# Petition — JOHN W. ROOK v. NORTH CAROLINA (No. 81-6143)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981

## Text

SI-Gi4¢2

NO. A-591

SUPREME COURT, U.S.

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IN THE
SUPREME COUT OF THE UNITED STATES
OCTOBER TERM, 1981

JOHN WILLIAM ROOK,
Petitioner,
v.
STATE OF NORTH CAROLINA,
Respondant.

PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF NORTH CAROLINA

. Franklin Jackson —

P. 0. Box 1029

Dunn, North Carolina 28334
Phone: (919) 892-2145

ATTORNEY OF, RECOR

Suite 612, BB&T Building
Post Office Box 1182
Raleigh, North Carolina 27602
Phone: (919) 828-4486

ATTORNEY OF RECORD

QUESTION PRESENTED

Whether the Petitioner was deprived of his constitutional right
to ‘individualized consideration” as guaranteed by the Eighth and Fourteerth
Amendements to the United States Constitution in being sentenced to death
pursuant to a statute that permitted the jury to return its recommendation for
a sentence of death without specifying which of the mitigating circumstances

it found to exist.

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TABLE OF CONTENTS

i!

QUESTION PRESENTED . 2 2 2 2 ee ee ee ee ee ee eee
kg ee er eer a
| TABLE OF CASES AND AUTHORITIES... 2... eee eee
| CITATION TO OPINION BELOW... 2.2... 2 eee
JURISDICTION. 2.2... eee Cre

| CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .....

} I i ood ak. og ee eo a

1 REASONS FOR GRANTING THE WRIT. .........
CS ere ee ee ere eee
APPENDIX A: Opinion of The Supreme Court of North Carolina.
APPENDIX B: Order Staying Execution. ......+4 +46.
APPENDIX C: Extension of Time For Filing Petition.....

APPENDIX D: North Carolina General Statute
15A-2000 et seq.

ii

ao no ©

‘
_TABLE OF CASES AND AUTHORITIES
CASES _
FURMAN v. GEORGIA, 408 U. S. 238 (19FZ) .nccccccccccces
GREGG v. GEORGIA, 428 U. S. 163 {IDTS) .ccccccccccccce
LOCKETT v. OHIO, 438 U. S. 586 (1978) ......ceeeeeees
“ PROFFIT v. FLORIDA, 428 U. S. 242 (1976) .....-...00000.
WOODSON v. NORTH CAROLINA, 428 U. S. 280 (1976) ..........
CONSTITUTIONAL PROVISIONS
Constitution of the United States .......eeeeeeececeeecens
Eighth Amendment ......ccececececcceccseceeeescees
FOURTEENTH AMENDMENT .......cceeeeeceecceeceecenes
STATUTORY PROVISIONS
Title 28, United States Code, Section 1257(3) ...........-
North Carolina General Statutes (Supp. 1979)
WEA20OD 2. ccccccccccccccccccccccccccccccccesccess
WAZOO (D) nc ccccccccccccccccccscccocccccccocess
TEABOOO(]) 2 cccccccccccccccccccccccccccceccccese
WEA-2000(G)(2) .cccccccccccccccccccccccccccccccece

iii

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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER, 1981
No. A-591

JOHN WILLIAM ROOK,
Petitioner,
-v-
STATE OF NORTH CAROLINA
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THC SUPREME COURT OF NORTH CAROLINA

Petitioner, John William Rook, respectfully prays that a writ of certio-

rari issue to review the judgment of the Supreme Court of North Carolina in this

case.
CITATION TO OPINION BELOW
The opinion of the Supreme Court of North Carolina is reported at
a Gee 5 » 5.E.2d (1981), and is attached hereto as
Appendix “A”.

JURISDICTION

The judgment of the Supreme Court of North Carolina was entered on
November 3, 1981. By operation of North Carolina law, an execution date of
February 19, 1982 was thereafter established for petitioner. On December 17,
1981, however, the Supreme Court of North Carolina stayed petitioner's ex-
ecution pending its further orders. On December 30, 1981, this Court, per Mr.
Chief Justice Burger, granted petitioner's application for an extension of
time to February 1, 1982, within which to file his petition for a writ of
certiorari (Appendix 8). This Court's jurisdiction to review by writ of
certiorari is invoked under U.S.C. Sec. 1257(3).

Roche.

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CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Eighth Amendment to the Constitution of the United)
States, which provides in relevant part:
"Excessive bail shall not be required, nor excessive
fines imposed, nor crue] and unusual punishments
inflicted;”

and the Fourteenth Amendment to the Constitution of the United States, which

provides in relevant part:

“(N] or shall any State deprive any person of life,

liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the
equal protection of the laws."

STATEMENT OF CASE

Petitioner, John William Rook was convicted and sentenced to death by a
Wake County, North Carolina, jury in October, 1980, for the murder of Ann Mari

———

The State presented evidence showing that Ann Marie Roche was walking
along a road in Raleigh, North Carolina on May 12, 1980 when her path was

blocked by a car being driven by a person who was later identified as the
Petitioner (T.72-73) by several witnesses. (T. 63,72,75). As MS. Roche ap-
proached the car the two had a brief conversation and then began to argue and |
the Petitioner began to beat her (T. 71). The witnesses saw the car leave

with MS. Roche in the passenger seat (T. 125). On May 13, 1980, a oatrol
officer on routine patrol discovered the body of Ann Marie Roche in a large open
field (T. 108, 109) and medical evidence showed that she had been beaten, cut
with a knife, raped and had been run over by an automobile. (T. 164-174). |
The Petitioner made a statement to the police, confessing that he met Ann :
Marie Roche while she was walking along a road; that she got into his car and |
they drove to a large open field. (T. 142) He told her to get out of the car
and after hitting her with a tire tool he proceeded to have sexual intercourse
with her (T. 143). She started fighting him and he said he went crazy (T.143)
and started hitting her. He hit her with the tire tool and swung at her with

a knife, and struck her with the knife on the face and neck, though not meaning

to hit her (T. 143). He stated that he ejaculated and then tried to have anal,

intercourse (T. 143). He stated he started hitting her again but she did not |
_move (T. 144). The Petitioner stated that he got in his car and drove down |
to turn around; stating that he could barely see over the steering whee! and |
F did not mean to run over her (T. 144). He then went on home and told no one
_ what he had done (T. 144).

The Petitioner offered no evidence. The trial court instructed the

|

jury which returned verdicts finding the Petitioner guilty of first degree |
murder, first degree rape, and kidnapping (T. 175-202). |

After the verdict of guilty of first degree murder, the trial court, |
pursuant to North Carolina Genera] Statute 15A-2000, convened the trial jury |

on the sentencing phase of the trial to determine whether the Petitioner should

be sentenced to death or life imprisonment. The State offered no additional

evidence during the sentencing phase. |
The Petitioner presented evidence at the sentencing phase of the trial

through his brother and sister, who described their life with their parents.

In addition, the Petitioner offered evidence through two psychiatrists.

|
After this testimony and arguments of counsel the jury was instructed on

these aggravating circumstances in the following language:

1. “Was this murder committed while John William
Rook was engaged in the commission of the rape
of Ann Marie Roche. (T. 243)?

“Now, if the State has so convinced you beyond a
reasonable doubt and you so find beyond a reasonable
doubt then you would write ‘yes’ after that al-
leged aggravating circumstance." (T. 243,244)

“However, if you do not so find, or if you have a
reasonable doubt as to one or more of these things,
you would not find this aggravating circumstance
and would so indicate by having your foreman write
‘no’ in the space after that alleged aggravating
circumstance." (T. 244)

2. “Was this murder committed while John William Rook
was engaged in the commission of the kidnapping of
Ann Marie Roche?"(T. 244)

"... if you so find from the evidence beyond a reason-
able doubt ... so indicate by having your foreman
write ‘yes’ in the space after the second alleged
aggravating circumstance." (T. 244)

"... if you do not so find, or if you have a reason-
able doubt as to anyone or more of these things, you

3

you would not find this aggravating circumstance
and would so indicate by having your foreman write
‘no’ in the space following that alleged circumstance."

(T. 244,245)

3. “Was this murder especially heinous, atrocious, or
cruel?" (T. 245)

“If you find from the evidence in this case ... you
would so indicate by having your foreman write ‘yes’
in the space after this alleged circumstance on
this issue and recommendation form." (1.245)

. if you do not so find ... indicate by having
your foreman write ‘no' in that space.”

The jury was instructed on the mitigating factors in the following

language: |

“Now, Issue Number Three reads as follows: ‘Do you
one or more mitigating circumstances?”
T. 247

“... in this case there are sixteen possible mitigat-
ing circumstances that are listed on this form

and that you should consider each of them before
answering Issue Number Three.” (T. 247)

“... if the evidence satifies you that a mitigating
circumstance does exist, you would then find that
circumstance. If no, you would not find it." (7.248)

. it will be your duty on this issue, if you reach
it and if you answer it, to consider the following
mitigating circumstances, and any other which you
find from the evidence.” (T. 248)

1.
The mitigating circumstances submitted to the jury were:

(a) That this murder was committed while John William Rook
was under the influence of mental or emotional dis-
turbance.

(b) The capacity of John William Rook to appreciate the
criminality of his conduct or to conform his con-
duct to the requirements of the law was impaired.

(c) The age of John William Rook at the time of this
murder is a mitigating circumstance.

{d) John William Rook, in his formative years, was sub-
jected to cruelty and physical abuse by his parents.

“... regarding Issue Number Three, members of the jury,
if you do find one or more of these mitigating cir-
cumstances from the ... evidence, you then answer Issue
Three ‘yes'. However, if you do not so find at least
one of these mitigating circumstances from the evidence,
you would then answer Issue Number Three ‘no'" (T.254)

"... if you unanimously find beyond a reasonable doubt
that the aggravating circumstances found by you out-
weigh the mitigating circumstances found by you, you
would then answer Issue Number Four ‘yes‘'" (T. 255)

“... if you answer Issue Number Four ‘no’, it would
then be your duty to recommend that the defendant be
sentenced to life imprisonment.

(e) John William Rook, in his formative years, was sub-
jected to mental abuse by his parents.

(f) John William Rook, in his formative years, was sub-
jected to emotional abuse by his parents.

(g) Jonn William Rook has been a loving and affectionate
husband to his wife.

(h) John William Rook has been loving and affectionate
to his brothers and sisters and their children.

(1) John William Rook is an alcoholic.

(j) John William Rook is an abuser of drugs and is ad-
dicted to drugs.

(k) John William Rook was sexually abused by an older
man whom he lived with when he was 10 years old in
order to have a more stable home environment.

(1) Jonn William Rook had a deprived and chaotic child-
hood in which he was schooled in violence and
criminality by his parents.

(m) John William Rook now has an IQ of 71 and received
very little education in his formative years.

(n) John William Rook, in his formative years, received
very little religious and moral training.

(o) John William Rook confessed in detail as to what he
did and cooperated with the detectives and in-
vestigators of the Raleigh Police Department and
Wake County Sheriff's Department as to his involve-
ment.

(p) Any other circumstance or circumstances arising from
the evidence which you, the jury, deem to have miti-
gating value.

As to Issue Three “Do you fi. 4 one or more mitigating circumstances?" The

If, however, you answer Issue Number Four ‘yes’, it would

then be your duty to recommend ... that the defendant

be sentenced to death." (1.255) |
In the verdict, the jury found all three of the aggravating ci rcums tances

to exist and indicated so by writing "yes" after each individual issue. (T.258)

jury indicated that it did by writing “yes” after the issue; however, the
jury did not indicate which of the mitigating circumstances it found to exist |
or be nonexistent. (1.259, 260) The jury further found that the mitigating

circumstances did not outweight the aggravating circumstances and that the

aggravating circumstances were sufficiently substantiated tc call for the
death penalty. (T. 260)

The North Carolina Supreme Court affirmed Petitioner's conviction and
death sentence, explicitly finding that the court did not err in permitting
the jury to retum its recommendation for a sentence of death without speci fy
ing which of the mitigating circumstances it found to exist. State of North |
Carolina v. Rook, N.C. . S.£.2d 510, __(1981)

REASONS FOR GRANTING THE WRIT

1. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER
WHETHER THE NORTH CAROLINA SUPREME COURT HAS
SANCTIONED CAPITAL SENTENCING PROCEDURES WHICH
VIOLATED PETITIONER'S RIGHT TO “INDIVIDUALIZED
CONSIDERATION", IN VIOLATION OF THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CON-
STITUTION.

In Furman v. Georgia, 408 U.S. 238 (1972) this court concluded that dis-
cretionary sentencing in a capi tal trial "be suitably directed and limited
so as to minimize the risk of wholly arbitrary and capricious action.”
Gregg v. Georgia, 428 U.S. 153, 189 (1976). In order to accomplish this,
the sentencing authority's discretion must be “guided and channeled by a
system that focuses on the circumstances of each individual homicide and in-
dividual defendant in deciding whether the death penalty is to be imposed. "
Proffitt v. Florida, 428 U.S. 242, 258 (1976). In Woodson v. North Carolina,

428, U.S. 280, 304--305 the court states that consideration of the “character
and record of the individual offender and the circumstances of the particular
offense ... [is] a constitutionally indispensable part of the process of in-
flicting the penalty of death.” In Lockett v. Ohio, 438 U. S. 586 ,604-05

(1978) (Burger, C.J.; plurality opinion) the court expounded on the concept of

“individualized consideration” as a constitutional requirement.

“(T)he Eighth and Fourteenth Amendments require that
the sentencer, in all but the rarest kind of capita!
case, not be precluded from considering any aspect of
a defendant's character or record and any of the cir-
cumstances of the offense that the defendant proffers
as a basis for a sentence less than death ... The need
for treating each defendant in a capital case with
that degree of respect due the uniqueness of the in-
dividual is far more important than in non-capital

cases. ... The nonavailability of corrective or modi-
fying mechanisms with respect to an executed capital
sentence underscores the need for individualized con-
sideration as a constitutional requirement in imposing
the death sentence.

“There is no perfect procedure for deciding in which
cases governmental authority should be used to impose
death. But a statute that prevents the sentencer in
all capital cases from giving independent mitigating
weight to aspects of the defendant's character and re-
cord and to circumstances of the offense proffered in
mitigation creates the risk that the death penalty will
be imposed in spite of factors which may call for a
less severe penalty. When the choice is between life
and death, that risk is unacceptable and incompatible
with the commands of the Eighth and Fourteenth Amend-
ments."

It is the contention of this Petitioner that the North Carolina
2
Statutes permitting the jury to return its

2
N.C.G.S. 15A-2000 et seq.

recommendation for a sentence of death without specifying which of the miti-
gating circumstances it found to exist violates the constitutional right of
“individualized consideration" and therefore violative of the Eighth and
Fourteenth Amendments of the United States Constitution.

_ North Carolina General Statute 15A-2000 sets out the procedures for the
sentencing phase in a capital case. Section (b) of the statute requires,
first, that in all capital cases:

"“[T]he judge shall include in his instructions to the
jury that it must consider any aggravating circum
stance or circumstances or mitigating circumstance
or circumstances from the lists provided in sub-

sections (e) and (f) which may be supported by the
evidence.

“4

"After hearing the evidence, argument of coursel,
and instructions of the court, the jury shall de-
liberate and render a sentence recommendation to
the court, based upon the following matters:

(1) Whether any sufficient aggravating circumstance
or circumstances as enumerated in subsection
(e) exist;

(2) Whether any sufficient mitigating circumstance
or circumstances as enumerated in subsection
(f), which outweigh the aggravating circum
stance or circumstances found, exist; and

(3) Based on these considerations, whether the de-
fendant should be sentenced to death or to im
prisonment in the State's prison for life.”

Section (c) provides:
"“(c) Findings in Support of Sentence of Death-- When

the jury recommends a sentence of death, the foreman of
the jury shall on behalf of the jury show:

(1) The statutory aggravating circumstance or cir-
cumstances which the jury finds beyond a
reasonable doubt; and

|
(2) That the statutory aggravating circumstance or
circumstances found by the jury are sufficiently
substantial to call for the imposition of the
death penalty; and,

(3) That the mitigating circumstance or circumstances
are sufficient to outweigh the aggravating circum
stance or circumstances found.”

- Section (e) then lists the available aggravating circumstances, and section |

(f) suggests a list of mitigating circumstances which the jury may consider
but to which it is not limited because of the open-ended language found in
section (f)(9).

At Petitioner's trial, the jury was submitted and it returned, three
aggravating circumstances; it was also submitted sixteen mitigating circum
stances but did not specify which mitigating circumstances it found, only
that it found “one or more" to exist. The Supreme Court of North Carolina
upheld the trial court's failure to instruct the jury to answer specifically
whether or not each mitigating circumstance did or did not i,”

Petitioner would agree to this court that such a construction of North
Carolina's death penalty statute prejudiced the Petitioner at his trial and
appeal to the North Carolina Supreme Court and denies to him his constitutional

right of “individualized consideration” as that concept is set out in Lockett.

As J. Exum stated in his dissent in present — “regarding the jury |
" t0 specify in writing the aggravating, but not the mitigating, circumstances...
| prejudices the defendant at the sentencing hearing. It encourages the jury to |
think that the mitigating circumstances are less worth than the aggravating

circums tances."

Petitioner is prejudiced not only at trial, but also on appeal to the
| North Carolina Supreme Court since the statute requires that that court review
the case to consider whether "the sentence of death is excessive or dispro-

| portionate to the penalty imposed in similar cases, considering both the crime
| and the dafentent. As J. Exum stated in the dissent “We cannot ... determine

whether the sentence of death in any particular case is excessive or dispro-
portionate when compared with similar cases ‘considering both the crime and the.
_ defendant’ unless we know both the aggravating and the mitigating circum-
stances found by the jury to exist .
It is submitted that a substantial constitutional question is raised

concerning

“It follows, then, that there exists no constitutional requirement of
specific findings on mitigating circumstances and a failure of the trial court
to instruct the jury to make specific findings was not error.” State v. Rook,

N.C. DP (1981)

4
Id at p

5
G. S. 15A-2000(d)(2)

6
State v. Rook, N.C. ’ (1981)

‘the procedure which the Supreme Court of North Carolina has adopted by its de-

| “individualized consideration" of the Petitioner. In the instant case the

cision in the present case and that such a decision failed to allow for

majority opinion seems to indicate that it is enough, for purposes of their

\;

\ appellate review, that they know what mitigatina circumstances were submitted
i to the jury rather than what mitigating circumstances were found to exist by

‘the jury. In order to properly review the sentence in a capital it is essential

that the sentence reviewer know exactly what the jury considered in reaching its,
decision, not only aggravating circumstances but mitigating circumstances as a.
In Lockett, the court stated that it could not "... avoid the conclusion that

N an individualized decision is essential in capital cases." ; It is submitted |

that in this case the failure of the trial court to require the jury

6.
Lockett v. Ohio, supra 438 U.S. 586.

to specify which of the mitigating circumstances it found to exist violated
Petitioner's constitutional right to “individualized consideration" guaranteed
by the Eighth and Fourteenth Amendments.

CONCLUSION

For the reasons stated above, Petitioner prays that this Court grant
the Petition.
Date: April 16, 1981.
Respectfully Submitted,

. Franklin son
DOFFERMYRE AND JACKSON, P. A. |
P. 0. Box 1029

Dunn, North Carolina 28334

Phone: (919) 892-2145 |

10

Ph pen ik

IN THE SUPREME COURT OF NORTH CAROLINA FALL TERM 1981
STATE OF NORTH CAROLINA

Vv No. 2 = Wake

~~ ee oe

JOHN WILLIAM ROOK

Appeal from judgments entered by Clark, Judge, at the 6
October 1980 Criminal Session of Superior Court, Wake County.
Defendant was convicted by a jury of first degree rape, kidnapping,
and first degree murder. For his conviction of first degree
murder, defendant was sentenced to death. Defendant received
consecutive life sentences for the crimes of kidnapping and first
degree rape. From all these judgments, defendant appeals to this
Court as a matter of right.

Attorney General Rufus L. Edmisten, by Assistant Attorney
General J. Michael Carpenter, for the State.

C. D. Heidgerd and J. Franklin Jackson for the defendant.

CARLTON, Justice.

Defendant brings forth assignments of error relating to
several pre-trial matters, an alleged error in the guilt deter-
mination phase of his trial and several alleged errors relating to
the sentencing phase of his trial. After a careful consideration
of these assignments, as well as the record before us, we find

no error in any of these proceedings and affirm.

I.
At trial, evidence for the State tended to show that at
approximately 7:20 p.m. on 12 May 1980, Ann Marie Roche, a registered
nurse, was walking home on Avent Ferry Road. She was clad ina

T-shirt and blue jeans, was wearing glasses and was carrying a

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brown gym bag. As she was nearing the Lake Raleigh Road intersection
defendant, who was driving a Mercury automobile borrowed from
his neighbor, turned left onto Lake Raleigh Road and blocked her
path. Defendant beckoned Ms. Roche and she approached his car.
The two talked for several minutes and then began arguing and,
within seconds, defendant began to beat her.

All of this was observed by Howard B. Harris, Jr., who
lived on Avent Ferry Road, and George Edward Schlager, who was
jogging by. Mr. Schlager approached the car just as defendant
was beating Ms. Roche. Ms. Roche was on the ground with her
back against the driver's door. Her face and arms were cut and
bleeding, and defendant was crouching over her, armed with a stick
or some other object about one or two inches in diameter. Mr.
Schlager asked if he could help and defendant stood and replied,
"just go on, man, this deesn't concern you.” Mr. Schlager then
saw Mr. Harris and went to confer with him. Both saw the car
leave with Ms. Roche in the passenger seat, with her head down,
crying. Mr. Schlager jogged toward the car and observed the
license number, RAP-980. He wrote the number on 4 matchbook and
gave a copy of it to Mr. Harris.

Two other persons, Donna Atkins and Pamela Dodd, observed
the struggle between Ms. Roche and her assailant. Ms. Atkins
positively identified defendant as the assailant. Ms. Dodd
observed a man beating a young woman. She testified:

I saw a guy over the front seat beating a girl

brutally. The steering wheel appeared to jar at

times he was beating her so hard. Then they were

out cf the car. He was swinging her around by

the hair on the ground once that I can remember.

At that time I ran in the house and called the
police.

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Although Ms. Dodd did not positively identify the assailant as
the defendant, her description of the assailant matched that of
the defendant.

Officer Ronnie Holloway arrived in the area at approxi-
mately 7:30 p.m. in response to the calls. Although he patrolled
the area, he could not find the car.

On 13 May 1980 at approximately 7:30 p.m., Norman Cash,

a patrol officer with Dorothea Dix Hospital, was on routine patrol
in the area just south of Lake Raleigh. In a large, open field

he discovered a pile of clothing and a billfold. A short dis-
tance away, he observed a body and notified the Wake County
Sheriff's Department. Deputy Pickett of the Wake County Sheriff's
Departmertwas called and he, too, observed the body. At 8:45 p.m.,
Officer William E. Hensley, a crime scene specialist, was called
to the scene. He observed a white female body, badly bruised and
battered, with cuts and abrasions. The ground around the body was
covered with blood. The body was nude and was approximately
thirty-five feet from the pile of clothing. A T-shirt, blue

jeans and glasses were recovered as well as other articles in-
Cluding a brown bag. The body was identified as Ann Marie Roche.

From the license number recorded by Mr. Schlager the
police were able to trace the car and locate the owner. On 15
May 1980, Officer Holloway went to Stovall Drive and found the
car in question. Surveillance was set up and the car was sub-
sequently stopped by officers. It was operated by Ms. Edwards,
the owner, who told the police that defendant had borrowed her
car on the evening of 12 May 1980. She told police that when he

borrowed the car, defendant was dressed only in blue jeans, was

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barefooted, and had pulled his hair back in a pony tail. .This
description matched that given by all the witnesses to the assault.
Surveillance of the area continued and the defendant was observed
entering a trailer near where the car was parked. Raleigh police
officers approached the trailer, knocked on the door, and were
told to enter. Inside were two white males, two white females
and a small child. Sergeant G. W. Black requested permission to
search for defendant and this was denied. Shortly thereafter,
however, the defendant came from the hallvay of the trailer and
stated, "I guess I'm the one you're lookina for." Defendant was
then taken into custody and placed in a patrol car.

On 15 May 1980, Deputy Sheriff P. J. Bissette obtained
a search warrant to search thé@-trailer where defendant had been
arrested and conducted a search. During the search, Officer
Bissette found and seized a pair of blood-stained blue jeans.
Officer Hensley, who assisted in the search, found a Rapala Finland
knife and a leather carrying case on the dash of a vehicle parked
in front of the trailer. He then inspected the Mercury vehicle
which had been taken to the Wake County Courthouse and found fresh
Stains on the driver's side as well as grass caught between certain
sections of the vehicle. He observed red stains @mthe hubcaps and
underneath the vehicle. During the autopsy of Ms. Roche, Officer
Hensley observed an unusual circular impression, approximately
five centimeters in size, on the right hip. He noted a corresponding
five centimeter area in the chassisof the Mercury automobile.

S.B.I. agent Mark Nelson came to the crime scene on the
evening of 13 May at approximately 11:30 p.m. He made numerous
tests and observations and stated his opinion that one particular

bloody smear was consistent with the large bloody object, like

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a body, being rolled or dragged down the slope of the field. He
also examined the Mercury automobile and found blood in numerous
places. He also performed tests on the vaginal and anal smears
taken from Ms. Roche's body and found the presence of sperm.

Dr. Dana D. Copeland, a pathologist, conducted the
autopsy on Ms. Roche on 14 May 1980. He observed cuts on the
front part of her body, all parallel. The cuts were straight
across and were of a uniform, shallow depth. The placement and
uniform depth, in Dr. Copeland's opinion, indicated that the
cuts had been made deliberately shallow and “with some care and
effort.” His conclusion was that Ms. Roche's cuts were caused
by a sharp instrument like a knife. Dr. Copeland found numerous
lacerations on her head and hands which were, in his opinion,
produced by beating with a long, blunt instrument with a rcund
striking surface. In addition to the numerous cuts and abrasions
throughout Ms. Roche's body, her left leg was completely fractured
and broken at the top. The pelvis was fractured and separated.
Compression injuries in the pelvic region were consistent with
her having been struck by an automobile. Severe internal bleeding
had taken place and he found injuries in the vaginal area which,
in his opinion, could have been produced by forcible sexual
intercourse. Her right rib was also broken. In Dr. Copeland's
Opinion, Ms. Roche died as a result of loss of blood from the
injuries she sustained. Moreover, his opinion was that she could
have remained alive from a period of two hours up to a maximum
of twenty-four hours after receiving the injuries observed.

At approximately 8:12 p.m. on 15 May 1980, Deputies
Freddie Benson and Ted Lanier and Detective J. C. Holder of the
Raleigh Police Department began interviewing the defendant.

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Deputy Benson advised defendant of his Miranda rights and defen-
dant signed a waiver of rights form. Defendant stated that he
understood his rights. Deputy Benson left the room and Detective
Holder began to question defendant. He again advised defendant
of his rights and defendant was calm and in control. Detective
Holder testified that “Johnny looked at me, and he said that he
@id it. He asked me if I was happy. I told him that I was not
happy. I said, ‘What did you do." He raid that he killed that
girl.” Defendant then proceeded to give Officers Holder and
Lanier a complete statement.

Defendant's statement to the officers can be summarized
as follows: On 12 May 1980 he was at a cookout on Stovall Drive
and needed more beer. He borrowed the Mercury from Ms. Edwards
and drove to the A & P Store on Western Boulevard where he pur-
chased a bag of charcoal. Upon leaving the store he got into a
fight with a black person and ran and hid until they left. He
then went to an apartment complex on Avent Ferry Road and removed
some money from the coin-operated laundry machines. As he drove
down Avent Ferry Road he saw Ms. Roche walking and blew his horn.
She waved, and he turned into the first dirt road, backed and
turned, and sat headed toward Avent Ferry Road to await the girl.
When Ms. Roche walked up to the car, he pinched her. She slapped
him, and they began scuffling. He then apologized, and she said
he had already hurt her arm. He asked her to go riding with him
and she got into the car. A jogger came up during the scuffle
and defendant told the jogger to keep his eyes on what he was
doing. He and Ms. Roche then drove down Avent Ferry Road headed
south and, after making a few turns, they eventual) reached a
wheat field. Defendant told her to get out of the car and "tried

A-6

-7-
to get into her pants." She resisted, and he told her he was
going to have to get his “damn gun” from the vehicle, although,
in fact, he did not have one. Defendant got a tire tool out of
the trunk of the car, and Ms. Roche removed her pants. As she
did so, he struck her on the side of the head and she fell to
the ground. He then had forcible sexual intercourse with her.
She tried to pull his hair, and he began to hit her some four
or five times on the head and got blood on his face, shoulder,
wrist and pants. According to defendant, he swung his knife at
her and cut her on the face and neck, but he didn't mean to cut
her. He then attempted anal intercourse, and when she resisted,
he hit her again, and, instead of fighting, she just laid there
bleeding. Defendant then got into his car and drove down to
turn around. He could barely see over the steering wheel, but
knew he had run over her with the car because he heard a thump
and the car got stuck. He spun the tires to free the car and
then drove home. When he arrived, the police were at the trailer.
He returned to the cookout and explained the blood on his
clothing and body as the result of the fight at the A & P.

At approximately 10:26 p.m. on 15 May 1980, defendant
consented to a taped interview. Prior to this taking place,
Officer Holder again advised defendant of his rights and defen-
dant again repeated essentially the confession summarized above.
Later that evening, defendant accompanied Detective Holder and
other officers to the crime scene and showed them various items
involved in the crime.

Defendant offered no evidence during the guilt determination

phase of the trial.

-8-

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

Dr. Bob Rollins, a specialist in forensic psychiatry,
examined defendant and diagnosed defendant as having a mental
Gisorder of emotionally unstable personality as a result of
experiences during his formative years. Dr. Rollins also testi-
fied that defendant was able to proceed to trial in that he under-
stood his legal situation and was able to cooperate with his
lawyer. Dr. Rollins felt that defendant understood what he was
charged with, the different pleas he might make and the possible
consequences of the situation. He further testified:

Mr. Rook just has never been able to make a

satisfactory adjustment out in society, not

been able to get along with people. He's

been involved in violence, the longest he

had ever been employed is three weeks; he

can't get along with his own family, with his

wife, or with anybody. He just doesn't have

the capacity to do that.

Itwas also Dr. Rollins's opinion that defendant associates sexual

-9-
gratification with violence and aggressive acts and is sexually
excited by violence and aggression. His opinion was that defen-
dant, to some extent, “enjoys inflicting pain on other people."
Dr. Rollins was of the opinion that defendant would not benefit
from psychiatric treatment and believed that defendant's conduct
would continue in the future in a manner similar to that of the
past if he were to go free. In Dr. Rollins's opinion, defendant,
at the time of the crime, was aware that what he was Going was
wrong and thathe would be held responsible for his actions. Chief
District Court Judge George F. Bason of the Tenth Judicial District
testified that during the years Mr. Rook was involved in the
juvenile courts, no beneficial program was available to help
him.

Dr. Seymour Halleck, a psychiatrist, testified that
Gefendant's brutality probably resulted from his exposure to
brutality himself as a child. He also testified that defendant
suffered a mental illness although he was not insane. He stated:

I base my opinion on the fact that anybody that

uses as much alcohol and as many drugs as he has

and who has this kind of history of so much

deprivation, so little moral or social learning,

but I'm primarily based it on the drug issue,

anybody who uses these drugs cannot exercise

rational judgment, anybody with a degree of

alicoholism found in this family as the disease,

this kind of alcoholism is definitely a disease.

Dr. Halleck agreed with Dr. Rollins that defendant would not bene-
fit from psychiatric treatment for any brief period of time.

At the conclusion of the testimony, the trial court
instructed the jury on the sentencing phase. Three aggravating
circumstances were submitted to the jury: (1) whether the murder

was committed while defendant was engaged in the commission

of the rape of the victim; (2) whether the murder was committed
A-9

-10-
while the defendant was engaged in the commission of the kid-
napping of the victim; and (3) whether the murder was especially
heinous, atrocious or cruel. Sixteen mitigating circumstances

were submitted to the jury. The jury found beyond a reasonable

ltne mitigating circumstances submitted to the jury were:

(1) That this murder was committed while John William
Rook was under the influence of mental or emotional
disturbance. “

(2) The capacity of John William Rook to appreciate the
criminality of his conduct or to conform his conduct
to the requirements of the law was impaired.

(3) The age of John William Rook at the time of this
murder is a mitigating circumstance.

(4) John William Rook, in his formative years, was
subjected to cruelty and physical abuse by his parents.

(S$) John William Rook, in his formative years, was sub-
jected to mental abuse by his parents.

(6) John William Rook, in his formative years, was
subjected to emotional abuse by his parents.

(7) John William Rook has been a loving and affectionate
husband to his wife.

(8) John William Rook has been loving and affectionate
to his brothers and sisters and their children. ¢

(9) John William Rook is an alcoholic.

(10) John William Rook is an abuser of drugs and is
addicted to drugs.

(11) John William Rook was sexually abused by an older
man whom he lived with when he was 10 years old
in order to have a more stable home environment.

(12) John William Rook had a deprived and chaotic
childhood in which he was schooled in violence and
criminality by his parents.

(13) John William Rook now has an IQ of 71 and received
very little education in his formative years.

(14) John William Rook, in his formative years, re-
ceived very little religious and moral training.

A-10

-lle
doubt each of the aggravating circumstances and that the aggra-
vating circumstances were sufficiently substantial to call for
the imposition of the death penalty. " The jury also found one
or more mitigating circumstances, although it did not eeciqnate
which of the sixteen were found, and then found beyond a
reasonable doubt that the aggravating circumstances outweighed
the mitigating circumstances. The jury then returned a recomm-
endation that the death penalty be imposed, and the ¢ourt entered
judgment imposing the death penalty for the crime of first degree
murder. Defendant also received consecutive life sentences for
the crimes of kidnapping and first degree rape. From these judg-

ments, defendant appealed of right to this Court.

II.
PRE-TRIAL PHASE

Prior to trial, defendant entered several motions which
were denied by the trial court. The denial of these motions pro-
vides the basis for four of defendant's primary contentions
on this appeal. He first contends that the trial court erred in
@Genying his motion to suppress custodial statements because tiie
findings of fact of the trial court in the order were not supported
by sufficient and competent evidence. He also contends that the
trial court erred in ruling that his confession was voluntary in

that it was obtained by the influence of hope or fear implanted

(15) John William Rook confessed in detail as to what he
did and cooperated with the detectives and
investigators of the Raleigh Police Department
and Wake County Sheriff's Department as to his
involvement.

(16) Any other circumstance or circumstances arising from
the evidence which you, the jury, deem to have

mt mi nmin walwe A-11]

-l12-
in his mind by the acts and statements of police officers during
his custodial interrogation. Defendant also contends that his
metion to suppress all evidence obtained as a result of the
search warrant issued for the trailer on Stovall Street and the
Mercury automobile should have been allowed because the record
reveals insufficient facts or circumstances to support the
finding of probable cause by the magistrate who issued the search
warrant. Finally, defendant contends that his motion to dismiss
the proceedings pursuant to G.S. 15A-2000 should have been allowed
on the grounds that that section of our General Statutes is un-
constitutional on its face and as applied to him. We discuss

these contentions seriatin.

A.

As a result of defendant's motion to suppress his
custodial statements, the trial court conducted an extensive voir
Gire hearing on the admissibility of the statements. Evidence
was presented both by the State and defendant. Thereafter, the
court entered extensive findings of fact and conclusions of law
and denied the motion. With respect to the trial court's order,
defendant first contends that certain findings of fact contained
therein were not supported by substantial and competent evidence.
We find no merit to this contention.

Defendant acknowledges the general rule in this juris-
diction that findings of fact made by the trial court following
a voir dire hearing on the voluntariness of a confession are
conclusive on appellate courts if supported by competent evidence
in the record. State v. Pruitt, 286 N.C. 442, 212 S.E. 2d 92

(1975). No reviewing court may properly set aside or modify
A-12

-l3-
those findings if so supported. State v. Barber, 278 N.C. 268,
2.79 S.E. 2d 404 (1971). Indeed, a trial judge's findings will
not be disturbed on appeal when the finding is supported by
competent evidence even when there is conflicting evidence.
State v. McRae, 276 N.C. 308, 172 S.E. 2d 37 (1970).

Here, the trial court found as a fact that “Lieutenant
Benson advised the defendant that he was a G.D. liar, and then
read a warrant to the defendant charging him with murder and
advised him that he was being charged with murder."

Defendant admitsthe truth of this finding but contends,
however, that it is incomplete. Defendant argues that this
finding should include a statement to the effect that Benson
stated that “He had good evidence against him [the defendant]
and that he didn't go down to the magistrate and get warrants
for first degree murder without good evidence against him.”
Defendant contends that the finding made by the trial court is
not a fair and clear statement of the events transpiring on
the evening of 15 May 1980 absent the language he would add.

We disagree. While there is some evidence from the defendant

on voir dire which supports his contention as to events trans-
piring during the interrogation, other evidence before the trial
court on voir dire supports the finding as stated. Indeed,
Detective Holder flatly denied that Detective Benson told the
defendant that he had “good evidence” implicating the defendant.
Detective Holder testified, "At the time Freddie [Benson] left
the room he did not say anything to him other than calling him
a@ liar." (Emphasis added.] Hence, the trial court's finding
was supported by competent evidence, and there was no error in

the failure of the trial court to make the extended finding

-l4-
formulated by the defendant.

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

Defendant next objects to the following finding cf fact:
“Holder advised the defendant that neither he nor Officer Lanier
’ could help him and that the only thing that could help him was
to tell the truth." Defendant contends that while there is
conflicting evidence as to what Detective Holder did in fact
tell the defendant concerning helping him, it is clear that the

tenor of Holder's conversation with defendant prior to his con-
A-14

fession was concern with giving him help for his drinking and drug
problems. Defendant contends that Detective Holder “implicitly”
promised to help the defendant. Again, we disagree. Even the
defendant concedes that the evidence on this finding is “conflicting,”
and we find that the record reveals compelling evidence which
supports the trial court's finding. Detective Holder testified:
I told Johnny at that point, I said, Johnny,
I can't help you. We cannot help you. The only
thing that can help you is the truth. . . .
I reemphasized the point that the only thing
for him to do at that point was to tell the truth,

that I could not help him, Mr. Lanier could not
help him.

. . « I told Johnny, I can't help you, Mr.
Lanier cannot help you. The only thing that can
help you is the truth. And that was it.

. . « And, I told Johnny several times, I
said Johnny, I can't help you.

Clearly, there is abundant evidence to support the trial court's
findings.

Defendant next contends ti.at the trial court erred in
entering the following finding of fact:

At no time did either officer advise or promise

the defendant that he could or would be helped in

court or with the District Attorney on the charges

against him and offered no help to him with his

alceholic problems.
Defendant also contends that certain other findings similar to
that quoted above regarding the offer of help to him with respect
to his alcoholic problems are unsupported by evidence at the voir
dire hearing. Defendant contends, as we address more fully in
the next section of this opinion, that the evidence clearly shows
that the defendant's confession was induced by an offer of help

to keep him from receiving the death penalty and that, in return

A-15

for confessing, he was told that he would be sent to prison where
he would receive help for his drinking and drug problems. All
findings to the contrary, defendant contends, are unsupported
by the evidence.

There is simply no merit to defendant's contentions
in this regard. The record is replete with testimony to support
all of the trial court's findings that no offer of help was made
to defendant in order to induce him to make his confession. For
example, Detective Holder testified:

I never offered or advised Mr. Rook that

he could be helped in court. I never advised

that he could be helped with the District

Attorney's Office with respect to these charges.

. . « Neither me nor Mr. Lanier offered

to help Mr. Rook with his alcohol problem

specifically. He seemed to understand that if

he went back to prison he could get this help.

We did not promise him any help at all. I éid

not make any promises with respect to the charges

pending against him.

. « « I said, Johnny, is there anyone in
this room, Mr. Lanier, myself and Miss Mobley,
have they promised, have I promised or threatened
you or put you under any pressure or coerced you
in any way to make this statement. He said,no.

No one during the course of the interview

touched Mr. Rook's person in any threatened

manner, strike him, or do anything of that nature

to him.
We hold, therefore, that each of the challenged findings of fact
is supported by competent evidence in the record and is binding
on this Court. Moreover, we have examined the remaining findings
of fact in the order denying suppression of defendant's con-
fession and find that each of them is supported by competent

A-16

evidence adduced at the voir dire hearing. These assignments of

error are overruled.

B.

With respect to the trial court's order denying defendant's
motion to suppress his custodial statements, defendant next con-
tends that the trial court's findings of fact do not support its
conclusion of law that his confession was vouluntarily and
understandingly made. Defendant contends that the circumstances
of his confession were such that the confession was obtained by
the influence of hope and fear implanted in his mind by the acts
and statements of police officers during his custodial interrogation.

As noted in the preceding section of this opinion, facts
found by the trial court are conclusive on appellate courts when
supported by competent evidence. Nevertheless, the conclusions
of law drawn from the facts found are not binding on the appellate
court. State v. Bishop, 272 N.C. 283, 158 S.E. 2d 511 (1968).
Hence, whether the conduct and language of the investigating
officers amounted to such threats or promises or influenced the
defendant by hope and fear as to render the subsequent con-
fession involuntary is a question of law, as defendant contends,
reviewable on appeal. State v. Fox, 274 N.C. 277, 163 S.E. 2d
492 (1968); State v. Biggs, 224 N.C. 23, 29 S.E. 24 121 (1944).
Even where the procedural safeguards required by Miranda v.
Arizona, 384 U.S. 426, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1968),
are recited by the officers and defendant signs a waiver stating
that he understands his constitutional rights, including his right
to counsel, the ultimate test of the admissibility of a confession

still remains whether the statement made by the accused was in
A-17

-18-
fact voluntarily and understandingly given. The fact that the
technical procedural requirements of Miranda are demonstrated by
the prosecution is not, standing alone, controlling on the question
of whether a confession was voluntarily and understandingly made.
The answer to this question can be found only from a consideration
of all circumstances surrounding the statement. State v. Bishop,
272 N.C. 283, 158 S.E. 2¢ 511; accord, Davis v. North Carolina,
384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 24 895 (1966); State v.
Pruitt, 286 N.C. 442, 212 S.E. 2d 92.

Our inquiry, therefore, is whether the facts revealed
by the record before us indicate that the challenged confession
was obtained by the influence of hope or fear implanted in
defendant's mind by the acts and statements of the police officers
during defendant's custodial interrogation. The long-standing
rule in this jurisdicticn was stated by Chief Justice Taylor in
State v. Roberts, 12 N.C. (1 Dev.) 259, 260 (1827):

The true rule is, that 4 confession cannot be

received in evidence, where the Defendant has

been influenced by any threat or promise; fo.,

as it has been justly remarked, the mind, under

the pressure of calamity, is prone to acknowledge,

indiscriminately, a falsehood or a truth, as

different agitations may prevail; and therefore

a confession obtained by the slightest emotions

of hope or fear, ought to be rejected.

Justice Henderson, concurring, set forth the rule which we have
followed since:
Confessions are either voluntary or involuntary.

They are called voluntary, when made neither under

the influence of hope or fear, but are attributable

to that love of truth which predominates in the

breast of every man, not operated upon by other

motives more powerful with him, and which, it is

said, in the perfectly good man, cannot be counter-

vailed. These confessions are the highest evidences

of truth, even in cases affecting life. But it is

said, and said with truth, that confessions induced
by hope, or exhorted by fear, are, of all kinds of

A-18

-19-

evidence, the least to be relied on, and are
therefore entirely to be rejected... .

Id. at 261-62. In State v. Pruitt, 286 N.C. 442, 212 S.E. 2a 92,
Justice Branch, now Chief Justice, noted the rules quoted
above and summarized the numerous cases decided by this Court
involving various factual backgrounds on this question. Here,
defendant relies on Pruitt to support his contention that his
confession was obtained by the influence of hope and.fear. We
think, however, that his reliance on Pruitt is misplaced. In
Pruitt, the interrogation of defendant by three police officers
took place ina “police-dominated atmosphere.” The evidence was
uncontradicted that the officers repeatedly told defendant that
they knew he had committed the crime and that his story had too
many holes in it; that he was "lying" and that they did not want
to "fool around.” Such circumstances, this Court held, gave rise
to the inference that the language used by the officers tended
to provoke fright. Such language was then tempered by statements
that the officers considered defendant the type of person "that
such a thing would prey heavily upon” and that he would be
"relieved to get it off his chest." These “flattering” statements
were capped by the statement that "it would simply be harder on
him if he didn't go ahead and cooperate.” Justice Branch con-
cluded, “Certainly the latter statement would imply a suggestion
of hope that things would be better for defendant if he would
cooperate, i.e., confess." Id. at 458, 212 S.E. 2d at 102.

Here, there is no evidence of any oppressive environ-
ment in the room where defendant was interviewed. It was a normal

interview room at the Wake County Courthouse, approximately eight

A-19

-20-
feet by fifteen feet, with a table and chairs and lighted by normal
ceiling lights. Initially, there were three officers in the room
when defendant was read his rights, but the evidence indicates
that no more than one officer talked with him at a time. Detective
Benson left the room shortly after the rights were read and
Detective Holder became the sole questioner. Officer Lanier asked
questions only after defendant had confessed. We have held on
numerous occasions that a confession is not made inadmissible
merely because it is made to officers of the law, or because
defendant was in jail, or under arrest, or because it was given
in response to questioning. E.g., State v. Pruitt, 286 N.C. 442,
212 S.E. 24 92; State v. Smoak, 213 N.C. 79, 195 S.E. 72 (1938).

Moreover, there is no evidence that defendant was sub-
jected to any threats or suggested violence or show of violence
to persuade or induce him to make a statement. Indeed, the
evidence that was presented showed that no threats were made to
the defendant, nor was he touched or struck in any manner. As
discussed in the preceding section of this opinion, there is ample
and competent evidence to support the trial court's findings that
"Officer Benson spoke to defendant in a loud but not angry or
threatening tone of voice.”

Defendant apparently relies primarily, in attacking the
voluntariness of his confession, on the argument that he was
"induced" to make his statement by an offer of “help” from Detective
Holder. As discussed in the preceding section of this opinion,
however, we find competent evidence to support the trial court's
finding that no such “help” was offered. Moreover, the record

is clear that all talk of “help” emanated from the defendant

A-20

-2l-
himself. At each juncture when defendant mentioned that he “needed
help” with his alcohol problem, Officer Holder was quick to tell
him that he could not help him. The evidence overwhelmingly
supports the trial court's finding of fact and conclusion of law
that the officers did nothing to induce defendant's confession
through hope or fear. The situation here is more similar to that
in State v. Small, 293 N.C. 646, 239 S.E. 2d 429 (1977). In
Small, the uncontradicted evidence showed that one of the officers
had told the defendant that he could not “buy” one of defendant's
statements and that defendant should tell the truth. This Court
held that such statements “do notconstitute a persuasive showing
that defendant's will was overborne by these acts of the police
officers.” Id. at 653, 239 S.E. 2d at 435.

Finally, we reiterate the rule stated in Pruitt that
any improper inducement generating hope must promise relief from
the criminal charge to which the confession relates, and not
to any mere collateral advantage. Here, ail discussions con-
cerning any “help” for defendant were centered around defendant's
drinking and family problems. Clearly, these are matters entirely
collateral to the criminal charges against him.

This Court has consistently followed the rule enunciated
by Justice Henderson in his Roberts concurrence. In Pruitt, we
summarized numerous cases demonstrating this Court's adherence
to that rule. We have made it equally clear, however, that
custodial admonitions to an accused by police officers to tell
the truth, standing by themselves, do not render a confession
inadmissible. State v. Thomas, 241 N.C. 337, 85 S.E. 24 300 (1955);
State v. Thompson, 227 N.C. 19, 49 S.E. 24 620 (1946); State v.

A-21

-22-
Thompson, 224 N.C. 661, 32 S.E. 24 24 (1944). Such custodial
admonitions to tell the truth are all we find from the record
before us. Here, as discussed in the preceding section of this
opinion, there was ample evidence to support the trial judge's
findings that defendant's confession was not coerced, and the
findings in turn support his conslusion that the incriminating
statement was made voluntarily and knowingly. We hold that the

-

confession was properly admitted into evidence.

Cc.

Prior to trial, defendant moved for the exclusion of
all evidence obtained as a result of the search of the trailer
where the defendant lived and all evidence obtained as a result
of the search of the Mercury automobile on the ground that there
was not probable cause for the issuance of the search warrant.
The searches resulted in the seizure of certain bloody clothing
which was introduced into evidence against defendant. Defendant
attacks the search warrant in question on the grounds that (1)
the application for the search warrant failed to contain suffi-
cient facts and circumstances to indicate that the items sought
constituted evidence of any crime, and (2) that the search
warrant failed to contain sufficient facts or circumstances to
indicate that the items would be in the trailer in question.

These arguments are governed by well-established legal
principles. The probable cause required by the fourth amendment
and G.S. 15A-243-245 is simply:

a reasonable ground to believe that the proposed

search will reveal the presence, upon the premises

to be searched, of the objects sought and that those

objects will aid in the apprehension or conviction
of the offender. [Citation omitted.] Thus, the

; A-22

-23-

affidavit upon which a search warrant is issued

is sufficient if it “supplies reasonable cause

to believe that the proposed search for evidence

of the commission of the designated criminal

offense will reveal the presence upon the described

premises of the objects sought and that they will

aid in the apprehension or conviction of the

offender.”
State v. Riddick, 291 N.C. 399, 406, 230 S.E. 2d 506, 511 (1976)
(quoting State v. Vestal, 278 N.C. 561, 576, 180 S.E. 2d 755,
765 (1971), cert. denied, 414 U.S. 874 (1973)). Accor, State v.
Jones, 299 N.C. 298, 303, 261 S.E. 2d 860 (1980). Whether
probable cause exists for the issuance of a search warrant depends
upon a practical assessment of the relevant circumstances, and
each case must be decided on its own facts. Reviewing courts will
pay deference to judicial determinations of probable cause,
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723
(1964); State v. Louchheim, 296 N.C. 314, 250 S.E. 2d 630, cert.
denied, 444 U.S. 836 (1979); “the resolution of doubtful or
marginal cases in this area should be largely determined by the
preference to be accorded to warrants,”United States v. Ventresca,
380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 24 684, 689 (1965).
A search warrant cannot be issued upon affidavits which are purely
conclusory and which do not state underlying circumstances upon
which the affiant's belief of probable cause is founded; there
must be facts or circumstances in the affidavit which implicate
the premises to be searched. State v. Edwards, 286 N.C. 162, 209
S.E. 24 758 (1974); State v. Campbell, 282 N.C. 125, 191 S.E. 2a
752 (1972). With these principles before us, we review the search
warrant and the affidavit upon which it was obtained.

An examination of the application, prepared by Officer
Bissette, indicates that the items sought included “a wooden

A-23

-24-
club or instruments that could be used as a club, bloody clothing,
and other instrumentalities of the crime," which was stated to be
"rape, kidnapping, murder.” In this connection, the application
contained an affidavit from Officer Bissette which averred:

On May 15, 1980, at 4:30 p.m.,- the vehicle, a
1972 Mercury, N.C. license # RAP-980, that the
murder victim, Ann Marie Roche, was seen being
forced into on May 12, 1980, was located at
Stovall Drive Raleigh, N.C. The person in
control of the vehicle, Ruby Howell, states .-.
that it is her mother's car and that she
drives it and keeps it all the time. She
states that on Monday, May 12, 1980, her
neighbor, Johnny Rook, who lives at Lot 15,
College View Trailer Park, 1508 Stovall Drive,
borrowed the car at 5:45 p.m. and returned the
car about two hours later. At the time he
returned the car he had fresh cut marks on

his face and blood on his arms. Johnny Rook
is a white male with long blond hair that

he wears in a pony tail. At the time he
borrowed the car he was dressed in blue

jeans and shoes only. . .. The murder victim
was seen being forced into this car at 7:30
p.m. on Avent Ferry Road at Lake Raleigh

Road by a white male wearing only blue jeans
and shoes and using an object appearing to be
a club to beat the victim. Her body was found
on May 13, 1980 approximately one-fourth mile
from this intersection nude with massive head
and body injuries. m

The information contained in this affidavit clearly establishes
probable cause to believe that a "wooden club or instruments that
could be used as a club” and “bloody clothing” constituted evidence
of the crimes being investigated, that a club, or an object
appearing to be a club, was in the possession of defendant and

was used as an instrumentality in committing the crime being
investigated, and that “bloody clothing” would constitute

evidence of the offenses committed or would reveal the identity

of a person participating in those offenses. Additionally, the

items sought to be discovered were sufficiently described to

A-24

=-25-
enable officers to identify them.

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

Ruby Howell states .. . that on Monday, May 12,
1980, her neighbor, Johnny Rook, who lives in
Lot 15, College View Trailer Park, 1508 Stovall
Drive, borrowed her car at 5:45 p.m. and returned
the car about two hours later. ... At the time
he borrowed the car he was dressed in blue jeans
and shoes only. She stated that after he returned

° the car he went to Lot 15, his residence in the park.

He lives in this trailer in the first bedroom on the

right. The trailer is rented by Barry E. Staton.
Johnny Rook has access to the entire trailer,

oe according to a statement of Barry E. Staton. ...

These facts or circumstances, in our opinion, supply reasonable
cause to believethat the club-like object ang the bloody clothing
would be found on the premises to be searched.

The affidavit upon which the probable cause determination
was based contained specific,and not purely conclusory, allegations
and stated underlying circumstances upon which the affiant's
belief of probable cause was founded. Clearly, there were facts
and circumstances in the affidavit implicating the premises to be
searched. A practical assessment of the information before the
magistrate would clearly allow a reasonable person to conclude
that the information contained in the application was credible and
that the proposed search would reveal, upon the premises to be
searched, the presence of the objects sought and that those
objects would aid in the apprehension or conviction of the offender.
Issuance of the search warrant by the magistrate on the informa-

tion available to him was, under the law of this State, clearly
A-25

justified.

D.

By this assignment defendant challenges the constitu-
tionality of G.S. 15A-2000(e), the provision governing the sub-
mission of aggravating circumstances in the penalty phase of
a first degree murder trial, both on its face and as applied
in this case. The exceptions on which this assignment is based
challenge the trial court's denial of defendant's pre-trial motion
to dismiss the penalty phase proceedings and the trial court's
entry of judgment imposing the death penalty upon the jury's
recommendation.

Defendant contends that the list of permissible aggra-
vating circumstances violates the eighth and fourteenth emend-
ments to the United States Constitution in that the circum-
stances listed are vague and overlapping and may cause the jury
arbitrarily and capriciously to impose the death penalty. De fen-
dant acknowledges that this Court has considered the issue of the
constitutionality of G.S. 15A-2000(e) and has decided the issue
adversely to him, State v. Barfield, 298 N.C. 306, 259 S.E. 2d
510 (1979), cert. denied, 448 U.S. 907 (1980), but requests that
we reconsider that ruling. We are not so inclined.

In Barfield, the defendant challenged the constitutionality
of the statutorily defined aggravating circumstances as "vague
and without definition." In rejecting this claim this Court, per
Justice Britt, noted:

Sentencing standards are by necessity some-

what general. While they must be particular enough

to afford fair warning to a defendant of the probable

penalty which would attach upon a finding of guilt,

they must also be general enough to allow the courts

to respond to the various mutations of conduct which

A-26

society has judged to warrant the application of

the criminal sanction. See Gregg v. Georgia, 428

U.S. at 194-195, 49 L. Ed. 2d at 886-887, 96 S.

Ct. at 2935. While the questions which these

sentencing standards require juries to answer are

difficult, they do not require the jury to do
substantially more than is ordinarily required

of a fact finder in any lawsuit. See Proffitt v.

Florida, 428 U.S. at 257-258, 49 L. Ed. 2d at 926,

96 S. Ct. at 2969. The issues which are posed to

a jury at the sentencing phase of North Carolina's

bifurcated proceeding have a common sense core of

meaning. Jurors who are sitting in a criminal

trial ought to be capable of understanding them

and applying them when they are given appropriate

instructions by the trial court judge. See Jurek

v. Texas, 428 U.S. at 279, 49 L. Ed. 2d at 939,

96 S. Ct. at 2959 (White, J., concurring).

Id. at 353, 259 S.E. 2d at 543. We adhere to this reasoning and
reaffirm our holding that the aggravating circumstances listed
in G.S. 15A-2000(e) are not so vague as to violate due process
or to allow a jury arbitrarily and capriciously to impose the
death penalty. This assignment of error is overruled.

Defendant specifically challenges the constitutionality
of the statutory aggravating circumstance of the capital felony
being “especially heinous, atrocious or cruel,” G.S. §& 15A-
2000(e) (9) (1978), in that it requires a subjective evaluation of
the evidence by the jurors. We disagree. This argument was re-
jected by this Court in State v. Goodman, 298 N.C. l,
257 S.E. 24 569 (1979). In Goodman, we recognized that while
the United States Supreme Court has found a statute employing
similar language to be unconstitutional because it allowed
the jury too much latitude, Gregg v. Georgia, 428 U.S. 153, 96
S. Ct. 2909, 49 L. Ed. 24 859 (1976), that Court has upheld
similarly worded statutes whose meaning has been carefully limited
by judicial construction, Proffittv. Florida, 428 U.S. 242, 96

S. Ct. 2960, 49 L. Ed. 24 913 (1978). Accordingly, in Goodman we

A-27

-28-

interpreted our statutory aggravating circumstance of “heinous,
atrocious or cruel” as "‘the conscienceless or pitiless crime
which is unnecessarily torturous to the victim,'” id. at 25,
257 S.E. 2d at 585 quoting State v. Dixon, 283 So. 2d 1, 9
(Fla. 1973), cert. denied, 416 U.S. 943 (1974)), the same inter-
pretation approved by the United States Supreme Court in Proffitt,
428 U.S. at 255-56, 96 S. Ct. at 2968, 49 L. Ed. 2d at 924-25.
Based on our reasoning in Goodman and that of the United States
Supreme Court in Proffitt, we once again affirm the constitu-
tionality of this aggravating circumstance.

Nor do we think that the trial court's instructions on

this aggravating circumstance were so vague as to violate due
e-
process. With regard to this factor, the trial court told the

jury:

Now, I instruct you, members of the jury,
that in this context heinous, as that word is used,
means extremely wicked or shockingly evil.
Atrocious, as used there, means outrageously
wicked and vile. And cruel means designed to
inflict a high degree of pain with utter
indifference to, or even enjoyment of the
suffering of others.

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

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

The murder must have been a conscienceless
or pitiless crime which was unnecessarily tortu-
rous to the victin.
This instruction accords with the construction of G.S. 15A-2000(e) (9)
adopted in Goodman, and its submission to the jury was proper on
A-28

-29-

the evidence in this case. The evidence summarized in Section I
of this opinion reveals the most gruesome murder imaginable and
is sufficient to allow the jury to find that this was a "“con-
scienceless or pitiless crime which was unnecessarily torturous
to the victim.”

Defendant further contends, however, that the decision
of the United States Supreme Court in Godfrey v. Georgia, 446
U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), compels a
reversal of our holding in Goodman. We disagree. In Godfrey,
both victims died instantly from a gunshot wound to the head.
The aggravating circumstance of the crime being “outrageously
or wantonly vile, horrible or inhuman in that it involved
torture, depravity of mind, or an aggravated battery to the victim,”
was submitted by the trial court and approved by the Georgia
Supreme Court. The United States Supreme Court reversed the
death sentence, holding that the Georgia Supreme Court had
failed to be consistent in its interpretation of this aggravating
circumstance. In earlier decisions, the Georgia Supreme Court
had interpreted this aggravating circumstance to require a showing
of torture or aggravated battery to the victim. In the case of
the Godfrey murders, the victims died instantly and the United
States Supreme Court reasoned that “There is no principled way to
Gistinguish this case, inwhich the death sentence was imposed,
from the many cases in which it was not.” Id. at 433, 100 S. Ct.
at 1767, 64 L. Ed. 2d at 409.

This Court has avoided the problem presented by Godfrey
by holding that this aggravating circumstance does not arise in
cases in which death was immediate and in which there was no

unusual infliction of suffering on the victim. State v. Goodman,
A-29

-30-

298 N.C. 1, 24-26, 257 S.E. 2d 569, 585; accord, State v. Oliver
and Moore, 302 N.C. 28, 274 S.E. 2d 183 (1981). The instructions
given by the trial judge here accorded with this interpretation
and the evidence revealed by the record supports the submission
of this aggravating circumstance to the jury. The record shows
aggravated battery of the victim amounting to torture which
necessarily caused her great physical pain and emotional distress.
Thus, we hold that the instruction given complied with constitu-
tional requirements and that the submission of the aggravating
circumstance that the murder was especially heinous, atrocious
or cruel was proper.

We conclude that the statutory scheme for determining
the sentence in a capital case, G.S. § 15A-2000, is neither un-

constitutional on its face nor as applied to this defendant.

Til.
GUILT PHASE

Defendant next contends that the trial court erred in
Genying his motion to dismiss the charge of murder in the first
degree based on premeditation and deliberation. In presenting
this contention, defendant argues that the evidence from the
pathologist and the defendant's statement establish (1) that Ms.
Roche did not die immediately from any one blow or injury but
from blood loss resulting from all of her injuries; (2) that
the injuries to Ms. Roche's head were caused by defendant's
hitting her with a tire tool; (3) that the injuries to her leg
were caused by defendant's running over her with his automobile;
and (4) that the exculpatory statements in his confession in-
troduced by the State clearly established that he did not mean

A-30

-3l-
to strike Ms. Roche with the knife nor did he mean to run over
her with the automobile. Defendant strongly urges that his own
statement was the only evidence introduced by the State as to how
Ms. Roche was injured and how she ultimately died and that there
was no evidence contradictory to the defendant's statement that
he did not mean to strike her with the knife or run over her.
Hence, defendant argues that the State, by introducing his con-
fession in which he claimed that the knife and automobile injuries
were accidental, is bound entirely by the truth of such statements
and that although the submission of the murder charge was proper
under the felony murder rule, it was not proper under the theory
of premeditation and deliberation. This is significant, defendant
notes, because if submission of the murder charge were proper only
under the felony murder rule, then rape should not have been sub-
mitted to the jury as an aggravating factor in the sentencing
phase under State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979),
cert. denied, 446 U.S. 941 (1980). Had that aggravating factor
not been submitted to the jury, defendant contends, the jury
might possibly have found that the numerous mitigating circum-
stances outweighed the aggravating factors and would have recommended
life imprisonment.

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

When the State introduces in evidence

exculpatory statements of the defendant which

are not contradicted or shown to be false by

any other facts or circumstances in evidence,

the ovate is bound by the statements. [Citations
omitted -]

A-31

-32-
And when the State's evidence and that of

the defendant is to the same effect, and tend

only to exculpate the defendant, his motion for

judgment as of nonsuit should be allowed.
Id. at 479, 119 S.E. 2d at 464.

The principle has remained viable in this jurisdiction.
Defendant has, however, ignored other rules which must be applied
by this Court in reviewing the trial court's denial of the motion
to dismiss. It is likewise the rule in this jurisdiction that
the introduction by the State of a statement of the defendant
which includes exculpatory assertions does not prevent the State
from showing facts which contradict the exculpatory statements.
Moreover, on motions to dismiss, only evidence favorable to the
State is considered. State v. Witherspoon, 293 N.C. 321, 237
S.E. 24 822 (1977). Put another way, the State is not bound by
the exculpatory portions of a confession which it introduces if
there is “other evidence tending to throw a different light on
the circumstances of the homicide.” State v. Bright, 237 N.C.
475, 477, 75 S.E. 2d 407, 408 (1953).

This Court answered a similar argument in State v. May,

292 N.C. 644, 235 S.E. 24 178, cert. denied, 434 U.S. 928 (1977).

There, it was said:

Defendant assigns as error the failure of the
trial court to enter judgment as of nonsuit at the
close of all the evidence. Specifically, the
defendant contends that he comes within the purview
of the rules stated in State v. Carter, 254 N.C.

475, 479, 119 S.E. 2d 461, 464 (1961), that “[w]hen

the State introduces in evidence exculpatory statements
of the defendant which are not contradicted or shown

to be false by any other facts or circumstances in

evidence, the State is bound by these statements.”

See also State v. Bolin, 281 N.C. 415, 189 S.E. 2d

735 (1972). However, the introduction by the State
of an excul

necessitate a nonsuit if the State contradicts
Or rebuts the defendant's exculpatory Statement. ...

Id. at 658, 235 S.E. 2d at 187 (emphasis added).

We find the emphasized portion of the rule cited from
May applicable here. Crucial to defendant's contention is his
insistence that the cause of Ms. Roche's death was injury suffered
at his hands which he states in his confession he did not “mean
to” inflict. He relies on the pathologist's testimony that all
the injuries together caused her death to support his argument.
A close reading of Dr. Copeland's testimony, however, indicates
that he stated only that “none of the injuries taken together
or acting singularly would have produced immediate death.”
(Emphasis added.) He also testified that the two injuries which
were significantly severe to produce the blood loss causing death
were the injuries to the thigh due to the broken leg and the
injuries to the head. There is nothing in the defendant's con-
fession which implies that he did not intend to strike the victim
about the head area with the tire tool, and defendant does not
so contend on appeal. Indeed, defendant confessed to striking
the victim with the tire tool prior to sexually assaulting her
and that he continued to beat her thereafter. Defendant obtained
the tire tool from the trunk of the vehicle because the victim
was resisting defendant's sexual assaults, presumably to gain her
submission. Such forethought and execution constitute pre-
meditation and deliberation. It is clear from the pathologist's
testimony that the injuries to the head area significantly con-
tributed to the victim's blood loss and ultimate death and from
Gefendant's own statement that these injuries were deliberately
inflicted. This evidence, taken in the light most favorable to

A-33

the State, sufficiently shows premeditation and deliberation
to withstand defendant's motion to dismiss.

Other evidence gleaned from the record tends "to throw
a different light on the circumstances of the homicide,"State v.
Bright, 237 N.C. at 477, 75 S.E. 24 at 408. Defendant's state-
ment that he did not “mean to hit her” with the knife is con-
tradicted by competent circumstantial evidence. From the place-
ment, depth and straight lines of the cuts on the upper body,
the pathologist concluded “that they were made in an intentionally
superficial manner. . .. [Such a cut] is made deliberately shallow
with some care and effort... .”"

Moreover, physical evidence obtained by the officers from
the murder scene substantially contradicts defendant's assertion
that he did not “mean” to run over the victim. It is unnecessary
to repeat that evidence here. Suffice it to say that the location
of the victim's body in relation to the pile of clothing and
the size of the field in which these brutal acts took place
seriously challenge defendant's assertion that he accidentally
ran over the victin.

In another case in which the defendant attacked the
sufficiency of the evidence to support a jury finding of pre-
meditation and deliberation, we recently stated:

In the instant case, the State presented evidence

tending to show that defendant choked the deceased,

pushed her out of the car, and ran over her

several times. The requisite premeditation and

deliberation could be inferred from the brutal

nature of the assault, the use of grossly

excessive force or the “dealing of lethal blows

after the deceased had been felled.” [Citations

omitted.] We hold that there was plenary

evidence to support a jury finding that the

defendant killed Ms. Grossnickle with pre- °
meditation and deliberation.

A-34

-35-
State v. Ferdinando, 298 N.C. 737, 741-42, 260 S.E. 2d 423, 426
(1979).
We hold, in the instant case, that the State submitted
abundant evidence to support the trial court's denial of defen-
dant's motion to dismiss the murder charge on the theory of pre-

meditation and deliberation.

IV.
SENTENCING PHASE

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

seriatim.

A.

Defendant contends that the trial court erred in sub-
mitting the underlying felony of rape as an aggravating circum-
stance in his sentencing hearing and that he should not have been
sentenced for the crime of rape even thougithe jury found him
guilty of murder under both the theories of premeditation and
deliberation and felony murder. We considered this question in
State v. Goodman, 298 N.C. 1, 267 S.E. 2d 569 (1979), and held
that when the defendant has been convicted of first degree murder
on both the premeditation and deliberation and the felony murder
theories, the inclusion of the underlying felony as an aggra-
vating circumstance is proper. The commission of the “underlying”

felony is not an essential element of the crime of premeditated
A-35

-36-

murder and, thus, is not the “automatic” aggravating circumstance
which we held in Cherry to be impermissible. See State v. Cherry,
298 N.C. 86, 257S.E. 24 551 (1979). Because this defendant was
found guilty of first degree murder under both theories, there
was no error in submitting the rape as an aggravating circumstance.

Likewise, Goodman answers defendant's contention that he
should not have been sentenced on the rape offense. There, we
said: ;

[D)efendant contends that he was improperly

sentenced for the offenses of kidnapping and

armed robbery as those offenses merged with the

murder conviction. As we have already said, no

merger of the felony occurs when the homicide

conviction is based upon the theory of premeditation

and deliberation. [Citation omitted.] Defendant

was found guilty by virtue of premeditation and

deliberation as well as by application of the

felony-murder rule. Thus, the court could dis-

regard the felony~murder basis of the homicide

verdict and impose additional punishment upon

defendant for the crimes of armed robbery and

kidnapping.
State v. Goodman, 298 N.C. at 20, 257 S.E. 2d at 582 . Here,
therefore, the trial court properly sentenced defendant for the

crime of rape. These assignments of error are without merit.

B.
Defendant next contends that the trial court erred in
failing to provide a space on the “Issues and Recommendation
As to Punishment” form for the jury to list which of the specific
mitigating circumstances it found or did not so find. Defendant

believes that, since the aggravating factors must be specifically

answered, the mitigating factors should be specified also.

Defendant contends that failure to list which mitigating factors
were found or not found impairs this Court's ability to give

appropriate review to the sentencing phase of the case. While
A-%

-37-
defendant makes a good argument that it is the better practice, and we
agree, —_——

/to require the jury to specify mitigating factors found and not
found for the benefit of this Court in reviewing the appropriateness
of the death penalty, we find no such requirement in our statutes.

G.S. 15A-2000, which sets out the procedures for the
sentencing phase in a capital case, requires that the jury indi-
cate in writing which of the statutory aggravating circumstances
it finds beyond a reasonable doubt. G.S. § 15A-2000(¢) (1) (1978).
There exists no corresponding requirement regarding the miti-
gating circumstances considered by the jury. Instead, in
recommending the death penalty the jury is required to state in
writing only whether the mitigating circumstances found are in-
sufficient to outweigh any aggravating circumstances found. G.S.
§ 15A-2000(c) (3) (1978). Thus, when this Court reviews the death
sentence on appeal, we will have before us, by virtue of the
reguirements of the statute, a list of the aggravating circum-
stances submitted and those found, a list of the mitigating
circumstances submitted, and a statement that any

mitigating circumstances found are insufficient to out-
weigh the aggravating circumstances. Although some records
presented to this Court have indicated which mitigating circum-

2

stances were found by the jury,“ such information is not required

rhe records in the following cases included specific
findings on the mitigating circumstances submitted to the jury:

State v. Hamlette, 302 N.C. 490, 276 S.E. 2d 388 (1981); State v.
Silhan, 302 N.C. 223, 275 S.E. 2d 450 (1981); State v. Oliver and
Moore, 302 N.C. 28, 274 S.E. 2d 183 (1981); State v. Small, 301
N.C. 407, 272 S.E. 2d 128 (1980); State v. Detter, 298 N.C. 604,
260 S.E. 2d 567 (1979); State v. Johnson, 298 N.C. 355, 257 S.E.
2d 597 (1979); State v. Spaulding, 298 N.C. 149, 257 S.E. 2d 391
(1979); State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979),

A-37

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to be presented by G.S. 15A-2000(d). Thus, if there exists a
requirement of specific findings on the mitigating circumstances
submitted, it must arise from a constitutional guarantee.

In Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49
L. Ed. 24 859 (1976), the United States Supreme Court upheld
the Georgia statutory scheme for imposition of the death penalty
in the face of a constitutional attack because, in its opinion,

o* f
the Georgia procedure provided a reliable safeguard acainst Cw

1 oe

arbitrary, excessive and disproportionate death sentences by

limiting and guiding the jury's discretion and by providing
———EE—

automatic appellate review of all aspects of the sentencing.

The Georgia procedure is similar to our own statutory
scheme. In Georgia courts, once guilt has been determined, the
same jury (unless the jury is waived by the defencant) hears
evidence concerning the circumstances of the crime and the criminal
before making a recommendation as to the sentence. In reaching
a sentence recommendation, the jury considers any mitigating
circumstances and aggravating circumstances which it finds to
exist. Georgia law does not enumerate what circumstances con-
stitute mitigating factors but, instead, allows the juz to
determine whether any facts proved at the sentencing hearing
mitigate against imposition of the death penalty, limited only
by the requirement that the mitigating circumstance be “authorized
by law." Ga. Code Ann. § 27-2534.1 (1978). Furthermore, the

trial court in its charge to the jury need not single out specific

cert. denied, 446 U.S. 941 (1980); State v. Johnson, 298 N.C. 47,
S.E. 2a 752 (1979); State v. Goodman, 298 N.C. 1, 257 S.E. 24
569 (1979); State v. Jones, 296 N.C. 495, 251 S.E. 2d 425 (1979).

A-38

=-39-

mitigating circumstances. Spivey v. State, 241 Ga. 477, 246
S.E. 24 288, cert. denied, 439 U.S. 1039 (1978); Potts v. State,
241 Ga. 67, 243 S.E. 24 510 (1978). With regard to mitigating
circumstances, it is enough that the jury be told to “consider
all evidence submitted in both phases of the trial in arriving
at your verdict, including any and all evidence of mitigating
circumstances.” Collier v. State, 244 Ga. 553, 568-69, 261 S.E.
2c 364, 376 (1979), cert. denied, 445 U.S. 946 (1980) . This is

so even though aggravating circumstances must be submitted to
the jury in writing. Id. Like the North Carolina statute, the
Georgia statute requires the jury to return specific findings
only as to the aggravating circumstances submitted. Ga. Code
Ann. § 27-2534.1l(c).
On appeal, the Georgia Supreme Court is required to
review the sentencing procedure to determine:
(1) Whether the sentence of death was imposed
under the influence of passion, prejudice, or any
other arbitrary factor, and
(2) Whether, in cases other than treason or air-
craft hijacking, the evidence supports the jury's or
judge's finding of a statutory aggravating circumstance
as enumerated in section 27-2534.1(b), and
(3) Whether the sentence of death is excessive or
@isproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
Ga. Code Ann. § 27-2537(c) (1978). Thus, because the Georgia
statute requires specific findings only on aggravating circum-
stances, appellate review of the above-listed issues is limited
to a consideration of the facts of the crime and the aggravating
circumstances found by the jury.
As stated above, the United States Supreme Court has
examined the Georgia procedure for imposition of the death

penalty and found it to be constitutional. Gregg v. Georgia,

A-39

-40-

428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859. Our statutory

scheme is strikingly similar to Georgia's, in that our sentencing
review is limited to a consideration of the circumstances of the
crime and the aggravating circumstances found by the jury. Georgia's
scheme has been fully reviewed by the United States Supreme Court
and has been declared constitutional; our statute is likewise con-

stitutional. It follows, then, that there exists no constitutional

requirement of specific findings on mitigating circumstances and

ees

that failure of the trial court to instruct the jury to make speci-

fic findings was not error.

We recognize that in Florida the jury, acting in a purely

advisory role, must return specific findings as to both aggravating
and mitigating circumstances regardless of what sentence it
recommends and that the trial judge must make specific findings

on both in writing before he determines the sentence. Fla. Stat.
Ann. § 921.141 (Supp. 1980). This requirement, however, is
imposed by the Florida statute and the Florida courts have never
considered whether the deletion of the requirement for mitigating
circumstances would render its procedure uncorstitutional.

The State's contention is that it is unquestioned that
our statutes and constitution require the jury specifically to
indicate its finding on each aggravating circumstance submitted
because such procedure provides an exercise of guided discretion
to the jury. However, the State believes that the import of
our previous decisions is that the jury should remain absolutely

unfettered when it comes to considering mitigating circumstances.

ae = —

—_—— ne

A requirement that the jury indicate its finding on each mitigating
circumstance so submitted to them might, the State contends, un-

duly constrain the defendant. Requiring the jury to submit in

A-40

-4l-

writing which mitigating factors are found, may, the State argues,
inhibit the jury and prevent them from considering “other miti-
gating circumstances." See Collier v. State, 244 Ga. 553, 261
S.E. 24 364. The State's contentions in this respect are not
without some persuasion.

We hold that a proportionality review which considers
both the circumstances of the murder, the aggravating circum-

and the mitigating circumstances submitted

stances found by the jury/with those in other relevant cases
satisfies constititional requirements and adegquetely protects
against arbitrary, capricious, excessive or disproportionate
imposition of the death penalty.

Even were we to accept defendant's argument, we perceive
no prejudice to defendant here. Even assuming that the jury
accepted all sixteen mitigating circumstances submitted as true,>
we still could not conclude that the death sentence was arbitrary,
excessive or disproportionate. The circumstances of this murder
are cruel and gruesome almost beyond belief: a young female,
a stranger to the defendant, was stopped while walking home in a
residential area while it was still daylight. Almost immediately,
defendant began beating her and pulling her arcund by her hair.
He forced her into his car and drove to a deserted field. There,
by his own admission, he beat her and cut her with a knife until
he gained her submission. Then, he raped her and when he was
through, left her to die from her wounds, slowly bleeding to

death. The jury found that the aggravating circumstances out-

weighed the mitigating circumstances beyond a reasonable doubt.

3see note 1 supra.

A-41

-42-
We are unable to disturb the jury's finding and to conclude
otherwise. In summary, we find no statutory provision to support
defendant's contention nor do we find such a constitutional
requirement. Even if any authority could be found to support
Gefendant's claim, his assignment would be of no avail because

he is unable to demonstrate any prejudice whatsoever.

Vv.

In addition to the aggravating circumstance submitted
to the jury as argued in Section IV A. of this opinion, we have
also reviewed the other aggravating circumstances presented to
the jury in view of the penalty imposed. We conclude that the
trial court properly submitted each of these aggravating circum-
stances. See State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510;
State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569; State v. McDowell,
301 N.C. 219, 271 S.E. 2d 286 (1980), cert. denied, __—=s_—s U.S. es
101 S. Ct. 1731, 68 L. Ed. 24 220 (1981).

G.S. 15A-2000(d) directs this Court to review the
record in a capital case to determine whether the record supports
the jury's finding of ary aggravating circumstance, whether the
sentence was imposed under the influence of passion, prejudice
or any other arbitrary factor, and whether the sentence of death
is excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant. State v.
Martin, 303 N.C. 246, 278 S.E. 2d 214 (1981); State v. McDowell,
301 N.C. 279, 271 S.E. 2d 286; State v. Barfield, 298 N.C. 306,
259 S.E. 24 510. This mandate serves as a check against the
capricious or random imposition of the death penalty. State v.

Hutchins, N.C. , 279 S.E. 24 788 (1981). Our
A-42

-43-
review function in this regard is limited to those instances where
both phases of the trial of the defendant in a capital case have
been found to be free from prejudicial error. State v. Goodman,
298 N.C. at 35, 257 S.E. 2d at 590-91. In exercising our role in
the statutory scheme, we must be sensitive not only to the mandate
of the Legislature, but also to the constitutional dimensions of
our review. See Gregg v. Georgia, 428 U.S. at 204-206, 96 S.
Ct. at 2939-2940, 49 L. Ed. 2d at 892-893; Proffitt v. Florida,
428 U.S. at 258-259, 96 S. Ct. at 2969-2970, 49 L. Ed. 2d at 926-
927.

We consider the responsibility placed upon us by G.S.
15A-2000(d) (2) to be as serious as any responsibility placed
on an appellate court. We have, therefore, carefully reviewed
the record in this case along with the briefs and oral arguments
presented. We conclude that there is sufficient evidence in the
record to support the jury's finding as to the aggravating circum-
stances which were submitted to it. Moreover, as stated above,
we find nothing in the record which indicates that the
sentence of death was imposed under the influence of passion,
prejudice, and any other arbitrary factor.

The record reveals that this defendant committed the
most brutal, vile and vicious crime against Ann Marie Roche.
Defendant beat Ms. Roche viciously with a tire tool, repeatedly
cut her with a knife, ravaged her body in rape, ran over her
battered body with an automobile and left her to bleed to death
in a lonely field. Defendant's sadistic and bloodthirsty crimes
committed against this victim compel the conclusion that the

sentence of death is not disproportionate or excessive, considering

A-43

-44-
both the crime and the defendant. We, therefore, decline to
exercise our discretion to set aside the death sentence imposed.
In all phases of the trial below, we find

No error.

A-44

No. 2 = St..c v Rook Fall Term 1981

Justice Exum concurring in part and dissenting in
part.

I concur in the result reached by the majority on the
guilt phase of this case. Being of the opinion, however, that

it was prejudicial error for the trial court to permit the jury

to return its recommendation for a sentence of death without

specifying which of the mitigating circumstances it found to

exist, I vote to remand the case for a new sentencing hearing.
ghio guectias violates G.S. 15A-2000 and seriously prejudices
the defendant not only at trial but also on appeal when this
Court is required to determine whether his capital sentence
“was imposed under the influence of passion, prejudice, or any
other acbitrary factor,” or whether “the sentence of death is
excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant.” G.S.
15A-2000 (d) (2).

Properly read G.S. 15A-2000 requires the jury to indi-
cate its findings as to each mitigating circumstance submitted
to it. Although the statute does not expressly and specifically
so reguire, when the eennene is read contextually, it becomes
clear that the legislature, intended that the jury specify both
the aggravating and mitigating circumstances which it finds to
exist in a capital trial. It is our duty to construe G.S.

15A-2000 so that the result comports with the overall design

A-45

-2-

and purpose of the statutory scheme even though the construc-
tion may go somewhat beyond the express language of the statute
itself. See, e.g., State v. Silhan, 302 N.C. 223, 275 S.E. 2d
450 (1981); State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979),
cert. denied, 446 U.S. 941 (1980); State v. Johnson, 298 N.C.

47, 257 S.E. 24 597 (1979); State v. Goodman, 298 N.C. 1, 257
S.E. 24 569 (1979). We said in State v. Johnson, supra, 298

N.C. at 56, 257 S.E. 2d at 606, with reference to G.S. 15A-2000:

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

Section (b) of the statute requires, first, that in all
capital cases:

"(T]he judge shall include in his in-
structions to the jury that it myst
consider any aggravating circumstance
or circumstances or mitigating circum-
stance or circumstances from the lists
provided in subsections (e) and (f) 1s%
which may be supported by the evidence,

and shall furnish to the jury _a written

st o Ssues relating to such aggra-
vating or mitigating circumstance or
circumstances,

"After hearing the evidence, argument
of counsel, and instructions of the court,
the jury shall deliberate and render a
sentence recommendation to the court,
based upon the following matters:

(1) Whether any sufficient aggravating

circumstance or circumstances as
enumerated in subsection (e) exist;

A-46

-3-

(2) Whether any sufficient mitigating

(3)

Section (c)

*(c)

circumstance or circumstances as
enumerated in subsection (f), which
outweigh the aggravating circum-

stance or circumstances found, exist;
and

Based on these considerations,

whether the defendant should be
sentenced to death or to imprison-
ment in the State's prison for life.”

(Emphasis supplied.)

provides:

Findings in Support of Sentence of

Death.—wWhen the jury recommends a sentence
of death, the foreman of the jury shal) si
a

a writing on behalf of the jury which wr
shall sh

(1)

(2)

(3)

The statutory aggravating circum-
stance or circumstances which the
jury finds beyond a reasonable
doubt; and

That the statutory aggravating cir-
cumstance or circumstances found by
the jury are sufficiently substan-
tial to call for the imposition of
the death penalty; and,

That the mitigating circumstance or
circumstances are insufficient to
outweigh the aggravating circum-
stance or circumstances found.”
(Emphasis supplied.)

Section (e) then lists the available aggravating circumstances,

and section (f) suggests a number of mitigating circumstances

which the jury may

consider but to which it is not limited

because of the open-ended language found in section (f) (9).

The statute thus requires that "a written list of issues

relating to” the aggravating and mitigating circumstances be sub-

mitted to the jury.

The jury, before it may recommend a sentence

A-47

-4-

of death, must specify in writing which aggravating circum
stances it finds béyond a reasonable doubt; that these cir-
cumstances are sufficiently substantial to call for the im-
position of the death penalty, and that the mitigating cir-
cumstances are insufficient to outweigh the aggravating cir-
cumstances. Thus, as we noted in State v. Johnson, supra, 298
N.C. 47, 257 S.E. 24 597, the statutory process is, as it must
be, “directed toward the jury's having a full understanding of
both the relevant aggravating and mitigating factors and the
necessity of balancing them against each other in determining
whether to impose the death penalty." Id. at 63, 257 S.E. 24
at 610.

Since the mitigating circumstances are required to be
submitted, like the aggravating circumstances, to the jury in
the form of “written .. . issues" and the jury is required to
find whether “sufficient” aggravating and “sufficient” mitigat-
ing circumstances exist and since the jury is further required
to show in writing which of the aggravating circumstances it
finds, the conclusion is inescapable that the legislature
intended the jury should also be required to show in writing
which of the mitigating circumstances it finds to exist. What
other purpose would there be for submitting the mitigating cir-
cumstances to the jury on a written list? To require both the
mitigating and aggravating circumstances to be submitted in the

form of “written .. . issues” clearly imports a legislative

A-48

-5-

intent that the jury consider and answer them as such. The
very term "Issues" as applied to a trial generally refers to

factual or legal questions which must be answered in order to

resolve the dispute. If the issues are factual they are re-
solved by the trier of fact. "An ‘issue’ is a disputed point
or guestion . .. upon which [parties to an action] are desirous
of obtaining either decision of court on question of law or

of court or jury on question of fact." Black's Law Dictionary
(Sth ed. 1979).

To require the jury to indicate in writing the mitigat-
ing circumstances ‘it finds to exist has been the practice fol-
lowed by our trial judges in every case tried under the new
Geath penalty statute which has been determined by this Court
and in which the jury recommended death except for the instant
case; State v. Taylor, decided this day and in which I also
Gissent in part; and State v. Hamlette, 302 N.C. 490, 276 S.E.
2a 388 (1981).> The cases are: State v. Irwin, No. 26, Fall
Term 1981, presently pending in the Court; State v. Hutchins,
303 N.C. 321, __S.E. 24 _—sss (1981); State v. Martin, 303 N.C.
246, 278 S.E. 24 214 (1981); State v. Silhan, supra, 302 N.C.
223, 275 S E. 24 450; State v. Oliver and Moore, 302 N.C. 28,
274 S.E. 24 183 (1981); State v. Small, 301 N.C. 407, 272 S.E.
2¢ 128 (1980); State v. McDowell, 301 N.C. 279, 271 S.E. 2d 286

lin Hamlette, however, no specific mitigating factors were
proffered. Only the catchall section (f)(9) was used and the
jury answered it “none.”

A-49

(1980), cer:. denied, U.S. » 101 S.Ct. 1731, 68 L. Ed.

2a 220 (1981); State v. Detter, 298 N.C. 604, 260 S.E. 2d 567
(1979); State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979);
State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979), cert.
denied, 448 U.S. 907 (1980); State v. Spaulding, 298 N.C. 149,
257 S.E. 2d 391 (1979); State v. Cherry, supra, 298 N.C. 86,

257 S.E. 24 551, cert. denied, 446 U.S. 941; State v. Johnson,
supra, 298 N.C. 47, 257 S.E. 2d 597; State v. Goodman, supra,
298 N.C. 1, 257 S.E. 2d 569; State v. Jones, 296 N.C. 495, 251
S.E. 2¢ 425 (1979). Presumably our trial judges in these cases
were following the statutory requirements as they understood
them to be. This is a strong indicator that the statute should
be interpreted to accord with the practice which has evolved
pursuant to its provisions particularly when such an interpre-
tation is the more reasonable one when the statute is considered
as a whole.

Furthermore this Court has determined that the defend-
ant must prove each mitigating circumstance which he proffers
by the greater weigh: of the evidence and that upon his timely
request he is entitlec’ to a peremptory instruction in his favor
where “all of the evidence in the case, if believed, tends to
show that a particular mitigating circumstance does exist."
State v. Johnson, supra, 298 N.C. at 76, 259 S.E. 2d at 618.
Surely this holding contemplates a statute which requires not
only that a written list of mitigating circumstances be sub-
mitted, but that the jury indicate on the list its findings

as to each such circumstance submitted.

A-50

-7-

Reguiring the jury to specify in writing the aggravat-
ing, but not the mitigating, circumstances which it finds to
exist not only violates G.S. 15A-2000, but it also prejudices
the defendant at the sentencing hearing. It encourages the
jury to think that the mitigating circumstances are less worthy
of consideration than the aggravating circumstances. Under
this practice the jury is not required, as it should be, to focus
its full attention on each submitted mitigating circumstance
individually in order to determine whether it exists. Yet
this kind of determination is necessarily prerequisite to the
jury's determination whether the mitigating circumstances "are
insufficient to outweigh the aggravating circumstances.” The
Ganser in not reguiring the jury to specify its findings regard-
ing the individual mitigating circumstances is that the jury will
not, because it thinks it need not, decide which mitigating cir-
cumstances it believes do in fact exist, but will simply deter-
mine amorphously that whatever the mitigating circumstances may
be, they do not outweigh the aggravating circumstances. This
kind of determination fails to give a defendant the benefit of
a@ particularized consideration of each circumstance which might
militate against putting him to death.

Such a determination probably violates a capital de-
fendant's constitutional right to “individualized consideration”
as that concept was expounded in Lockett v. Ohio, 438 U.S. 586,

604-05 (1978) (Burger, C.J.; plurality opinion):

A-51

“[(T)he Eighth and Fourteenth Amendments
require that the sentencer, in all but
the rarest kind of capital case, not be
precluded from considering as a mitigat-
ing factor, any aspect of a defencant's
character or record and any of the cir-
cumstances of the offense that the de-
fendant proffers as a basis for a sen-
tence less than death. ... The need
for treating each defendant in a capital
case with that degree of respect due the
unigueness of the individual is far more
important than in non-capital cases... .
The nonavailability of corrective or
modifying mechanisms with respect.to an
executed capital sentence underscores the
need for individualized consideration as
a constitutional requirement in imposing
the death sentence.

“There is no perfect procedure for
deciding in which cases governmental
authority should be used to impose
death. But a statute that prevents the
sentencer in all capital cases from giving
independent mitigating weight to aspects
of the defendant's character and record
and to circumstances of the offense prof- .
fered in mitigation creates the risk that
the death penalty will be imposed in spite
of factors which may cal) for a less severe
penalty. When the choice is between life
and death, that risk is unacceptable and
incompatible with the commands of the Eighth
and Fourteenth Amendments." (Emphasis
Original.)

Under our statutory scheme permitting the jury to return a recom-
mendation for death without requiring it to specify which mitisat-
ing circumstances it finds to exist so dilutes the jury's consti-
tutional duty to consider, in the words of Lockett, “any aspect
of a defendant's character or record and any of the circumstances
of the offense that defendant proffers as a basis for a sentence

less than death" and to give them “independent mitigating weight”

A-52

that it skirts dangerously close to violating these consti-
tutional requirements.

The majority relies on Gregg v. Georgia, 428 U.S. 153
(1976) to sustain its interpretation of our statute against
constitutional attack. I believe the reliance is misplaced.
Our statutory scheme for imposing the death penalty and that
of Georgia's are quite different. Our statute not only sug-
gests a list of mitigating circumstances which might be prof-
fered by the defendant but it requires that the list be sub-
mitted to the jury in writing along with a written list of
the aggravating circumstances. The Georgia statute permits
the jury to consider any mitigating factor but none of these
factors are enumerated, specified, or otherwise suggested to
the jury. Ga. Code Ann. § 27-2534.1. Under our statute, as

I have noted, the jury is required to balance carefully various

enumerated mitigating circumstances with various enumerated

aggravating circumstances submitted in the form of written issues
in determining whether to recommend a sentence of death or life
imprisonment. Under Georgia law the jury "is not required to find
any mitigating circumstance in order to make a recommendation of
mercy that is binding on the trial court... but it must find

a statutory aggravating circumstance before recommending a sen-
tence of death.” Gregg v. Georgia, supra, 428 at 197. (Empha-
Sis original.) Indeed, in Georgia, the jury may return a death

sentence upon finding one or more aggravating circumstances, no

* A-53

matter how it regards the mitigating circumstances. In
contrast, under our statute the jury may return a death
sentence recommendation only if it finds: (1) the existence
of one or more aggravating circumstances; (2) that the acgra-
vating circumstance(s) found by it are sufficiently substan-
tial to call for the imposition of the death penalty; and

(3) that the mitigating circumstances are insufficient to

outweigh the aggravating circumstances. The clear import of

our statute is that a jury, upon finding the requisite exis-
tence of aggravating circumstances and their sufficient sub-
Stantiality, may not recommend life imprisonment unless it
further finds that the mitigating circumstances are suffi-
cient to outweigh the aggravating circumstances.

Under our statute the jury's sentence determination
is far more carefully channeled. The entire thrust of our
statute is directed toward insuring that the jury fully under-
stand both the aggravating and mitigating circumstances so that
it may carefully balance them against each other in arriving
at its sentence determination. State v. Johnson, supra, 298
N.C. 47, 257 S.E. 24 597. Thus the existence or non-existence
of mitigating circumstances looms far more crucial to the jury's
ultimate determination under our statute than it does under
Georgia's. For this reason the majority's conclusion that our
Statute does not require the jury to answer specifically the

written issues relating to mitigating factors but only those

2Ga. Code Ann. § 27-2534.1. The judse or jury is required
simply “to consider any mitigating circumstances.” Id.

A-54

relating to aggravating factors may well render the statute
violative of the constitutionally required individualized
consideration in a capital case even though Georgia's proce-
dure was sustained in Gregg. For the jury here is given both
lists of aggravating and mitigating issues, in writing, told

to answer the issues relating to aggravating factors in writing,
and then told to make its life or death decision on the basis
of what is essentially a careful balancing of the aggravating
against the mitigating circumstances. Yet at the same time

the jury is told that it really should not answer in writing
the individual i-sues relating to mitigating circumstar
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1827%3A1. Public record. Not legal advice.