State v. Bacon

*122 Chief Justice Exum

dissenting.

I agree with the majority’s statement of the legal principles which this Court follows in conducting its proportionality review, including the majority’s definition of the proportionality pool. Believing, however, that the death sentence is excessive and disproportionate when compared with sentences imposed in similar cases, I dissent from the majority’s contrary conclusion and, pursuant to N.C.G.S. § 15A-2000(d)(2), vote to impose a sentence of life imprisonment.

At defendant’s second sentencing hearing, the State offered evidence, in part consisting of defendant’s testimony at his former trial which, in substance tended to show as follows:

Bonnie Clark wanted her estranged husband, Marine Corps Sergeant Glennie Clark, dead, apparently for the purpose of collecting certain insurance proceeds as beneficiary of a Serviceman’s Group Life Insurance policy insuring his life. Bonnie Clark and defendant “were boyfriend and girlfriend,” sharing a bedroom at the Shadowbrook residence; although Bacon contended that he never became romantically involved with Bonnie Clark after moving into the same apartment and sharing a bedroom with her. Bonnie Clark complained to defendant concerning her estranged husband’s drinking and abuse of both her and the children, but defendant told her that he didn’t want to hear about these troubles. Bonnie Clark told the defendant, “I wish Glenn was dead.” The defendant was not sure whether to take her seriously, but after she continued to insist and to inquire regarding whether defendant had found anyone to murder her husband, defendant concluded that she was serious about having him killed.

Eventually defendant told Bonnie Clark that he would kill her husband. Plans were made between the two for the murder to take place on Saturday, 31 January 1987. Bonnie Clark, as she had agreed to do, lured Glennie Clark to the designated location near a theater; but defendant, becoming afraid, refused to take part.

Bonnie Clark and defendant again made plans to meet with Glennie Clark on Sunday, 1 February 1987, to discuss the conflict in the house created by Glennie Clark’s repeated telephone calls in which he gave defendant the first degree and called him names. Defendant placed a knife in his coat pocket. After he and Bonnie Clark got in the car, defendant threw the weapon onto the floor in the back seat of the car. Bonnie Clark drove the car to Glennie Clark’s home on the Camp *123 Lejeune base. As she walked to the door, defendant got into the back seat of the car. Bonnie Clark returned to the driver’s seat; Glennie Clark occupied the front passenger seat, and defendant sat in the rear. Neither Bonnie Clark nor defendant intended to kill Glennie Clark on this occasion.

When Glennie Clark entered the vehicle, he pointed to defendant and asked “what’s this shit?” At that point Bonnie Clark introduced her husband to defendant, the two having never met before. Bonnie Clark then drove off. Glennie Clark became angry and called defendant “a nigger.” Glennie Clark continued to yell and turned toward the defendant. The defendant bent down, picked up the knife and stabbed Glennie Clark, who then put his arm around defendant’s neck. Defendant continued to stab Glennie Clark until he was dead.

Bonnie Clark then drove through Jacksonville, wondering what to do. Defendant replied that they should stop the car at a theater where he would strike her on the head to make it appear as though she and Glennie Clark had been attacked. Defendant did this and left the scene.

Defendant’s evidence tended to show as follows:

Defendant was a good high school student in Ayer, Massachusetts, where he participated in high school athletics and graduated in 1979. During his childhood and adolescence he lived with his mother, Elizabeth Bacon, and his father, Robert Bacon, Sr. He was described by friends and family members as a pleasant individual who was “intelligent” and who “never gave any trouble.” He was popular in school, seemed concerned about other people and was generally admired by his teachers and classmates. He moved to North Carolina in December, 1985 where he obtained work with the Kirby vacuum cleaner company in Jacksonville. He met Bonnie Clark through work.

Defendant was of “average intelligence” with “a personality disorder with impulsivity, immaturity, and a schizoid kind of feature.” According to Dr. Billy Royal, a psychiatrist, the murder resulted from defendant’s trying to serve Bonnie Clark’s psychological needs. Dr. Royal testified that “Mr. Bacon had a history ... of becoming involved [with] people that were in need of assistance” and tried “to help rescue Mrs. Clark from her reported abuse by her husband.” In Dr. Royal’s opinion, defendant’s personality disorder would probably not have caused him any legal problems had he not become involved with someone like Bonnie Clark. Defendant’s psychological makeup *124 “dovetailed” with Bonnie Clark’s needs in a way “that resulted in [Glennie Clark’s] death.” In Dr. Royal’s opinion at the time of the murder “the racial slurs directed at defendant by Glennie Clark resulted in [defendant’s losing] control.” Dr. Royal testified that defendant’s act in killing Glennie Clark was “primarily an impulsive act” and that at the time of the killing defendant’s capacity to appreciate the criminality of his act or to conform his conduct to the law was impaired and defendant was under the influence of a mental or emotional disturbance.

The sentencing jury answered the aggravating and mitigating circumstances as set out in the majority opinion. To summarize, the jury found only one aggravating circumstance- — the murder was committed for pecuniary gain. It found two statutory mitigating circumstances — defendant had no significant history of prior criminal activity and the murder was committed while defendant was under the domination of another person. It found the following non-statutory mitigating circumstances: defendant has no history of violent behavior; defendant is unlikely to commit another violent crime; defendant’s criminal conduct was the result of circumstances unlikely to recur; the initial plan that resulted in the deceased’s death was that of Bonnie Clark; Bonnie Clark was convicted of the same crime as defendant and was given a life sentence; defendant has shown remorse since his arrest; defendant’s family loved him, has visited him in prison and will continue to visit him if he is sentenced to life imprisonment.

When the Court conducts its proportionality review, as the majority correctly states, it compares the case at bar with other similar cases in the pool, considering both the crimes committed and the defendants in this and the other cases. State v. Lawson, 310 N.C. 632, 648 , 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120 , 86 L. Ed. 2d 267 (1985).

If, after making such a comparison, we find that juries have consistently been returning death sentences in the similar cases, then we will have a strong basis for concluding that a death sentence in the case under review is not excessive or disproportionate. On the other hand if we find that juries have consistently been returning life sentences in the similar cases, we will have a strong basis for concluding that a death sentence in the case under review is excessive or disproportionate.

*125 Id. In State v. Brown, 320 N.C. 179, 220 , 358 S.E.2d 1, 28 (1987), we compared the crime and defendant “with the crime and the defendant in cases with similar facts, including cases in which the same aggravating circumstance was found.” We also compared them “to cases in which the Court has affirmed a sentence of death in order to determine whether this case ‘rise[s] to the level of those murders in which we have approved the death sentence upon proportionality review.’ ” In State v. Price, 326 N.C. 56, 95-96 , 388 S.E.2d 84, 107 (1990), we stated:

It is useful in proportionality review to compare the case under scrutiny to three clusters of cases in the pool — those cases resulting in sentences of life imprisonment in which the same aggravating circumstances occur, those “death affirmed” cases in which the same aggravating circumstances occurred, and those cases in which this Court has found the death sentence disproportionate.

As the majority notes, there are 14 cases in the proportionality pool in which pecuniary gain was the only aggravating circumstance. State v. Stager, 329 N.C. 278 , 406 S.E.2d 876 (1991) 1 ; State v. Weddington, 329 N.C. 202 , 404 S.E.2d 671 (1991); State v. Payne, 327 N.C. 194 , 393 S.E.2d 158 (1990); State v. Quesinberry, 325 N.C. 125 , 381 S.E.2d 681 (1991) 2 ; State v. Locklear, 322 N.C. 349 , 368 S.E.2d 377 (1988); State v. Murphy, 321 N.C. 738 , 365 S.E.2d 615 (1988); State v. Benson, 323 N.C. 318 , 372 S.E.2d 541 (1988); State v. Hogan, 321 N.C. 719 , 365 S.E.2d 289 (1988); State v. Baugess, 310 N.C. 259 , 311 S.E.2d 248 (1984); State v. Jackson, 309 N.C. 26 , 305 S.E.2d 703 (1983); State v. Woods, 307 N.C. 213 , 297 S.E.2d 574 (1982); State v. Hawkins, 302 N.C. 364 , 275 S.E.2d 172 (1981); State v. Moore, 301 N.C. 262 , 271 S.E.2d 242 (1980); State v. Weimer, 300 N.C. 642 , 268 S.E.2d 216 (1980).

In all of these cases except Benson and Jackson juries have recommended life imprisonment. In both Benson and Jackson , this Court determined that death sentences were disproportionate and imposed sentences of life imprisonment.

*126 In two of the cases in the pool, State v. Woods, 307 N.C. 213, 297 S.E.2d 574 , and State v. Payne, 327 N.C. 194 , 394 S.E.2d 158 , the defendants, like Bacon and Clark, killed their spouses for insurance proceeds. Both sentencing juries recommended life imprisonment after finding the single aggravating circumstance that the defendant had killed for pecuniary gain. In Payne, the defendant killed his wife for the insurance benefits. In Woods , a lovers’ triangle case similar to Clark and Bacon, the defendant offered to pay her lover a portion of the proceeds of insurance on her husband’s life if her lover would kill him. The defendant was not present when her husband was shot, but she had actively aided in setting up the murder, unlocking doors at night in order to facilitate her confederate’s entry.

In both Jackson and Benson the Court determined that the death sentences were disproportionate and imposed sentences of life imprisonment. In Jackson only two mitigating circumstances were submitted to the sentencing jury: that the defendant had no significant history of prior criminal activity and “any other circumstance or circumstances arising from the evidence . . . deemfed] to have mitigating value.” A chief reason this Court held the death sentence to be disproportionate in Benson was that, in comparison to Jackson , the sentencing jury in Benson found considerably more mitigating circumstances: that the defendant had no significant history of prior criminal activity; that he was under the influence of mental or emotional disturbance; that he confessed and cooperated upon arrest; that he voluntarily consented to a search of his motel room, car, home, and storage bin; and that he was abandoned at an early age by his natural mother. 323 N.C. at 328, 372 S.E.2d at 522-23.

In the case before us, as in Benson, the sentencing jury found significantly more mitigating circumstances than did the jury in Jackson . These mitigating circumstances establish that the murder of Glennie Clark was an act not in keeping with defendant’s past history, character and reputation and that he would not likely repeat such an act. Unlike Benson, who acted alone, and Jackson, who forced his companions into participating in setting up his victim, defendant acted under the domination of another.

The most similar case for comparison in terms of the crime committed is, of course, the case involving defendant’s accomplice, Bonnie Clark -State v. Clark, 324 N.C. 146 , 377 S.E.2d 54 (1989). Like State v. Stokes, 319 N.C. 1 , 352 S.E.2d 653 (1987), and State v. Murray, 310 N.C. 541 , 313 S.E.2d 523 (1984), in which the defendants *127 in both cases were confederates in the same crime, defendants Bacon and Clark colluded to kill Clark’s husband. The sentencing juries for both Stokes and Bacon recommended sentences of death, whereas those for Murray and Clark recommended life imprisonment. In Stokes this Court concluded that both Murray and Stokes had committed the same crime in the same manner and were thus equally culpable. 319 N.C. at 21 , 352 S.E.2d at 663 . In part for this reason, we concluded Stokes’ death penalty was disproportionate.

In Clark the jury found only one aggravating circumstance — that the murder was especially heinous, atrocious, or cruel. N.C.G.S. § 15A-2000(e)(9) (1988). The jury found the statutory mitigating circumstance that the murder had been committed while the defendant was under the influence of a mental or emotional disturbance. N.C.G.S. § 15A-2000(f)(2) (1988). In addition the jury found nine non-statutory mitigating circumstances which concerned the defendant’s vulnerability, hopelessness and dependence; her past abuse by her husband, of which her involvement in this crime was a product; her lack of a significant criminal record; her good behavior and character before the crime and during incarceration; and the unlikelihood that she would pose a danger to society were she spared the death penalty. State v. Clark, 324 N.C. at 169 , 377 S.E.2d at 68 .

In the case sub judice the only aggravating circumstance found by the jury was that the murder had been committed for pecuniary gain. Notably, it did not find the killing was heinous, atrocious, or cruel. Among the mitigating circumstances found by the jury were several indicating that, like his accomplice, defendant had no significant history of prior criminal activity; that he had no history of violent behavior; and that his character, habits, mentality, propensities, and activities indicated that he was unlikely to commit another violent crime. The jury also found several other mitigating circumstances reflecting defendant’s past good character, diligence, and affability, and his display of remorse. For purposes of proportionality review, however, the two most significant among the mitigating circumstances found by the jury were that defendant had “acted under the domination of another person” and that “the initial idea for the plan... was that of the co-defendant, Bonnie Sue Clark.”

The contrast between the circumstances of the same crime as perceived by both sentencing juries is striking. The only aggravating circumstance found by the sentencing jury in Clark was that the murder of defendant Clark’s husband was especially heinous, atrocious, or *128 cruel. State v. Clark, 324 N.C. at 168 , 377 S.E.2d at 67 . The only aggravating circumstance found by the sentencing jury in the case sub judice was that the capital felony was committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6) (1988). The Clark jury perceived the murder as exhibiting a level of brutality exceeding that normally present in first-degree murder or a murder conscienceless, pitiless, or unnecessarily torturous to the victim, or one demonstrating an unusual depravity of mind on the part of the defendant beyond that normally present in first-degree murders. E.g., State v. Stanley, 310 N.C. 332 , 312 S.E.2d 393 (1984); State v. Pinch, 306 N.C. 1 , 292 S.E.2d 203 , cert. denied, 459 U.S. 1056 , 74 L. Ed. 2d 622 (1982). The Bacon jury perceived none of these egregious circumstances, concluding only that defendant Bacon killed for pecuniary gain.

No less striking is the difference between the culpability of these two defendants as seen by their sentencing juries. According to the mitigating circumstances found by defendant Clark’s sentencing jury, she was perceived as vulnerable, despairing, and dependent, the emotionally disturbed victim of domestic abuse. Defendant Bacon’s sentencing jury concluded not only that Clark first proposed the murder, but also that defendant Bacon committed it under her domination.

In short, Bonnie Clark and defendant committed the same crime. Although defendant dealt the fatal blows, Clark was the instigator, planner and motivator who was actually present during and actively participated in the murder. Considering the findings of both juries, I conclude Clark and Bacon are at least equally culpable. Considering only the findings in the case before us, I would conclude Clark is more culpable.

Viewed side by side, the disparity between the perceptions of the same crime by these two sentencing juries is patent. When such inconsistent, inherently self-contradictory results lead to the sentence of life imprisonment in one case and the sentence of death in another, it is this Court’s duty on proportionality review to remedy the result by setting aside the death sentence and imposing life imprisonment. “The very reason for proportionality review by this Court is to reduce the number of inconsistent or inherently self-contradictory results in capital cases ....” State v. Stokes, 319 N.C. at 30 , 352 S.E.2d at 669 (Mitchell, J., dissenting).

That defendant’s death sentence is disproportionate is reinforced by comparison with two other cases involving love triangle murders: State v. Mahaley, 332 N.C. 583 , 423 S.E.2d 58 (1992); and State v. *129 Harris, 333 N.C. 543 , 428 S.E.2d 823 (1993). In Mahaley , the defendant, who was in an adjoining room while Harris, her boyfriend, and his companion strangled her husband, was sentenced to death. We vacated Mahaley’s death sentence and remanded for a new sentencing proceeding. In Harris , the boyfriend, Harris, who actually committed the crime, was sentenced to life imprisonment. We found no error in the trial. The sentencing jury for Mahaley found the aggravating circumstances that the killing was especially heinous, atrocious, or cruel and that the offense had been committed for pecuniary gain. The sentencing jury for Harris found that the murder had been committed while the defendant was engaged in the commission of robbery with a dangerous weapon and that the murder had been committed for pecuniary gain, but it did not find that the murder was especially heinous, atrocious, or cruel. That the sentencing jury for Harris, the perpetrator, recommended life imprisonment despite finding two aggravating circumstances including pecuniary gain underscores the disproportionality of the death sentence here.

Finally, the murder in the case before us is not at the level of culpability of those murders in the cases in which this Court has affirmed sentences of death. Defendant’s sentencing jury did not find any of the three aggravating circumstances most prevalent in the majority of the “death-affirmed” cases 3 — that the defendant previously had been convicted of a violent felony; that the murder was especially heinous, atrocious, or cruel; or that the murder was part of a course of conduct in which the defendant committed a violent crime against another person. See State v. Green, 321 N.C. 594 , 365 S.E.2d 587 , cert. denied, 488 U.S. 900 , 102 L. Ed. 2d 235 (1988) (prior violent felony; course of conduct); State v. Holden, 321 N.C. 125 , 362 S.E.2d 513 (1987), cert. denied, 486 U.S. 1061 , 100 L. Ed. 2d 935 (1988) (prior conviction of a violent felony); State v. Brown, 320 N.C. 179 , 358 S.E.2d 1 , cert. denied, 484 U.S. 970 , 98 L. Ed. 2d 406 (1987) (prior conviction of a violent felony); State v. Spruill, 320 N.C. 688 , 360 S.E.2d 667 (1987), cert. denied, 486 U.S. 1061 , 100 L. Ed. 2d 934 (1988) (heinous, atrocious, or cruel); State v. Robbins, 319 N.C. 465 , 356 S.E.2d 279 , cert. denied, 484 U.S. 918 , 98 L. Ed. 2d 226 (1987) (prior *130 conviction of a violent felony); State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673 , cert. denied, 479 U.S. 871 , 93 L. Ed. 2d 166 (1986) (heinous, atrocious, or cruel); State v. Brown, 315 N.C. 40 , 337 S.E.2d 808 (1985), cert. denied, 476 U.S. 1165 , 90 L. Ed. 2d 733 (1986) (prior conviction of a violent felony; heinous, atrocious, or cruel); State v. Vereen, 312 N.C. 499 , 324 S.E.2d 250 , cert. denied, 471 U.S. 1094 , 85 L. Ed. 2d 526 (1985) (course of conduct); State v. Huffstetler, 312 N.C. 92 , 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009 , 85 L. Ed. 2d 169 (1985) (heinous, atrocious, or cruel); State v. Noland, 312 N.C. 1 , 320 S.E.2d 642 (1984), cert. denied, 469 U.S. 1230 , 84 L. Ed. 2d 369 , reh’g denied, 471 U.S. 1050 , 85 L. Ed. 2d 342 (1985) (course of conduct); State v. Gardner, 311 N.C. 489 , 319 S.E.2d 591 (1984), cert. denied, 469 U.S. 1230 , 84 L. Ed. 2d 369 (1985) (course of conduct); State v. Boyd, 311 N.C. 408 , 319 S.E.2d 189 (1984), cert. denied, 471 U.S. 1030 , 85 L. Ed. 2d 324 (1985) (prior conviction of a violent felony; heinous, atrocious, or cruel); State v. Maynard, 311 N.C. 1 , 316 S.E.2d 197 , cert. denied, 469 U.S. 963 , 83 L. Ed. 2d 299 (1984) (heinous, atrocious, or cruel); State v. Lawson, 310 N.C. 632 , 314 S.E.2d 493 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985) (course of conduct); State v. Oliver, 309 N.C. 326 , 307 S.E.2d 304 (1983) (heinous, atrocious, or cruel); State v. Craig and State v. Anthony, 308 N.C. 446 , 302 S.E.2d 740 , cert. denied, 464 U.S. 908 , 78 L. Ed. 2d 247 (1983) (heinous, atrocious, or cruel; course of conduct); State v. Williams, 308 N.C. 47 , 301 S.E.2d 335 , cert. denied, 464 U.S. 865 , 78 L. Ed. 2d 177 , reh’g denied, 464 U.S. 1004 , 78 L. Ed. 2d 704 (1983) (heinous, atrocious, or cruel); State v. McDougall, 308 N.C. 1 , 301 S.E.2d 308 , cert. denied, 464 U.S. 865 , 78 L. Ed. 2d 173 (1983) (prior conviction of a violent felony; heinous, atrocious, or cruel; course of conduct); State v. Brown, 306 N.C. 151 , 293 S.E.2d 569 , cert. denied, 459 U.S. 1080 , 74 L. Ed. 2d 642 (1982) (heinous, atrocious, or cruel); State v. Pinch, 306 N.C. 1 , 292 S.E.2d 203 , cert. denied, 459 U.S. 1056 , 74 L. Ed. 2d 622 (1982), reh’g denied, 459 U.S. 1189 , 74 L. Ed. 2d 1031 (1983) (heinous, atrocious, or cruel; course of conduct); State v. Smith, 305 N.C. 691 , 292 S.E.2d 264 , cert. denied, 459 U.S. 1056 , 74 L. Ed. 2d 622 (1982) (heinous, atrocious, or cruel); State v. Williams, 305 N.C. 656 , 292 S.E.2d 243 , cert. denied, Smith v. North Carolina, 459 U.S. 1056 , 74 L. Ed. 2d 622 (1982), reh’g denied, Williams v. North Carolina, 459 U.S. 1189 , 74 L. Ed. 2d 1031 (1983) (course of conduct); State v. Taylor, 304 N.C. 249 , 283 S.E.2d 761 (1981), cert. denied, 463 U.S. 1213 , 77 L. Ed. 2d 1398 , reh’g denied, 463 U.S. 1249 , 77 L. Ed. 2d 1456 (1983) (prior conviction of a violent felony); State v. Rook, 304 N.C. 201 , 283 S.E.2d 732 (1981), cert. denied, 455 U.S. 1038 , 72 *131 L. Ed. 2d 155 (1982) (heinous, atrocious, or cruel); State v. Hutchins, 303 N.C. 321 , 279 S.E.2d 788 (1981) (course of conduct); State v. Martin, 303 N.C. 246 , 278 S.E.2d 214 , cert. denied, 454 U.S. 933 , 70 L. Ed. 2d 240 , reh’g denied, 454 U.S. 1117 , 70 L. Ed. 2d 655 (1981) (heinous, atrocious, or cruel); State v. Barfield, 298 N.C. 306 , 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907 , 65 L. Ed. 2d 1137 , reh’g denied, 448 U.S. 918 , 65 L. Ed. 2d 1181 (1980) (heinous, atrocious, or cruel). Nor was this an offense involving a sexual assault or other violent felony, e.g., State v. Zuniga, 320 N.C. 233 , 357 S.E.2d 898 , cert. denied, 484 U.S. 959 , 98 L. Ed. 2d 384 (1987); State v. Bare, 309 N.C. 122 , 305 S.E.2d 513 (1983); nor did it involve the infliction of serious injury or the murder of more than one victim, e.g., State v. Vereen, 312 N.C. 499 , 324 S.E.2d 250 , cert. denied, 471 U.S. 1094 , 85 L. Ed. 2d 526 (1985); State v. McDougall, 308 N.C. 1 , 301 S.E.2d 308 , cert. denied, 464 U.S. 865 , 78 L. Ed. 2d 173 (1983); nor was it effectuated in order to avoid lawful arrest, e.g., State v. Holden, 321 N.C. 125 , 362 S.E.2d 513 (1987), cert. denied, 486 U.S. 1061 , 100 L. Ed. 2d 935 (1988).

From every perspective the instant case is a misfit among similar cases in the proportionality pool. First, it is the only case in which the death penalty has been ultimately imposed where the sole aggravating circumstance found was the motive of pecuniary gain. Second, it is the only case in the proportionality pool in which a defendant determined by the sentencing jury to have been under the domination of a confederate was condemned to death while the confederate was sentenced to life imprisonment. Third, defendant Bacon, who killed at the behest and under the inspiration, direction, and domination of another and whose sentencing jury found two statutory and seven non-statutory mitigating circumstances, is less culpable than Benson and Jackson, whose death sentences were determined disproportionate by this Court. Finally, the murder here in terms of both the crime and the defendant does not rise to the level of culpability present in the cases in which this Court has determined the death penalty to be not disproportionate. For all these reasons, I conclude defendant’s sentence of death is disproportionate and vote to vacate this sentence and impose a sentence of life imprisonment.

Justice FRYE joins in this dissenting opinion.

. The life sentence was imposed by the jury at a resentencing proceeding ordered by this Court because of McKoy error in the initial capital sentencing proceeding. State v. Stager, No. 93CRS03391, Superior Court, Chatham County, 12 October 1993.

. The life sentence was imposed at a resentencing proceeding ordered by this Court because of McKoy error in the initial capital sentencing proceeding. State v. Quesinberry, No. 84CRS8304, Superior Court, Randolph County, 3 December 1991.

. See State v. Artis, 325 N.C. 278, 342 , 384 S.E.2d 470, 506 (1989), judgment vacated, 494 U.S. 1023 , 108 L. Ed. 2d 604 (1990) (heinous, atrocious, or cruel and previous conviction of a violent felony are two aggravating circumstances most prevalent in death-affirmed cases); State v. Greene, 324 N.C. 1 , 28-29 nn.3 & 5, 376 S.E.2d 430 , 446-47 nn.3 & 5 (1989), judgment vacated, 494 U.S. 1022 , 108 L. Ed. 2d 603 (1990) (heinous, atrocious, or cruel; previous conviction of a violent felony; or course of conduct aggravating circumstance(s) found in thirty-six of thirty-seven “death-affirmed” cases).