State v. Rook

STATE OF NORTH CAROLINA JOHN WILLIAM ROOK

2No. (Filed 1981) 3 November § hearing sufficiency 1. Law Criminal 76.7— dire confession —voir of evidence to — findings support hearing admissibility a The evidence in voir dire to determine the supported by findings defendant’s confession court an officer trial that charging called and defendant a liar then read a warrant to defendant him murder, failing with and court err did not find to that the officer also “good against told defendant he had where evidence” him the evidence on that Furthermore, point conflicting. supported findings by was the evidence also spoke angry the court that an officer to defendant in a loud but not an or voice, threatening tone of that an officer advised defendant that he neither nor help only thing officer him help another could and that the him could truth, to help tell and that no officer made offer to defendant with the attorney drug problems district or with his alcoholic if he confess. would § 2. —ques- Criminal Law 76.10— confessions —conduct of officers —voluntariness law tion of language investigating Whether the conduct and officers amounted by promises hope such threats or or influenced the defendant and fear as to involuntary subsequent question render confession is a of law reviewable on appeal. § 3. warnings Criminal Law 75.5— confessions —Miranda —test of voluntariness Arizona, procedural safeguards by required Even where the Miranda v. by signs stating are recited U.S. officers and defendant a waiver counsel, rights, including right his he understands constitutional admissibility test of ultimate confession still remains whether the voluntarily understandingly statement made accused was in fact and given. § help —sufficiency 4. Criminal Law 75.2— confession not induced offer of findings evidence supported The evidence voir dire the trial court’s determination that help to a keep defendant’s confession murder not induced an offer of receiving penalty prison defendant from so death that he would be sent help drinking drug problems where he would receive for his and that the voluntarily understandingly confession was made. § —promises 5. advantage Criminal Law 75.2— confessions of collateral Any concerning help regard statements officers for defendant with family drinking problems entirely defendant’s related to matters collateral against charges criminal him and would render defendant’s confes- involuntary. sion IN THE SUPREME COURT Rook

State v. § requisites 20— of for search warrant affidavit 6. Searches and Seizures upon purely which con- A affidavits are warrant cannot be issued search upon clusory underlying the af- circumstances which which do not state and founded; must facts or probable is there be fiant’s belief of cause premises implicate to searched. which be circumstances in the affidavit sufficiency § 23— of for search warrant affidavit 7. Searches and Seizures support of a warrant to An to issuance officer’s affidavit was sufficient which lived for “a wooden club or instruments search defendant the trailer club, bloody clothing, of a a instrumentalities” used as and other could be “rape, alleged and cir- kidnapping, murder” sufficient facts where the affidavit probable a club or in- cause to believe that “wooden cumstances to establish “bloody clothing” be club” constituted struments that could used as a and club, object investigated, appearing an being evidence crimes that a or club, possession a used as instrumen- to be tality was in the of defendant and was an “bloody clothing” committing being investigated, and that crimes of committed or would reveal the iden- would constitute evidence tity the offenses offenses, alleged participating where the person of a in those and affidavit cause circumstances to establish reasonable to believe sufficient facts and bloody clothing premises object be found on the to would club-like be searched. 80; 135.4; penal- § § § 31.3— Criminal Law Homicide death 8. Law Constitutional constitutionality ty-list aggravating of circumstances — statute, penalty listed in 6.S. aggravating The the death 15A-2000(e), vague process or to a ar- are not so as to violate due allow bitrarily capriciously impose penalty. the death heinous, —especially penalty § 135.4— or cruel 9. Criminal Law death atrocious constitutionality —sufficiency of statute of evidence murder — heinous, aggravating “especially atrocious or cruel” circumstance 15A-2000(e)(9) unconstitutionally vague listed in is not where it has been G.S. judicially apply only pitiless which to a “conscienceless crime construed Furthermore, unnecessarily aggravating such torturous to the victim.” cir- degree properly first cumstance was submitted to the in this murder case aggravated battery amounting where showed an of the victim the evidence necessarily great pain physical torture caused her and emotional distress. degree theory premeditation § 10.Homicide 21.5— first of and delibera- murder — tion-sufficiency evidence of charge degree of first murder under Submission theory improper premeditation and deliberation was not because the State containing that he did not introduced a confession defendant’s statements (1) mean victim a knife or to her with a car where to strike the with run over theory degree charge premedita- submission the first murder under supported defendant a tire tion and evidence that obtained deliberation resisting tool of vehicle because victim defendant’s from the trunk advances, deliberately struck the victim with the tire tool sexual sexually assaulting prior her her and continued to beat head area thereafter, injuries significantly and the to the head area contributed to the (2) death; victim’s blood loss and ultimate defendant’s statement that he did not mean to competent strike victim with the knife was contradicted (3) evidence; physical circumstantial evidence at the crime scene con- tradicted defendant’s assertion that he did not mean run over the victim with the car. 135.4, §§ degree premeditation 11. Criminal Law 138.4— first murder — felony underlying felony deliberation and murder theories— cumstance-punishment underlying felony for guilty degree Where defendant was found of first murder on both theories, premeditation felony and deliberation and murder the trial court properly cumstance, felony underlying rape submitted the of an as impose punishment rape. and the court could additional for the 135.4; § penalty § 12. findings Criminal Law Homicide 31— death as to —written mitigating required circumstances not jury permitting The trial court did not err in to return its recommen- degree for a in requiring dation sentence of death a first murder case without writing finding mitigating to indicate its as to each circumstance it, statutory requirement submitted to since there is no or constitutional of Furthermore, specific findings mitigating circumstances. defendant was not prejudiced require specify failure of the trial court to mitigating Supreme factors it where the found exist Court could not con- arbitrary, disproportionate clude that the death sentence was excessive or jury accepted if even as true all sixteen circumstances submit- ted to it. penalty disproportionate § 13. Criminal Law 135.4— death or excessive Imposition penalty degree dispropor- of the death for first murder was not excessive, defendant, considering tionate or the crime and the where the tool, viciously the victim evidence showed that defendant beat with a tire knife, her, raped body repeatedly with a ran over her cut her battered with an lonely automobile and left her to bleed to death a field. concurring part dissenting part.

Justice Exum Appeal Clark, from entered at the judgments Judge, Court, County. Superior Session October Criminal WAKE degree rape, kidnap- was convicted of first Defendant degree his conviction of first and first murder. For ping, degree murder, Defendant received defendant was sentenced death. and first kidnapping life sentences for the crimes of consecutive to this appeals these degree rape. judgments, From all right. as a matter of Court IN THE SUPREME COURT

State v. Kook Edmisten, General L. Attorney Attorney Assistant Rufus J. General Michael State. Carpenter, for Heidgerd C. D. and J. Franklin Jackson the defendant. for CARLTON, Justice. brings assignments relating

Defendant forth of error matters, error alleged guilt several an in the determina- pre-trial alleged relating tion trial and several errors phase After a consideration sentencing phase his trial. careful us, we find no these well as the record before er- assignments, ror in of these and affirm. proceedings

I. trial, evidence for the State tended to show that at ap- At Roche, May 7:20 Ann Marie proximately p.m. on nurse, Ferry was home on Road. She registered walking Avent was jeans, wearing glasses was clad in a T-shirt and blue As she was Lake gym bag. nearing Raleigh a brown carrying defendant, a Mercury who driving Road intersection onto neighbor, borrowed from his turned left Lake automobile and her beckoned Ms. path. Road blocked Defendant Raleigh The and she his car. two talked for several approached Roche and, seconds, within began arguing minutes and then defendant began beat her. Jr., Harris, was Howard B. who lived

All of this observed Road, Edward was Ferry George Schlager, jog- and who on Avent car by. Schlager just Mr. the as defendant was approached ging was the with her back ground Ms. Roche. Ms. Roche beating were cut driver’s Her face and arms and against door. her, armed with a crouching and was over bleeding, one or inches in object stick or other about two diameter. some Mr. asked if and defendant stood and help he could Schlager on, man, you.” Mr. “just Schlager this doesn’t concern replied, go saw Harris went to confer with him. Both then saw Mr. and seat, with her head passenger car Ms. Roche in the leave with down, Mr. toward the car observed Schlager jogged crying. number, a He wrote number on match- RAP-980. license Mr. Harris. a gave copy book and of it Dodd, Atkins persons, Two other Donna and Pamela ob- struggle served the between Ms. Roche and her assailant. Ms. Atkins as Ms. positively identified defendant the assailant. Dodd observed a man a woman. beating young She testified:

I saw brutally. a over the seat a guy beating front The girl jar wheel was steering appeared beating at times he her they so hard. Then were out of the car. He was her swinging hair around on the I can ground once that remember. I At ran that time in the house and called police. Dodd Although identify Ms. did not as positively the assailant defendant, description her of the assailant matched that of the defendant. Holloway

Officer Ronnie arrived the area approximately at area, 7:30 p.m. response Although to the calls. he patrolled he could not find the car. Cash, May

On 7:30 approximately p.m., Norman patrol officer with Dorothea Dix Hospital, was on routine patrol in the area south of In a just Raleigh. open Lake field he large, discovered a a billfold. A pile clothing away, short distance body County he observed a and notified the Wake Sheriffs Department. Deputy County Pickett of the Wake Sheriffs Depart- he, too, ment was body. called observed the At 8:45 p.m., Of- Hensley, ficer E. William a crime scene was specialist, called to badly body, scene. He observed a white female bruised and battered, body with cuts and abrasions. The around ground body with blood. was covered The nude and was approx- T-shirt, imately thirty-five pile feet from the A clothing. blue jeans were glasses recovered well as other articles in- cluding bag. body brown as Ann identified Marie Roche.

From the license number recorded Mr. Schlager police May were able the car and locate the owner. to trace On Holloway Officer went to Drive car in ques- Stovall and found the tion. and Surveillance was set the car was up subsequently Edwards, owner, It was Ms. stopped operated officers. who her told the that defendant had borrowed car on police May 12 1980. She he evening police told that when borrowed car, barefooted, jeans, defendant dressed blue THE COURT IN SUPREME Rook

State v. description This in a tail. pony back his hair pulled and had the assault. witnesses by all given matched was ob- defendant and the area continued of the Surveillance Raleigh parked. car was near where the a entering served trailer door, trailer, and on the knocked approached officers police males, two white were two white Inside were told to enter. W. requested permis- G. Black Sergeant child. and a small females Shortly and this was denied. search for defendant sion to however, thereafter, hallway of the came from the stated, De- for.” you’re looking one “I I’m the guess and trailer in a car. custody patrol and placed into was then taken fendant a P. Sheriff J. Bissette obtained May Deputy On defendant had been where warrant to search the trailer search search, Officer During a search. arrested and conducted jeans. blue Of- a of blood-stained pair and seized Bissette found search, Finland Rapala found a Hensley, assisted in the ficer who vehicle parked the dash of a carrying and a case on knife leather Mercury vehicle inspected He then in front of the trailer. County and found Wake Courthouse had been taken to the caught as well as between grass driver’s side fresh stains on the on the hub- He observed red stains of the vehicle. certain sections Ms. autopsy During underneath the vehicle. caps Roche, circular Hensley impression, an unusual Officer observed size, He noted right hip. on the five centimeters approximately Mer- area in the chassis of the five centimeter corresponding a cury automobile. came crime scene on the Mark Nelson agent

S.B.I. 11:30 He made May p.m. at approximately evening that one opinion stated numerous tests observations bloody ob- bloody large smear was consistent with the particular body, slope rolled or down the being dragged like a ject, Mercury automobile and found blood He also examined the field. vaginal He also tests on the performed in numerous places. body and the presence from Ms. Roche’s found anal smears taken of sperm. autopsy D. conducted the pathologist,

Dr. Dana Copeland, May part 1980. He observed cuts on the front Ms. Roche on The cuts were across and were body, straight all parallel. of her uniform, depth, and uniform depth. placement shallow Dr. Copeland’s opinion, indicated that the cuts had been made deliberately shallow and “with some care and effort.” His conclu- was sion that Ms. Roche’s cuts were caused a sharp instru- like a ment knife. Dr. Copeland found numerous lacerations on were, her head and hands which in his opinion, produced by a beating long, with blunt instrument awith round sur- striking face. In addition to the numerous cuts and abrasions throughout body, Ms. leg her left was completely fractured and Roche’s broken at the was top. pelvis fractured and separated. Com- pression injuries in the pelvic region were consistent with her been having struck an automobile. Severe internal bleeding which, had place injuries taken and he found vaginal area in his opinion, could have been produced forcible sexual inter- course. Her rib right was also broken. In Dr. Copeland’s opinion, Ms. Roche died as a injuries result of loss of blood from the she Moreover, sustained. his opinion that she could have remain- ed alive from a of two hours a period up twenty- to maximum of four receiving injuries hours after observed.

At 8:12 approximately p.m. May on 15 Freddie Deputies Benson and Ted Lanier and Raleigh Detective J. C. Holder of the Police Department began interviewing Deputy the defendant. Benson advised defendant of his rights Miranda and defendant a signed waiver of form. he rights Defendant stated that understood his rights. Deputy Benson left the room and Detective question Holder defendant. He advised began again was calm rights and defendant and in control. Detective me, “Johnny Holder looked at and he said that he testified if I I I hap- did it. He asked me told him that was not happy. said, I you girl.” ‘What did do.’ He said that he killed that py. a give Defendant then Officers Holder and Lanier proceeded complete statement. to the officers can be summarized as

Defendant’s statement he a Drive and May 1980 was at cookout on Stovall follows: On Mercury He borrowed the from Ms. Edwards needed more beer. A P where he and drove to & Store Western Boulevard charcoal. he into bag Upon leaving got store purchased they and ran and hid until left. He then person with a black fight Ferry an on Avent Road and removed apartment complex went to laundry As he money coin-operated machines. some from Ferry walking Road he saw Ms. Roche drove down Avent IN THE SUPREME COURT Rook

State v. road, waved, dirt into the first She and he turned his horn. blew turned, Ferry Avent Road to headed toward and and sat backed car, pinched he up When Ms. Roche walked the girl. await him, He then they scuffling. apolo- began She and slapped her. her to already hurt her arm. He asked said he had and she gized, A jogger up the car. came got with him and she into riding go eyes keep his jogger and defendant told during the scuffle Avent then drove down he was He and Ms. Roche doing. on what turns, and, they a few Ferry making headed south after Road get told her to out of eventually a wheat field. Defendant reached resisted, She and he told pants.” into her get the car and “tried to vehicle, gun” his “damn from going get her he was to have fact, a tire tool got have one. Defendant he did not although, car, As pants. Ms. Roche removed her of the and out of the trunk so, of the head and she fell to her on the side she did he struck intercourse with her. She had forcible sexual He then ground. hair, four or five he to hit her some began his pull tried to face, shoulder, on his wrist and blood got times on the head defendant, his knife at her and cut swung he According to pants. neck, her. mean to cut He then but he didn’t her on the face and resisted, intercourse, he hit her and when she anal attempted and, bleeding. laid there De- just she fighting, instead again, He to turn around. his car and drove down got then into fendant wheel, knew he had run but barely steering see over the could got he heard a and the car thump car because over her with the home. free the car and then drove He the tires to spun stuck. arrived, He returned to were at the trailer. police he When body as clothing on his the blood explained the cookout and A P. at the & fight result of the con- May defendant p.m. 10:26 At approximately Officer taking place, to this interview. Prior taped sented to a again and defendant rights defendant of again Holder advised Later essentially confession summarized above. repeated other of- Detective Holder and accompanied defendant evening, items involved showed them various crime scene and ficers to the in the crime. determination during guilt offered no evidence

Defendant the trial. phase guilty defendant finding verdict receiving

Upon murder, the court kidnapping, rape, degree first degree first FALL TERM convened the sentence determination before the phase trial jury. same The State offered no evidence during phase, rely instead choosing upon guilt the evidence introduced at the determination phase. evidence presented through sister, his brother and who described in detail their life with their Their parents. parents constantly were violent and drunk and beat their frequently. children Their father time in spent prison, and the children were placed foster homes. Defendant was forced begin years his father drinking before he ten age get heavy and would “stone-drunk.” Defendant became drinker and user. drug Rollins,

Dr. Bob specialist forensic examined psychiatry, defendant diagnosed defendant as having mental disorder emotionally unstable as a result of dur- personality experiences ing years. his formative Dr. Rollins also testified that defendant was able proceed to trial in that he his legal understood situa- lawyer. tion and was able to cooperate with his Dr. Rollins felt with, that defendant what he was charged understood the dif- ferent he make and pleas might possible consequences of the situation. He further testified:

Mr. just satisfactory Rook has never been able to make a ad- justment society, out not been able to get along peo- with violence, ple. He’s been involved in he ever longest had weeks; been is employed three he can’t get along with his wife, family, anybody. own with his just or with He doesn’t have capacity to do that.

It was Dr. Rollins’s opinion also that defendant sexual associates gratification sexually with violence and aggressive acts and ex- defendant, cited violence and His aggression. opinion was that extent, “enjoys to some inflicting pain on other Dr. people.” Rollins was opinion of the that defendant would not benefit from psychiatric treatment and believed that defendant’s conduct would continue in in a the future manner similar to that of the defendant, if he were past go free. In Dr. Rollins’s opinion, crime, the time of the was aware that what he was doing he wrong that would be held for his responsible actions. Chief F. Judge George District Court Bason of the Tenth Judicial Dis- years trict Mr. during testified that Rook was involved in courts, juvenile no beneficial program was available to him. help COURT IN THE SUPREME v. Rook Halleck, that testified Seymour psychiatrist, Dr. exposure from his resulted brutality probably defendant’s suf- testified that defendant He also brutality himself as a child. insane. He stated: he was not although illness a mental fered much uses as anybody on the fact my I opinion base who has this kind as he has and many drugs alcohol and social learn- so little moral or history deprivation, of so much issue, anybody drug it on the I’m based ing, primarily but judgment, rational cannot exercise drugs these who uses anybody family as in this of alcoholism found degree with a disease, definitely a disease. alcoholism is this kind of defendant would Dr. Rollins that with agreed Dr. Halleck of time. period for brief treatment benefit from psychiatric instructed testimony, the trial court of the At the conclusion Three sentencing phase. (1) murder whether the jury: were submitted cumstances in the commission of engaged while was committed (2) victim; was committed whether the murder rape of the kidnap- in the commission engaged the defendant was while (3) victim; was especially whether the murder ping of heinous, cruel. Sixteen atrocious or beyond a reasonable jury.1 found were submitted to the mitigating submitted to the were: 1. The circumstances William was under the was committed while John Rook That this murder emotional disturbance. influence of mental or criminality appreciate con- capacity William Rook to of his The of John requirements im- of the law was his conduct duct or to conform paired. mitigating age William at the time of this murder The of John Rook circumstance. Rook, years, subjected cruelty was and William in his formative John by parents. physical abuse his Rook, years, subjected to mental abuse William in his formative John parents. his Rook, years, subjected in his formative to emotional William John parents. abuse his loving and affectionate husband to his wife. William Rook has been John ag- and that circumstances the aggravating doubt each of sufficiently to call for were substantial circumstances gravating The also found one death penalty. imposition circumstances, designate it did not although mitigating more found, beyond a then found were and of the sixteen which outweighed doubt that reasonable returned a recom- The then circumstances. and the court imposed, death be penalty mendation that for the crime of the death penalty judgment imposing entered consecutive life also received murder. Defendant degree first degree rape. and first kidnapping crimes of for the sentences right Court. appealed defendant judgments, From these II. Phase Pre-Trial trial, which were motions entered several Prior motions provides of these court. denial by the trial denied ap- on this contentions primary for four of defendant’s the basis his denying court erred the trial He first contends peal. findings because the statements custodial suppress motion to by suffi- supported were not in the order trial court fact of the and loving to his brothers and affectionate has been William Rook John and their children. sisters is an alcoholic. William Rook John drugs. drugs is addicted to and William is an abuser

John Rook sexually whom he lived an man abused older Rook was John William stable home en- years have a more old in order to he was 10 with when vironment. he was childhood deprived and chaotic had a William Rook John criminality parents. in violence schooled very education IQ received little an of 71 and now has William Rook John years. his formative Rook, very religious years, little received in his formative William John training. moral cooperated to what he did in detail as confessed William Rook John Department Raleigh Police investigators with the detectives Department to his involvement. County Sheriffs Wake (16) arising the evidence from Any or circumstances other circumstance mitigating value. you, jury, to have deem IN THE SUPREME COURT 212

State v. Hook cient competent evidence. He also contends that the trial court erred in that his ruling voluntary confession was in that it by was obtained the influence of or fear hope implanted in his by mind the acts and statements of officers police during his interrogation. custodial Defendant also contends that his motion all suppress evidence obtained as a result of the search war- rant issued for the trailer on Mercury Stovall Street and the automobile should have been allowed because the record reveals insufficient facts or circumstances to support finding of prob- by able cause magistrate who issued the search warrant. Finally, defendant that his contends motion to dismiss the pro- 15A-2000 ceedings pursuant to G.S. should have been allowed on grounds that section of our General un- Statutes is constitutional on its face and as to him. We applied discuss these contentions seriatim.

A. statements, ^[1] As a result of defendant’s motion to the trial court conducted an extensive voir dire hear suppress his custodial admissibility on the ing of the statements. Evidence was Thereafter, presented both the State and defendant. the court entered extensive of fact and conclusions findings of law and order, denied the motion. With the trial respect court’s defend first findings ant contends that certain of fact contained therein were not supported competent substantial evidence. We no find merit to this contention. acknowledges general jurisdiction

Defendant rule in this of fact made the trial court findings following a voir dire on the voluntariness of a confession are hearing conclusive on ap- by competent courts if evidence in the pellate supported record. (1975). Pruitt, 212 S.E. 2d 92 No reviewing N.C. may modify court set aside or those if so properly findings sup- (1971). Barber, 268, 179 State v. S.E. 2d 404 In- ported. N.C. deed, a trial will judge’s findings appeal not be disturbed when is evidence even finding supported competent when there McRae, 172 S.E. conflicting evidence. State 2d Here, the trial court found as fact that “Lieutenant Benson liar, advised the that he was a G.D. and then read warrant him charging with murder and advised him that he was being charged with murder.” contends,

Defendant admits the truth of this finding but however, that it is incomplete. argues Defendant that this finding should include statement to the effect that Benson stated “He had good against evidence him and that he [the defendant] go didn’t down to the magistrate get warrants for first degree good murder without evidence him.” against Defendant by contends that the made the trial finding court is not a fair and clear statement of the transpiring events on the of 15 evening May 1980 absent the he would We language disagree. add. While there is some evidence from the defendant on voir which sup- dire ports his contention as to events transpiring during interroga- tion, other evidence before the trial court voir dire supports Indeed, the finding flatly as stated. Detective Holder denied that Detective Benson told the defendant that he “good had evidence” testified, implicating the defendant. Detective Holder “At the time say Freddie left the room he did not anything [Benson] Hence, him other than him liar.” calling [Emphasis added.] evidence, trial by court’s finding supported competent there was no error in the failure of the trial court to make the ex- tended finding formulated the defendant.

Defendant next contends that the following of fact finding was also not supported evidence: competent “That Officer Ben- son spoke to the defendant in a angry loud but not an or threaten- ing tone of voice.” Defendant contends that the finding that the tone of voice used Officer Benson during interrogation was not angry or is not threatening supported evidence. Defendant relies, in primarily of this support argument, on the response that, Detective Holder on cross-examination “Freddie Benson very became angry and at that time.” We upset do not think the testimony quoted contradicts the trial court’s finding that Benson’s voice was not “angry threatening.” Immediately testimony, following quoted Holder further testified that yell “Freddie Benson raised voice. He didn’t him. just He Moreover, that, raised his voice.” Benson himself “I testified used a loud tone of voice to tell him he was ... I lying any did not at threaten, time make promises or strike Mr. I Rook when was incident, Immediately the room.” following Detective Ben- son left the room part and took no further in interrogation of the IN THE SUPREME COURT Rook

State v. Thus, Benson’s that Detective finding the trial court’s defendant. by evidence angry supported was loud but not of voice tone binding and is on this Court. of fact: objects following finding

Defendant next he Officer Lanier that neither nor advised the defendant “Holder him was to only could thing help and that could him that help is conflicting while there Defendant contends that the truth.” tell defend- did in fact tell the Detective Holder evidence as to what him, is clear the tenor of Holder’s it that concerning helping ant to his confession concern prior defendant conversation with Defend- drinking drug problems. him for his giving help with promised help Holder to “implicitly” that Detective ant contends concedes we Even the defendant Again, disagree. the defendant. we find “conflicting,” is that finding that the evidence on this evidence which the trial compelling supports record reveals testified: court’s Detective Holder finding. said, Johnny, I I Johnny help

I can’t point, told at that only you can is you. you. thing help We The that help cannot . . . the truth. only

I for him to thing that the reemphasized point truth, I help that could not do at that to tell point him, him. help Mr. Lanier could not you, Johnny,

... I I can’t Mr. Lanier cannot help told you And you. that can is the truth. thing help help was it. that times, And, I Johnny, I I said Johnny

. . . told several you. help can’t

Clearly, support there is abundant evidence to trial court’s finding. court erred in enter-

Defendant next contends that trial of fact: following finding ing advise promise time did either officer defendant

At no be in court or with the District helped he could or would that Attorney him and offered no to charges against help on the problems. with his alcoholic him FALL TERM v. Rook similar to findings other also contends that certain Defendant him with help respect the offer of regarding above quoted by evidence at the voir unsupported are problems his alcoholic contends, fully in the as we address more Defendant hearing. dire clearly shows that the evidence opinion, of this next section help keep an offer of confession was induced defendant’s that, for con- in return penalty the death receiving him from he where prison he would be sent he was told that fessing, All find- drug problems. drinking for his help would receive contends, are contrary, unsupported ings to the evidence. in this contentions merit to defendant’s simply

There is no all of the testimony support with replete The record regard. to defendant was made help that no offer findings court’s trial example, For make confession. induce him to in order to Detective Holder testified: be he could Mr. Rook that

I or advised never offered with helped he could be I never advised that in court. helped charges. to these Attorney’s respect Office with the District Mr. Rook help Lanier me nor Mr. offered . . . Neither under- He seemed to specifically. problem his alcohol with help. get he could prison if he went back to stand that any I make any at all. did not help him not promise We did him. pending against charges respect with promises room, Mr. said, anyone in this Johnny, I is there ... I have they Lanier, Mobley, promised, have Miss myself and or any you pressure under you put or threatened promised said, no. He statement. any way make this in you coerced Mr. touched interview of the course during No one him, manner, or do strike threatened person Rook’s to him. nature of that anything fact is therefore, findings of hold, challenged of the that each

We binding record evidence by competent supported findings Moreover, remaining have examined we this Court. 216 IN THE SUPREME COURT of fact the order denying suppression defendant’s confession by find that each of them is supported competent evidence hearing. adduced at the voir dire These assignments of error are overruled.

B. With respect to the trial court’s order denying defendant’s statements, motion to his custodial suppress defendant next con- tends that the trial court’s findings of fact do not support its voluntarily conclusion of law that his confession was and under- made. standingly Defendant contends that the circumstances of his confession were such that by the confession was obtained influence of and fear hope implanted by his mind the acts and statements of police officers his custodial during interrogation. As noted in the preceding section of this opinion, [2, facts 3] by found the trial court are conclusive on appellate courts when Nevertheless, supported evidence. competent the conclusions of law from drawn the facts found are not binding on the ap (1968). 283, pellate court. State v. 272 158 S.E. Bishop, N.C. 2d 511 Hence, whether the conduct and language of investigating ficers amounted to such threats or promises or influenced the defendant fear as hope and to render the subsequent confes law, contends, involuntary sion question is a as Fox, 277, reviewable on (1968); 274 163 S.E. appeal. State N.C. 2d 492 23, 29 S.E. 121 Biggs, 2d Even Arizona, where the procedural safeguards required Miranda v. 384 U.S. (1968), S.Ct. L.Ed. 2d are recited the officers and defendant a waiver signs stating that he understands his constitutional counsel, rights, his including right admissibility

the ultimate test of the of a confession still by remains whether the statement made was in accused fact voluntarily and understandingly given. The fact that the technical procedural requirements by of Miranda are demonstrated not, alone, is prosecution standing controlling question voluntarily whether a confession made. understandingly The answer can found question to this be from considera all surrounding tion of the statement. v. State 283, 511; accord, 272 158 S.E. N.C. 2d Davis v. North Bishop, Carolina, 737, 1761, (1966); 384 U.S. 86 16 L.Ed. 2d 895 S.Ct. State Pruitt, 442, 212 S.E. 92. N.C. 2d ^[4] Our inquiry, therefore, is whether the facts revealed by record before us indicate that the challenged confession was ob by tained the influence hope or fear implanted defendant’s by mind acts statements of police officers during defendant’s custodial interrogation. rule in long-standing jurisdiction was by stated Taylor Chief Justice in State v. (1 Dev.) Roberts, (1827): 259, 12 N.C. is,

The true rule that a confession cannot be received in evidence, where the has by any Defendant been influenced for, remarked, threat or promise; justly it has been mind, under pressure calamity, is prone truth, indiscriminately, acknowledge, a falsehood or a as dif- agitations may ferent prevail; and therefore a confession ob- fear, by tained slightest emotions hope or ought to be rejected. Henderson,

Justice concurring, set forth the rule which we have followed since:

Confessions are voluntary either involuntary. They are called voluntary, when made neither under the influence fear, of hope or but are attributable to that love of truth man, which predominates in the every breast of operated him, which, by upon other motives more powerful with it said, man, is in the perfectly good cannot be countervailed. truth, These confessions are highest evidences of even in said, truth, cases affecting life. But it is and said with fear, are, by confessions induced hope, or exhorted of all evidence, on, kinds of the least be relied and are therefore entirely to be . . . rejected. Pruitt,

Id. 261-62. In 212 S.E. 2d Branch, Justice, Justice now Chief noted the rules quoted above and summarized the numerous cases decided this Court involv- Here, ing various factual backgrounds relies on Pruitt question. on this support contention that his confession was think, however, obtained the influence of and fear. hope We Pruitt, that his reliance on Pruitt In misplaced. the interroga- tion of defendant three police officers took in a place “police- dominated atmosphere.” The evidence was uncontradicted that the officers repeatedly they told defendant that knew he had com- it; mitted the crime and story that his had many too holes in IN THE SUPREME COURT they want “fool around.” Such he was and that did not to “lying” circumstances, held, rise to the inference that the gave this Court by Such language provoke fright. used the officers tended to by con- was then statements that the officers language tempered thing defendant “that such a would type person sidered heavily he it off his upon” get and that would be “relieved prey “flattering” capped chest.” These statements were the state- him if ahead go ment that “it would be harder on he didn’t simply concluded, “Certainly Branch the latter cooperate.” Justice statement would that would be imply suggestion hope things ie., if he Id. at cooperate, better for defendant would confess.” 458, 212 S.E. 2d at 102.

Here, any oppressive there is no evidence of environment the room was interviewed. It a normal in- where defendant Courthouse, County terview room at the Wake approximately feet, eight feet fifteen with a table and chairs and lighted Initially, lights. normal there were three officers in the ceiling room when was read his in- rights, but the evidence dicates that more one him no than officer talked with at a time. shortly Detective Benson left the room after the were read rights and Detective Holder became the sole questioner. Officer Lanier only'after questions asked defendant had confessed. We have held on numerous occasions that a confession is not made inadmissible law, merely because it made to officers or because de- arrest, jail, fendant was in or under or because it was given 442, Pruitt, response questioning. E.g., State N.C. Smoak, 92; S.E. 2d 195 S.E. 72 Moreover, subjected there is no evidence defendant was threats or violence or show of suggested per- violence to Indeed, him suade or induce to make statement. the evidence that was showed that no threats presented were made to the defendant, in any nor was he touched or struck manner. As discussed in the section of this preceding opinion, there is ample competent support evidence trial court’s findings Benson to defendant a loud spoke “Officer but not angry threatening tone of voice.” primarily,

Defendant relies apparently attacking the volun- confession, argument tariness of his on the that he was “induced” make an offer of “help” his statement from Detective 219 1981 FALL TERM v. Rook

State this opinion, As discussed in the section of preceding Holder. however, trial court’s competent support we find evidence Moreover, such was offered. the record that no finding “help” himself. from the defendant clear that all talk emanated “help” he “needed juncture At when defendant mentioned that each tell quick alcohol Officer Holder was help” problem, with his overwhelmingly The him not him. evidence help that he could of law that court’s of fact conclusion finding the trial supports through defendant’s nothing did to induce confession officers in State v. here is more similar to that hope or fear. situation (1977). Small, 646, Small, 239 429 In the uncon- 293 S.E. 2d N.C. had told the evidence showed that one officers tradicted “buy” he could one of defendant’s statements defendant that not held the truth. This Court that that defendant should tell showing that persuasive such “do constitute statements not by these of- police will was overborne acts of defendant’s 653, 239 S.E. 435. ficers.” Id. at 2d at

[5] Finally, we reiterate rule stated in Pruitt that any im must relief from the hope promise generating inducement proper relates, any and not to to which the confession charge criminal Here, concerning all discussions advantage. mere collateral drinking around defendant’s were centered for defendant “help” entirely are collateral Clearly, matters family these problems. him. charges against to the criminal consistently followed the rule enunciated has This Court Pruitt, we sum- In concurrence. Henderson his Roberts

Justice adherence to demonstrating cases Court’s numerous marized clear, however, custodial that have equally rule. We made it truth, officers to tell police an accused admonitions themselves, inadmissible. render confession do not standing (1955); 337, Thomas, S.E. 241 85 2d 300 State N.C. State (1946); v. Thompson, 40 S.E. 2d 227 N.C. Thompson, Such admonitions to custodial 32 S.E. 2d Here, us. the record before all we find from are tell the truth was am- of this there opinion, section preceding in the discussed defendant’s judge’s findings trial support evidence ple coerced, findings support in turn and the was not confession voluntarily was made statement incriminating that the conclusion admit- properly We the confession hold that knowingly. ted evidence. into IN THE SUPREME COURT

c. trial, Prior defendant moved for the exclusion of all evidence obtained as a result of the search of the trailer where lived and all evidence obtained as a result of the Mercury search of the automobile on the ground that there was probable cause for the issuance of the search warrant. The searches bloody resulted the seizure of certain clothing which was introduced into evidence against defendant. Defendant at- (1) tacks search question warrant on the grounds that application for the search warrant failed to contain sufficient facts and circumstances to indicate that the items sought constituted (2) crime, evidence of the search warrant failed to contain sufficient facts or circumstances to indicate that the items would be in the trailer in question.

[6] These arguments are governed well-established legal prin cause ciples. probable required the fourth amendment and 15A-243-245 G.S. is simply:

a reasonable to believe that the ground proposed search will searched, reveal the presence, upon premises to be of the objects objects sought and that those will aid in ap- prehension or conviction of the offender. [Citation omitted.] Thus, a the affidavit which search is upon warrant issued is if sufficient it reasonable cause to believe “supplies that the search for evidence of proposed the commission of the criminal will reveal designated offense the presence upon the objects they described of the will premises sought aid in the or conviction of the apprehension offender.” (1976) Riddick, 399, 406, 506, v. 291 230 S.E. State N.C. 2d 511 Vestal, 561, 576, 755, 278 (quoting State v. N.C. 180 S.E. 2d 765 (1973)). (1971), denied, Accord, Jones, cert. 414 874 U.S. State v. (1980). 298, 303, 299 261 S.E. 2d 860 probable N.C. Whether cause a exists for the issuance of search warrant depends upon prac circumstances, tical assessment of the relevant and each case Reviewing must be decided on its own facts. courts will pay cause, judicial of probable deference to determinations v. Aguilar Texas, 108, 1509, (1964); 378 84 12 723 U.S. S.Ct. L.Ed. 2d v. State Louchheim, 314, 630, denied, S.E. 296 250 2d cert. 444 U.S. N.C. (1979); 836 “the resolution of doubtful or cases in marginal determined be largely preference area should be accord- 221 102, 109, Ventresca, warrants,” 380 85 v. U.S. United States ed to (1965). 684, 741, 746, A warrant can search L.Ed. 2d S.Ct. conclusory and are purely affidavits which upon be issued af- upon which the underlying circumstances which do not state founded; be facts or there must belief of cause probable fiant’s be implicate premises in the affidavit (1974); Edwards, 209 S.E. 2d 758 286 N.C. searched. State 191 S.E. 2d 752 With these Campbell, us, af review the search warrant before we principles fidavit which it obtained. upon

Bissette, ^[7] An examination indicates that the items the application, sought included “a wooden prepared by Officer club club, bloody clothing, as a instruments that could be used crime,” be which was stated to other instrumentalities connection, application murder.” In this “rape, kidnapping, which averred: an from Officer Bissette contained affidavit vehicle, 15, 1980, Mercury, May 4:30 p.m., On #RAP-980, victim, murder Ann Marie license that N.C. Roche, 12, 1980, May forced into on being was seen Raleigh, person Drive N.C. The control located at Stovall vehicle, Howell, Ruby that it is her mother’s car states it all the time. She states keeps and that she drives it and Rook, 12, 1980, Johnny May her Monday, neighbor, on that Park, 15, View Trailer 1508 Stovall College lives who Drive, at Lot car 5:45 and returned the p.m. borrowed the car at car he At the time he returned the about two hours later. face and blood on his arms. marks on his had fresh cut hair he long male with blond that Johnny Rook is white the car he was At time he borrowed pony wears in a tail. . . . only. The murder victim jeans in blue and shoes dressed A car at 7:30 on vent p.m. forced into this being was seen Road a white male Ferry Raleigh wearing Road at Lake object an using appearing and shoes and jeans blue 13, body May Her found be a club to beat the victim. mile from this intersection one-fourth approximately body injuries. head and nude with massive clearly affidavit establishes contained The information a “wooden club or instruments cause to believe that probable “bloody constituted clothing” used as a club” and could be IN THE SUPREME COURT club, being evidence of the crimes that a or an investigated, ob- club, ject was in appearing possession be of defendant instrumentality and was used as an in committing the crimes be- “bloody ing investigated, and that would clothing” constitute evidence of the offenses identity committed or would reveal the of a person participating Additionally, those offenses. the items sought sufficiently to be discovered were described to enable of- identify ficers to them. however, argues,

Defendant application for the search warrant failed to sufficient allege facts or circumstances which would indicate that the items sought would be discovered in the trailer to be searched. We disagree. portion of the ap- plication with this dealing issue reads: 12, 1980,

Ruby . . . Monday, May Howell states that on her Rook, Johnny neighbor, who lives in Lot View College Park, Drive, Trailer 1508 Stovall borrowed her car at 5:45 p.m. returned the car about two hours later. ... At the time he borrowed the car jeans he was dressed in blue only. shoes She stated that he returned the car he went after to Lot his residence in the He park. lives in this trailer the first bedroom right. on the The trailer is by Barry rented trailer, E. Johnny Staton. Rook has access to the entire ac- cording Barry to a E. statement of Staton. . . . circumstances, These facts or in our opinion, supply reasonable cause to believe object that the club-like bloody and the clothing would be found on the premises to be searched.

The affidavit upon which the probable cause determination was based specific, contained purely conclusory, allega- tions and stated underlying circumstances upon which the affiant’s belief of probable cause was Clearly, founded. there were facts and circumstances in the affidavit implicating the premises to be searched. A practical assessment of the information before the magistrate clearly would allow a reasonable person to con- clude that the information contained in the application was credi- reveal, ble and that the proposed search would upon the premises searched, to be the of presence objects sought and that those objects would aid in the apprehension or conviction of the of- fender. Issuance of the search warrant the magistrate on the FALL 1981 223 TERM State, was, this him under the law of information available to clearly justified.

D. constitutionality By challenges defendant assignment this 15A-2000(e), of governing ag- the submission provision of G.S. first penalty phase degree in the of a circumstances gravating trial, case. ex- both on face and as in this applied murder its the trial assignment challenge on which this based ceptions pre-trial penal- denial of defendant’s motion to dismiss the court’s entry judgment trial court’s im- ty proceedings and the phase recommendation. penalty upon jury’s the death posing permissible aggravating contends that list of Defendant [8] circumstances and amendments to eighth violates the fourteenth in that the circumstances listed the United States Constitution may arbitrarily cause vague overlapping are penalty. acknowledges Defendant impose the death capriciously constitutionality the issue of the this has considered Court 15A-2000(e) him, adversely issue and has decided the G.S. (1979), denied, 448 Barfield, 259 S.E. 2d 510 cert. 298 N.C. v. (1980), We ruling. that we reconsider requests 907 but U.S. so inclined. are not constitutionality Barfield, challenged

In the defendant “vague statutorily defined Court, per claim this Justice rejecting In without definition.” Britt, noted: necessity somewhat are

Sentencing standards fair to afford enough must be they particular While general. would penalty which of the probable warning they must also be guilt, general finding upon attach muta- various respond to the allow courts to enough to society ap- to warrant judged has which tions of conduct Gregg Georgia, criminal sanction. See plication 886-887, 194-195, While at 2935. 2d at S.Ct. L.Ed. U.S. at sentencing require standards these which the questions difficult, they not require do answer are juries to fact ordinarily of a required substantially than is more do Florida, 428 at U.S. See lawsuit. finder Proffitt 257-258, The issues at 2969. S.Ct. 49 L.Ed. 2d 224 IN THE SUPREME COURT v. Rook

State are to a posed at the of North sentencing phase Caro- lina’s bifurcated have a sense proceeding common core of Jurors in meaning. sitting who are a criminal trial ought to be them capable understanding them applying when they given are appropriate by instructions the trial court Texas, 279, Jurek v. 428 U.S. 49 judge. See at L.Ed. 2d at 939, (White, J., 96 S.Ct. at 2959 concurring). 353,

Id. at 259 S.E. 2d 543. We at adhere to reasoning this holding reaffirm our that aggravating circumstances listed in 15A-2000(e) G.S. are as not so to violate vague process due or to jury arbitrarily allow a capriciously impose the death penalty. assignment This of error is overruled. specifically challenges Defendant the constitutionality of

[9] statutory aggravating felony circumstance the capital being heinous, 15A-2000(e)(9) cruel,” or “especially atrocious G.S. § (1978), subjective it requires evaluation the evidence jurors. rejected We disagree. argument This this (1979). Goodman, 1, Court in v. 298 N.C. 257 S.E. 2d 569 In Goodman, recognized we that while the United States Supreme Court has found a similar language statute to be employing un latitude, constitutional because it allowed the much too 153, 2909, 96 49 Gregg Georgia, U.S. S.Ct. L.Ed. 2d 859 (1976), similarly has upheld Court worded statutes whose construction, carefully has meaning judicial been limited Prof 242, Florida, 2960, 428 U.S. 96 S.Ct. 49 L.Ed. 2d 913 fitt Accordingly, interpreted statutory Goodman we our ag “ “heinous, gravating circumstance of atrocious cruel” as ‘the unnecessarily conscienceless or pitiless crime torturous ” victim,’ 25, id. at 257 S.E. 2d at 585 (quoting State v. Dix (Fla. on, 1973), denied, (1974)), 283 So. 2d cert. 416 U.S. 943 same interpretation approved United States Supreme 255-56, Proffitt, 428 Court in U.S. S.Ct. at L.Ed. 2d at 924-25. reasoning Based on our and that Goodman Proffitt, United Supreme again States Court we once affirm constitutionality of this circumstance. Nor we think that the court’s do trial instructions this ag- vague circumstance were due gravating process. so to violate factor, jury: With trial court regard told the Rook Now, I you, jury, instruct members in this heinous, used, context is that word means extremely wick- Atrocious, there, ed or evil. as used shockingly means outrageously wicked and vile. And cruel means designed to to, high degree inflict a of pain with utter indifference or enjoyment even the suffering of others.

However, heinous, is it not enough that this murder be cruel, atrocious or as those terms just have been explained to you, heinous, this murder must have especially been cruel, every atrocious or and not murder is especially so. heinous,

For this murder to have been especially cruel, atrocious or any brutality which was in involved it must have normally exceeded that which in present killing.

The murder have must been a or conscienceless pitiless unnecessarily crime which was torturous to the victim. 15A-2000(e) This instruction with accords the construction of G.S. (9) Goodman, in adopted and its submission was proper on the evidence in this case. The evidence summarized in Section I of this opinion gruesome reveals the most murder imaginable and is sufficient to allow the to find that this was a “consci- or enceless crime pitiless unnecessarily which was torturous to the victim.” contends, however,

Defendant further that the decision of the 420, Supreme United States in Godfrey Court Georgia, U.S. (1980), 64 L.Ed. S.Ct. 2d 398 compels reversal our holding Goodman. We In disagree. both Godfrey, victims died instantly a gunshot from wound the head. The aggravating vile, cumstance of crime being “outrageously wantonly or hor- torture, mind, rible or inhuman that it involved depravity victim,” battery an aggravated was submitted the trial court and approved Georgia Supreme Court. United sentence, Supreme States Court reversed the death holding that Georgia Supreme Court had failed to be consistent in in- its terpretation of this aggravating circumstance. In deci- earlier sions, the Georgia Supreme had interpreted Court ag- circumstance gravating require showing of torture or aggravated battery to the victim. In the case of the Godfrey THE SUPREME COURT IN Rook

State v. murders, instantly United States and the the victims died way principled “There is no Court reasoned Supreme case, was imposed, sentence in which the death distinguish this 433, 100 at Id. at S.Ct. which was not.” many it from the cases 2d 409. 64 L.Ed. by Godfrey problem presented avoided the This Court has does not arise cases circumstance that this holding no in which there was unusual immediate and which death was 1, Goodman, 298 State v. N.C. on the victim. suffering infliction of 24-26, Moore, 569, 585; accord, 302 State v. Oliver and 257 S.E. 2d (1981). by the trial given 183 The instructions 274 S.E. 2d and the evidence interpretation here accorded with judge ag- submission of this the by supports revealed the record jury. aggravated The record shows circumstance to the gravating necessarily amounting torture battery of the victim Thus, we her and emotional distress. pain caused great physical re- complied hold with constitutional given that the instruction aggravating submission of the and that the quirements heinous, or atrocious especially the murder was cumstance that cruel was proper. statutory for determining We that the scheme conclude 15A-2000, case, is neither unconstitu- capital

sentence in a G.S. § to this defendant. applied tional on its face nor

III. Phase Guilt ing ^[10] his motion to Defendant next dismiss contends that the trial court erred charge of murder in the first degree deny In and deliberation. this con premeditation presenting based on tention, argues pathologist that the evidence from the defendant (1) establish that Ms. Roche and the defendant’s statement did injury immediately from one blow but from blood loss die (2) injuries; injuries that Ms. resulting from all of her by hitting were caused defendant’s her with a tire Roche’s head (3) tool; leg to her were caused defendant’s injuries that (4) automobile; and that the exculpatory over her with his running clearly introduced the State statements his confession to strike Ms. Roche with the that he did not mean established run her with De- nor he over the automobile. knife did mean to strongly fendant urges his own only statement was the evi dence introduced State as how injured Ms. Roche was ultimately and how she died there was no evidence con tradictory to the defendant’s statement that he did not mean to Hence, strike her with the knife or run over her. defendant State, argues that the introducing his confession in which he accidental, claimed that the knife and injuries automobile were entirely by bound truth of such statements that although the submission of the murder charge felony under proper rule, murder theory it was not under the proper of premeditation notes, and deliberation. This is significant, defendant because if submission of the murder were charge proper under rule, felony murder then rape should not been have submitted as an aggravating factor the sentencing phase under (1979), denied, S.E. Cherry, 298 N.C. 2d 551 cert. U.S. Had that aggravating factor not been submit contends, jury, ted to the jury might possibly have found that the numerous mitigating outweighed factors and would have recommended im life prisonment.

In presenting argument, defendant relying is primarily law principle by the of enunciated this Court in v. State (1961). Carter, 475, There, 254 119 461 N.C. S.E. 2d this Court stated: in

When the State introduces evidence exculpatory which statements of the defendant are not contradicted by any to be false shown evidence, other facts or circumstances by the State is bound the statements. [Citations omitted.] of

And when the State’s evidence and that the defendant effect, the exculpate is to same and tend the defend- ant, as his motion for of nonsuit should be allowed. judgment 479, 119 2d at 464. Id. at S.E. viable in this Defend- principle jurisdiction. has remained however, has, by rules which must be applied other ignored

ant the trial court’s denial of the motion to reviewing this Court in- jurisdiction in this the It is likewise the rule dismiss. in- by of the which the State of statement defendant troduction IN THE SUPREME COURT 228

State v. Book State not the from prevent assertions does exculpatory eludes statements. exculpatory which facts contradict showing Moreover, dismiss, only evidence favorable to the on motions to 321, 237 293 N.C. S.E. v. Witherspoon, State is considered. State (1977). by way, State not bound the ex- 822 Put another is 2d introduces if there is of a confession it culpatory portions light a different on the cir- evidence to throw tending “other 475, 477, 237 75 v. Bright, homicide.” State N.C. cumstances (1953). 407, S.E. 408 2d argument May, a similar 292 This Court answered State denied, There, 178, 644, cert. 434 U.S. S.E. 2d N.C. it was said: trial error failure court assigns

Defendant at the close all the evi- judgment to enter as of nonsuit he defendant contends that comes Specifically, dence. Carter, in State v. of the rules stated purview within the (1961), 475, 479, 119 S.E. 2d N.C. “[w]hen exculpatory in evidence statements State introduces or shown to be false which are not contradicted defendant evidence, any other facts or circumstances the State Bolin, 281 also these statements.” See bound (1972).However, 415, 189 the introduction S.E. 2d 235 a statement made does exculpatory an State showing the concerning not the State preclude facts from different, and a nonsuit crime to be does necessitate if exculpatory or rebuts the State contradicts defendant’s . . . statement. added). 187 (emphasis Id. 235 S.E. 2d at of the rule from portion May find cited emphasized We contention is his insistence here. to defendant’s applicable Crucial injury suffered at his of Ms. Roche’s death that the cause in- his confession he did not “mean to” which he states in hands testimony injuries that all the the pathologist’s flict. He relies on A to close read- support argument. her death together caused however, testimony, indicates that he stated Dr. ing of Copeland’s singularly together acting taken injuries that “none of added.) He (Emphasis death.” have immediate produced would significantly which were injuries that the two also testified injuries causing were the to the blood loss death produce severe FALL TERM thigh injuries to the due to the broken and the to the head. leg There nothing is the defendant’s confession which that implies he did not intend to strike the victim about the head area with tool, the tire and defendant does so on In- appeal. contend deed, defendant confessed to the victim striking with tire tool sexually to prior assaulting her and that he continued to beat her thereafter. Defendant obtained tire tool from the trunk of the vehicle because the victim was defendant’s sexual resisting assaults, presumably her gain submission. Such forethought and execution constitute premeditation and deliberation. It pathologist’s testimony clear from the injuries head significantly area contributed to victim’s blood loss and ultimate death and from defendant’s own statement that these in- evidence, juries deliberately were inflicted. This taken in light State, most sufficiently favorable to the premeditation shows deliberation to withstand defendant’s motion dismiss.

Other evidence from gleaned the record tends “to throw a homicide,” light different on the circumstances of the Bright, at 75 S.E. 2d 408. Defendant’s statement that he did not “mean to hit her” with the knife is contradicted by competent circumstantial evidence. From the placement, depth and straight lines of upper body, the cuts the pathologist they concluded “that were made in an intentionally superficial . . . deliberately manner. is made shallow with some [Such cut] . care . . .” and effort

Moreover, evidence physical obtained the officers from substantially murder scene contradicts defendant’s assertion that he did not “mean” to run over the unnecessary victim. It is say it repeat evidence here. Suffice that the location of body the victim’s the pile relation to size clothing the field which these acts place seriously brutal took challenge accidentally defendant’s assertion that he ran over victim. In another case in which the defendant attacked the sufficien- cy deliberation, the evidence to a support premeditation finding recently

we stated: case, In the instant the State presented evidence tending deceased, show that defendant choked the pushed her out of car, and ran over her several times. The requisite premeditation and deliberation could be inferred from the IN THE SUPREME COURT 230 assault, use of excessive grossly the nature of the brutal had blows after the deceased of lethal “dealing force or the We hold that there been felled.” omitted.] [Citations jury finding that the defendant to support evidence plenary and deliberation. with premeditation killed Ms. Grossnickle 737, 741-42, Ferdinando, 426 260 S.E. 2d 298 N.C. v. State (1979). case, hold, State submitted abund- that the We instant the denial of defendant’s mo- trial court’s support evidence to the ant theory premeditation on the of charge to dismiss the murder tion deliberation. and

IV. Sentencing Phase sentencing proceedings. errors to the assigns Defendant two felony in submitting first court erred argues He that trial sentencing during as an circumstance rape aggravating and,' secondly, the trial court erred in phase that determination which of to indicate failing to instruct We discuss it exist. these contentions cumstances found to seriatim.

A. ^[11] Defendant contends that the trial court erred in submitting felony an circumstance in aggravating as underlying rape have and he should not been sen sentencing hearing found him rape though the crime of even tenced for premeditation under the theories of de of murder both guilty felony We considered question murder. liberation (1979), Goodman, S.E. 569 held 2d N.C. State first degree has convicted of murder on when the defendant been felony and deliberation murder premeditation both theories, felony an underlying aggravating the inclusion “underlying” is The commission proper. circumstance felony premeditated is element of the crime of not an essential thus, and, the “automatic” cir murder be Cherry impermissible. we held in See cumstance which 86, 257 S.E. 2d 551 Because this Cherry, murder under guilty degree of first both found

State v. Rook theories, there was no error in submitting the as an rape ag- gravating circumstance.

Likewise, Goodman answers defendant’s contention that he There, should not have been sentenced on rape the offense. we said: contends that he was improperly sentenced for

[Defendant the offenses of kidnapping robbery and armed as those of- fenses merged with the murder conviction. As we have said, already no merger felony of the occurs when the homicide conviction is based upon theory the of premedita- tion and deliberation. Defendant was found [Citation omitted.] guilty virtue of premeditation and deliberation as well as Thus, felony-murder application the rule. the court could disregard felony-murder the basis of the homicide ver- dict and impose additional punishment upon defendant for robbery the crimes of armed and kidnapping. Goodman, Here,

State v. 257 S.E. 2d at 582. therefore, the properly trial court sentenced defendant for the crime of These of error rape. assignments are without merit.

B. ^[12] Defendant next contends that the trial court erred in failing to provide space on the “Issues and Recommendation As to Pun ishment” form for jury the to list which of the specific mitigating that, circumstances it found or did not so find. Defendant believes answered, since the factors must be aggravating specifically the mitigating specified factors should be also. Defendant contends mitigating that failure to list which factors were found or not ability give found this Court’s to review impairs appropriate the While sentencing phase good of the case. defendant makes a practice, that it is the better and we argument agree, require factors found and not found for the specify mitigating reviewing appropriateness benefit of this Court in requirement death we find no such our statutes. penalty, 15A-2000,which sets out the for the sentenc- procedures G.S. case, requires in a indicate ing phase capital statutory aggravating which of the circumstances it finds writing (1978). 15A-2000(c)(l) beyond a reasonable G.S. There ex- doubt. § regarding corresponding requirement mitigating ists no THE IN SUPREME COURT Instead, jury. recommending cumstances considered state in required writing penalty death are found insufficient mitigating whether circumstances 15A-2000(c) circumstances found. G.S. outweigh (3) aggravating § Thus, when this reviews the sentence on Court death us, by requirements we will have before virtue appeal, statute, a circumstances submitted list of submitted, found, a list of the those insuffi- any mitigating circumstances found are a statement circumstances. some aggravating Although cient to the outweigh indicated presented mitigating to this Court have records by jury,2 found the such is not re- circumstances were information 15A-2000(d).Thus, a by be G.S. if exists presented there quired findings mitigating circumstances on the requirement specific submitted, guarantee. from a it must arise constitutional 153, 2909, 428 96 49 L.Ed. 2d U.S. S.Ct. Gregg Georgia,

In v. (1976), upheld Georgia Supreme 859 the United States Court the face statutory penalty the death in the imposition scheme for because, opinion, Georgia pro- in its the of a constitutional attack arbitrary, excessive safeguard against a reliable provided cedure the limiting guiding death sentences disproportionate automatic review of providing appellate jury’s discretion sentencing. all aspects the statutory is similar to our procedure own Georgia courts, determined, In once has been guilt Georgia

scheme. defendant) (unless hears jury waived jury same and the the circumstances crime concerning evidence In as to the sentence. recommendation making criminal before recommendation, any jury considers reaching sentence which it circumstances circumstances mitigating specific following findings included on the 2. The cases records jury: mitigating submitted to the Silhan, Hamlette, 490, (1981); State v. 276 388 302 N.C. v. 302 S.E. 2d State N.C. Moore, 28, (1981); 223, 183 v. Oliver and 302 N.C. 274 S.E. 2d State 2d 275 S.E. 450 Detter, 407, (1980); Small, (1981); State v. 128 298 v. 272 S.E. 2d State 301 N.C. Johnson, 355, (1979); 604, 298 2d 752 State v. N.C. 259 S.E. 260 S.E. 2d 567 N.C. (1979); 149, Cherry, (1979); Spaulding, State v. 391 298 v. S.E. 2d State 298 N.C. 257 Johnson, denied, (1979), (1980); 86, State v. 941 cert. 446 U.S. 257 S.E. 551 N.C. 2d Goodman, (1979); 1, 47, 298 569 State v. N.C. 257 S.E. 2d 257 S.E. 2d 597 298 N.C. (1979). Jones, 495, (1979); 251 2d 425 State v. 296 S.E. 233 Rook finds to exist. law Georgia does not enumerate what cir but, instead, cumstances constitute factors mitigating allows the jury to determine whether facts proved at sentencing hearing mitigate against imposition of the penalty, death limited only by the requirement mitigating circumstance be (1978). “authorized law.” Ann. Ga. Code 27-2534.1 Further § more, the trial court in its charge single need not out State, 477, specific mitigating circumstances. 241 Ga. Spivey 288, denied, (1978); State, 246 S.E. 2d cert. 439 U.S. 1039 Potts v. (1978). Ga. S.E. regard 2d With cir cumstances, it is be enough told to all “consider evidence verdict, submitted both of the trial in phases your arriving

including any and all evidence of mitigating cir State, 553, 568-69, cumstances.” Collier v. 244 Ga. 261 S.E. 2d (1979), denied, cert. 445 U.S. 946 This sois even though aggravating circumstances be must submitted to the statute, Id. Like the writing. North Carolina Georgia statute requires the jury to return specific findings as to the ag 27-2534.1(c). gravating circumstances submitted. Ga. Code Ann. § appeal, On the Georgia Court is Supreme to review required sentencing procedure determine:

(1) Whether the of sentence death imposed under the of passion, prejudice, arbitrary influence or other fac- tor, and

(2) Whether, in cases other than hi- treason aircraft jacking, the supports jury’s evidence the or judge’s finding of a statutory aggravating circumstance as in enumerated sec- 27-2534.1(b), tion and

(3) Whether the of sentence death is excessive or cases, disproportionate to the penalty imposed in similar con- sidering both the crime the defendant. 27-2537(c) (1978). Thus,

Ga. Code Ann. because the Georgia § requires statute specific findings only on aggravating cir- cumstances, appellate review of the above-listed issues is limited to a of consideration the facts the crime of and the aggravating circumstances found jury. the above,

As stated the United States Supreme Court has ex- Georgia procedure amined the imposition penalty for of the death IN THE SUPREME COURT 428 U.S. Gregg Georgia, to be constitutional. and found it statutory strikingly scheme is 2d 859. Our L.Ed. S.Ct. is limited to sentencing review Georgia’s, in that our similar ag- and the of crime of the circumstances consideration has jury. Georgia’s scheme found circumstances gravating Court has States fully Supreme reviewed the United been constitutional; is likewise constitutional. our statute been declared follows, then, requirement no constitutional that there exists It and that failure circumstances findings mitigating on specific findings make jury specific the trial court instruct not error. ad- jury, acting purely

We Florida recognize role, both visory specific findings aggravating must return of what it regardless sentence mitigating circumstances specific findings must make judge and that the trial recommends Fla. Stat. he determines sentence. writing on both before 1980). however, is im- This requirement, Ann. 921.141 (Supp. § courts have never statute and the Florida posed the Florida mitigating for requirement whether the deletion considered unconstitutional. procedure would render its is that it is that our unquestioned The State’s contention to indicate jury specifically require statutes and constitution submitted because each circumstance finding its discretion guided an exercise procedure provides such However, previous that the our jury. import the State believes absolutely unfettered jury should remain decisions is that A require- circumstances. considering mitigating when it comes to its on each finding mitigating indicate ment contends, might, so submitted to them the State cumstance unduly to submit Requiring constrain the defendant. found, may, argues, are the State factors writing them from prevent considering “other inhibit 553, State, 244 Collier v. Ga. circumstances.” See mitigating in this are not respect S.E. 364. The 2d State’s contentions some persuasion. without review which considers both

We hold that a proportionality murder, the circumstances aggravating the circumstances of circumstances mitigating submitted jury found cases satisfies constitutional re- in other relevant with those arbitrary, quirements adequately protects against capricious, penalty. excessive or of the death disproportionate imposition Even we to accept were defendant’s we argument, perceive no Even prejudice to defendant here. that the ac- assuming true,3 cepted all mitigating sixteen circumstances submitted we still could not conclude that the arbitrary, death sentence was ex- cessive or disproportionate. The circumstances of this murder are female, beyond cruel and almost gruesome young belief: a a defendant, stranger stopped walking while home in a residential area while it was daylight. immediately, still Almost her began beating pulling her around her hair. There, He forced her into his car to and drove a deserted field. admission, his own he beat her and cut her with knife until he Then, gained raped her submission. he her when he was wounds, through, left to her slowly her die from bleeding to death. found that the aggravating circumstances out- weighed beyond a reasonable doubt. We are jury’s finding unable to disturb the and. conclude other- summary, wise. In we statutory find no provision support defendant’s nor we find contention do such a constitutional re- any if quirement. authority Even could be support found de- claim, assignment fendant’s would be of no avail because he is any unable demonstrate prejudice whatsoever.

V. ^[13] jury as In addition to the aggravating circumstance argued Section IV A. opinion, submitted we have also reviewed the aggravating other circumstances presented to the in view the penalty We imposed. conclude that the trial court properly submitted each these cir 306, 510; Barfield, cumstances. See State v. 298 N.C. 259 S.E. 2d Goodman, 1, 569; McDowell, State 257 S.E. N.C. 2d 279, (1980), denied, 271 S.E. 2d 286 cert. 450 U.S. 101 S.Ct. 68 L.Ed. 2d 220 15A-2000(d) G.S. directs this Court to review record capital case to determine whether the supports jury’s record circumstance, finding any aggravating whether the sentence imposed under of passion, influence prejudice supra. 3. See note 1 THE IN SUPREME COURT

236

State v. Book factor, is ex- the sentence of death arbitrary and whether other in similar to the penalty imposed or disproportionate cessive cases, v. Mar- the crime the defendant. both State considering McDowell, (1981); tin, 246, 301 S.E. 2d 214 State v. 303 N.C. 278 306, 286; 279, Barfield, S.E. 298 259 271 S.E. 2d State v. N.C. N.C. or against capricious as a check 510. This mandate serves 2d Hutchins, 303 the death State v. imposition penalty. random in this review function 279 S.E. 2d 788 Our of the trial phases instances where both is limited to those regard to be free from case have been found capital of the defendant Goodman, S.E. 2d at v. 298 N.C. at error. prejudicial scheme, statutory we must be In our role exercising 590-91. Legislature, but also to the mandate sensitive review. Gregg of our the constitutional dimensions See 204-206, 2939-2940, at 49 L.Ed. 2d U.S. at S.Ct. Georgia, 258-259, 892-893; Florida, 428 U.S. at 96 S.Ct. at Proffitt 2969-2970, 49 L.Ed. 2d at 926-927. us G.S. responsibility placed upon We consider 15A-2000(d)(2) any on an responsibility placed be as serious as have, therefore, carefully court. We reviewed record appellate arguments presented. case with the and oral in this briefs along sup- We conclude that there is sufficient evidence the record as to the circumstances which jury’s finding port Moreover, above, nothing we were submitted to it. as stated find was im- in the record which indicates that the sentence of death other ar- passion, prejudice, under influence posed bitrary factor. committed

The record the most reveals brutal, vile and Ann Defend- vicious crime Marie Roche. against tool, viciously Ms. with a tire cut her repeatedly ant beat Roche knife, body in ran rape, with a her over her battered ravaged body lonely with an and left her to bleed to in a automobile death bloodthirsty sadistic crimes committed field. Defendant’s compel this victim conclusion the sentence of against excessive, is not both the considering death disproportionate We, therefore, and the decline to exercise our crime defendant. the death imposed. discretion set aside sentence below, In all the trial we find phases of No error. v.

State Rook Justice concurring part dissenting part. EXUM I concur in the result reached majority the guilt the however, phase Being of case. of opinion, the it was prej- that udicial error for the jury trial court the to permit return its recommendation for a sentence of death without specifying exist, the mitigating of circumstances it I found to vote remand for a hearing. the case new sentencing practice This violates G.S. seriously prejudices 15A-2000 and the at trial but also on when is appeal required this Court to determine whether his sentence “was capital imposed under the influence of factor,” passion, arbitrary or other prejudice, or “the whether of is sentence death excessive or disproportionate penalty the cases, imposed considering similar crime and both the the 15A-2000(d)(2). defendant.” G.S. 15A-2000 Properly read G.S. requires the indicate its as to each findings mitigating circumstance submitted to it. the Although statute does not expressly and so re specifically when quire, contextually, the statute read it becomes clear that the legislature intended that the specify both the ag gravating mitigating circumstances which it finds to exist in It capital duty trial. is our 15A-2000 to construe G.S. so that the result the comports design with overall of purpose the statutory may scheme even though go construction somewhat See, beyond language the statute itself. express State e.g., Silhan, 223, (1981); 302 275 S.E. 450 N.C. 2d v. Cherry, State 86, (1979), denied, 298 257 S.E. 2d 551 446 941 N.C. cert. U.S. (1980); Johnson, 47, (1979); 257 State v. S.E. 2d 597 Goodman, 1, 257 298 N.C. S.E. 2d 569 We said in State v. Johnson, N.C. at S.E. 2d at supra, with reference to G.S. 15A-2000:

“We must construe important provisions of the statute. The statutory maxim of first construction is to ascertain in- of the legislature. tent To do this this Court should consider whole, statute, as a statute of the spirit the evils it designed remedy, and what seeks statute to ac- (Emphasis complish.” original.) (b) first,

Section requires, statute in all capital cases: IN THE SUPREME COURT jury to the in his instructions shall include judge “[T]he circumstance or any aggravating

it consider must from or circumstances circumstance mitigating cumstances or (e) (f) may sup- and which be lists subsections provided evidence, jury a writ- shall ported furnish to such relating list issues ten or circumstances. circumstance counsel, evidence, and in- argument hearing “After court, shall deliberate and render structions court, the follow- upon based recommendation to the sentence ing matters:

(1) circumstance or any sufficient aggravating Whether (e) exist; in subsection as enumerated circumstances (2) circumstance mitigating sufficient Whether (f), in which as enumerated subsection circumstances or circum- circumstance aggravating the

outweigh found, exist; and stances (3) considerations, Based these whether the defendant death or to imprisonment

should be sentenced to life.” prison (Emphasis supplied.) for the State’s (c) provides: Section

“(c) Death. —When Support of Sentence of Findings death, of the jury recommends a sentence the foreman of the which jury jury writing shall on behalf of the sign writing shall show:

(1) statutory circumstance or circum- aggravating beyond a jury which the finds reasonable

stances doubt; and

(2) cir- statutory circumstance or aggravating That the jury sufficiently the are sub- found

cumstances imposition for the the death stantial to call and, penalty;

(3) circumstance or mitigating That the circum- outweigh aggravating

are insufficient to (Emphasis circumstances found.” supplied.) stance or (e) circumstances, Section then lists aggravating available (f) section suggests number of mitigating circumstances which may but to consider which it is not limited because of the (f)(9). open-ended found in language section The statute thus requires that “a written list of issues to” the relating aggravating and be mitigating circumstances sub- jury. mitted to the The jury, may before it recommend a sentence death, must specify writing aggravating doubt; beyond it cumstances finds a reasonable that these circum- sufficiently stances are substantial to call for the imposition penalty, death in- mitigating circumstances are Thus, sufficient outweigh aggravating circumstances. as we Johnson, 597, noted in 257 S.E. supra, 2d is, be, statutory process as it jury’s must “directed toward the full having a understanding aggravating both relevant necessity factors and the of balancing against them in determining each other whether to impose death penalty.” Id. 257 S.E. 2d at 610. the mitigating required Since circumstances are to be submit- ted, circumstances, the aggravating like form of . “written . . issues” to find whether required “sufficient” and “sufficient” mitigating circumstances jury is to exist and since the further show in required writing finds, the aggravating which of circumstances it the conclusion is legislature jury that the intended inescapable the should also be to show in which of the required writing mitigating circumstances purpose it finds exist. What other would there be for submit- jury circumstances the on a list? To ting mitigating written mitigating to be require both . clearly in the form of “written . . a imports submitted issues” intent such. legislative that consider and answer them as generally term as to a refers to very applied “Issues” trial which must in legal questions factual or he answered order they If the are factual are resolved dispute. resolve the issues . . . disputed of fact. “An ‘issue’ is a or point question trier to an are either upon [parties obtaining which desirous action] or question ques- of court on of law of court decision (5th 1979). Dictionary tion Black’s Law ed. of fact.” in writing mitigating To to indicate require it to exist followed our practice cumstances finds has been IN 240 THE SUPREME COURT case tried under the new death judges every penalty trial in in determined this and which statute has been Court case; v. the instant State except death for jury recommended in day part; I also dissent this and which Taylor, decided (1981).1 Hamlette, 490, 302 276 S.E. 2d 388 The cases v. N.C. State Irwin, 26, 1981, presently pending v. No. Fall Term are: State (1981); 321, Court; Hutchins, S.E. 2d 788 v. 303 279 State N.C. (1981); Martin, 246, 278 214 v. 303 S.E. 2d State v. N.C. State Silhan, 223, 450; v. 302 275 S.E. 2d State Oliver N.C. supra, 28, (1981); Small, Moore, 301 S.E. 2d 183 (1980); v. 302 274 State N.C. 279, McDowell, 407, 272 2d 128 v. 301 S.E. State N.C. N.C. --- 1731, denied, ---, (1980), 101 cert. U.S. S.Ct. 271 S.E. 2d 286 604, (1981); Detter, 298 260 2d v. N.C. S.E. 68 L.Ed. 2d 220 State (1979); Johnson, 355, (1979); 259 S.E. 2d 752 567 State v. 298 N.C. 306, (1979), Barfield, cert. 298 N.C. 259 S.E. 2d 510 State v. 149, (1980); denied, 298 257 448 907 v. N.C. Spaulding, U.S. State 86, (1979); 257 v. 298 N.C. S.E. 2d Cherry, S.E. 551, 391 State supra, 2d Johnson, denied, 941; 446 298 N.C. State v. supra, cert. U.S. 1, 597; 47, Goodman, 298 S.E. v. N.C. supra, 257 S.E. 2d State Jones, 569; 251 S.E. 2d 296 N.C. 2d Presumably were judges following our trial these cases them to be. This is a statutory they understood requirements interpreted that should be accord strong indicator the statute provisions to its pursuant which has evolved practice with the the more reasonable interpretation when an such particularly is considered as a whole. one when the statute the defendant has determined Furthermore this Court proffers which he mitigating each circumstance must prove timely re- upon of the evidence and that greater weight instruction his favor he is peremptory entitled quest believed, case, if tends to show in the where “all evidence circumstance does exist.” State particular that a Johnson, Surely S.E. at 618. 2d supra, requires a statute which contemplates holding submitted, but that mitigating list of circumstances be written to each cir- findings on the its such jury the indicate list submitted. cumstance Hamlette, however, Only proffered. specific mitigating were no factors 1. In (f)(9) jury it “none.” used and the answered

the catchall section but writing aggravating, to the jury specify the Requiring which it to exist not not the circumstances finds mitigating, 15A-2000, it also the defendant at the prejudices violates G.S. but jury It the to think that the sentencing hearing. encourages than worthy are less of consideration circumstances mitigating not Under this the is aggravating practice circumstances. be, focus full attention on each sub- as it should its required, individually in order to determine mitted circumstance mitigating necessarily whether it exists. Yet this kind of determination mitigating determination whether jury’s prerequisite cir- aggravating “are insufficient outweigh circumstances in not its danger requiring specify cumstances.” The circumstances is that findings regarding mitigating the individual not, not, will because it thinks it need decide which exist, will it believes do in fact but mitigating amorphously mitigating determine that whatever cir- simply be, they cir- may outweigh cumstances do This kind of determination fails to a defendant give cumstances. of a consideration of each circumstance particularized the benefit against putting militate him to death. might probably capital Such a determination violates a defendant’s constitutional to “individualized consideration” as that con- right (1978) Ohio, in Lockett v. 438 U.S. 604-05 cept expounded C.J.; (Burger, plurality opinion): Fourteenth Amendments Eighth require

“[T]he sentencer, case, capital the rarest kind of not be all but factor, any considering from as a precluded aspect or of a defendant’s character record and of the offense that as a proffers cumstances defendant . . . basis for a sentence less than death. The need for each in a with that treating capital degree case due the of the individual is far more im- respect uniqueness than in . . . non-capital nonavailability cases. portant with modifying respect corrective mechanisms to an ex- capital ecuted sentence underscores the need for individual- consideration as a requirement impos- ized constitutional ing the death sentence. perfect procedure

“There is no for in which deciding authority cases be governmental impose should used IN THE SUPREME COURT v. Rook

State death. But a statute that the in all prevents capital sentencer giving weight cases from independent mitigating aspects of the defendant’s character and record and circumstances proffered mitigation of the offense in creates the risk that will penalty imposed spite death be factors which may for a penalty. call less severe When choice is be- death, tween life and that risk is unacceptable incom- with patible the commands of the Eighth Fourteenth (Emphasis original.) Amendments.” statutory Under our permitting scheme to return jury for death requiring specify recommendation without it jury’s circumstances to exist mitigating it finds so dilutes con- consider, Lockett, duty to “any stitutional in the words of aspect of a any defendant’s character or record and of the circumstances offense as a basis for a proffers sentence less than death” and to them give “independent mitigating weight” that it skirts dangerously violating close to these con- stitutional requirements. (1976) majority relies on 428 U.S. Gregg Georgia,

to sustain our interpretation its statute against constitutional attack. I misplaced. statutory believe reliance is Our scheme for death imposing penalty and that of are Georgia’s quite dif- ferent. only suggests Our statute not a list of mitigating cumstances which might proffered be the defendant but it requires that list be submitted in writing along with a written list of the aggravating circumstances. The Georgia statute permits any to consider factor but enumerated, none of these factors are specified, or otherwise sug- statute, jury. gested to the Ga. Ann. 27-2534.1. Code Under our § noted, Ias have the jury is required carefully balance various enumerated mitigating circumstances with various enumerated submitted aggravating the form of written issues in determining whether to recommend a sentence of death or life Georgia Under law “is imprisonment. not required to find mitigating circumstance order to make recommen- mercy dation of that is on the . . . binding trial court but it must a statutory find circumstance aggravating before recommending a (Em- sentence Gregg Georgia, of death.” 428 at 197. supra, Indeed, phasis Georgia, original.) jury may return a death circumstances, one finding sentence or more upon no v. Rook contrast, In how it the circumstances.2 regards mitigating matter recom- jury may our the return a death sentence under statute (1) of or ag- if finds: the existence one more mendation it circumstance(s) (2) circumstances; that the gravating aggravating sufficiently for imposition found it are substantial to call the (3) are the circumstances mitigating the death and that penalty; The clear the circumstances. outweigh aggravating to insufficient ex- upon requisite the jury, finding of our statute is that a import circumstances and their sufficient substan- aggravating istence may life unless further tiality, imprisonment not recommend it outweigh to mitigating that circumstances are sufficient finds the the circumstances. aggravating far jury’s the determination is

Under our statute sentence our is carefully channeled. The entire thrust of statute more fully the jury that the understand both insuring directed toward may carefully so that it and circumstances mitigating aggravating in at its sentence deter- arriving each other against balance them Johnson, 47, 257 S.E. 2d 597. 298 N.C. supra, mination. State mitigating non-existence of Thus the existence or under determination jury’s far crucial to the ultimate looms more ma- For reason the Georgia’s. it under our statute than does to jury not the jority’s require that our statute does conclusion fac- relating mitigating to written issues specifically answer the may well aggravating factors only those to relating tors but in- constitutionally required the the statute violative of render Georgia’s though in a case even capital consideration dividualized jury here given the is Gregg. was sustained For procedure issues, to told writing, mitigating lists aggravating both writing, factors relating aggravating the issues answer what is on the basis of life or death decision told to make its then against essentially balancing careful told jury is at the same time Yet circumstances. mitigating issues individual writing answer really should not that it is bound procedure This circumstances. relating mitigating determination importance its mind the jury’s in the diminish submitted, a determination factor mitigating each regard to with which, statute, It its decision. crucial to ultimate our is under required simply consider judge jury “to Ann. 2. 27-2534.1. Ga. Code § Id. any mitigating circumstances.” THE IN SUPREME COURT so, likely, makes it less I believe unconstitutionally that will find mitigating circumstances sufficient to outweigh Indeed, likely it makes aggravating. it less that the ultimate sentence will be determination based on that kind of individual- ized determination our contemplates statute con- requires. stitution

Furthermore, requiring specify mitigating circumstances it finds prejudices to exist the defend- ability ant’s to obtain that review of his sentence G.S. required 15A-2000(d)(2), sometimes referred to our proportionality review, unless the is willing Court upon sentence sustain assumption answered all cumstances3 submitted to it in majori- favor of the defendant. The ty here is apparently willing sustain this sentence even after I making that could assumption. not vote sustain the death if jury sentence had answered mitigating all circumstances I, defendant’s If favor. this had for happened, reasons hereinafter stated, would remand vote to for the a imposition of sentence of I, imprisonment, life although majority, like the am repulsed gruesome circumstances of defendant’s crimes. Since I cannot must, issues, on this record jury know how the answered these I reason, this for additional vote a to remand for new sentencing hearing jury at which the would be to give directed its answers these issues.

The statute mandates that we consider whether “the sentence of death is excessive or disproportionate to the penalty cases, imposed in similar considering both the crime 15A-2000(d)(2). G.S. (Emphasis supplied.) Obviously the defendant.” only contemplates statute we compare the circumstances under which the crime was committed but that we also look nature, character, and background of the defendant commit- I it. ting already have noted the stress the United States Ohio, Supreme Court in Lockett U.S. supra, placed “need for each treating capital defendant in a case with that degree due the respect uniqueness of the individual” “the need for individualized consideration as a constitutional require- Generally ment the death sentence.” imposing the mitigating circumstances proffered capital defendant in case will per- majority opinion 3. These are listed n. 1. circumstances in the character, tain to his individual personal history, mental and emo- stability, tional and background; while the aggravating cir- generally cumstances relate to the circumstances of the crime cannot, therefore, itself. We determine whether the sentence of death in particular case is excessive or disproportionate when with compared similar cases “considering both the crime and the defendant” unless we know both the aggravating and the found to exist. This is par- ticularly true with two of the mitigating circumstances submitted case, ie., in this that the murder was committed while the defend- ant “was under the influence of mental or emotional disturbance” and that capacity the defendant “to appreciate the criminality of his conduct or to conform his conduct to the re- 15A-2000(f)(2) quirements the law was impaired.” G.S. An examination of capital cases so far determined Court reveal jury determinations with regard to the ex istence these two mitigating circumstances is perhaps most crucial factor in the jury’s ultimate every recommendation. In circumstances, case which the jury rejected both of these Detter, has returned a death sentence recommendation. Bar- Martin, field, In Cherry and Irvin. the five cases which the jury considered one of these mitigating circumstances and re it, three, Jones, jected Goodman, recommended death in Atkinson.4, Small, and life in two. Crews and On the other hand, of the eleven cases in which either or both of these mitigating circumstances were submitted and answered affirma I, Poole, tively II, jury, the Turpin, Johnson Spaulding, Johnson Ferdinando, Adcox, Taylor, Myers, King, Hutchins,5 and the jury returned a recommendation for life imprisonment in all but Atkinson, previously except 4. All the listed cases are cited State v. 298 N.C. 673, Crews, (1979); 607, State v. 259 S.E. 2d 858 296 N.C. 252 S.E. 2d 745 Adcox, previously 5. All the State v. except listed cases are cited 303 N.C. 133, (1981); 186, (1980); King, State v. 277 S.E. 2d 398 301 270 S.E. 98 State N.C. 2d 671, Ferdinando, (1980); Myers, 737, v. 299 263 S.E. State v. N.C. 2d 768 298 N.C. (1979); 405, Taylor, (1979); v. S.E. State 260 2d 423 298 259 S.E. 502 State v. N.C. 2d Poole, Crews, 254, (1979); 607, 298 258 S.E. 2d 339 and State v. N.C. 296 N.C. (1979) (also trial). reviewing Turpin’s S.E. 2d 745 Crawford, (1980), In State v. 270 S.E. mitigating N.C. 2d 102 the two submitted, jury factors were not but the nevertheless found that “the financial and hardships emotional burdens and created mitigating his children” were a cir cumstance; imprisonment. and it recommended life THE IN SUPREME COURT

State Kook cases, I, II Hutchins. four Johnson Johnson and Of Spaulding, four, however, I II these Johnson and Johnson were remanded for hearing improper new because of instructions the sentencing sentencing At the new capacity diminished circumstance. hear- cases, which presumably appropriate in both instructions ings imprisonment returned a life recommenda- given, juries were for remanded a new trial for er- tion. Furthermore was Spaulding in the At retrial life guilt phase. Spaulding’s rors committed jury because the was unable to reach imposed was imprisonment Consequently of the eleven cases which a unanimous verdict. were found in mitigating or both of these circumstances either defendants, Hutchins, favor, only one of the received defendant’s ultimately which was affirmed In a death sentence Court. trial, Silhan, 275 S.E. supra, Silhan’s first 450, neither these mitigating 2d submitted sentence. and the recommended death On retrial, however, were both circumstances submitted. re- impaired capacity circumstance and found the emo- jected The jury circumstance to exist. then being tional disturbance 15A-2000(b) judge to G.S. im- agree, required unable life imprisonment.6 a sentence of posed analysis juries This demonstrates that North Carolina they determine penalty almost never recommend death after under of the crime the defendant was either that at time his capacity influence of mental or emotional disturbance criminality of his conduct and to conform his appreciate to law Likewise this Court should be slow impaired. conduct in which these circum- to affirm a death sentence humanity The law’s present. are would seem dictate stances rarely punishment if should death be the appropriate ever kills under influence of mental or emo- defendant who for a whose capacity appreciate wrong- tional disturbance conform of his act his conduct requirements ness he Punished should be. But execution of a defend- impaired. law is mentally product emotionally is the of a ant whose crime who from an to con- incapacity suffers personality defective (Columbus Court). 79-CRS-1943, Silhan, Superior With No. 81-17-259 6. State dissent, capital in discussed this information respect to all the North cases Carolina may appeal in opinions in be found the records on or found the of Court not appropriate superior court clerks. the from FALL TERM Rook excessively society marks his conduct vindictive. It itself trol unnecessary barbarity claims to be with the same kind of it if in we are to have penalty, the defendant. death punishing all, are should for first murders which degree it at be reserved mature, fully calculating, respon- meanness of the the products adults. sible Rook, answered all the cir- jury mitigating John if favor, not kind of His would be that defendant.

cumstances his phase included the sentencing presented evidence Rook, testimony family age and two psychiatrists. members offense, abnormally of an product time of at the parents if Both were depraved, childhood. deprived, His him alcoholic at the began give beverages alcoholics. father him years enjoyed because he become early age watching three without re- regularly provocation His and intoxicated. father Early in to severe beatings. Rook to undress submit quired later regular use alcohol on a basis and his life Rook began illegal drugs a of various such regular user of multitude became cocaine, early his marijuana, spent Rook much of speed. facilities, but problems years juvenile detention teenage When he was drugs. to alcohol and from his addiction stemmed he was loving these the influence of substances not under the date of the offense and brother. On affectionate husband drugs. alcohol and the influence of both Rook was under question the in- he under who testified According psychiatrists at the time of disturbance of a mental and emotional fluence criminality of his conduct appreciate and was unable to crime ex- law. He requirements to the to conform his conduct who examin- psychiatrists to both remorse for his actions pressed after fully with ultimately investigators cooperated him and he ed he help. needed acknowledging to them of the mitigating the basis for most This evidence formed If we determination. for its submitted cumstances circumstances these answered assume favor, as true. this evidence accepted it defendant’s were submitted circumstances Only aggravating three especially murder was that the than the circumstance Other jury. rape heinous, were the other if the herself. But murder victim kidnapping IN THE SUPREME COURT favor, mitigating answered the circumstances in defendant’s these crimes, murder, like the were the products of defendant’s mental and emotional disturbance and his capacity diminished to ap- preciate criminality their and to conform his conduct to the re- If quirements of law. defendant’s evidence is believed the whole is, really, awful incident attributable to the tragic personality immature, defects traceable a depraved childhood of a young, mental defective spurred on the influence of alcohol drugs. Court, then, Of the cases so far capital determined only Rook would be the defendant other than Spaulding and jury Hutchins for whom answering after upon proper instruc- tions the emotional disturbance or diminished issue in capacity noted, defendant’s favor also recommended death. As earlier sentence, jury second trial Spaulding’s agree could not on the Rook, and a ultimately life sentence was imposed. Yet from the of his is far standpoint background, mercy more deserving than Spaulding Spaulding Hutchins. was a mature adult who at the time already of the murder question a life serving Briefs, sentence for two 1979, murders. prior Records and Term Spring 127. p. No. Hutchins was also a mature adult.7 He was convicted one murdering after the other three law officers, all enforcement of whom were attempting apprehend him. The were killings apparently product of Hutchins’ blind he rage. Although contended he suffered from paranoid psychosis, one circumstance was mitigating answered favor, ie., Hutchins’ he was under the influence of a “mental or emotional jury rejected disturbance.” The Hutchins’ proffered circumstance his capacity appreciate criminality of his act or law to conform his conduct to was diminished. It also con- cluded that there were no other unspecified mitigating cumstances in his case.

If we assume the believed Rook’s evidence in mitigation favor, and answered all circumstances in his he would finally be the first defendant sentenced to die who at the time of the murder was under the influence of a mental and emotional give 7. I him a dissented Hutchins and voted to new trial on the merits counsel, because of an irreconcilable conflict between him and his trial a conflict jury’s probably I also believed contributed to the ultimate recommendation of death. Taylor State v. criminality capacity appreciate disturbance and whose his conduct or to conform conduct to law Con- impaired. this, many sidering considering other favor, in cumstances childhood, submitted his his e.g., age, depraved addiction, subnormal alcoholism intelligence, drug cooperation investigators, with and the fact that this awful inci- totally dent is him out of character for when he is not under the alcohol, of I drugs influence would have conclude jury sentence death recommended was disproportionate in similar cases penalty imposed considering both the crime My the defendant. vote then would be to remand the case for the imposition of a sentence of life imprisonment. I

Since cannot know how much of defendant’s in evidence his support proffered mitigating circumstances ac- issues, view cepted jury’s of the failure to answer I these vote remand case a new sentencing hearing for at which these issues would be answered.

STATE OF NORTH CAROLINA v. NORRIS CARLTON TAYLOR

No. 108 (Filed 1981) 3 November § 1. Indictment and 13.1— right particulars Warrant no constitutional to bill of stating aggravating circumstances 15A-2000(e), aggravating The upon circumstances enumerated G.S. rely may seeking appropriate punishment, provide suffi- statutory requirement cient notice to meet the constitutional process; of due therefore, judge the trial did not denying abuse discretion defendant’s particulars for a stating motion bill of upon rely seeking penalty. which the State would the death 135.3; Jury § § 2. qualification” Criminal Law questions 7.11— prospec- “death jurors proper right separate penalty phase tive for —no jurors Excluding opposition penalty, because of their to the death “death qualification,” proper, and the same guilt/in- should hear both the penalty phases and the original jury nocence trial unless the is “unable 15A-2000(a)(2). to convene.” G.S. 50.2; Jury § § opinion 3. Criminal Law testimony qualified 7.11— an ex- —not pert trial failing court did not err in testify to allow defendant’s witness opinion prejudices jurors as to his unopposed white capital punish-

Case Details

Case Name: State v. Rook

Court Name: Supreme Court of North Carolina

Date Published: Nov 3, 1981

Citation: 283 S.E.2d 732

Docket Number: 2

Court Abbreviation: N.C.