” ticulated “other relevant if any such circum- stances were which present, discriminatory raise an inference of (11th 1986). David, intent. See United v. F. States 2d 1567 Cir. Moreover, defendant, juror when the twelfth accepted by was he had not exhausted all of his He peremptory challenges. has there- Wilson, fore failed to show prejudice. S.E. 2d 450 satisfy defendant has failed to us that the circumstances concerning the use of prosecutors’ peremptory challenges prima create a facie case of discrimination against black prospective jurors. As he has failed to evidentiary meet his burden, assignment this of error is overruled. ^[5] The next argument advanced defendant is that the trial court to refusing incriminatory erred suppress statements defendant made to law enforcement officers because defendant had invoked his to silence. right June,

On the of 22 defendant evening appeared at the Dur- County ham Sheriffs Department and executed a waiver of rights form. then commenced Investigator asking Gooch defendant about County Carroway homicide Orange of Annie for which a war- already rant had been issued. He questioned also defendant about Quick any Anna murder. Defendant denied knowledge Quick case. At that point, began escorting Gooch defendant to the office to En magistrate’s Orange County execute the warrant. route, stated, “I I you everything defendant told know.” Defend- ant contends that this statement was to an assertion equivalent right any his to remain silent and that after questioning statement was made was in violation of his fifth amendment rights. motion suppress

Defendant filed a statements obtained June, rights from him on the of 22 that his waiver night alleging IN SUPREME COURT THE Rabbins of alcohol large amount he had consumed invalid because was being prior bizarre behavior” “unusual and exhibited had mo the suppression on evidentiary hearing an After questioned. law tion, and conclusions of of fact judge findings trial made his mo In both suppress. motion the defendant’s overruled court, hearing in the trial suppression and at the suppress tion to his inadmissible argued that statements mentally competent he intoxicated and the grounds the claim As evidence of the statements officers. to make signature and disoriented was drunk that defendant ineffective, to the points waiver form rights on the he signed he his own name when form. misspelled fact that as a defendant never stated that found fact that Hobgood Judge did to answer further nor he questions, he not want did attorney, an and denied defend presence of request time concluding that at the time suppress, specifically motion to ant’s his not or rights, waived he was so intoxicated mental involuntary. ly as to render the waiver Defendant incompetent theory nor argued raised the in the trial court that neither knew, he had him he he had mani telling everything Gooch told cease, thereby his his questioning invoking fested desire that all theory fifth to remain silent. Because the amendment of in right admissibility was not presented to trial court and has been first on it appeal, raised for the time is not before us. properly Williams, 47, 335, denied, 308 301 S.E. 464 State v. N.C. 2d cert. 177, denied, 865, 1004, U.S. 78 L.Ed. 2d 464 U.S. 78 reh’g L.Ed. 2d (1982). (1983); Hunter, 106, 704 305 286 S.E. 535 2d reason, we reject For this defendant’s contention. assume,

Even were we to arguendo, that defendant had not his to right admissibility waived attack the of his statements on advances, theory the fifth amendment he now we do not consider statement, know,” “I you the defendant’s told I everything to have been an indication of his desire that all questioning cease thus an invocation his right and of fifth amendment to si- remain Arizona, 477, lent under Edwards v. 451 U.S. 68 378 L.Ed. 2d (1981), Arizona, 436, and Miranda v. 384 U.S. 16 L.Ed. 694 2d (1966). We not accept do defendant’s that his argument assertion defendant felt he suggests say that had said all that he had say; all that he wished to may although statement well have tell, conveyed message that defendant nothing had else to IN THE 497 SUPREME COURT reasonably that he interpreted indicating could not be as remark he We also say. disagree all wished to with had said The statement was case which defendant ambiguous. that contention, Klimczak, 159 Conn. support relies in of this (1970), case, A. 2d 372 is the defend- inapposite. ant, by law he knew ei- when asked enforcement officers whether theft, “Don’t bother alleged replied, ther of the of perpetrators held defendant’s comment Supreme me.” Connecticut Court be to an assertion of fifth amendment “equivalent Such here. In is not the situation contradistinction privilege.” suscep- case in which the defendant’s words were the Connecticut alone,” “Leave me or being interpreted meaning, tible of me,” thereby say effecting right else to anything “Don’t here, cease, “I told further defendant’s words questioning to have know,” more; say I they nothing mean what you everything This preclude questioning. further conversation do merit. assignment error without

[6] Defendant next maintains admission the iden Campbell ran afoul of both the of defendant Joe tification constitutions, thereby violating right state his 98, due federal and Brathwaite, 432 U.S. 53 L.Ed. 2d law. Manson v. process (1972); (1977); U.S. 34 L.Ed. 2d Neil v. Biggers, Denno, 293, 18 388 U.S. L.Ed. 2d 1199 He Stovall v. was “ex procedure charges photographic lineup pretrial unnecessarily to ensure that designed tremely suggestive defendant,” alleged and that because of Campbell selected the irreparably it a likelihood of created substantial suggestibility, Simmons v. and thus inadmissible. mistaken identification (1968); States, 377, 1247 19 L.Ed. 390 U.S. 2d United (1981). contends 277 S.E. 2d 431 He also 303 N.C. Thompson, by Campbell did made of defendant in-court identification that the Corbett, standards, 309 State v. process with due comport (1983), was not com there arguing 307 S.E. 2d identification in-court Campbell’s evidence that petent pretrial procedures origin from independent was of Grimes, 606, 308 S.E. 2d 309 N.C. challenges, which he admissibility of Camp- on hearing a voir dire Following defendant, made extensive Judge Hobgood bell’s identification fact, he that the concluded findings these of fact. From findings

State v. Bobbins identification with pretrial procedure respect to the photographic unnecessarily was not “so lineup suggestive conducively ir- reparable with to identification as respect to violate the defend- right process ant’s to due of law.” He also determined that “based evidence, on clear and convincing the in-court identification of the defendant, Robbins, witness, Thomas Phillip Campbell, Joe solely is of based independent origin, what upon the witness saw 19, 1982, viewing male customer in his business on June by any and is not tainted pretrial identification procedure form or fashion.” The trial judge further concluded “that none of the pretrial identification procedure was so unnecessarily sug- gestive and conducive to irreparable with respect to iden- [sic] tification as to constitute denial of process due of law.” We find no error in the trial court’s rulings. June, Joe Campbell testified that on Saturday, 19 a young thirties,

black male in early who “looked sort of rough; not means,” by any clean came into Campbell’s place of business shortly before 11:00 a.m. It had been a slow morning and the man only was the customer Campbell’s shop. The customer browsed minutes, around for about three or four then approached the counter and inquired as to whether Campbell bought rings and things. When Campbell replied affirmatively, the man produced gold ring. After Campbell had weighed it and told the man that it, he $28 could pay the man said that he had paid much more for the ring. Campbell responded that he did not resell class rings but, instead, sent them to be melted down and that was all he could give for it. When the man “didn’t very seem pleased with the price,” Campbell referred him to a nearby pawnshop. The customer, who had been in the store for a total of about ten minutes, later, exited. Ten to fifteen minutes the same man returned, counter, went up to the stood about three away feet from him, Campbell directly across from and said he would like go ahead and sell the ring. He handed Campbell the ring, which was a ten-karat white gold class ring and was en- graved inside with the initials “D.W.W.” Campbell asked the identification, customer if he had and the man produced an iden- tification card and a blood donor card. The name on the identifica- tion card was Williams. There was no photograph on the information, card. Campbell used this along with the person’s name, address, sold, description, the item the amount paid, and IN THE SUPREME COURT transaction, and of the filling precious the date time out he required complete metal sheet which was law to transaction Department. Campbell turn in to Police While and the Greensboro sheet, was out he noticed the date on filling the transaction that the the ring apparent age the class was inconsistent with cus- obvious Campbell discrepan- tomer. the man about the questioned said, “well, my my class and it’s cy, ring ring.” and the man matched, the initials the ring Since the identification and on ring $28. The Campbell go purchase decided to ahead and the Darryl W. form in the name of Williams. signed customer the cash, again man in and the man left the store. Campbell paid the occasion, the customer remained the store from On this second during all times the business transac- five seven minutes. At tion, from only away Campbell, three feet who the customer stood view of him. turned complete Campbell was a full and get able sheet to the Greensboro Police in the metal transaction precious Monday, 21 June. Department Tuesday Wednesday, Police Detective Raleigh

On either had just Evans Campbell ring. R. about the J. Evans approached day, and previous upon of defendant on the taken a photograph Wil- ring matching description the Greensboro, out that a finding five ad- held in Evans had being ring liams’ class male inmates of the Wake of black taken photographs ditional these photographs examined County Jail. The trial court were photographed, that these men following: found the defendant, against and standing barechested up, from the chest wall; had fa- and four other men the defendant that cinder-block hair; body had others similar and three that cial size; haircut, an had Afro and two others that short”; exceptionally is not hair “which while other three had placed pho- Evans these frontal views. were photographs that all Camp- one to six. them from numbered in a manila folder and tos general Evans a first gave dire that he on voir bell testified Evans ring. bought he’d from whom man description picture out thought pick if he could he Campbell asked then it, see if he were to ring had who sold person Evans affirmatively. also testified Campbell replied Campbell lineup in the pictures photographic six him there told person there should contain pictures one of “that folder to thereupon presented from.” Evans buy I the ring did IN THE SUPREME COURT [319 State v. Bobbins identified in “a matter of a few seconds” Campbell Campbell, five—the photograph picture number of the defend- person the man who had sold him the Evans then told ring. ant —as that that was the individual he had Campbell hoped Campbell Campbell again would select. shown the on the photo lineup 4of November before he morning testified at defendant’s Campbell trial. once more selected the photograph of the defend- ant. At the voir dire hearing, open court Campbell pointed and said recognized the defendant that he him as man from purchased whom he on 19 1982. ring June Judge Hobgood Campbell’s found that in-court identification of the defendant was manner,” in a “positive made unequivocal and also that Campbell in a positive “testified unequivocal manner that he recognized the defendant as being the same who him person sold the ring with- any regard out photographs which he have might seen between the date of the purchase June today November [19 1982] 1983].”

Our review of the record confirms the trial court’s findings. Campbell testified that there were similarities between the black said, pictures males in the folder “I but pinpointed the pic- ture as the person who did my business in shop away.” right He said, further “I looked at other photographs] I but immediate- [the ly recognized the person.” He testified that he premised his iden- tification on the fact that person “the very himself was unruly looking time. He actually dirty, his hair was not combed in fashion at all and he had a beard and somewhat of hair, mustache.” He also based his selection on “the actual facial expression of the . person. . . person very looked much that [T]he day they like day did the that my entered shop.” Campbell say, went on to “plus also the facial expression is one I didn’t forget either. Sort a troubled look.” Campbell further com- mented, “I very had a good recollection of the person who sold Moreover, me the ring.” after Campbell pointed to defendant court, stated, he “I recognize the man here as person who sold me the ring.” Campbell also denied that having photo- seen a graph after his initial encounter with the influenced his any way. identification in

We find substantial evidence supporting the trial court’s find- ings fact and the conclusion of law the pretrial identifica- tion procedures were not unnecessarily suggestive and conducive judge’s that the trial We also find misidentification. irreparable identification of in-court Campbell’s determination De- evidence. was based on substantial origin independent was of wholly error is without merit. assignment fendant’s ^[7] testimony The trial trial which defendant court overruled defendant’s alleges objections was irrelevant, to certain inad missible, judge’s rulings of the trial Because prejudicial. evidence, new trial. he is entitled to a contends testi following admission of the challenges first Defendant Walker, Dobies, Mrs. Pat to whom J. mony Investigator C. area, over Williams’ turned of the Bivins Road resident glasses:

Q. those you got tell where she Did she Stephens] [Mr. glasses?

A. me. She showed

Q. you? She showed Yes,

A. sir.

Q. was that? Where from Um- north and south —Bivins Road runs

A. was at It — stead, in the body laying was and the Honor, object I I’ll believe Your Chaney: MR. him. told anything she she said. anything as to Sustained

COURT: (Mr. Q. the location? you out to go Did Stephens) location, area were —the glasses these A. went to the We just out to me were pointed were found these glasses where east— Objection. (Interposing)

MR. CHANEY: Overruled. COURT: — five body was about —about lying where just

A. east of heavy undergrowth. yards in some in pointing Walker’s conduct Mrs. maintains Defendant act, a verbal constituted glasses found the where she location conduct, testimony was Dobies’ and thus nonverbal

or assertive Suits, 296 N.C. hearsay. State v. E.g., nonverbal inadmissible (1979). because prejudiced He claims that he 251 S.E. 2d 607 Williams’ were found testimony glasses the admission of the theory that body the state’s distance from the buttressed some away as he walked was first robbed and then shot Williams robbery as well findings insistence on the state’s supported and deliberation. premeditation that Dobies’ testi- argument for the sake of assuming Even hear- mony to and constituted inadmissible properly objected Powell, 306 has failed to show say, prejudice. Defendant did to or object 295 S.E. 2d Williams’ testimony glasses to strike the were recov- move yards body five from which ered from a location about had Moreover, question been found. the state did not Dobies about the Rather, on glasses on direct examination. cross-examination of witness, asked a series of questions relating defense counsel to the search for evidence conducted officers at the crime asked, you scene on Bivins Road. Defense counsel then . . . “So sir, “Yes, quite thoroughly looked at that time?” Dobies replied, adjacent on both sides of road and sev- up down the road any eral “And didn’t find hundred feet.” evidence?” defense coun- “No, sir,” sel Dobies inquired. answered. Defense counsel then asked, you any “Did to which glasses?” replied, find the witness Thus, “I only didn’t find it was after defense counsel glasses.” glasses asked the about on cross-examination question that state, redirect, the door was for the opened to elicit testimony as to how and where Williams’ prescription eyeglasses hardly were found. Defendant can assert that he was prejudiced testimony admission that Mrs. Walker pointed out the location of the glasses Finally, Dobies. given con- siderable evidence of defendant’s guilt, we do not believe that there is a reasonable that possibility outcome of the trial would have differed had the evidence complained of not been ad- 15A-1443(a) (1983). Id.-, mitted. N.C.G.S. § ^[8] Defendant also assigns error the admission of certain tes timony by defense witness Investigator Gooch. On direct exami nation, Gooch testified that on the night June defendant made statements that John indicating Dwight Abrams had been a in the participant crimes. Defendant at one point said v. Robbins Williams, Quick he had killed but that Abrams had killed time, way was the other around. On said it another Gooch, following transpired: cross-examination Robbins,

Q. Now, the first Mr. that’s not with night time, it, somebody you that else ever told that someone’s did it? Objection.

MR. CHANEY: Overruled.

COURT: No, sir, not the first time.

A. it’s Q. with crimes be- charged suspects people had You’ve it, you? haven’t somebody else did you tell fore Objection.

MR. CHANEY: Overruled.

COURT: Yes,

A. sir.

Q. fairly usual? Is that Objection.

MR. CHANEY: Sustained.

COURT: before, (Mr. [sic], Q. thought happened it has But Stephens) hasn’t it? Objection.

MR. CHANEY: Overruled.

COURT: Yes,

A. sir. irrelevant, totally testimony was this that contends Defendant value, attempt improper an constituted and any probative lacked aas Abrams Dwight implication the defendant’s impeach him. testimony prejudiced and that the crimes perpetrator questioning line of this correctly characterizes Defendant value. irrelevant, in probative lacking and incompetent, totally error committed However, court that the trial arguendo assuming answers, see how we fail to questions these in permitting verdict jury’s influenced could have admission their irrelevant completely very reason that way for THE SUPREME COURT IN therefore, find, testimony that at issue We not case. do to the defendant. was prejudicial

[9] The last segment testimony to which the ob and answers questions concerning physical ap involves jects Quick Darryl of both Anna Williams. disposition pearance Quick’s Melton, Phyllis was asked the district daughter, Anna Quick’s] attorney, you physical appearance “Could describe [Anna objection nature and mannerisms?” After defendant’s and her overruled, “She was the witness had a question responded, very very mild manner and nice and and she had lots of respected trial, Williams, father, Later A. L. Darryl’s friends.” asked whether he use a photograph could to illustrate his testi mony asked, Darryl attorney as to how appeared. /district then contented,

“Does depicts happy, him as rather a [sic] young nice man?” The trial court also overruled defense counsel’s objection to this question. attorney The district did not wait for Mr. Williams to answer and instead went on to ask a different question. Defendant insists such evidence of a victim’s general character is immaterial and incompetent and was preju Stevens, 21, (1978); dicial. E.g., State v. 243 S.E. N.C. 2d 771 404(a)(2). First, Evid. N.C.R. We disagree. Mr. Williams never Further, attorney’s answered the district question. by failing to object testimony by to earlier Mr. Williams “very mannerable, kid,” religious, just a good is deemed to have objection waived his testimony to the complained of here. Wilson, 450; Maccia, 330 S.E. 2d vein, 311 N.C. 316 S.E. 2d In a similar the district attorney’s request to Ms. Melton was for a description of her nature, physical mother’s appearance, and mannerisms which did Quick’s necessarily call for a response Ms. regarding good character; moreover, defendant did not move to strike Ms. Mel ton’s answer. We do not find that defendant was prejudiced questions these and answers. These assignments of error are overruled.

[10] By his next assignment error, defendant challenges a seg ment of the prosecutor’s closing argument which he contends amounted to a violation of his right to a fair trial. Defendant alleges that he is entitled to a new trial because the prosecutor, during argument at the close of the guilt phase, was allowed to distort the law felony murder a manner calcu- 505 Specifically, excepts prejudice lated to defendant. attorney: comments the district following to the They are both during witnesses time. There were two dead, Quick the reason Darryl Williams. And that’s Anna State, rule in this because crimi- felony murder got we’ve they will not be care of their witnesses so nals sometime take around—

MR. Objection. Chaney:

COURT: Overruled. testify. You will not be around to MR. know, So STEPHENS: witness, you you don’t don’t you if kill a then have — rely on you sometimes have to eyewitness, an and so have law, So, if our a case. under prove circumstantial evidence to you’re felony, of a then in the you perpetration kill witness . have a going . . You’re not to degree of first murder. guilty socks and black shoes in a uniform with white officer police to work every crime scene. You have notes it taking [sic] have, points evidence you and that circumstantial with what case, defendant, as it does unerringly guilt to the to find him your duty jurors guilty. and it’s a mat- was inaccurate as argument complains Defendant evidence, law, was calculated by the unsupported was ter felony under the guilty find defendant jurors provoke against evidence the state’s murder rule because this defendant the theme that maintains weak. Defendant prejudice,” was “rife with a “cold-blooded witness-eliminator” unpersuaded a new trial. We are that he is entitled within largely are of counsel Arguments argument. defendant’s is be counsel judge, trial control and discretion in cases which particularly in argument, latitude afforded wide 734, Riddle, 319 311 N.C. State v. E.g., strongly contested. are Adcock, 1, (1984); S.E. 2d 587 310 310 N.C. v. 250 State S.E. 2d which inferences all reasonable argue entitled to Counsel Hamlet, v. State presented. E.g., the facts may drawn from be (1984); 162, 310 N.C. Murray, S.E. 837 321 2d 312 N.C. 534, (1984); S.E. 300 N.C. v. Lynch, State 313 S.E. 2d (1980). However, finding no facts may argue counsel 2d Williams, evidence, 317 N.C. e.g., in support COURT IN THE SUPREME 506 State v. Robbins 161, 534, (1986); coun- 268 S.E. 2d 300 N.C. Lynch, 405 S.E. 2d Cole, law, v. of State statements may neither make erroneous sel (1955), 576, of law not 203 nor argue principles 86 S.E. 2d 241 N.C. 681, Harris, case, 228 S.E. 437 290 2d N.C. relevant to the (1975). 699, Britt, (1976); 283 220 S.E. 2d 288 v. N.C. State not fall with- argument does objected-to that the We conclude 405; rather, Williams, 474, 346 S.E. 2d 317 N.C. aegis in the reasons for attorney jury to the the arguing here the district the that one of the reasons for felony rule. It is a fact the murder do kill felony murder rule is that often criminals enactment of the felony. of the commission of a witnesses in the course potential then, we do not find argument, the whole Within the context of as to have egregious remarks to have been so the prosecutor’s Moreover, we note that in to the defendant. prejudice resulted early jury advised the that closing argument prosecutor charge. receive instructions from the trial court it would jury, in its to the the trial court directed Subsequently, charge jury “ap- that it must decide the facts from the evidence you I facts.” The trial give the law which am about to those ply instructed, absolutely necessary you further “It that judge you, you as I not as give understand and the law it to apply is, in- you Judge Hobgood think it or as like it to be.” later might accurately felony rule. structed on the murder completely Further, say we cannot that there is a reasonable possibility made, had the not been a different would have argument result 15A-1443(a) (1983). been reached at trial. N.C.G.S. Nor do we § find that so infected the trial with unfairness as to argument make resulting conviction denial of due Darden v. process. — —, (1986); U.S. 91 L.Ed. 2d 144 Wainwright, Donnelley v. (1974). DeChristoforo, 416 40 431 U.S. L.Ed. 2d We hold objection the failure to sustain the defendant’s to this argument was not error. prejudicial

[11] Defendant’s next several assignments of error relate to alleged errors in the trial court’s instructions. The first these concerns the trial denial of his request jury court’s to instruct robbery order to find defendant guilty armed must find that at charges the time defendant endangered Quick or threatened the lives of Williams and Anna he did so with the intent property. steal their The trial court instead gave pattern jury robbery. instructions on armed Defendant he had formed the is no direct evidence that contends that there his victims and that time he shot intent to steal in order to find finding to make such a required should have been robbery offenses. the armed guilty Fields, rejected argument We case, we held that S.E. In that 2d robbery armed reveal alleged of the when the circumstances the owner of his deprive permanently intended to defendant by use of a dan- effectuated taking was and the property whether the intent to it makes no difference weapon, gerous it, so the use of force or after formulated before steal was per- force can be and the use or threat of as the theft long single a transaction. jury constituting ceived 203, v. was also settled in State 337 S.E. 2d at 525. It Id. at (1978), Wooten, kills 699 if a person 245 S.E. 2d that 295 N.C. from property the victim and takes with the intent to rob another immediately killing, after the presence or person the victim’s fact robbery of the regardless armed has committed defendant of the after the death occurred taking property that Quick, rummag- caught was defendant In the case of Anna victim. last time money. her kept she her where through purse, ing alive, in Dur- Quick with her was in her car defendant was seen Durham, Quick’s but her automobile in body was found ham. finding support is sufficient The evidence Raleigh. in found Quick’s intent to steal had formed the defendant jury that her. The evidence immediately killing after or before car either early morn- In the Darryl Williams. case of in the stronger even June, go Hawes that Leonard requested defendant hours ing go- Williams that he told Hawes him and with to Greensboro with apartment Webb’s left his car. Defendant him to loan ing alone, returned, later, defendant A hours few Williams. ring sold Williams’ day, defendant The next Williams’ car. which to base evidence is sufficient there Again, Greensboro. and took to steal intended defendant that inference reasonable before, im- either ring automobile of Williams’ possession Pursuant after, killed. Williams was shortly after mediately Wooten, then, re- was not jury holdings Fields our robbery that the of armed element find as an quired COURT IN THE SUPREME shoot- from his two victims before intent to steal formulated of error is overruled. This assignment them. ing ^[12] Defendant next complains that the trial court erred be instructed to consider the that refusing request intoxication and its on the bearing alleged of defendant’s evidence intent to kill in the charges specific element of essential The trial court denied defendant’s degree. in the first murder to show intoxication tending that the evidence requests written jury be if it found and that instructed be summarized intoxicated, it whether the defendant was “should consider ability specific affected his to formulate the intent.” this condition because of the in in argues alleged Defendant now error intoxication, the regarding finding verdicts structions degree of murder in the first on the basis of guilty premeditation deliberation cannot stand. We find no error in the trial to instruct volun failing concerning court’s the effect of tary intoxication the element of the kill. upon specific intent We do not find that the evidence was sufficient to warrant such a Goodman, (1979), 257 S.E. charge. 2d the defendant that the trial court argued failing erred to in voluntary jury struct on the effect of intoxication upon the deliberation, elements of premeditation, Although and intent. there was evidence that had Goodman been before the drinking committed, murder was no evidence was offered that his showing to think capacity plan and was affected the inebriation. We held that under the circumstances the trial court was not re quired case, instruct on the defense of intoxication. In the present only evidence offered relating to alcoholic beverages Quick was that Anna asked if defendant he wanted a drink and yes; defendant said that defendant purchased pint bottle of Quick’s money Relska vodka with and that poured defendant some of this vodka in a plastic cup for Ear lie Mae Williams at her house; an empty that Relska bottle was found in the road near Quick’s body; that a half-full bottle of Wild Irish Rose wine was Quick’s found in car when it was located at North Hills Shopping it; Center and that defendant’s palm print was on that defendant it; a beer in given apartment Webb’s and did not finish and Holloway that “Turf’ testified that defendant smelled wine and “appeared to have been drinking” Tuesday, on 22 June. In vestigator Dobies testified that at no time his during conversa- IN THE SUPREME COURT Robbins June, County defendant on either at the Durham tions with or in the car as defendant was of- Department directing Sheriffs Quick’s car, body to the locations of Williams’ did he ficers any odor of alcohol about also testified detect defendant. Dobies control, I “appeared that defendant to be coherent. didn’t have difficulty meanings.” his directions or understanding case, Goodman, inas no evidence was presented showing to think and or im- capacity plan the defendant’s affected Moreover, by intoxication. the trial included in his paired judge summary testimony of the evidence most of the which the defend- repeatedly ant The trial court also instructed the requested. beyond it had find a reasonable doubt that the defendant Quick intentionally killed Anna Williams. This assign- of error is overruled. ment

[13] Next, defendant argues that the trial court committed error be instructed failing request to allow his written witness, Abrams be an interested con Dwight might that John may have been the that there was evidence that Abrams tending By charged. of the with which defendant was crimes perpetrator testimony of way Investigator defendant cites the example, him implicated that defendant made statements which Gooch instance, defendant said that Abrams killed Abrams —in one Williams, Quick defend point and that he killed while at another Quick. killed Williams and that he killed ant said that Abrams during and Abrams together Trice placed Martha crimes, that he in contradiction of Abrams’ assertion week of the to five to the time prior not seen defendant for four months had June, Dorothy on Drive at dusk riding up he saw testimony, estab Holloway’s, “Turf’ as well as Abrams’ own selling June in Hollo that Abrams assisted defendant lished Quick Williams, kill rise to way giving the revolver used to murder was in recent possession inference that Abrams an (1983). 496, S.E. 194 Even 307 299 2d Cabey, v. N.C. weapon. State of of the perpetrator not find Abrams to be the jury if the did fenses, accomplice, that Abrams was an it could have determined scrutiny testimony given to be special instruction on the so an asserts. appropriate, would have been accomplice of an (1961). 380, 119 S.E. 165 Defend 254 2d v. N.C. Bailey, See State witness instruction an interested though that even ant contends case, re- it was nevertheless feature of the a subordinate involves THE SUPREME COURT IN 510 by requested properly an instruction give fail to error to versible 445, Eakins, 233 S.E. 2d 292 N.C. E.g., defendant. in- following judge gave the trial by noting that begin We jury: to the struction outcome of in the witness is interested may find that a

You wit- such a or not to believe In whether deciding trial. If, ness, after into account. his or her interest you may take so, testimony part, in whole or you his or her believe doing any same as other be- you what believe the you should treat evidence. lievable as follows: instructed the Hobgood also

Judge credibility of each witness. judges You are the sole the testi- yourselves whether believe You must decide for any all or or none any may part You believe mony of witness. In on the witness stand. determin- of what a witness has said witness, any you apply should whether to believe ing you your everyday apply which same tests of truthfulness interest, bias or any prejudice . . . [including] affairs .... may witness have credibility interested witnesses and

These instructions on general to be weight as to the accorded adequately apprised find to be biased testimony any jury might witness whom the outcome, including an in the trial’s Abrams. have interest (1980). Furthermore, Moore, 262, 271 S.E. 2d N.C. transcript any from our review of the credible we do not find defendant’s that Abrams was ei- support allegation evidence to crimes; only ther the of or an in the perpetrator accomplice involvement Abrams was suggested evidence at all which Gooch, contradictory statements self-serving defendant’s helped and the that Abrams defendant sell the murder evidence days two after Williams was killed. The case relied weapon upon defendant, 299 S.E. 2d Cabey, distinguish- was an person able. that case we held that a interested witness in a rob- possession property who was found in recent taken bery it from the receiving Although and who admitted defendant. a more detailed instruction on interested witnesses would have judge’s been the trial instruction on the preferable, general IN THE SUPREME 511 COURT credibility was In adequate. present of witnesses held to be the case, where there is no evidence to indicate that Abrams was crimes, to he charged relating with offense these was pursuant grant to a with the state or testifying plea agreement state, clearly immunity the or otherwise was a interested of witness, from should be as an interested regarded whether Abrams Moore, 301 witness was for the to resolve. N.C. E.g., Moreover, concedes, 262, 271 S.E. 242. as defendant the in- 2d witness instruction relates to a subordinate feature of terested short, we not find that defendant has shown he the case. do give the trial court’s refusal to in- prejudiced specific We this of assignment struction he find error be requested. meritless.

[14] se, brings By way forth three of supplemental assignments brief of error Court, concerning defendant, the trial pro charges all against his motions to dismiss court’s denial of denying first the trial court erred in argues him. He the charges his motion to dismiss of close of the state’s evidence of victims. He degree argue murder in the first both does his convictions of murder was insufficient to sustain the evidence however, rule; felony murder he in the first under degree theory sufficiency support challenge the of evidence does and deliberation. first-degree premeditation murder based on that there was grounds premises Defendant his contention there evidence use force nor was no of excessive evidence might sup were felled as fired after the victims that shots were law and deliberation. premeditation an inference port and deliber legal meaning premeditation well as to the settled (1986), Jackson, 343 S.E. 2d 814 N.C. v. 317 ation. State E.g., — (1987); —, 94 L.Ed. 2d U.S. grounds, vacated on other (1985), 40, 58-59, Brown, 822-23 337 S.E. 2d --- denied, ---, 90 We find that L.Ed. 2d U.S. cert. inference of a reasonable support evidence sufficient victim. The evidence as to each and deliberation premeditation vic that both shows prosecution most to the light favorable tims, Durham areas of north found in isolated whose bodies were autopsies multiple range; times at close County, had been shot back, neck, wounds to had close or contact that both revealed face, held that previously left We have head ear. behind is a circumstance of the victim’s wounds number the nature and Bobbins State v. be inferred. and deliberation can State premeditation which from 40, 808; Bullard, Brown, 337 S.E. v. 312 315 2d State N.C. N.C. v. 129, 370 There was no evidence of provoca- 322 S.E. 2d short, killings victim. In the brutal method of these by either tion substantial evidence that the killer premeditated provides Brown, 40, 808; 315 337 S.E. v. N.C. 2d State deliberated. Williams, 47, 308 301 S.E. 335. N.C. 2d ^[15] Regarding defendant’s subargument alleging only evidence was sufficient to raise a mere or suspicion state’s murder, identity as to his as the of either conjecture perpetrator Evans, (1971); 183 S.E. 2d 540 see N.C. Cutler, (1967), 156 S.E. 2d we observe that the indicated, alia, evidence at trial inter victims following: both company of defendant the last time were seen alive; defendant Williams Cynthia arrived at apart Webb’s together; ment defendant asked Leonard accompany Hawes to Greensboro, left, him to he and Williams and when defendant re later, turned to Webb’s apartment he was driving Williams’ car him; and Williams was not with told Leonard Hawes gun that the he had showed him earlier was warm because he had it; just shot defendant was identified as the person who repre sented himself as Williams and sold Williams’ class ring Greensboro; Quick’s car was taken to North Hills Shopping Cen abandoned, Williams, in Raleigh ter and the car belonging center, whose destination had been that same shopping was later found Hillsborough; defendant led body, officers to Williams’ Quick’s the site of some of the victims’ belongings, and to told them where to find the car belonging to car and Williams; defend cars; ant’s palm- fingerprints were found in both victims’ and/or defendant sold the murder weapon to “Turf’ Holloway; defendant made incriminating statements to investigating officers which im plicated him in both murders. We find substantial evidence in dicating that defendant was the murderer of both victims. Id. As to the argument defendant’s that John Dwight Abrams could murders, have been the perpetrator absolutely there is no contention, evidence whatsoever to support and the issue was resolved at trial against jury. This assign ment of error is completely meritless.

[16] Defendant also challenges sufficiency of the evidence as Quick to his convictions of the robberies awith firearm of regard Williams. His in this to be that because argument appears entirely the evidence as to robberies was circum- presented direct, such guilt stantial rather than evidence could not prove beyond Specifically, a reasonable doubt. he that there was argues Quick’s no direct evidence he drove car or that he Raleigh Hillsborough, drove Williams’ car to nor is there direct evidence by endangering that he took the cars the lives of threatening permanently the victims or that he intended to the vic- deprive of their cars. the evidence Again, tims shows that both victims cashed their checks employment had and had last been seen with killed; days they on the were defendant defendant had been seen Quick’s in rummaging through handbag day; earlier Williams’ car on the driving morning of the after hav- killing it; told Hawes that Williams was him ing going to let “borrow” prints defendant’s Quick’s were later found on several items inside itself, car car and on the which had been left at the same likely location from which Williams when disappeared; Williams’ found, body pocket the left rear on his trousers was unbut- out, and the other been pocket toned had turned inside and his wallet and class defendant sold ring missing; high Williams’ led ring school Greensboro and officers to a location where several items which had been in Williams’ found wallet. The of both victims in addition to killings brutal defendant’s recent Quick’s of both and Williams’ stolen cars raise the possession robbery. v. guilty of fact that he armed State presumption (1967). Bell, 25, addition, 270 153 S.E. 2d 741 In killing N.C. Williams ring recent school possession high defendant’s support which to Williams was sufficient evidence to belonged robbery of Williams. Id. verdict of of the armed guilty in denying also contends that the trial court erred Defendant reasons dis- charge. motion to For the kidnapping his dismiss already we have resolved this issue earlier in this opinion, cussed in favor of the defendant.

[17] Defendant’s last pro se contention is that his convictions of his death sentences were obtained degree in the first murder testimony of the Chief knowing perjured the state’s use of accusation, Examiner, In support Dr. Hudson. Page Medical Dr. between Hudson’s alleged certain inconsistencies he points victims’ number of wounds from the testimony concerning County testimony in an Orange Dr. earlier Hudson’s bodies 514 v. Robbins

State the murder conviction for defendant’s hearing for sentencing Robbins, 309 N.C. Carroway. of Annie degree second minor, 771, in- are 88. these inconsistencies 309 S.E. 2d All of he found number of wounds concerning the differences substantial This testi- fragments discovered. the number of bullets and mony charge. perjury would not support testimony, defend perjured a claim of prevail order false, material, and testimony was in fact must show that the ant state to obtain his con intentionally used knowingly and (10th 1971), States, 446 F. 229 2d Cir. viction. McBride v. United 977, denied, 31 2d 252 Minor variations 405 U.S. L.Ed. cert. that a witness is testimony perjur are insufficient to establish McDowell, himself, 310 S.E. 301 N.C. 2d ing (1984), any, if to be weight, and it is for the to determine the testimony inconsistencies are before the alleged where given S.E. 2d jury. Montgomery, See State v. (1976).Defendant has not met his burden of that the tes showing false, material, timony knowingly was in fact and intentional ly Such used to obtain his conviction. minor inconsistencies testimony do not that Dr. Hudson compel finding committed Moreover, perjury government and that knew it. testimony had the Dr. opportunity impeach Hudson’s at trial had he been of a mind so. This assignment to do of error is with out merit.

We reverse the conviction of defendant on the of kid- charge robbery, in the napping degree. first Because armed not kidnap- ping, felony constituted the predicate the verdicts of guilt defendant’s of murder in the first based degree felony murder, felony defendant’s convictions for murder remain un- We disturbed. find no error in defendant’s other convictions. ^[18] Defendant brings forth several assignments of error as issues. His preservation first the argument constitution —that qualification the death prohibits prospective jurors —has been McCree, firmly adversely decided to defendant. Lockhart v. 476 ---, 90 (1986); Jackson, 1, U.S. L.Ed. 2d 137 State v. 317 343 N.C. 126, S.E. 2d 814. also State See v. 299 261 S.E. 803 Avery, N.C. 2d (1980).This of error is assignment overruled. ^[19] Next defendant argues that the trial court erred in denying defendant’s motion to the bills of quash indictment because of 515 systematic jury exclusion of nonwhites from the pool from which grand jury the was drawn also the trial in and court erred denying petit defendant’s motion to the venire and quash jury jury master list because the from which it pool was selected is un- constitutionally unrepresentative. doing, so requests 1, that we reexamine our decision v. Avery, State 315 N.C. 337 (1985). S.E. 2d 786 acknowledges Defendant that both he and Avery are and black were indicted and convicted in Durham County the and that issues in the two are cases identical. Defend- has presented persuasive why ant us with no reasons to we should we Avery, reconsider decline do so. Defendant’s error assignment of is therefore overruled.

statute, ^[20] Defendant N.C.G.S. § asserts 15A-2000, is imposed in North Carolina death discriminatory penalty man ner, overbroad, discretion, vague subjective involves and thus violates the and fourteenth eighth amendments I, United States Constitution and article sections 27 19 and of North have upheld Constitution We repeatedly Carolina. statute, Gladden, constitutionality State e.g., v. 315 --- 398, 673, denied, ---, 340 2d U.S. L.Ed. 2d S.E. cert. 93 (1986); 408, (1984), 166 v. 319 S.E. 189 Boyd, State 311 N.C. 2d denied, (1985), 1030, cert. U.S. L.Ed. so again 85 2d 324 and do —, McCleskey here. See v. 481 U.S. 95 L.Ed. 2d 262 Kemp, (1987). We of error. assignment overrule ^[21] structing Defendant next contends that that it would be the jury’s trial duty court erred to recommend in in if the circum circum mitigating a sentence of death found that outweigh aggravating stances were insufficient sufficiently aggravating stances and that the circumstances were for the of the death Defend imposition penalty. substantial call present concedes that the instructions case were ant conformity McDougall, with those upheld substantial Pinch, 1, 1, 308, S.E. 308 N.C. 2d 306 N.C. (1982), denied, S.E. 2d cert. 459 U.S. L.Ed. 2d 622 denied, 1189, 74 2d 1031 This reh’g 459 U.S. L.Ed. Court consistently and here so once rejected argument has does assignment more. of error is overruled. This to ^[22] instruct Last, jury that the state had the charges that the trial court erred burden of proving in failing COURT THE SUPREME IN Robbins beyond a reasonable circumstance mitigating of each nonexistence prove each on the the burden in placing doubt De of the evidence. preponderance circumstance mitigating why reasons as compelling no us with presented has fendant issue, v. State e.g., on this holdings prior our overrule we should 673; 398, Barfield, 298 Gladden, N.C. 340 S.E. 2d 315 N.C. 907, denied, (1979), 65 L.Ed. 2d 306, 448 U.S. cert. 259 S.E. 2d (1980), 918, we denied, 65 L.Ed. 2d 448 U.S. reh’g error is of assignment Defendant’s reexamine them. decline to overruled. therefore Sentencing

II. Phase ^[23] jury The during the following aggravating sentencing phase circumstance of the trial: was submitted “Was the Phillip Williams committed while Wade of Darrel murder [sic] Robbins, robbery of in the commission engaged Jr. was Thomas Williams, degree kidnap Wade or first firearm of Darrel with a issue, The answered the Darrel Wade Williams?” of ping was basis of finding its on the “yes,” and indicated “[b]oth degree kidnapping.” and first robbery dangerous weapon with a the conviction of defendant we have reversed opinion In this insuffi in the first because of the degree of charge kidnapping Therefore, the sub ciency charge. evidence to support supporting as one of the bases the above mission of kidnapping was error. We must next determine circumstance aggravating to be was applied the error was test prejudicial. whether Goodman, by this in State v. first announced Court (1979), whether there is a reasonable being pos 257 S.E. 2d 569 sibility might error have contributed to complained penalty. the ultimate decision of the recommend the death 15A-1443(a)(1983). N.C.G.S. § evidence of defendant’s guilt strong, this case the eyewitnesses to although killing. there were no The evidence hotly An as to contested. indication of the dif- punishment ficulty had in at a jurors arriving punish- recommendation ment was their whether could return a inquiry judge imprisonment parole, recommendation of life without later dis- cussed in this opinion. several witnesses defendant evidence

Through developed he prior undergone about his life and how had drastic behavioral State v. Rabbins in the six months before he was changes mitigat- arrested. Three (1) jury: were submitted to the ing circumstances Defendant was under the influence of mental or emotional disturbance at the (2) murder; ability criminality time of the of appreciate or conform his his conduct conduct to the of the law requirements (3) other impaired; mitigating jury circumstances. The that it found one or more of responded these circumstances to exist, discussion, without For specification. this we assume that jury found all three. course, if way

Of we have no of submission of the knowing kidnapping aggravating erroneous basis for the circumstance jury the scales in favor of the tipped recommending the death jury for the murder of Williams. The penalty alsp recommended Quick, the death sentence for the murder of Anna where kidnap was not as a basis for the ping submitted same cir aggravating However, only cumstance. we can as to what speculate weight jury consideration the to the as an gave kidnapping additional Surely basis for the circumstance. it would seem rea aggravating a jury harshly sonable that treat a defendant more where might by robbery aggravating supported circumstance armed only robbery than where armed kidnapping formed basis There a aggravating possibili for the circumstance. reasonable ty jury kidnapping charge consideration have of might pen contributed to the recommendation the death hold, alty. We so for and vacate the death sentence Darryl murder of Williams. The case will to the be remanded County sentencing hearing Court of Durham for new Superior degree on defendant’s conviction of murder the first (1979), Williams. 257 S.E. 2d 551 Cherry, See State denied, 941, 64 446 U.S. L.Ed. 2d 796 cert. ^[24] By his next several assignments error, argues statute, 15A-2000 death penalty that North Carolina’s (1983), N.C.G.S. § construed this and as ap is unconstitutional as Court considering case it from prohibits because plied Specifically, for defendant contends eligibility parole. defendant’s defendant’s concerning should have been instructed prohibited should not have been from parole eligibility recommenda question sentencing on the of its considering parole “is relevant to a circum grounds mitigating tion on the it —and sentencing non-dangerousness defendant’s stance —the THE SUPREME COURT IN arbitrary and jury’s the sufficiently dispel it does not because trial court’s For the parole.” about misconceptions capricious instruct, rights that his contends to so failure and he is amendments fourteenth eighth violated under the sentencing hearing. to a new thus entitled its in the course of out Initially, points jury the returned sentencing phase, during deliberations written questions: with two the courtroom a life to recommend jury right grant Does the Court And, so, without, if whether parole? of possibility sentence on the Court. binding is stipulation language in the Hobgood responded jury’s inquiry, Judge To the from instruction which evolved jury pattern of the North Carolina Conner, 468, 584 241 85 S.E. 2d N.C. in State v. our decision (1955): my answer is as follows: question, In answer to the is matter for parole proper for not question eligibility and it should you recommending punishment, to consider in entirely your from consideration and dismissed be eliminated your from minds. or life im- whether to recommend death considering though as life you question should determine

prisonment, says, exactly imprison- means what statute imprisonment life. You should decide the ment in the State’s prison according to the issues submitted to question of punishment Court, you by wholly uninfluenced consideration of might not do government might what another arm of is ques in the future. That is the the Court’s answer to —that question. correctly 150.10 n.2. Defendant observes that this N.C.P.I.—Crim. consistently has held that a criminal status Court defendant’s under the laws is irrelevant to a determination parole sentencing and, such, by the sentencing, as cannot be considered during sentencing whether in a under 15A- capital procedure N.C.G.S. § Brown, 151, 2000 ordinary or in an case. State v. 306 293 S.E. N.C. 569, denied, 1080, (1982); 459 74 2d cert. U.S. L.Ed. 2d 642 v. (1979). Jones, 495, 425 296 251 S.E. 2d Consequently, N.C. we have duty also held that the trial has a judge upon inquiry IN THE SUPREME 519 COURT Robbing possibility parole jurors disregard to admonish the judge it from their minds. The trial also forbidden to dismiss governing parole. the laws and informing practices from them of 569; Conner, 468, Brown, 151, 241 85 306 293 S.E. 2d N.C. State, 15, Accord, 188 2 S.E. Ga. 2d S.E. 584. Brannon e.g., 2d Commonwealth, (1939); Ky. 242 46 S.W. 2d 75 654 (1932); Gaines v. (1951); 82 A. 368 Pa. 2d Carey, Commonwealth v. (1952). Commonwealth, 273, 72 S.E. 194 Va. 2d See Jones v. Note, Discussions Parole Law Jury Munroe v. State: generally (1983); Comment, Texas, 20 Hous. L. Rev. Criminal Jury Inquiry Court Response Spontaneous Improper Law — Possibilities, 33 N.C.L. Rev. to Pardon and Parole Here, court’s object pur- to the trial instruction defendant did jury he ask the to inform the about judge suant to Conner nor did Generally, failure to laws. a defendant’s parole North Carolina’s in a timely objection motion or results an appropriate enter error on State v. alleged appeal. to assert right waiver of 1, assuming arguendo 301 S.E. 308. Even 308 2d N.C. McDougall, we appeal, this issue for preserved had properly that defendant issue for the rea- holdings on this prior would not overrule our which follow. sons prin- are twofold. His point contentions this Defendant’s 992, Ramos, 77 463 U.S. is based on argument cipal California (1983), Supreme States Court 1171 in which the United

L.Ed. 2d dangerous- future convict’s existence of a that acknowledged holding this Extending jury. concern to the is a relevant ness hand, nondanger- his future that argues at the situation in his case and jury to the concern was also relevant ousness circumstance may a mitigating be nondangerousness that sentencing. during to consider was entitled jury which the in a Ramos, defect found no constitutional Court Supreme a capital to inform judge the trial requiring state law California to com- the power governor possesses jury that sentencing parole possibility without imprisonment life sentence of mute a (the however, Instruction”). note, that important It “Briggs pro- to be was held not in Ramos upheld the instruction while held, Constitution, conversely, was not it by the Federal hibited 1014, 1189. at 77 L.Ed. 2d at constitutionally Id. required. be Ramos, the conten- rejected Court Additionally, Supreme unconstitu- Instruction Briggs that tion THE IN SUPREME COURT 520 Rabbins

State v. also is jurors governor because it does not inform that tional sentence, grounds to commute a death on the that “an empowered to commute a death power instruction the Governor’s disclosing may disadvantage.” to the defendant’s distinct operate sentence determination, 1011, 1187. In arriving at 77 2d at at its Id. L.Ed. O’Connor, Court, in wrote: “Our conclusion is not Justice contrary of state judgment legislatures tended to override the sentencing juries their States should not be capital permit sentence,” the Governor’s power ted to consider to commute a id. 1013, 1188, “[m]any 77 L.Ed. 2d at and also remarked that state have held it improper courts for the to consider or to be in argument or formed-through possibility instruction —of the commutation, n.30, pardon parole.” Id. at 1013 77 L.Ed. 2d at Jones, 495, 502-03, 1188 (citing n.30 296 251 S.E. 2d 429). opinions of several federal circuit courts are in ac (4th Bass, with our cord Turner v. 753 F. 342 holding. 2d Cir. 1985), rev’d and death sentence vacated on other grounds sub —, (1986); nom. Turner v. 476 U.S. Murray, 2d 27 L.Ed. (5th Estelle, 1983), denied, 714 F. O’Bryan v. 2d 365 Cir. cert. U.S. L.Ed. 2d We do not find in Ramos support for defendant’s contentions.

Defendant’s second argument on this issue is that the Con- stitution requires the trial court inform the of facts about parole order to dispel the alleged prejudicial miscon- ceptions about parole which he contends jurors most harbor. De- fendant contends such alleged misconceptions raise the possibility jury of the acting arbitrary an and capricious man- ner when sentencing without the benefit of accurate information concerning parole. In support of this argument, defendant refers 420, us to the cases of Godfrey v. 446 Georgia, U.S. 64 L.Ed. 2d (1980); 398 (1979); Green v. 442 Georgia, U.S. 60 L.Ed. 738 2d Florida, (1977), and Gardner v. 430 U.S. 51 L.Ed. 2d 393 concludes that the use of the Conner rule in his trial was un- constitutional because it failed to sufficiently minimize the risk jurors’ that misconceptions parole about will affect the sentencing hearing.

We are unconvinced that due process an requires instruction on parole procedures out of concern jury that a may have miscon- ceptions parole about eligibility. Defendant’s contention that most lay jurors harbor prejudicial misconceptions parole about can be IN THE SUPREME COURT on only sheer speculation; based there is no evidence the record of such prejudicial misconceptions by jurors harbored the present case. the Though jurors did inquire whether had the of life option recommending a sentence pos- without the sibility absolutely of there is no parole, jurors evidence that sentenced the defendant while under the mistaken impression if they that life recommended imprisonment, defendant would be Moreover, released on parole. providing the jury with information parole eligibility on is a double-edged sword. We are convinced our law under present that Conner and the assumption that jurors obey their oaths and instructions provide best protec- for tion criminal defendants. The recent United States Supreme Brown, —, case of Court U.S. L.Ed. 2d California (1987), case, further bolsters our position. In an that instruction jury cautioning the it “must swayed by not be mere senti- ment, conjecture, sympathy, passion, prejudice, public opinion, or feeling,” of a public penalty phase capital murder trial held not violative of eighth and fourteen amendments. The merely held that the instruction Court served to admonish the “to ignore emotional responses are not rooted in the ag- gravating mitigating evidence during introduced the penalty —, Id. at 93 L.Ed. 2d phase.” at 940. Justice Rehnquist, writing the majority, explained: prohibiting juries An instruction from basing their trial, sentencing decisions factors not at the presented trial, irrelevant to the issues at does not violate the United States Constitution. serves useful It purpose jury’s imposition cau- confining death sentence against it reliance tioning on extraneous emotional factors which, think, likely we would be far more to turn against capital than for him. —, at 93 L.Ed. 941.

Id. 2d at Similarly, parole presented the matter of a factor not completely trial and is irrelevant the issues at trial. The rationale, then, Supreme would seem to encompass Court’s instruction, subject our Conner parole eligibility, thus which our in- holding possibility reflects future by parole on the imposed terference with the sentence jury charged a for the of a proper is not matter consideration COURT THE SUPREME IN 522 Robbins State v. to a as or recommendation guilt with a determination either in- in the Conner defect We no constitutional detect punishment. issue. holdings our prior stand struction and therefore of error. assignments defendant’s we overrule Accordingly, ^[25] ing that In related argument, this Court adheres a to its precedent defendant contends on this that even issue, where assum a a fac has become eligibility jury parole indicates sentencing deliberations, disregard parole to in a mere instruction tor its al jury so as to correct instructing the a factor —without also to adequate —is not misconceptions parole about leged prejudicial deci sentencing factor in the arbitrary capricious an and dispel modify adopt instruction and to us the Conner urges sion. He Annotation, view, to be minority Procedure see followed as to requests possibility pardon where jury information (1954); see, A.L.R. 769 e.g., 2d parole imposed, sentence from White, 158, (1958), 142 A. 2d which would re 27 N.J. court, under admonishing in addition to quire the trial punishment, its deliberations as to disregard parole Conner to Defend concerning parole.” to “instruct about the truth jury, “[b]y admonishing educating ant reasons that both no erroneous greater prejudicially there is assurance that . . by jurors tions held will be . dispelled [and a] not be punishment for whom life would be an would appropriate we understanding.” Again sentenced to death mistaken upon note at object that defendant did the Conner instruction trial has thereby waived his review of this right appellate 15A-1446(b)(1983). issue. Even were we to de N.C.G.S. consider § fendant’s in this for the reasons regard, contentions set forth our discussion we depart above decline to from our longstanding rule eligibility parole that a defendant’s is not cir under Conner; cumstances a matter for proper jury. consideration Brown, 151, 293 S.E. 569. 2d

By way summary, we note our concurrence with Justice who, Ramos, Marshall dissenting opinion wrote that the “possibility through eventual release commutation parole] [of bears no relation to the defendant’s character or the nature crime, 1021, . . . .” 463 77 n.12, U.S. 2d at L.Ed. 1194. Accord Ohio, Lockett v. 438 U.S. 57 L.Ed. 2d 990 n.12 (1978).Any instruction relating parole eligibility is not constitu- tionally required, our law on the matter is not constitutional- ly infirm. adhere We to our mandate first espoused in Conner. The trial did not err in judge refusing to instruct jury the de- fendant requested.

Defendant next certain challenges remarks made the pros- ecutor his closing argument, the alleging argument that “was replete improprieties with that the process rendered sentencing unreliable” entitles defendant to a trial. new ^[26] Defendant first accuses the prosecutor of asking the jury “to decide something from the heart and not the ... head a stir of ring you, the emotions from this segment community.” Defendant has lifted this out its phrase of context. A proper reading of the reveals that transcript this comment came the midst of the speculation part attorney some on of the district that likely defense would accuse him playing jurors’ counsel of on the emotions and of them “to decide asking something from the heart head, not from the something [they] may that at a regret prosecutor later time.” The went on tell jurors merely then emotion, it was natural and normal to feel “genuine empathy, of during disagree the course trial.” We with defendant’s [the] of characterization this remark as an to in improper attempt jury solely fluence the to decide defendant’s on sentence based emotions, gross their and thus find no these re impropriety in (1983). Oliver, S.E. marks. State v. 2d 304 De urges gross also us to find district impropriety fendant “in attorney’s jury to consider the case asking remarks of the law to in this light you Though what determine be state.” thus im legally we find to have been inaccurate and the remark prosecutor defendant’s contention that reject we proper, to a give play to “set aside the law and free urging jurors ” judge ap The trial instructed ‘stirring emotions.’ to them. We do not that this only the which he find gave law ply error. Id. prejudicial amounted statement exposed to attorney are people The district observed asked, catch you mass “and don’t via the media “things” my how terrible that saying, goodness, times yourselves is, lot is, that.” to do about ought something how atrocious ju- invited that these remarks improperly Defendant contends sentencing make determination evidence and ignore rors sentiment of on a rational consideration public instead based SUPREME COURT IN THE Robbins Scott, 15A-2000. State under N.C.G.S. permissible factors § remarks are 2d 296 These 333 S.E. 314 N.C. (in which the improper Scott those held from distinguishable because to convict the defendant to the appealed prosecutor accidents) in the case in that had caused other drivers impaired record argue did outside the attorney not the district judice, sub victims, he en nor did had killed other murderers other that to its deter evidence and base jury disregard the the courage 126, N.C. Forney, v. 310 sentiment. See State public mination (1984). object at trial to these 20 did not S.E. 2d Defendant 310 remarks, have re as to gross impropriety we do find such and not Oliver, 309 v. by judge. action the trial State corrective quired 446, 304; 326, S.E. 308 302 2d v. N.C. Craig, 307 S.E. 2d N.C. 740, (1983). denied, 908, 247 464 78 L.Ed. 2d U.S. cert.

Next, references complains prosecutor’s defendant about the day had “his in court” and to the having rights the defendant’s victims, vigilante was that this an “invitation to saying of crime we capital sentencing.” in On numerous occasions justice brand of emphasis on the circumstances of the crime have stated that during sentencing, the criminal and therefore character the See, victims’ are relevant. regarding rights e.g., State arguments (1984); Oliver, Moose, 482, 313 S.E. 2d 507 State v. N.C. 326. We no in 307 S.E. 2d at find gross impropriety N.C. by the closing prosecutor. these remarks attorney closing Defendant next contends the district in his that the should penalty imposed remarks said death be on this deterrent, as a our in violation of holding truth, Kirkley, 308 302 S.E. 2d the district attorney that there were generically argued four reasons for the sentencing process and deterrence was the reasons enu- among by These merated. remarks the were prosecutor improper. challenges Defendant also prosecutor comments that Darryl have for great Williams “must been fear” his life and Quick Anna they that both Williams and knew that going were die, which alleges consisted of unreasonable and unsup- inferences and which invited the wild- ported “speculate ly.” Defendant argues that there no that either or evidence imminent, both victims knew that death was they that feared for lives, or they begged their that for their lives. Defendant addi- tionally alleges that argument interjected prosecutor the additional aggravating circumstance that murders were heinous, especially atrocious and cruel. We feel that evidence gives rise to reasonable inferences that both victims feared their lives. fact that bodies both were found in isolated areas County of north Durham no trails of blood to the led any bodies nor blood found either automobile rise to gives evidence, interpretation reasonable which the prosecutor were argued, victims gunpoint forced at out their cars shot as away. walked We do not find gross improprieties prosecutor’s argument which would have required trial court to ex intervene mero motu. These of error assignments are overruled.

[27] Defendant contends it was error for trial court to have submitted the circumstances to the aggravating Quick murders of Anna Williams were committed while the engaged defendant was the commission of robberies victims, 15A-2000(e)(5), with a firearm of both N.C.G.S. and he is § thus to a sentencing hearing. entitled new For the reasons dis guilt-innocence cussed in the phase opinion, of this we have found convictions; therefore, robbery no error in either of the armed the robbery properly armed offenses could be submitted to the Fields, aggravating circumstances. State v. 315 N.C. S.E. 2d 518. This of error is without assignment merit.

[28] Defendant also assigns as error the trial court’s failure to find a circumstance in for his sentences for armed rob mitigation by he bery kidnapping and which contends established evidence, namely, early to arrest at an of the prior stage or voluntarily in con process acknowledged wrongdoing criminal he to law nection with the offenses enforcement officials. N.C.G.S. 15A-1340.4(a)(2)(l)(1983). Because we have vacated defendant’s § we need this as it kidnapping, conviction not address issue conviction, robbery relates to that offense. the armed Regarding by failing review this issue defendant has waived of appellate timely this and mitigating make a motion circumstance requesting object having court’s to find it after to the trial failure failing so, by N.C.G.S. ample judge been the trial to do given opportunity 15A-1446(a).Moreover, finding not entitled to a defendant was § acknowl circumstance. defendant did mitigating Although of this Quick he into night of on the was taken the murder Anna edge SUPREME COURT THE IN Robbins site voluntarily officers to take he did custody although robbery acknowledged body, he no time Williams’ Darryl of in- Quick gave later equivocated Defendant of Williams. of or contradictory accounts conflicting and officers vestigating Furthermore, suppress made motion to murders. repudi- held that if a defendant has This Court these statements. statement, of finding is not to a he entitled incriminatory ates his 460, 334 Hayes, circumstance. State mitigating of error is meritless. assignment This S.E. 2d 741 Proportionality III. ^[29] We have concluded that defendant is entitled to a new his conviction for murder respect with Therefore, hearing sentencing review this Court’s proportionality Williams. of only conviction for murder is addressed to defendant’s Quick. Anna case, we are every capital As a final directed matter (1) 15A-2000(d)(2)to review the record and determine

N.C.G.S. § any jury’s findings ag- whether supports the record which sentenc- or circumstances gravating upon circumstance (2) death; whether the sentence ing court based its sentence of passion, prejudice, under the influence imposed (3) factor; arbitrary other whether the sentence of death penalty in similar disproportionate imposed excessive or cases, and the ex- considering the crime defendant. After an both briefs, record appeal, review of the transcript, haustive evidence supports ag- oral we find the two arguments, jury. found cir- aggravating circumstances gravating (1) had were: the defendant been convicted previously cumstances felony of a the use or threat of violence involving person, to a (2) 15A-2000(e)(3), felony capital N.C.G.S. was committed § robbery while in the engaged the defendant commission of 15A-2000(e)(5). Quick, with a of firearm Anna N.C.G.S. § We also conclude that there is in the which nothing record of suggests sentence death influenced passion, prejudice, arbitrary other factor. turn We thus to our final duty statutory review. proportionality whether the determining death sentence this case is dis- cases, to proportionate penalty imposed similar we first 527 refer the now familiar “pool” of cases established in State v. Williams, 47, 308 N.C. 301 S.E. 2d 335.

In comparing “similar cases” for purposes of propor- review, tionality we use a pool for comparison purposes all cases arising since the effective date of our capital punish- statute, 1977, ment 1 June which have been tried as capital cases and reviewed on direct appeal by this Court and in which the recommended death or life imprisonment or in which the trial court life imposed imprisonment after jury’s agree failure to upon a sentencing recommendation within a period reasonable of time. 79,

Id. 301 S.E. at 2d at 355. The pool only includes cases which have been phases affirmed as both of the trial. v. Jack- son, 26, 45, 703, 309 305 S.E. N.C. 2d 717.

We have held that our task on proportionality review is to compare case “with other pool cases which are roughly with regard similar . crime and the defendant . . .” State Lawson, 632, 493, 648, (1984), S.E. 2d cert. denied, 471 U.S. 2d 267 L.Ed. If, after making such we comparison, juries find that have consistently returning been death sentences in the similar cases, we then will have a strong concluding basis for that a death sentence in the case under review is excessive or disproportionate. On juries the other hand if we find that consistently have been life returning sentences the similar cases, will a strong we have basis for concluding that death sentence in case under review excessive or dispropor- tionate.

Id. 314 S.E. at 503. 2d We was convicted of the murder Anna note that defendant Quick on murder premeditated and deliberate theories task in felony murder. With the and seriousness of our magnitude mind, this case we have reviewed the facts and circumstances of pool. them all in the Our compared proportionality cases that we careful has led us to conclude comparison cases death of defend- cannot hold as matter of law sentence Quick the murder of Anna was disproportionate. ant for COURT THE SUPREME IN v. Robbins nights on successive summary showed that The evidence Quick, fifty-three, and aged Anna took 1982 the defendant June Williams, Durham areas of to isolated eighteen, aged head, back, face, times in the multiple them he shot County where examiner, Hudson, not all the Dr. medical According to chest. lethal, the reasonable inference that raising a were wounds the bodies consciously dying. The suffered before have victims could left Shortly in ditches. after were hidden the victims Williams, acknowledged with he returned and apartment The evidence which was still warm. pistol, fired the just he had Darryl. kill Defend- was used to Anna and pistol that this showed Darryl, as well as other automobiles of Anna ant stole the killings are Two motives for these deliberate property. personal (1) to to steal by evidence: allow defendant supported (2) victims; eliminate all witnesses the rob- property beries. review, under we carrying proportionality out our duties record, briefs, carefully arguments and tran-

have considered We circumstances of the offense and the script. must consider the 15A-2000 character and (d)(2) (1983). of the defendant. N.C.G.S. propensities § defendant, by respect With to the crimes committed brutal, two point killings. all the circumstances senseless With defendant, be respect to the the circumstances disclose him to days a span cold-blooded killer who within of four murdered three Anna, Darryl, Carroway. Annie beings: human This has Court determined of defendant as to all three guilt murders be Carroway prejudicial Although without error. murder was not case, used as an circumstance there is aggravating present part no doubt the three murders were all of a continuing Particularly, course conduct defendant. the two murders in present days, case were successive involved same modus operandi, and motivated the same reasons. Of all the review, in which this performed cases Court has proportionality Hutchins,

this defendant stands alone with 303 N.C. (1981), only 279 S.E. 2d 788 as the defendants convicted of three murders.

As defendant here was convicted on pre- the basis both murder, meditated felony and deliberate murder and perhaps Brown, most similar case S.E. 2d 808. sought Brown out and robbed convenience store during the ear- 529 IN THE SUPREME COURT

State v. Robbins He when female clerk was alone. then morning hours the ly he took her to an isolated area where forced her into car and principal six times. The cause of death shooting killed her her in present to back. The facts the case was a wound her gunshot remarkably cases raise the inference of to killing are similar. Both witness; a in Robbins killed for the of purpose eliminate addition heavy A is he is a his victims. factor Robbins robbing against was under multiple Although killer. the found that defendant the time of influence of mental or emotional disturbance at the of the capacity appreciate the murders and that criminality of his it is clear from his convic- acts was impaired, life deliberate murder that human premeditated tions of little to meant Robbins. Brown decision does not suggest

Our reference to the in v. pool, cases such as State we have overlooked other 669, say 181 it 325 S.E. 2d Suffice N.C. Young, than to case much more similar Brown present we find the necessary analyze or in not find to extrapolate We do it Young. number, all, in our any particular pro- of cases our opinions Williams, 47, 301 S.E. 2d 335. N.C. pool. portionality case, together in this proceedings our review of the entire Upon of it with the cases comparison our consideration and with we hold the death sentence cannot pool, proportionality Quick we so are disproportionate. doing, of Anna be murder by result can be supported that almost desired mindful Such circumstances and statistics. use of discrete selective methods, however, to our duties under the statute. foreign are imposed of law that the death sentence We hold as matter Quick not disproportionate of Anna is this case for the murder 15A-2000(d)(2). this Upon of meaning N.C.G.S. within § has no discre- This Court sentence affirmed. the death holding, should be vacated. a death sentence whether determining tion 703; Jackson, v. 305 S.E. 2d see Lockett Ohio, 973. 57 L.Ed. 2d 438 U.S.

Conclusion Darryl Williams of charge kidnapping conviction on robbery of of armed charge no in the We find error is reversed. Williams, no we find of of murder charge Williams. On the trial, is remanded charge this but of guilt phase error Court, County, Durham for a new sentencing Superior to the hearing. robbery

We find no error in the armed Anna charge Quick Quick. charge We the murder Anna to be without hold charge error and the death sentence is affirmed.

No. kidnapping—reversed. 83CRS10237— — robbery No. 83CRS10238 armed error. —no No. of Williams —no error guilt 82CRS13882—murder remanded for new phase; sentencing hearing. robbery

No. 83CRS12055—armed error. —no Quick No. 82CRS13883 —murder of error. —no Meyer Justice concurring part and dissenting part. I concur in the majority opinion except as that enti- part Sentencing Phase,” “II. tled which holds that defendant entitled to a new sentencing hearing because the kidnapping judg- I ment has been arrested. believe that portion majority of the error, to be in I opinion and would vote to affirm the judgment of the trial court.

The defendant was convicted the first-degree of murder of Darryl Williams both of the theories premeditation and delib eration and felony of the murder The felony rule. underlying sub mitted was armed robbery. The kidnapping was not submitted as cases, an underlying felony in guilt phase. In such this Court has held that the underlying may felonies also be considered as Rook, an aggravating circumstance at sentencing. State v. 201, 230-31, (1981), denied, 283 S.E. 2d cert. 455 U.S. 1038, 72 2d 155 L.Ed. During sentencing phase trial, Judge Hobgood submitted the jury as one of the ag circumstances, gravating 15A-2000(e)(5), pursuant to N.C.G.S. § of murder Darryl Williams was committed while the defendant was engaged in the commission of the armed robbery, Williams, or the of kidnapping or both. Judge Hobgood also in that, structed the jury form, on the issues recommendation it should answer whether its of finding circum- aggravating IN THE SUPREME COURT robbery of of stance was “on the basis the defendant’s commission Williams, or first- weapon with a of Darrel Wade dangerous [sic] Williams, or Judge of Darrel Wade both.” degree kidnapping choices: Hobgood gave jury three one, of rob- following Your will be one choices: answer or, two, firearm;

bery kidnapping; a first-degree with three, robbery kidnap- a first-degree with firearm and both ping. murder first-degree

When the returned its verdicts as Williams, found Darryl jury answered that it had of Wade (1) previously circumstances: the defendant aggravating two felony of the use or threat involving had been convicted of (2) 15A-2000(e)(3); person, violence to the N.C.G.S. § Darryl Williams was committed while the de- murder of Wade robbery of with firearm the commission engaged fendant was Darryl first-degree Williams or kidnapping Wade 15A-2000(e)(5). Williams, also answered Wade N.C.G.S. § aggravating circumstance based finding that its the second robbery a danger- of with commission on the defendant’s “[b]oth weapon degree kidnapping.” and first ous insufficient since evidence was The holds that the majority conviction, trial court kidnapping first-degree support alternative as an in offense submitting kidnapping erred 15A- under N.C.G.S. theory for the circumstance aggravating § 2000(e)(5). I agree. objection, made no the defendant be noted It should an instruc- request to the State’s given opportunity, when The defend- an circumstance. aggravating kidnapping on tion framing Judge Hobgood’s objection no also made ant circumstance jury aggravating found the as to whether issue 15A-2000(e)(5) robbery or of the armed basis of N.C.G.S. § 15A-2000(e)(5), Here, there under N.C.G.S. both. or kidnapping § fac- aggravating single enumerated in alternative theories tor:

(5) while the felony was committed capital The abettor, in the commis- or or an aider engaged, commit, of, commit- flight after or attempt or an sion homicide, commit, rape robbery, attempting or ting offense, arson,

or a sex burglary, or kidnapping, aircraft or piracy the unlawful throwing, placing, or discharging of a destructive device or bomb. 15A-2000(e)(5) (1983) added).

N.C.G.S. (emphasis majority The § correctly has held that though the kidnapping as an alternative theory for the aggravating circumstance was erroneously submit- ted, the aggravating factor survived it because was also based on the armed robbery. majority

The distinguishes between the “strong” evidence guilt defendant’s the “hotly contested” evidence as to punish- ment. I say must the significance of that distinction escapes case, me. In every death the evidence as to punishment “hotly — fact, contested” and even if it is not as a matter of we treat it as such —because a life hangs the balance. Without question, when juror case, weighs a recommendation of punishment a capital strength the evidence of guilt is still his or her mind and Here, is of significant -importance. the evidence of defendant’s guilt was overwhelming, and the manner of the killing was brutal. majority says only “we can speculate as to what weight consideration the gave the kidnapping.” Is that not true in every case which an aggravating factor has erroneously been submitted? That is precisely why this Court is compelled to make analysis. the harmless error By making the analysis, we direct and focus our attention on precise question of whether we are that, circumstance, say able to absent the offending there is a possibility reasonable would have reached a dif- ferent result.

“In capital sentencing procedures, erroneous submission of an se; circumstance ... aggravating is not reversible er- per [such] Daniel, ror subject to a harmless analysis.” error [is] 308, n.2, 216, (1987). N.C. 315 354 S.E. 2d 220 n.2 Where the evi- here, dence against is overwhelming, as the Court say has not hesitated to that: are here convinced that the error beyond was harmless

[W]e a reasonable doubt and that the result of weighing proc- the by the jury ess used have would not been different had the impermissible aggravating circumstance not been present. Our review of the voluminous evidence offered the State IN COURT THE SUPREME submission the circumstance aggravating us that of convinces the committing the murder was committed while rob- that was not error. bery prejudicial the evidence the considering supporting addition circumstances, of jury the was course

proffered aggravating of guilt/innocence phase aware of the evidence offered at the Thus, of underlying even submission the though the trial. the error, felony overwhelming evidence other supporting statutory weighing us that the factors convinces aggravating compromised. not been has process 784, 785, 249, 288, 761, 286, 2d 283 S.E. Taylor, denied, denied, 2d 463 U.S. L.Ed. reh’g cert. 1249, 77 2d 1456 L.Ed. U.S. ag- its finding found that it based jury specifically The 15A-2000(e)(5) the alter- N.C.G.S. circumstance of

gravating § of the defendant committed the murder native that ground robbery of Wil- commission of the armed the during Williams Therefore, not find though properly even could liams. kidnap- committed during murder of Williams was the murder unchallenged finding still remains the there ping, Here, robbery Williams. the armed during was committed was error though survives even there circumstance aggravating as basis for offense an alternative submitting kidnapping Therefore, it a determination that circumstance. the aggravating theory for as an alternative kidnapping to submit was error jury’s not find- does invalidate circumstances aggravating 15A-2000 under N.C.G.S. aggravating circumstance ing (e)(5). § let a death for this Court inconsistent completely It factor is erroneous aggravating where an entire sentence stand (as when the hearing ag- sentencing a new grant Taylor) theory. one erroneous survives but contains factor gravating of defendant’s the evidence characterizes majority Even the re- The concedes majority also “strong.” guilt Quick, Anna the murder of of death for recommendation turned a ag- for an as a basis possible submitted kidnapping where two brutal guilt of defendant’s evidence factor. gravating Corp. Systems, v. Business Inc. Olivetti Ames We also know the defendant killed a overwhelming. murders the same as a of same part third manner course of person Robbins, 309 S.E. 2d conduct. See State similar; killing in each were all three murders The wounds with, case, execution-style shots each behind the killings ear back. and in the

I am convinced that the error the submission of the kid- theory offense as a napping aggravating circumstance to murder of Williams first-degree was harmless and does not hearing. entitle the to a new sentencing SYSTEMS,

OLIVETTI CORPORATION v. AMES BUSINESS INC. 418PA86 No. (Filed 1987) 2 June misrepresentations § 1. Fraud 12— material —sufficiency reliance of —reasonable evidence competent judge There was evidence before the trial from which he could defendant, plaintiff misrepresentations find that Olivetti made material processors, reasonably dealer in word Olivetti and that defendant relied on the misrepresentations where defendant’s evidence show tended to that Olivetti falsely NBI, agreement told defendant that an between Olivetti and the manu- processor, Olivetti five-year facturer of an word update contained a software trouble, provision, agreement that the was not and that Olivetti would con- support processor years; tinue to the word imperative for five it was long-term to offer update defendant be able software agree- feature of the potential ment to customers in to sell equipment; order the Olivetti in order to purchase induce defendant continue to processors, Olivetti word Olivetti in- tentionally withheld information from defendant that Olivetti had breached its agreement NBI longer NBI manufacturing with was no the Olivetti word maintenance; processor providing updates software defendant did not have to the access nature of relationship the Olivetti-NBI except as Olivetti; represented to it purchase and defendant continued proc- word essors from Olivetti for resale would but not have if done so it' had known of agreement. true status the Olivetti-NBI 2. profits 16.3— lost inapplicable future Damages, 8 business rule in N. C. —new rule, precludes The “new business” which damages an award of for lost profits allegedly damaged future where the party has prof- no recent record of itability, is the law in North Carolina. There per be no should se rule against damages profits the award for lost future where are shown requisite degree certainty. with the

Case Details

Case Name: State v. Robbins

Court Name: Supreme Court of North Carolina

Date Published: Jun 2, 1987

Citation: 356 S.E.2d 279

Docket Number: 599A83

Court Abbreviation: N.C.