# Appendix — DAVID J. BROWN v. NORTH CAROLINA (No. 82-5542) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1321%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 ## Text e C NO, 82 - IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 DAVID J, BROWN Petitioner -y- STATE OF NORTH CAROLINA Respondent SL NS ED APPLICATION FOR EXTENSION OF TIME IN WHICH TO FILE FOR WRIT OF CERTIORARI Se eS To the Honorable Warren E. Burger, Cheif Justice of the United States and Circuit Justice for the Fourth Circuit: The petitioner, David J. Brown, prays that an order be entered extending the time for filing a Petition for Writ of Certiorari in the Supreme Court of the United States in this case by thirty (30) days to and including October 31, 1982, or in the alternative October 11, 1982. Petitioner believes that this application is not being filed less than ten (10) days prior to the date that the petition is due; however, petitioner has recently learned that a question has recently been raised regarding the interpretation of North Carolina'a Rules of Appellate Procedure pertaining to the date a judgment is entered for purposes of filing a Petition for Writ of Certiorari in the Supreme Court of the United States. The confusion has not yet been resolved by either the Supreme Court of the United States or the Supreme Court of North Carolinu, and petitioner may, therefore, be one day late in filii.; this Application. The pertinent dates are; July 13, 1982: The Supreme Court of North Carolina filed an opinion affirming petitioner's convictions and death sentences for two murders. State v. Brown, aches A er Nepitacclie Fe RD ; (1982). August 2, 1982: Judgment was rendered by the Supreme Court of North Carolina pursuant to Rule 32(b) of the North Carolina Rules of Appellate Procedure. iat C September 11, 1982: Expiration of time for filing Petition for Writ of Certiorari in this Court, unless extended, if this Court interprets Rule 20.4 of the United States Supreme Court Rules and the North Carolina Rules of Appellate Procedure to require that the time for filing the Writ begins on the date the North Carolina Supreme Court opinion is filed rather than on the date it is mandated, October 1, 1982: Expiration of time for filing Petition for Writ of Certiorari in this Court, unless extended, based on the petitioner's interpretation of Rule 20.4 of the United States Supreme Court Rules and the North Carolina Rules of Appellate Procedure. October 11, 1982: Expiration of a requested thirty (30) day extension of time for filing a petition in this Court, if this Court determines that the sixty (60) days within which to tile the Petition for Writ of Certiorari begins to run from the date the opinion was filed by the North Carolina Supreme Court. October 31, 1982: Expiration of a requested thirty (30) day extension of time for filing a petition in this Court, if the sixty (60) days within which to file Petition for Writ of Certiorari begins to run from the date juCgment was mandated by the North Carolina Supreme Court. This motion for extension of time is being filed at this date because of the apparent confusion over the date when the Petition for Writ of Certiorari is due in this Court. Counsel for petitioner had calculated the date that the Petition for Writ of Certicrari is due as October l, 1982, sixty (60) days from the date judgment was entered by the North Carolina Supreme Court. After conferring with counsel for Michael Edward Pinch, who recently requested an extension of time from this Court in order to file a Petition for Writ of Certiorari, petitioner's counsel has learned that there is now a question regarding when the sixty (60) days begins to run. This application is, therefore, now being made despite petitioner's belief that October 1, 1982, is the correct date marking the expiration of time for filing the Petition for Writ of Certiorari in this Court and that September 21, 1982, is the final date for filing this Application. If petitioner's interpretation of the rules is found to be incorrect, the Petition for Writ of Certiorari, unless time is extended, will be due September 11, 1982, and this Application was due September 1, 1982. «3- e c If this Court determines that counsel for petitioner has interpretated the rules incorrectly, petitioner prays that this Court grant his application for an extension of time because of the seriousness of this case and because of the extraordinary circumstances created by the recent confusion concerning proper interpretation of North Carolina'a Rules of Appellate Procedure. As grounds for the thirty (30) day extension, petitioner shows the following: 1. Petitioner was found guilty after a jury trial in the Superior Court of Rockingham County, North Carolina, of two counts of first degree murder and was sentenced to death on each count. 2. Petitioner duly appealed his convictions and sentences to the Supreme Court of North Carolina, assigning as error, inter alia, several federal constitutional claims. The Supreme Court of North Carolina affirmed the convictions and the sentences, holding that petitioner was denied his constitutional right to due process in the guilt phase of his trial but the error was harmless beyond a reasonable doubt. As to the issues raised in the sentencing phase of petitioner's trial, Justice Exum dissented, expressing the view that petitioner was entitled to a new sentencing hearing. 3. Petitioner intends to seek review in this Court under 28 U.S.C. Section 1257(3) of his federal constitutional claims which he presented to and which were rejected on the merits by the North Carolina Supreme Court. At least one of the issues, the constitutionality of the North Carolina Supreme Court's construction of the death penalty statute, is also being presented to this Court in Michael Edward Pinch v. State of North Carolina (No, 82- » Tiled August 31, 1982). 4. The extension of time is sought for the following reasons: a. Petitioner is an indigent, death sentenced inmate who was represented at trial by the undersigned court appointed counsel, b. Petitioner's counsel has a very active and heavy work load consisting of numerous other previously scheduled criminal and civil trials, and although counsel has proceeded diligently on petitioner's behalf, more time is needed to adequately prepare a Petition for Writ of Certiorari. WHEREFORE, petitioner respectfully requests an order extending the time for filing a Petition for Writ of Certiorari to and including October 31, 1982, or in the alternative, October 11, 1982. This 2 day of September, 1982. ae t-te ee ae wer? tC) ed Respectfully submitted, VAN CAMP, GILL & CRUMPLER, P. A. Attorneys for Petitioner Raleigh, North Carolina 27602 Phone: (919) 821-5393 NO. 82 baad IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 DAVID J. BROWN Petitioner -v- STATE OF NORTH CAROLINA Respondent ~~ ee ee CERTIFICATE OF SERVICE I hereby certify that I served the annexed Application for Extention of Time in which to File for Writ of Certiorari on respondent by placing copies in the United States mail, first class mail, postage prepaid, addressed as follows: Mr. Isaac T. Avery, III Special Deputy Attorney General of the State of North Carolina Justice Building Post Office Box 629 Raleigh, North Carolina 27602 All parties required to be served have been served, This a day of September, 1982. VAN CAMP, GILL & CRUMPLER, P. A. Attorneys for Petitioner P. 0. Box 106 Raleigh, North Carolina 27602 Phone: (919) 821-5393 NO. 82 - IN TH SUPREME COURT OF THE UNITED STATES October Term 1982 DAVID J. BROWN, Petitioner Vv. AFFIDAVIT OF SERVICE STATE OF NORTH CAROLINA, Respondent STATE OF NORTH CAROLINA) ) COUNTY OF WAKE 8S. Sally Hamilton Scherer, being sworn, states; 1. I am an attorney licensed to practice law in the State of North Carolina. I am employed by Van Camp, Gill & Crumpler, P. A. and am an associate of James R. Van Camp, attorney for petitioner David J. Brown. 2. On September 2, 1982, at approximately 1:00 p.m, E.S.T., I personally placed the original and two copies of the enclosed Application for Extension of Time in an envelope properly addressed to the Clerk of this Court, with express mail service postage prepaid, and deposited the envelope in a mailbox under the exclusive care and custody of the United States Postal Service within the City of Raleigh, State of North Carolina, ok | "y S\ ’ etl 107" us. er, NO, 82 = IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 DAVID J. BROWN, Petitioner Vv. STATE OF NORTH CAROLINA Respondent MOTION TO PROCEED IN FORMA PAUPERIS The petitioner, David J. Brown, by his undersigned counsel asks leave to file the attached Petition for Writ of Certiorari to the Supreme Court of North Carolina without prepayment of costs and to proceed in forma pauperis pursuant to Rule 46. Mr. Brown's Affidavit in support of this Motion is attached, This With day of Ockoec __. 1982. VAN CAMP, GILL & CRUMPLER, P. A. Attorneys for ye. Ay Lhe Ge By 4 My » A. A ] / James R. Van Camp / osp Office Box 106 Raleigh, North Carolina 27602-0106 (919) 821-5393 No, 82 rad IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 | DAVID J. BROWN, ) | Petitioner ; | v. AFFIDAVIT STATE OF NORTH CAROLINA ) ; Respondent ; I, David J. Brown, being duly sworn, depose and say in support of my Motion for leave to proceed in forma pauperis: 1. I am the petitioner in the above-captioned action, 2. Because of my poverty, I am unable to pay the costs of this cause; I | own no real or personal property; I am incarcerated and receive no income from J earnings. | 3. 1 am unable to give security for this cause. 4. James R. Van Camp was appointed to represent me at trial and on appeal because I am indigent. He is representing me in this petition to the United States Supreme Court. 5. I believe that I am entitled to redress, 6. The nature of this cause is briefly stated as follows: | I was convicted in the Superior Court of Union County, a trial court bes the State of North Carolina, of the murder of two individuals and was ] sentenced to death on both counts, I am being held at the North Carolina } Central Prison in Raleigh, North Carolina, I believe that errors were } | committed during the course of my trial in violation of my constitutional ] rights and that my conviction and death sentence were imposed upon me in | violation of my constitutional rights, David J. oon NORTH CAROLINA WAKE COUNTY The foregoing Affidavit of David J, Brown was subscribed and sworn to before me this 4 ta day of October, 1982. . Bhar Ophhe Notary Public | My Commission Expires: /20/ Yo ! ce Aang C IN THE SUPREME COURT oF worTH caroLInA 82 5542 STATE OF NORTH CAROLINA ) o- = 2s v ) No. 30A81 - Union oon as | tt ) Se bai _—s DAVID J. BROWN ) ek [™ e>r £ ra gm we FTI Before Rousseau, Judge, at the 8 December 198 Srintna lk a] oy ad ~N Session of Superior Court, Union County. Defendant was charged in indictments, proper in form, with the murders of Christina S. Chalflinch and Shelly Diane Chalflinch. Due to pretrial publicity, the trial court ordered the trial moved from Moore County, where the crimes occurred, to Union County. The jury found defendant guilty of the two counts of first degree murder and recommended that defendant be sentenced to death for both convictions. Based on the jury's recommendation, the trial court imposed a death sentence for each conviction. Defendant appeals to this Court as a matter of right. Attorney General Rufus L. Edmisten, by Special Deputy Attorney General Issac T. Avery III, for the State. James R. Van Camp and Douglas R. Gill, for the defendant. CARLTON, Justice. Defendant brings forth several assignments of error in the guilt determination 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 entire record before us, we find no prejudicial error in any of these proceedings and affirm his convictions and the sentences imposed. Appendix A, p 1 I. At trial, evidence for the State tended to show that Shelly Diane Chalflinch, aged twenty-six, and her daughter, Christina S$. Chalflinch, aged nine, resided in apartment 9 of the Marriage Quarters behind the Pinehurst Hotel in Pinehurst, North Carolina. They visited with Ms. Chalflinch's father, G. W. Frye, in Aberdeen on Sunday, 24 August 1980. Mr. Frye never saw his daughter or granddaughter alive after that evening. On the morning of Tuesday, 26 August 1980, the bodies of Ms. Chalflinch and her daughter were found in a mutilated condition in the Chalflinch apartment. Police officers who entered the apartment saw blood on the floors and walls of the apartment. Pieces of flesh were scattered throughout the living area of the apartment. Small pieces of furniture had been overturned and several chairs were broken. It was hot in the apartment and the bodies had already bequn to decompose. Ms. Chalflinch's body had been mutilated beyond recognition, and several feet of her intestines protruded from a large wound to her abdomen. Christina's body also bore multiple stab wounds and a brown electrical cord had been wrapped around her neck. A bloody knife blade, broken at both ends, with the inscription "R. H. Forschne,” was found in the apartment. Following the initial investigation, the apartment was secured and remained padlocked until the time of trial. Sergeant Don Davis of the Pinehurst Police Department was placed in charge of the investigation and kept the only key to the apartment. The bodies of the Chalflinches were taken to Chapel Hill on 26 August 1980 where autopsies were performed. An autopsy Appendix A, p 2 Ns & C ~3@ performed on the body of Ms. Chalflinch revealed approximately 100 stab and cut wounds all over her body. At least 20 of these wounds were to the facial area, 12 were in the neck area, and 16 stab wounds on the right arm appeared to be defensive in aiikinoe: In addition to the numerous wounds to the chest and shoulder area, a large gaping cut extended down the left leg from buttock to ankle and a V-shaped penetrating stab wound in the vaginal and rectal area created a virtual hole in the body. The medical examiner found a ring under the edge of the liver in the abdominal cavity. The pathologist who performed the autopsy testified, "I could place my own hand and arm through the wound in her genital area up to the area where the ring was." The ring was silver in color and had a large rectangular surface with a heraldic pattern with two animals on each side and two shields and a crown on top. In the pathologist's opinion, Ms. Chalflinch died as a result of "a combination of stab and incised wounds to all parts of her body, that some wounds might possibly have been inflicted after death and that, given the condition of the body and the tempera- ture of the Chalflinch apartment, death could have occurred on Monday night, 25 August." An autopsy performed on the body of Christina Chalflinch revealed multiple stab wounds, slashes, puncture marks and extensive mutilation of the genital area with a portion of the tissue removed. The head had a large number of stab wounds, one of which extended through the brain from right to left. The electrical cord which had been wrapped around the neck left a faint bluish mark. Four wounds in the chest area penetrated into the tissues of the chest and abdomen. Seven of the multiple Appendix A, p 3 oe Ne i C o* 8 stab wounds in the abdominal region penetrated internal organs. In the pathologist's opinion, Christina Chalflinch died as a result of multiple stab wounds to the head, chest and abdomen. a On 28 August 1980 SBI Agent Wade Anders obtained permission from the defendant to search his home, apartment 4 at the Marriage Quarters complex. Defendant was asked to sign a form indicating his consent to a search of his apartment. He signed the form after it was read to him and after he talked with a friend. The form was signed at 5:21 p.m. on 28 August 1980. The apartment was searched that same evening, while defendant was present. Items seized during the search included the tool box in which defendant kept his kitchen equipment for his job as a cook at the Pinehurst Hotel. In the box were knives bearing the inscription "R. H. Forschner” on the blades. A forensic serologist with the SBI examined the apart- ment of Ms. Chalflinch and the area outside it on 28 August 1980. He observed blood all over the apartment. Additionally, he per- formed luminol and phenolphthalein tests to determine the presence of blood undetectable to the human eye. Through use of these tests, blood was discovered in the corner of the kitchen in the shape of partial two / footprints of the balls and toes of the feet, side by side. Patterns of blood were discovered outside the front door of Ms. Chalflinch's apartment and also on the deck outside the front door, on the fourth and tenth steps leading down from her apart- ment, and on the concrete pad at the foot of the steps. Blood was also observed between the concrete pad and the first stepping stone, and this bloodstain was in a _ shape resembling a bare foot. At the door to defendant's apartment, visible bloodstains Appendix A, p 4 C) . »? ides were found on the concrete stoop. The luminol test indicated the presence of blood on the doorknob. The tool box taken from defendant's apartment had a small spot on the lid which tests revealed to be blood and the blade of one of the R. H. Forschner knives tested positive with phenolphthalein. A bloodstain was also found on a pillow at the head of defendant's bed. Blood was found in other areas throughout the apartment and bare footprints of blood were found all over the floor in the kitchen. On that evening, defendant had a cast on his left hand. An SBI agent who qualified as an expert in the field of fingerprint and palm print identification testified that a latent palm print on the wall of the bedroom of Ms. Chalflinch's apart- ment was the same as that of the left palm print of the defendant. Several friends of defendant's testified that the ring ‘found in Ms. Chalflinch's body was the ring normally worn by defendant. Other evidence for the State tended to show that defendant attended a party on Sunday evening, 24 August 1980, where he played the role of disc jockey. He drank alcoholic beverages throughout the evening and took at least five "Black Beauties." During the party defendant was wearing his ring. At approximately 11:30 p.m., defendant and a group left the party and went to a nightclub known as the Crash Landing. Members of the Southern Pines Police Department on patrol observed the defendant walking on the highway near the Crash Landing at approximately 2:10 a.m. on Monday, 25 August 1980. He was staggering, carrying his shoes and was barefooted. The officers gave him a ride to the kitchen entrance of the Pinehurst Hotel. They left him there at approxi- Appendix A, p 5 mately 2:45 a.m. A co-worker of defendant testified that she saw the ring in question on the Saturday before 25 August 1980. - On the following Monday at approximately 7:00 a.m., she saw the defendant at work and he had two bandaids on his left hand in the thumb area. She did not observe the ring at that time. Defendant was in pain and told her that he had cut his hand. Evidence for the defendant tended to show that the night shift supervisor at the Pinehurst Hotel saw the defendant in the hotel's front office between 2:30 and 3:00 a.m. on 25 August 1980. He left the front of the hotel at approximately 3:00 a.m. A co-worker and friend of defendant's testified that defendant had been in apartment 9 of the Marriage Quarters before 25 August 1980. Two residents of apartments in the Marriage Quarters testified that they had been at home on the night of 24 August 1980 and had not heard anything unusual. One of these residents saw Ms. Chalflinch at approximately 11:00 p.m. on 24 August 1980. They talked and she stated that she had to do some laundry. He saw her through his apartment window again around 12:30 or 1:00 a.m. on 25 August 1980, heading toward the laundry. Becky Mills, a nurse at Moore Memorial Hospital, testified that she first saw the defendant at approximately 11:00 p.m. on 25 August 1980. He was in the emergency room recovering from surgery resulting from cut tendons on his left hand and had a cast on his left arm. He left the hospital at approximately 4:10 a.m. on 26 August 1980. Gaston Yarborough and Raymond Pate, employees of the hotel, testified that they passed by the Marriage Quarters on Appendix A, p 6 eo ©) bik ‘ a -7- their way home from work on Monday, 25 August. © They left work at approximately 11:00 p.m. They heard a lady hollering from the direction of the Marriage Quarters and a banging noise. Yarborough drove by the Marriage Quarters and saw that lights were on only in the end apartment on the corner. Pate testi- fied that he did not see Ms. Chalflinch's car in the parking lot when he went to work at approximately 2:30 p.m. on 25 August 1980. At 11:00 p.m., as he was walking to his truck to leave work, he heard noises from the direction of the Marriage Quarters. He heard a young girl's voice say, “leave her alone, leave her alone.” He then drove by the Quarters. He saw lights on only in the apartment in the right-hand corner. He looked up toward the lighted apartment and saw a white male with sandy blonde hair jump from the balcony. Pate told the polices about this on 27 August 1980. He saw the person again on the following weekend and followed him into the hotel but lost him. He reported this to the police the same day, but they never inquired about it further until the Sunday prior to trial. On cross-examination, Pate testified that the person jumped off the balcony outside of apartment 12 and that he saw no one near apartments 9 and 10. Upon receiving the jury verdict finding the defendant guilty of both murders, the court convened the sentence determination phase of the trial before the same jury. The State essentially relied on the testimony presented at the guilt phase but also offered the testimony of Roy Junior Brown. Brown testi- fied that he was in Moore County jail as a prisoner at the time defendant was placed in the jail. Brown asked defendant what he was charged with and defendant said that he was charged with a Appendix A, p 7 ‘gi ©) ee * ’ ; ’ -8- double homicide. Brown testified: He said he murdered two people. He called one of their names Shelley (sic). He told me he killed them with a knife. He said he couldn't. understand why they didn't give him his ring back, that they gave him his watch back, and it got broke off his arm, the band broke off, and I asked him where his ring was or something, I don't recall exactly what I asked him, but anyhow he said the ring turned up in one of the bodies. Defendant presented several witnesses in his behalf. Several co-workers testified that they had known him for some time and had never seen or heard him threaten anyone with any act of violence and that he got along well with other people. Other testimony indicated that he had never been seen with a weapon; that he was an honest and dependable worker; that he was a quiet person and did not use profanity. Some of defendant's relatives testified essentially that they had never known defendant to be violent and that he was always friendly and self-controlled. At the conclusion of the testimony, the trial court instructed the jury on the sentencing phase. Two aggravating circumstances were submitted to the jury: (1) whether the murder was especially heinous, atrocious or cruel, and (2) whether the murder was part of a course of conduct in which the defendant engaged and whether that course of conduct included the commission by the defendant of other crimes of violence against another person. Six mitigating circumstances were submitted to the jury: (1) whether the defendant had no significant history of prior criminal activity, (2) whether the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to requirement of law was impaired, (3) whether, although the act itself may have been horrible, the defendant had not shown Appendix A, p 8 Re ee ee hs ( himself to be otherwise evil, (4) whether the defendant had no previous conviction of offenses involving injury to another person, (5) whether prior acts of defendant's behavior were inconsistent with the act of which he was convicted, (6) whether any other circumstance or circumstances arising from the evidence had mitigating value. The jury found both aggravating circumstances and all six mitigating circumstances. The jury also answered affirmatively the issues of whether, beyond a reasonable doubt, the aggravating circumstances found were sufficiently sub- stantial to call for the imposition of the death penalty and of whether, beyond a reasonable doubt, the aggravating circumstances outweighed the mitigating circumstances. The following instruction appeared on the sheet handed the jurors immediately following the issue last mentioned: “If you answer issue 4 'No,' indicate life imprisonment under ‘recommendation as to punishment.’ If you answer issue 4 ‘Yes,' indicate death under ‘recommendation as to punishment.'" Thereupon, the jury recommended that defendant be sentenced to death. Identical issues were submitted in both murder cases and the answers and recommendations were the same. The trial court then entered judgment imposing the death penalty for each of the crimes committed. From these judgments, the defendant appealed of right to this Court. Il. GUILT-INNOCENCE PHASE Defendant presents numerous contentions about the guilt- innocence portion of his trial. We discuss each of these below. Appendix A, p 9 In pre-trial discovery motions and motions made during the trial and immediately after judgment was entered, defendant sought a trial court order allowing him to inspect the premises known as apartment 9 of the Marriage Quarters, the scene of the crimes. The trial court denied defendant's motion in each instance. The apartment had been cordoned off and had been under the control of the Pinehurst Police Department from the time the victims’ bodies were found until the time of the trial. Defendant claims that he was entitled to inspect the crime scene under G.S. 15A- 963 (a) ag wanes of his constitutional right to due process of law. Defendant contends before this Court that an inspection of the crime scene was critical to his defense. He argues that the only way the State could prove that he committed the murders was to show that they occurred between 3:00 a.m. and 7:00 a.m. on 25 August 1980 and that he needed the opportunity to inspect the crime scene in order to discover whether there was any evidence which tended to show that the victims were alive after this period. An inspection of the crime scene, therefore, was critical to the , preparation of his defense. We first turn to defendant's contention that he was entitled to view the crime scene under G.S. 15A-903(d). That statute provides in pertinent part: (ad) Documents and Tangible Objects. -~ Upon motion of the defendant, the court must order the solicitor to permit the defendant to inspect and | copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, tangible objects, or copies or portions thereof whic are within the possession, custody, or control of the State and which are material to the preparation of his defense, are intended for use by the Appendix A, p 10 ‘ 7 -ll- State as evidence at the trial, or were obtained from or belonged to the defendant. (Emphasis added.) Defendant contends that “tangible objects" include such objects as an apartment. We do not agree. "Tangible objects,” as used in this statute, refers only to tangible, movable objects, and not to buildings or rooms. ; Rule 16 of the Federal Rules of Criminal Procedure, the federal counterpart of our G.S. 15A-903, specifically confers the right to “discover buildings or places." Our statute, on the other hand, does not include “buildings or rlaces* in the list of things which may be discovered. This omission is, we think, significant. Had our Legislature intended for “buildings or places" to be included in the statute, it would have said so in the same words utilized in the federal statute. Thus, defendant is not entitled, under the terms of G.S. 15A-903(d), to inspect the crime scene. Appendix A, p ll ; @ C i SO -12- Defendant's contention that denial of his motions to view the crime scene amounted to a denial of due process of law is persuasive. We start with the proposition established by the Suprene Court of the United States that there is no general constitutional right tc discovery in a criminal ease, ‘Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977). As that Court has stated, "the Due Process clause has little to say regarding the amount of discovery which the parties must be afforded ... ." Wardius v. Oregon, 412 U.S. 470, 474, 93 S. Ct. 2208, 2212, 37 L. Ed. 2d 82, 87 (1973). We must, therefore, consider defendant's claim under the facts of this particular case. Here, the record discloses that the apartment occupied by the victims was secured and cordoned off by the Pinehurst Police Department from the time the bodies were discovered on 26 August 1980 through the time of defendant's trial. The defendant sought on several occasions to obtain access to the apartment in order to search for exculpatory evidence. The record does not disclose that the defendant would have been unwilling for his attorneys to be accompanied by police personnel so that no harm would be done to the crime scene. The defendant cogently presented the theory of his defense to the trial court. The State relied heavily on information gained from the crime scene for its case against the defendant. On these facts, we think it a denial of fundamental fairness and due process for defendant to be denied, under police prosecutorial supervision, a limited inspection of the premises of the crime scene. We emphasize, however, that our holding is limited to the particular facts of this casé and our holding is in no way to be construed to mean that police or prosecution have any Appendix A, p 12 i Nah i, ye ( obligation to preserve a crime scene for the benefit of a defendant's inspection. The crime scene here was preserved by the police for the several months from the time the bodies were found until the trial was conducted and rudimentary fairness would have allowed defendant to inspect these premises under these circumstances. Our inquiry does not end here, however. Error committed at trial infringing upon a defendant's constitutional rights is presumed to be prejudicial and entitles him to a new trial unless the error committed was harmless heyond a reasonable doubt. G.S. 15A-1443(b); Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 24 705 (1967); see Moore v. Illinois, 434 U.S. 220, 98 8S. Ct. 458, 54 L. Ed. 2d 424 (1977); Milton v. Wainwright, 407 U.:. 371, 92 S. Ct. 2174, 33 L. Ed. 24 1 (1972); Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056, 31 L. Ed. 24 340 (1972). Overwhelming evidence of guilt may render constitutional error harmless. Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969). As stated in Chapman, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710-11. Here, we declare our belief that the trial court's error in denying defendan‘ to the crime scene was harmless beyond a reasonable doubt of other overwhelming evidence of defendant's guilt. Our reading of the record here leaves no doubt that the trial court's error was harmless. This is so because evidence of this defendant's guilt was overwhelming. A ring identified as Appendix A, p 13 nN ¥ would ne ae eS wer. mes Tet ste “14- one previously worn by defendant was found in the body of Ms. Chalflinch. A bloody palm print lifted from the bedroom wall of the apartment was unquestionalby identified as being that of the defendant. A bloody and broken knife blade similar to ones owned by defendant and used by him in his work was found at the crime scene. In addition to the blood at the crime scene, blood was located at the entrance of defendant's apartment and throughout the apartment. Defendant confessed to his cellmate, after being arrested, that he had murdered two people, one named Shelly, with a knife and that his ring had turned up in one of the bodies. In summary, we hold that the trial court erred under the facts of this case in failing to allow defense counsel to view the crime scene but that the trial court's error was harmless beyond a reasonable doubt. See United States v. Valenzuela- Bernal, U.S. ’ S. Ct. ’ L. Ed. 2d (No. 81-450, decided July 2, 1982). Appendix A, p 14 / Following the testimony of Mike Pagan, Marlene Ethal McIntosh, Ann Quick and Debra McLaughlin, witnesses who testified that the ring found in Ms. Chalflinch's body belonged to defendant, © defense counsel requested copies of the statements which each witness had given to the police. At that point, the court noted that it had reviewed in camera the statements of the four witnesses and, based on its review, entered findings that the statements were not inconsistent with the witnesses’ testimony, that the statements contained no evidence which exonerated the defendant, and that defense counsel was not entitled to copies of the statements given to the District Attorney's office prior to trial. Copies of the statements were made and were placed in a sealed envelope. Following the trial court's entry of this order, defense counsel asked that the court seal not only the four statements specifically requested, "but any statements written whether in longhand or otherwise.” The trial court denied this motion. By this assignment defendant requests that we review the sealed statements of the four witnesses to determine iZ the trial court ruled properly. He then contends, however, that he has a constitutional right to inspect the statements himself and that the procedures enunciated by this Court in State v. Hardy, 293 N.C. 105, 235 S.E. 2d 828 (1977), are inadequate in capital cases. Finally, defendant contends that the trial court erred in failing to inspect and seal any other written statements. In Hardy this Court established the rules for our trial courts to follow in instances where a specific request is made at trial for disclosure of evidence in the State's possession Appendix A, p 15 C that is obviously relevant, competent and not privileged. As . ° ‘ J -16- Justice Copeland stated, "justice requires the judge to order an in camera inspection when a specific request is made at trial for disclosure of evidence in the State's possession that is obviously relevant, competent and not privileged. The relevancy for impeach- ment purposes of a prior statement of a material State's witness is obvious.” Id. at 127-28, 235 S.E. 2d at 842. The North Carolina discovery procedures, unlike the federal statute, do not automatically entitle the defendant to such statements at trial. Instead, . . . since realistically a defendant cannot know if a statement of a material State's witness covering the matters testified to at trial would be material and favorable to his defense, Brady and Agurs require the judge to, at a minimum, Seer an 6 camera inspection and make appropriate findings of fact. As an additional measure, if the judge, after the in camera examination, rules against the defendant on his motion, the judge should order the sealed statement placed in the record for appellate review. Id. at 128, 235 S.E. 2d at 842. Here, the trial court clearly complied with the mandates of Hardy with respect to the statements of the four named witnesses. Having found as a fact that the statements were not inconsistent with their testimony at trial and that they contained no evidence exculpatory to the defendant, the trial court declined to order them provided to the defense counsel and correctly ordered them placed in a sealed envelope. In accordance with the review pro- cedure set out by Hardy, we have opened the sealed envelopes, read the statements in question and concur in every respect with the trial court's findings and order. Nor are we persuaded that the procedure adopted in Hardy Appendix A, p 16 algagtes ae ‘9 ey hates -17- should be modified. Defendant has presented no new reasons for our doing so, and we continue to believe that the Hardy procedure fully assures a defendant that no material and exculpatory pre- trial stateme t will be suppressed. Ordering the statements placed in sealed envelopes provides for effective appellate review. See State v. McLean, 294 N.C. 623, 242 S.E. 2d 814 (1978); State v. Tate, 294 N.C. 189, 239 S.E. 2d 821 (1978). Finally, we reject defendant's contention that the trial court failed to comply with Hardy with respect to “any statements written whether in longhand or otherwise." This request by defense counsel was obviously a shotgun tactic. Our review of the record discloses no evidence of any other statements which were available for the court to inspect and seal. Defendant apparently would have this Court assume that some other statements were avail- able and that the trial court knew of them. This we are unwilling to do. We have no reason to suspect that any other statements were available and find no indication from the record that any witness was asked by defense counsel if he or she had previously given a statement in writing to police personnel. These assignments of error are overruled. c. Defendant next contends that the trial court erred in denying his several motions concerning discovery of information in the State's possession indicating that a witness had seen a white male jumping from the balcony of a Marriage Quarters apart- ment on the evening of 25 August 1980, which information had not previously been provided defendant. We find no merit to defendant's contention. Appendix A, p 17° vay hee ea ae ba YY After learning that law enforcement officers had been told by a witness, Raymond Pate, that he had observed a white male jump from a balcony of a Marriage Quarters apartment on Monday evening, the trial court conducted a lengthy voir dire. The voir dire revealed that officers had discounted this testi- mony because Pate had indicated to them, upon viewing the apartment complex that he had actually seen the man jump from the balcony of an adjacent apartment. Moreover, this information had not been disclosed to the District Attorney. It had been independently discovered by counsel for defendant approximately one week prior to trial. During the course of this voir dire, defendant moved for a dismissal, a mistrial, and a continuance. All three motions were denied by the trial court. At the conclusion of the voir dire, the trial court found the facts as noted above and concluded that the District Attorney had not intentionally tried to hide any information contrary to the pre-discovery order entered in the cause and further found that the defense attorney had had substantially the same information as the District Attorney. We find the trial court's findings of fact fully supported by the evidence adduced at the voir dire and that those findings properly support the con- clusions of law. G.S. 15A-910 gives the trial court ample authority to provide relief when either the State or defendant fails to comply with the discovery provisions of Chapter 15A. However, the exclusion of evidence for the reason that the party offering it has failed to comply with the discovery statutes granting the right of discovery, or with an order issued pursuant thereto, rests in the discretion of the trial court. .. . The exercise of that discretion, Appendix A, p 18 C aaa -19- absent abuse, is not reviewable on appeal. State v. Hill, 294 N.C. 320, 331, 240 S.E. 2d 794, 801-02 (1978) (citations omitted). ; We find no abuse of discretion here. The record reveals that the District Attorney weejonmiee of this information until trial. The record further reveals that defense counsel became aware of the information a week before trial and had, in fact, talked with the witness. Most importantly, the witness testified before the jury and the jury heard a full account of what he observed on that evening. On these facts, there is no abuse of discretion. See State v. Allison, 298 N.C. 135, 257 S.E. 2d 417 (1979); State v. McCoy, 302 N.C. 1, 277 S.E. 2d 515 (1981). In a related argument, defendant contends that the trial court erred in refusing to permit him to inquire into the knowledge of a State's witness concerning another witness who allegedly had seen the decedents alive after 12:30 a.m. or 1:00 a.m, on 25 August 1980. On cross-examination of Sergeant Davis, a Pinehurst police officer, defendant asked, “Did you determine that one or more persons may have seen Diane Chalflinch after 1:00 a.m. on Monday morning?" The witness answered affirmatively. Defendant then sought to obtain the names of the witnesses and the State's objections were sustained. Defendant then attempted to have the questions answered for the record and the trial court refused. The trial court's explanation was that, “You have asked me to look and I looked in camera at a statement a witness gave where you contended that somebody saw Diane Chalflinch alive after midnight, and I have ruled that you were not entitled to that information at this time.” Defendant contends that (1) he was Appendix A, p 19 -20- entitled to have the witness answer the question, and (2) at the very least, the question should have been answered for the record. While we agree with defendant that the trial court should have allowed the witness to answer for the record, that alone does not warrant a new trial. The record discloses that regardless of defense counsel's inability to get his questions answered, the witness who claimed to have seen Ms. Chalflinch alive at 12:30 Or 1:00 a.m. on 25 August isedAtes aveliabie ap aks defense and testified for the defense. Because defendant got this testimony before the jury he was in no way prejudiced by the trial court's earlier rulings and is not entitled to a new trial on this ground, In this instance, we are bound by the trial court's ruling that the information was not exculpatory. We have not been provided a copy of the statement provided the trial court for in camera inspection and on which the trial court based its previous ruling. Moreover, the basis for the court's ruling in this instance was that it had previously found the information in the statement not to be exculpatory to the defendant. There is no indication that defendant requested that this statement be sealed or other- wise preserved for our review as provided by Hardy. These assignments of error are overruled. D. Defendant next attacks the admission into evidence of numerous items taken during a warrantless search of his apart- ment. The State sought to justify the search on the basis of consent. He argues that the search of his apartment was not based on lawful consent because (1) the evidence did not support a Appendix A, p 20 is C | 4 . ‘ . . -21- -_~ finding of consent, (2) a search warrant had supplanted the effect ef any consent; and (3) evidence relevant to a determination of lack of consent had been improperly excluded. We discuss these | arguments seriatim. Defendant essentially contends that the totality of the circumstances surrounding his “consent” impels the conclusion that it was not voluntarily given. He notes that he had been questioned by the SBI the day before the consent was given and that he had been followed by SBI agents for several miles prior to being stopped and questioned. He also notes that he was kept under surveillance by police personnel who later went with him to the security office of his employer, where he was kept for another two and one-half hours in the presence of several officers. Such circumstances, defendant argues, are tantamount to an arrest and the “psychological atmosphere” in which his consent was obtained should preclude allowance into evidence of those items seized during the search. When the validity of a consent to search is challenged, the trial court must conduct a voir dire hearing to isbernine whether the consent was in fact given voluntarily and without compulsion. State v. Cobb, 295 N.C. 1, 243 S.E. 2d 759 (1978). "(T)he question whether a consent to a search was in fact ‘voluntary' or was the product of duress or coercion, expressed or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041,/36 LEA. 2d 854, 862-63 (1973); accord, State v. Jolly, 297 N.C. 121, 254 S.E. 24 1 (1979); State v. Vestal, 278 N.C. 561, 180 S.E. 24 755 (1971). Appendix A, p 21 ? ) -22- Here, the trial court conducted an extensive voir dire and heard the testimony concerning the events leading up to the signing of the consent form. The court found that the two SBI agents had talked with defendant and others about the alleged murders of the Chalflinches and informed defendant that they wanted to search his apartment; that they read defendant a printed form entitled “Consent to Search " which fully advised him that the search was for ene other material of evidence of any crime which they may desire,” and that the officers did not have any authority to make such search without his consent; that the defendant signed the consent form in the presence of two police officers and a friend of defendant's with whom he hid consulted; that defendant stated that he understood the form and understood his rights; that defendant was not under the influence of any alcohol or drugs; that no force or coercion was used against him or any promises made to him. From these findings of fact the trial court concluded that the defendant voluntarily, willingly and understandingly consented to the search of his premises and that any items seized as a result of the search were admissible at his trial. We find that the trial court's findings of fact are amply supported by the evidence adduced at the voir dire hearing and that these findings fully support the trial court's conclusions of law. Taking into account all of the factors enunciated in Schneckloth, we hold that defendant's consent to the search was voluntarily given free from coercion in any form. Defendant next contends that, even assuming he had given consent, such consent was superseded and negated by the Appendix A, p 22 ‘ ; c ( ee -23- \ issuance of a search warrant which was read to him prior to the search of his apartment. We disagree. Defendant cites no authority for the proposition that obtaining a search warrant negates prior consent to the search. It is clear from the record before us that the State relied on a consensual search and, as discussed above, the trial court properly ruled that defendant's consent. was freely and voluntarily given. We cannot agree with defendant's reasoning that obtaining the warrant negates the consent originally given. Assuming the State had a valid search warrant, it had two bases to justify the search of defendant's apartment. At trial, the State had every right to rely on either. See State v. Ratliff, 281 N.C. 397, 189 S.E. 24 179 (1972). Nor do we find, as defendant contends, any evidence to conclude that defendant withdrew his consent as a result of the issuance of the search warrant. Indeed, the evidence is that, until the time of his arrest some one and one-half hours later, defendant was cooperative with the search and was allowed to go in and out of his apartment unrestrained. We hold that issuance and service of the search warrant in no way negated the consent originally given by defendant for the search of his premises and that the items seized during the search were adinissible at trial. Finally, defendant contends the trial court improperly refused to permit testimony on several matters relating to the circumstances leading to his giving consent to the search of his apartment. We have previously discussed the trial court's treat~ ment of the defendant's challenge to the consensual search and find it unnecessary to do so again. Most of the matters which Appendix A, p 23 SS ee -24- defendant now contends he was not allowed to pursue, such as the number of persons present at the time of the search, were otherwise before the trial court. The trial court had before it adequate information concerning the totality of circumstances leading to the defendant's consent for the search. We reject defendant's contention here that the, trial court abused its discretion by refusing, in effect, to relitigate the issue of consent. These assignments of error are overruled. E. Defendant next challenges the admission of certain items of evidence: photographs of the victims taken at times prior to the murders, items seized during the search of defendant's apart- ment on which there were traces of blood, jewelry found in defen- dant's apartment and knives owned by defendant similar to the one found at the crime scene. We have reviewed the photographs and testimony concerning the other items of evidence and find that they were properly admitted into evidence. We note only that the inability of the forensic serologist to state that the traces of blood found on items seized from defendant's apartment came from either of the victims goes to the weight or credibility of his testimony and not its admissibility. See State v. Arnold, 284 N.C. 41, 199 S.E. 24 423 (1973). P. Defendant next assigns error to certain portions of the jury charge. Specifically, he contends that the trial judge erred (1) by expressing an opinion that defendant committed the Appendix A, p 24 etitaliy ut -25- killings, (2) by mischaracterizing tne theory of the defense, (3) by incorrectly stating the evidence, (4) in more forcefully stating the law favorable to the State, and (5) by implying that the jury could find as a fact something that was not contained in the record. We have examined the portions of the charge to which defendant assigns error and find that the jury was properly instructed. These assignments of error are without merit and are hereby overruled. G. Counsel for defendant has been helpful to this Court in arranging his brief so that the remaining contentions con- cerning the guilt phase of defendant's trial are summarily presented. Counsel acknowledges ENG oo 6g FRE have been previously addressed and candidly concedes that he would have to “overcome substantial precedent” in order to prevail. Without unduly burdening this Court with extended argument, defendant requests that we review these issues and reconsider our prior holdings. We address them below. (1) Defendant first contends that in a capital case, an individual woir dire of the jurors should be allowed in order for defendant to receive a fair trial. He argues that it is inherently impossible for other members of the jury pool not to be affected by the types of questions asked potential jurors in a capital case. Defendant cites no new authority for his position and, indeed, this Court has previously rejected this argument. E.g., State v. Oliver, 302 N.C. 28, 274 S.E. 2d 183 (1981); State v. Taylor, 298 N.C. 405, 259 S.E. 2d 502 (1979); State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979); State Appendix A, p 25 -26< v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979), cert. denied, 448 U.S. 907 (1980). On the point here presented, we reiterate our holdings in these cases, This assignment of error is over- ruled. (2) Defendant next contends that he was denied due process and the effective assistance of counsel when the trial court refused to order that bench conferences be recorded. Defen- dant cites no authority for his position and our research dis-. closes none. Defendant's bareassertion that the ability of counsel to raise points and record their disposition during trial was “so chilled” that he was denied the effective assistance of counsel and due process is simply unpersuasive. This assignment ‘of error is overruled. (3) Defendant next contends that he was unconstitutionally tried by a “death qualified” jury. He contends that a “death qualified” jury is more likely to convict than a jury which is not “death qualified." This Court has previously rejected the argument here presented and is not inclined to disturb those holdings. See, e.g., State v. Oliver, 302 N.C. 28, 274 S.E. 2d 183; State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510; State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941 (1980). (4) Defendant next contends that the trial court improperly limited the number of additional peremptory challenges which he requested. He argues that one charged with two capital offenses should be given additional peremptory challenges. This Court rejected a similar argument in State v. Johnson, 298 N.C. 355, 259 S.E. 24 752. This assignment of error is overruled. Appendix A, p 26 “igh nee i eC , -27- (S) Defendant next contends that his arraignment was illegal because the proceedings were remanded for findings of fact by the district court concerning the reasons for the con- tinuance of his probable cause hearing. He argues that the result was to eliminate his hearing because of an imminent indictment. This assignment of error is without merit. The failure to conduct a formal arraignment itself is not reversible error. State v. Smith, 300 N.C. 71, 265 S.E. 2d 164 (1980). The purpose of an arraignment is to allow a defendant to enter a plea and have the charges read or summarized to him and the failure to do so is not prejudicial error unless defendant objects and states that he is not properly informed of the charges. State v. Small, 301 N.C. 407, 272 S.E. 24 128 (1980). Moreover, there is no con- stitutional requirement for a preliminary or probable cause hearing. State v. Hudson, 295 N.C. 427, 245 S.E. 2d 686 (1978). A probable cause hearing is unnecessary after the grand jury returns an indictment. State v. Lester, 294 N.C. 220, 240 S.E. 2d 391 (1978). As this Court discussed in Hudson, a probable cause hearing is notdesigned to afford a means of discovery to defendant. Its function is to determine whether there is probable cause to believe the crime has been committed and that defendant committed it. This assignment of error is overruled. (6) Defendant next oniiiniie that the only source for a conclusion by the jury that premeditation and deliberation existed was the evidence concerning the nature and number of the victims' wounds. As we understand it, defendant is contending that his conviction of first degree murder should not stand because the Appendix A, p 27 ia Sipe nea -28- essential ingredients of premeditation and deliberation were based upon a presumption. This argument is clearly without merit. Evidence of the premeditation and deliberation required to sustain this defendant's conviction was supplied by circumstantial evidence, not by any presumption. The nature and number of the victims’ wounds, as defendant notes, is one circumstance from which an inference of premeditation and deliberation could be drawn. There are, however, many others appearing of record. The trial court correctly submitted the issues of premeditation and deliberation to the jury. (7) Defendant next contends that the trial court erred by failing to submit its charge to the jury in writing as requested by defendant. Defendant cites no authority in support of his position and no persuasive reasoning has been advanced. We note that the jury requested no clarification of the trial court's instructions and that it returned a verdict in just over one hour. Nothing in the record indicates that the jury was in any way confused or unable to understand or remember the trial court's instructions. This assignment of error is overruled. (8) Defendant next contends that the trial court impermissibly expressed its opinion by refusing to grant the Gefendant's request that he be referred to by his name and not as the defendant.” This is particularly true, defendant contends, when the victims are referred to by name. This Court is unable to imagine the slightest prejudice resulting to defendant from the historical practice in our trial courts of referring to the defendant as “the defendant” This assignment of error is overruled. Appendix A, p 28 eet te | -29- (9) Defendant next contends that the trial court improperly failed to charge the jury on the issue of his good character. We disagree. Defendant did not introduce character evidence. The testimony offered in his behalf did not indicate his general reputation among a group of people but consisted only of several witnesses’ personal opinion of the defendant. As this Court stated, in rejecting a similar contention, in State v. Williams, 299 N.C. 652, 662, 263 S.E. 2d 774, 781 (1980), “Such evidence is not competent character evidence and the trial judge's failure to instruct the jury on this evidence is accordingly not error." (10) Defendant next contends that the trial court improperly denied his request for the appointment of a polygraph examiner. Defendant argued that he had no independent recollection of the events occurring between 4:00 a.m. and 7:00 a.m. on 25 August 1980, and that polysraph results could be used to show his state of mind. This Court has recently written at length concerning the appropriate legal principles for appointment of assistance of an expert and find it unnecessary to repeat that extensive discussion here. See State v. Partin, 303 N.C. 55, 277 S.E. 24 410 (1981). Suffice it to say that the decision of whether to appoint an expert is a matter within the discretion of the trial judge and will not be disturbed absent an abuse of that discretion. Here we can perceive no abuse. See State v. Easterling, 300 N.C. 594, 268 S.E. 2d 800 (1980); State v. McDowell, 301 N.C. 279, 271 S.E. 2d 286 (1980), cert. denied, 450 U.S. 1025 (1981); State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752. (11) Defendant next contends that he was entitled to Appendix A, p 29 en ee -30- receive, upon request, criminal records of the State's witnesses. G.S. 15A-903 nowhere provides for discovery of the criminal records of the State's witnesses. Indeed, a provision authorizing the discovery of such material was included in the draft of the original bill and was subsequently deleted. G.S. § 15A-903, Official Commentary (1978); accord, State v. Smith, 291 N.C. 50S, 523-24, 231 S.E. 2d 663, 675 (1977). This assignment of error is overruled. : Itt. SENTENCING PHASE Defendant next assigns several errors relating to the sentencing proceedings. We discuss these contentions seriatim. A. Defendant first contends that the trial court improperly submitted the aggravating circumstance that the murders were "especially heinous, atrocious, and cruel,” G.S. § 15A-2000(e) (9) (1978). In support of this argument, defendant argues that (1) the only evidence on which this finding could have been based was also an essential element of the State's proof of first degree murder and (2) the only evidence suggesting unnecessary cruelty to the victim was the multiplicity of wounds which were not established beyond a reasonable doubt as having occurred before the death of the victim, Defendant's first contention is based on this Court's holdings in State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569 (1979) and State v. Cherry, 298 N.C. 86, 257 S.E. 24 551. In those cases we held that the underlying felony in a first degree murder conviction based upon the felony-murder doctrine could not be Appendix A, p 30 eee . ; -3l- submitted as an aggravating circumstance. Recognizing the doctrine of merger, we held that the underlying felony merged with the murder convictions and therefore use of the same felony .to enhance the punishment violated the double jeopardy provisions of the federal constitution. We did not hold that the jury was prohibited from considering the evidence justifying the conviction of the underlying felony but held only that the underlying felony itself could not be used as an aggravating circumstance. Here, of course, defendant was not tried under the felony- murder rule. He was tried and convicted of these first degree murders on the basis of premeditation and deliberation. No under- lying felony was involved. This Court nas rejected similar arguments in State v. Oliver, 302 N.C. 28, 274 S.E. 2d 183, and State v. Hutchins, 303 N.C. 321, 279 S.E. 2d 788 (1981). In Oliver, we interpreted Cherry and Goodman to apply only to the underlying felony itself and not to the facts surrounding the commission of the felony. In Hutchins, we rejected the argument that the facts underlying the State's theory of the case merged with the offense and could not be used to enhance the penalty. We also disagree with defendant that this aggravating circumstance should not have been submitted because the multiplicity of wounds wasthe only fact to support a jury finding necessary to establish the murder as one especially heinous, atrocious and cruel because the evidence does not support the conclusion beyond a reasonable doubt that the wounds inflicted were adminis- tered before the death of the victims. Here, defendant is relying on the testimony of the pathologists who stated that they could not be certain that all of the victims’ wounds were inflicted Appendix A, p 31 RENO Wy) -32- prior to death. Defendant's contention is that.an especially heinous, atrocious and cruel murder must be one inflicted on a conscious victim. 2 This assignment is patently without merit. We will not lengthen this opinion by again reciting the gruesome and gory facts summarized above. Indeed, it is unnecessary for us to answer the question whether this aggravating circumstance may be employed when the evidence establishes that a portion of the defendant's acts took place after the death of the victim. This is so because there was abundant evidence here that many of the wounds were inflicted prior to death. Additionally, the character and severity of the wounds support the submission of this aggravating circum- stance. Of particular importance is the pathological evidence that some of the wounds appeared to be defensive, some sixteen on Ms. Chalflinch's right arm. Indeed, the inference from the evidence appearing in this record arises above the level of that we have reviewed in previous cases in which we have upheld the admission of this particular aggravating circumstance. This assignment of error is overruled. B. Defendant next contends that the trial court erred in refusing to submit requested mitigating circumstances that (1) the defendant did not act in a calculated manner, (2) the defendant did not act for pecuniary gain; and (3) the defendant was under the influence of mental or emotional disturbance. This Court has previously defined a mitigating circum- stance as follows: A defintion of mitigating circumstance approved Appendix A, p 32 oe evap -33- by this Court is a fact or group of facts which do not constitute any justification or excuse for killing or reduce it to a lesser mr oy of the crime of first-degree murder, which may be considered as extenuating, or reducing the moral culpability of killing, or making it less deserving of the extreme punishment than other first-degree murders. | State v. Irwin, 304 N.C. 93, 104, 282 S.E. 2d 439, 446-47 (1981). That the murder was not committed in a calculated manner is not, in our opinion, a mitigating circumstance. Indeed, it is diffi- cult for this Court to understand how a murder committed after premeditation and deliberation is not done in a calculated manner. Moreover, the State does not have the burden of proof that, in a given capital case, no mitigating circumstances exist. State v. Barfield, 298 N.C. 306, 259 S.E. 24 510. It is the responsibility of the defendant to go forward with evidence that tends to show the existence of a given mitigating circumstance and to prove its existence to the satisfaction of the jury. State v. Hutchins, 303 N.C. 321, 279 S.E. 24 788. Our review of the record discloses no evidence from the defendant that he did not act in a calculated manner. Indeed, as discussed in connection with other contentions above, the evidence is to the contrary. From the evidence that a bloody knife blade was found in the victim's apartment which was of the same type as the knives in defendant's tool box, the jury could have, and apparently did, infer that the knife used to kill the victims was taken up to their apartment by the defendant for that purpose. We express no opinion on whether the evidence shows that defendant did not act for pecuniary gain. Even assuming that it does, the evidence merely shows the absence of an aggra- vating circumstance and not the presence of a mitigating one. Appendix A, p 33 . ‘ ,. ’ , -34- At trial, defendant contended that he. was entitled to the mitigating circumstance that he acted under the influence of mental or emotional disturbance as contemplated by G.S. 15A- 2000(f) (2). In support, he relied on the testimony concerning his use of alcohol and drugs on Sunday evening, 24 August 1980. We have answered this issue in State v. Irwin, 304 N.C. at 106, 282 S.E. 2d at 447-48. There, we said: voluntary intoxication by alcohol or narcotic drugs at the time of the commission of a murder is not within the meaning of a mental or emotional disturbance under G.S. 15A-2000(f) (2). Voluntary intoxication, to a degree that it affects defendant's : ability to understand and to control his actions... is properly considered under the provision for impaired capacity, G.S. 15A-2000(f) (6). (Citation omitted.) The trial judge here correctly followed the law established by Irwin. He submitted the mitigating circumstance of impaired capacity and the jury found this mitigating circumstance in both murders. This assignment of error is overruled. Cc. During the sentencing phase of the defendant's trial, the State presented the testimony of Roy Junior Brown (Roy). Roy testified that defendant told Roy in jail that he, defendant, had murdered two people using a knife and that he did not under- stand why his ring was not given back to him. Defendant's next contention is that this testimony was improperly admitted because it referred only to the guilt or innocence of the defendant and not to any aggravating or mitigating circumstances. Defendant's contention is without merit. G.S. 15A-2000(a) (3) provides that the State is not Appendix A, p 34 = ius: ins Jini, eli ( required to resubmit evidence presented during the guilt determi- nation phase of the case at the sentencing phase. However, all such evidence is competent for the jury's consideration in passing on punishment. Moreover, “[a)ny evidence which the court deems to have probative value may be received. G.Ss. § 15A-2000(a) (3) (1978). Here the trial court obviously deemed Brown's testimony to be relevant and to have probative value. Because the testimony would have been admissible at the guilt phase of the trial, we are unwilling to hold that evidence clearly proper for the jury to consider under the statute had it been presented at the guilt phase of the trial is inadmissible simply because it was introduced at a later stage of the pro- ceedings. Additionally, the evidence is relevant to rebut evidence submitted by the defendant at the guilt phase of the trial which would support mitigating circumstances. This is especially true with respect to the mitigating circumstance that defendant was suffering from a mental impairment as a result of alcohol and drug use. The testimony from the Bp A that defendant stated that he had killed two persons with a knife and that his ring was later found in one of the bodies is some evidence that defendant was not so intoxicated at the time of the murders that he was not aware of what he was doing and could not remember them. The testimony also tended to rebut other testimony intro- duced by the defendant at the guilt phase concerning his good conduct in the past and was, therefore, relevant to the mitigating circumstance of “although the act itself may have been harmful, the defendant has not shown himself to be otherwise evil" by showing defendant's lack of remorse. Appendix A, p 35 enivete. ce ane For the reasons stated, this assignment of error is overruled. However, we would note for the benefit of the trial courts that the better procedure, in a situation in which the evidence relates only to guilt or innocence, is to present such evidence during the guilt determination phase. Finally, under this contention, defendant argues that the trial court erred by refusing to allow him to question the assistant district attorney on voir dire concerning promises made by the State to the witness who testified at the sentencing phase. We think the trial court acted properly in refusing to allow defendant to examine, as a hostile witness, a fellow officer of the court concerning information which defendant failed to illicit from the witness whose testimony he was seeking to discredit. During the lengthy voir dire, Roy Brown took the stand and stated that sometime after revealing the information to officers, he was taken before a judge and tried for two of the counts for which he was in prison and that he received a suspended sentence and his bond was substantially reduced. With this information from the voir dire, defendant had, it seems to us, sufficient information to pursue his concern that Roy Brown's testimony was in exchange for favorable treatment by the State. However, when the witness testified before the jury, Roy Brown was not asked any questions about any such consideration or about the disposition of charges against him. We agree with the State that the appropriate avenue of inquiry into the bias of a witness is to ask the witness himself. This assignment of error is overruled. Appendix A, p 36 Vii te -37- D. Defendant next argues that the trial court improperly charged the jury concerning the possibility of parole for a life sentence. We find no error in these instructions. The jury, after some deliberation during the sentencing phase, inquired of the court concerning the chances for parole from a life sentence. The cefendant requested that the jury be instructed that “life sentence means life sentence, and death means death." Instead, the court gave the following instruction: I instruct you that the question of eligibility for parole is not a proper matter for you to con- sider in recommending punishment and it should be eliminated entirely from your consideration and dismissed from your mind. In considering whether to recommend death or life imprisonment, you should determine the question as though life imprisonment means exactly what it says, imprisonment in the State Prison for life. You should decide the question of punishment according to the issues submitted to you by the Court wholly uninfluenced by consideration of what another arm of the government might or might not do at some time in the future. After the jury had been given this instruction, defendant requested that the court charge the jury as follows: Under the law of the State of North Carolina, a defendant sentenced to life imprisonment for first degree murder is never entitled to a parole and a defendant who is sentenced to two consecutive terms of life imprisonment for first degree murder is not even eligible for consideration for parole until 40 years has passed. The trial court refused his request. Defendant assigns error to the refusal to charge the jury according to his requests. While the tendered instruction by the defendant is a correct statement of the law, that submitted by the trial court is also correct and in accordance with instructicns previously approved by this Court. The trial court is not required to Appendix A, p 37 ° OR ares . . -38- instruct the jury in the precise words requested by the defendant. The instruction given by the trial court conveyed the substance of defendant's first request. No more is required. : The long-standing rule in this jurisdiction is that a defendant's eligibility for parole is not a proper matter for consideration by a jury. E.g., State v. Conner, 241 N.C. 468, 85 S.E. 24 584 (1955). That is exactly what the trial court told the jury. Defendant's requested instruction concerning the eligibility for parole, although a correct statement of the law, was not appropriate information for the jury to consider in its deliberations. We find no error in the instruction given by the trial court or in its refusal to instruct the jury according to defendant's requests. This assignment of error is overruled. E. The trial court submitted each of the two killings as an aggravating circumstance for the other under the “course of conduct" provision of G.S. 15A-2000(e) (11). Defendant argues that the submission of each murder as an aggravating circumstance for the other violates double jeopardy. This Court has rejected a similar argument, based on similar reasoning, in State v. Pinch, __ N.C ’ S.E. 24 _— (No. 43A81, filed 2 June 1982). Justice Copeland, writing for the Court, has presented a thorough discussion of this contention in Section XII of the opinion in Pinch, N.C. at ’ S.E. 24 at , and it is unnecessary for us to repeat it here. Suffice it to say that for the reasons stated in Pinch, this assignment of error is overruled. Appendix A, p 38 * y - ) = id ee tgp