Appendix — North Carolina v. Davis

, ”

J “Brame Court, U.S.

89-1539 FILED

MAR 6 1999

JOSEPH F. SPaniot:

No. ouRK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

STATE OF NORTH CAROLINA,

Petitioner,

V.

EUGENE DAVIS, JR..,

Respondent.

PETITION FOR WRIT OF CERTIORARI

APPENDIX

LACY H. THORNBURG

Attomey General of North Carolina

WILLIAM P. HART

Assistant Attorney General

N. C. Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919)733-2011

Attomeys for Petitioner

TABLE OF CONTENTS

APPENDICES

Page

A. OPINION OF THE NORTH CAROINA SUPREME COURT

oe eer eres ere ee A-1l

B. OPINION OF THE NORTH CAROLINA SUPREME COURT

State v. Michael Ray Quesinberry

C. N.C.G.S. Sec. 1SA-2000

OPINION OF THE NORTH CAROLINA

SUPREME COURT

State v. Eugene Davis, Jr.

[caption omitted]

Appeal of right pursuant to N.C.G.S. § 7A-

27(a) from a judgment imposing the sentence of

death entered by Read, J., at the 7 October 1985

Criminal Session of Superior Court, Wake County.

Heard in the Supreme Court 12 September 1989.

LACY H. THORNBURG, Attorney General. by

WILLIAM P. HART, Assistant Attorney General ,for

the State.

MALCOLM RAY HUNTER, JR., Appellate De-

fender,by

GORDON WIDENHOUSE, Assistant Appellate

Defender, for defendant-appellant.

WHICHARD, Justice

Defendant was convicted of murder in the

first degree and common-law robbery. The jury

recommended the death sentence for the murder,

and the trial court sentenced accordingly. It im-

posed a sentence of ten years imprisonment for the

robbery. Because we find prejudicial error in the

sentencing phase on the murder charge, we remand

for a new capital sentencing hearing. We find no

error on the robbery charge.

The State’s evidence tended to show that the

victim, Vivian Whitaker, was murdered in her

apartment on | March 1984. She was last seen alive

as she entered her apartment at 4:00 or 4:30 p.m.

Officer Karpovich of the Raleigh Police Depart-

ment testified that at approximately 8:00 p.m. that

evening he received a call to go to the Carriage

House Apartments. He was met there by Betty

Davis, defendant’s mother, who escorted him to the

victim’s apartment. The door was unlocked and

showed no signs of forcible entry. The victim lay

face up in the middle of the living room floor. An

emergency medical technician ascertained that the

victim was dead, and Officer Karpovich secured the

scene. The apartment was "in total disarray."

Investigator Parker of the Raleigh Police

Department testified that the victim’s apartment

appeared disheveled, with some items lying on the

floor and others turned over. Parker identified sev-

eral items which were introduced into evidence and

later identified as belonging to the victim: a radio,

a green Cigarette case and disposable cigarette ligh-

ter, and a gold ring with seven stones. The cigarette

lighter and a pack of Virginia Slims cigarettes were

taken from defendant after his arrest on 2 March

1984. Following his arrest, defendant was exam-

ined for bruises, scratches, or some other indication

that he might have been in a fight. No marks were

found on defendant’s person.

Doris Brown testified that she lived in the

Carriage House Apartments, a building for senior

citizens and handicapped persons. She was ac-

quainted with defendant because his mother lived

in the building. On 1 March 1984 at 6:25 p.m., she

saw defendant enter the elevator at the Carriage

House Apartments. As she stood by the elevators

reading the bulletin board, she saw the light over

the elevator doors indicate that the elevator went to

the fourth floor. The elevator returned to the

ground floor without passengers. Defendant’s

A-3

mother lived in Apartment 411 at the time. The

victim lived in Apartment 405. Gilbert Brown cor-

roborated his wife’s testimony.

Beatrice Randolph lived in Apartment 414

on | March 1984. She heard the door to the back

stairway exit slam once at 6:30 or 6:45 p.m. On

cross-examination, she admitted that she was un-

certain about the time the door slammed, and that

she had told a police officer earlier that she heard

the noise at around 8:30 p.m.

Mrs. Artis Sears lived in Apartment 410,

diagonally across the hall from Apartment 411,

where defendant’s mother, Mrs. Davis, lived. Mrs.

Sears testified that she had excellent hearing. On

the evening of 1 March 1984 she heard a man and

a woman speaking rapidly and excitedly. She rec-

ognized the woman’s voice as belonging to Mrs.

Davis. After five or six minutes of conversation,

she heard the back fire exit door slam; she then

heard another door, closer to her apartment, open

and close and the lock and chain go on the door.

She estimated that this occurred between 7:00 and

8:00 p.m.

Mr. Franklin Cherry testified that on 1

March 1984 he was visiting his mother’s apartment

on the third floor of the Carriage House Apartments.

At about 6:15 he heard some noise coming from the

floor above. First he heard something vibrating or

dragging across the floor. The noise lasted for two

or three minutes. Then he heard a lady’s voice

saying something like, "Stop, stop, go on, go on,"

or "Stop, help.”

AA

Detective Munday of the Raleigh Police De-

partment testified that he retrieved the victim’s

cigarette case from her apartment the day after the

murder. The cigarette case was empty.

Deborah Sanders testified that defendant

came to her mother’s house after dark on the eve-

ning of the murder. He was trying to sell a radio

and a ring. Ms. Sanders bought the ring for a dollar

and her mother bought the radio. A few days later

a police officer took the ring from her. The ring and

the radio were the same ones identified by Detec-

tive Parker. Mrs. Mary Primous testified she

bought the radio from defendant for two dollars.

After she learned defendant had been arrested, she

called the police and gave them the radio.

Ronald Thorp, the victim’s grandson, testi-

fied that he saw defendant at the time defendant

sold the ring and radio to Mrs. Primous and Ms.

Sanders. This was between 8:00 and 9:00 p.m.

Def ndant was so nervous and shaky that when he

wanted to use the telephone, someone else had to

dial for him. After Thorp heard about the murder,

he contacted the police. Thorp identified the ciga-

rette case introduced into evidence as the one the

victim always carried with her. The victim usually

kept her apartment neat and clean, it was never

disheveled with furniture turned over and items

strewn about, as shown in the photographs intro-

duced into evidence.

Agent Hallisey lifted latent fingerprints

from various items in the victim’s apartment, in-

cluding a jewelry box, a coffee can lid sitting in the

middle of a closet floor, a newspaper found under-

neath the victim’s body, the telephone, and a green

A-5

cigarette case. The latent fingerprints from the

jewelry box and coffee can lid, and two fingerprints

and three palm prints from the newspaper, were

positively identified as defendant’s.

Silas James Johnson testified that the victim

had been his girlfriend for fifteen years. He visited

her in her apartment every other night. He visited

her the day before her murder, but the couple did

not engage in sexual relations on that day.

Peggy Graham, the victim’s daughter, testi-

fied that the cigarette lighter introduced into evi-

dence was one that she bought for the victim. The

victim usually smoked Virginia Slims cigarettes.

~ Rufus Whitaker, Jr. testified that he bought the ring

for the victim, his mother, that defendant later sold

to Deborah Sanders. Another of the victim’s sons,

James Whitaker, also identified the ring and radio

introduced into evidence as belonging to his

mother.

Melba Thorpe, the victim’s daughter, testi-

fied that the victim kept some money and jewelry

in the coffee can found in a closet. Her mother used

a cane to walk because she had suffered a stroke a

few years earlier. The stroke left her with a limp.

The victim was seventy years old.

Dr. Gordon Legrand, a pathologist, testified

that he performed an autopsy on the victim’s body.

Several abrasions were located on either side of her

neck. A linear abrasion and an area of bruising were

located on her left jaw. Two puncture wounds

surrounded by bruising were located at the back of

the neck, probably cause by fingernails digging into

the flesh. The victim’s hyoid bone and thyroid

OO ee

A-6

cartilage were fractured and the muscles and soft

tissue in the neck revealed evidence of trauma. In

Dr. Legrand’s opinion, these injuries to the neck

area were caused by manual strangulation. Sixteen

of the victim’s ribs were broken and one of the ribs

had punctured the left lung, resulting in bleeding

into the lining of the lung. Chest muscles had

hemorrhaged extensively. The left lobe of the liver

was torn away from the rest of the liver, resulting

in bleeding into the abdominal cavity. The esopha-

geal opening in the diaphragm was enlarged and

tom. All these injuries were caused by blunt

trauma, probably three blows. The manual stran-

gulation caused the victim’s death, with the trau-

matic injuries contributing to the death. Judging

from the atrophied state of the muscles, Dr. Legrand

opined that the victim had been in a weakened

condition at the time of her death.

Ms. Jona Medlin testified that vaginal and

rectal smears taken from the victim revealed the

presence of spermatozoa. In Ms. Medlin’s opinion

as a forensic serologist, the spermatozoa had been

deposited recently at the time of collection.

Defendant did not offer evidence during the

guilt phase of his trial, but moved to dismiss the

charges of common-law robbery and first-degree

murder at the close of the State’s evidence. The trial

court denied the motion. The jury found defendant

guilty of common-law robbery and first-degree

i The vaginal and rectal swabs were collected by the medical

examiner after death but were not analyzed until the trial was

underway. Defendant was not indicted or tried on charges of

rape or sexual offense.

murder, basing the latter conviction on theories of

both premeditation and deliberation and felony

murder

Following a capital sentencing hearing, the

jury found the following aggravating circum-

stances: defendant was engaged in the commission

of common-law robbery, the murder was commnit-

ted for pecuniary gain, and the murder was espe-

cially heinous, atrocious, or cruel.

The jury found twenty-five mitigating cir-

cumstances. Among these were the following stat-

utory circumstances: defendant had no significant

history of prior criminal activity, the murder was

committed while defendant was under the influence

of mental or emotional disturbance, defendant’s

Capacity to appreciate the criminality of his conduct

or to conform to the requirements of the law was

impaired, and the defendant’s age at the time of the

murder. The remaining nonstatutory mitigating

circumstances pertained to the abuse and neglect

defendant suffered during childhood, defendant’s

good conduct during and since his arrest,

defendant’s amenability to rehabilitation.

defendant’s mental condition, ard his minimal his-

tory of criminal activity.

Upon finding that the mitigating circum-

stances were insufficient to outweigh the aggravat-

ing circumstances, and that the aggravating circum-

stances were sufficiently substantial to call for the

death penalty, the jury recommended a sentence of

death.

A-8

JURY SELECTION ISSUES

Defendant first assigns error to the trial

court’s denial of his motion to prohibit the State

from exercising peremptory chalienges in a racially

discriminatory manner. Defendant asserts that this

denial, and the prosecutor’s subsequent use of pe-

remptory challenges in an allegedly discriminatory

fashion, violated his right to equal protection and

trial by an impartial jury under the sixth, eighth, and

fourteenth amendments of the United States Con-

stitution and under article I, sections 19, 24, and 26

of the North Carolina Constitution. We address the

equal protection claun first.

Defendant was tried prior to Batson v. Ken-

tucky, 476 U.S. 79, 90 L.Ed.2d 69 (1986), which

established that a criminal defendant’s right to

equal protection of the laws includes a prohibition

against the prosecutor’s use of peremptory chal-

lenges to exclude persons from the jury solely on

account of their race. Batson applies retroactively

to cases pending on direct appeal at the time it was

decided, Griffith v. Kentucky, 479 U.S. 314, 93

L.Ed.2d 649 (1987), and thus applies to this case.

The State asks that we consider the Batson issue

procedurally barred because, although defendant

filed a pretrial motion to prohibit the State from

exercising its peremptory challenges in a racially

discriminatory fashion, he did not object to the

denial of the motion, nor did he object to the State’s

exercise of any specific peremptory challenge of a

black juror, nor did he object generally at the con-

clusion of jury selection. Normally, these omis-

sions would preclude consideration of this issue.

N.C.G.S. § 1SA-1446(a) (1988); State v. Robbins,

319 N.C. 465, 488, 356 S.E.2d 279, 293, cert.

denied, 484 U.S. 918, 98 L.Ed.2d 226 (1987).

However, as we stated in Robbins, “we find it

A-9

difficult to hold that defendant has waived a right

which he did not know existed at the time of trial.

Moreover, where the defendant was, as here, on

trial for his life, we ordinarily feel compelled to

consider his argument." Id. In Robbins, defendant

failed to raise the issue of discrimination in jury

selection by objection or challenge;. in the present

case, defendant raised the issue initially by motion

but failed to object to its denial. Defendant thus did

more than the defendant in Robbins to alert the trial

court to the issue, and we therefore elect to consider

it. See N.C.G.S. § 15A-1446(b) (1988).

A criminal defendant may establish a prima

facie case of invidious racial discrimination upon

showing the following: first, that he is amember of

a cognizable racial group, and that the prosecutor

has exercised peremptory challenges to remove

persons of defendant’s race from the venire. Bat-

son, 476 U.S. at 96, 90 L.Ed.2d at 87. Defendant

is black, as were eight members of the venire

against whom the prosecutor exercised peremptory

challenges.

Second, the defendant is entitled to rely

on the fact, as to which there can be no

dispute, that peremptory challenges con-

stitute a jury selection practice that per-

mits "those to discriminate who are of a

mind to discriminate." . . . Finally, the

defendant must show that these facts and

any other relevant circumstances raise

an inference that the prosecutor used that

practice to exclude the venireman from

the petit jury, on account of their race.

Id. at 96, 90 L.Ed. 2d at 87-88 (citations omitted).

In the presgnt case, viewing the jury as orig-

inally impaneled,” the parties and the court exam-

ined seventy-nine venirepersons before impaneling

twelve jurors and three alternates. The court called

eighteen black citizens into the jury box and ex-

cused seven for cause. The court tendered eleven

black citizens to the State. The State excused eight

black venirepersons by exercising peremptory

challenges and accepted three as jurors. The State

excused six white citizens peremptorily. Defen-

dant argues that this evidence establishes a prima

facie case of racial discrimination in the State’s

exercise of its peremptory challenges. We disagree.

The State’s questions during voir dire cen-

tered on two subjects: the prospective juror’s feel-

ings about capital punishment, and the age of the

juror, or his or her children, as compared with

defendant’s age. Defendant was eighteen when the

victim was killed and twenty at the time of trial.

The State exercised five of its peremptory chal-

lenges to excuse white jurors with reservations

about capital punishment. It exercised another pe-

remptory challenge to excuse a female who planned

to leave on vacation in two weeks. In addition, a

worker's compensation case involving the death of

this woman’s husband had been tried in the court-

room where the voir dire was conducted, and the

woman found this circumstance efffotionally trying.

2 One black juror was excused during the trial and replaced

by a white altemate. A white juror was excused for medical

reasons prior to trial and was replaced by a white alternate.

The third alternate did not deliberate in the case.

Focusing on the State’s use of peremptor

challenges to remove black citizens from the ve

nire, the record establishes that the State exercise

peremptory challenges agatnst two such citizens,

John Stephens and Mildred Richardson, who har-

bored reservations about voting to impose a death

sentence. Robert Jeffreys was excused after stating

that he had three grown children and had served on

a jury within the last three or four years. The State

excused Milton Jones after he stated he had four

children ranging in age from sixteen to twenty-one,

and that he did not know whether it was his

company’s policy to pay employees for time spent

on jury duty. The State excused Otis Ingram, a

twenty-year old black male, after asking if it would

trouble Ingram that he was so close in age to defen-

dant. Ingram said it would not, and the State there-

after excused him peremptorily. Gloria Nwafor

worked with mentally retarded patients at Dorothea

Dix. The State elicited from her that she had expe-

rience with schizophrenic and psychopathic pa-

tients, as well as with youth with drug and alcohol

problems, before excusing her peremptorily. Nor-

wood Peacock expressed "some doubt" about vot-

ing to impose the death penalty, and admitted that

having three children whose ages were near that of

defendant would bother him. Oscar Myers stated

that he had six children living in New York. In

considering whether he could vote to impose a

sentence of death, Myers stated he "would have to

go along with the majority of the jury.”

In addition to the facts described above, we

consider the following facts and circumstances rel-

evant in discerning whether the record establishes

a prima facie case of racial discrimination:

Three of the first four jurors seated were

black. As in Robbins, the venirepersons were

brought into the courtroom individually, so neither

the State nor the Defendant knew how many black

citizens were present in the venire or whether a

black or white citizen would be examined next.

Both the victim and defendant were black, thus

diminishing the likelihood that "racial issues [were]

inextricably bound up with the conduct of the trial."

Robbins, 319 N.C. at 491, 356 S.E.2d at 295. In

arguing defendant's pretrial motion, counsel ex-

plained that the motion was in the nature of a motion

in limine and was not meant to suggest that these

prosecutors had a propensity toward racial discrim-

ination. Counsel stated, "I have no reason to be-

lieve that Mr. Hart will do this because I have no

record of his having done it in the past." This

statement, coupled with the State’s acceptance of

black jurors for three of the first four seats, and

viewed in the light of defendant’s failure to object

to any specific exercises of peremptory challenges

by the State, do not raise an inference of racial

discrimination. Defendant’s failure to press for-

ward with the Batson issue after initially raising it

supports an inference that he failed to object, not

out of ignorance of the substantive issue, but be-

cause he did not in fact believe the State was

exercising its peremptories in a discriminatory

manner.

Finally, we note that when the twelfth juror

was seated, defendant had exercised only nine of

his fourteen peremptory challenges. When defen-

dant passed the second alternate and last juror who

deliberated in the case, he had yet to exercise three

of his remaining peremptory challenges. Defen-

dant therefore has failed to demonstrate prejudice.

Robbins, 319 N.C. at 495, 356 S.E.2d at 297. The

A-13

relevant facts and circumstances in the record fail

to establish a prima facie case of racial discrimina-

tion against black citizens during jury selection.

We next address defendant’s claim that the

prosecutor’s use of peremptory challenges against

black citizens deprived him of his right to a trial by

an impartial jury composed of a fair cross section

of the community. The United States Supreme

Court has refused to extend fair cross section prin-

ciples to invalidate the use of either for-cause or

peremptory challenges in petit jury selection, char-

acterizing this refusal as “a direct and inevitable

consequence of the practical impossibility of pro-

viding each criminal defendant with a truly

‘representative’ petit jury... ." Lockhart v. McC-

ree, 476 U.S. 162, 174,90 L.Ed.2d 137, 148 (1986).

The sixth amendment protects defendants by re-

quiring "the presence of a fair cross section of the

community on venires, panels, or lists from which

petit juries are drawn ...." Taylor v. Louisiana,

419 U.S. 522, 526, 42 L.Ed.2d 690, 696 (1975)

(emphasis added). The United States Supreme

Court has stated, however: “[I]n holding that petit

juries must be drawn from a source fairly represen-

tative of the community we impose no requirement

that petit juries actually chosen must mirror the

community and reflect the various distinctive

groups in the population." Jd. at 538, 42 L.Ed.2d

at 703. We adhere to this reasoning, and we thus

overrule this assignment of error insofar as it rests

on this ground. State v. Fullwood, 323 N.C. 371,

382, 373 S.E.2d 518, 525 (1988).

As a final ground, detendant asserts that the

prosecutor’s use of peremptory challenges violated

article I, section 26 of the North Carolina Constitu-

ee

tion, which provides: "No person shall be excluded

from jury service on account of sex, race, color,

religion, or national origin." However, as discussed

above under equal protection analysis, we are un-

able to conclude from the record that any of the

black citizens in the venire were excluded from jury

service on account of their race. Defendant there-

fore has failed to establish a state constititional

violation. This assignment of error is overruled.

Defendant next argues that the trial court

abused its discretion in sustaining the prosecutor’s

objection to the following question asked of a single

prospective juror: "Would the fact that the defen-

dant had no significant history of any criminal

record, would that be something that you would

consider important in determining whether or not

to impose the death penalty?" No evidence of

defendant’s criminal history had been introduced at

this point. The question therefore was hypothetical

and the trial court properly could view it as an

impermissible attempt to indoctrinate a prospective

juror regarding the existence of a mitigating cir-

cumstance. State v. Parks, 324 N.C. 420, 423, 378

S.E.2d 785, 787 (1989); State v. Avery, 315 N.C. 1,

20, 337 S.E.2d 786, 797 (1985). Defendant has

shown no abuse of discretion. This assignment of

error is without merit.

Defendant contends that the trial court erred

in excusing two jurors for cause because of their

views on capital punishment, thereby denying de-

fendant his rights under the sixth, eighth, and four-

teenth amendments to the United States Constitu-

tion. The standard for determining when a potential

juror may be excluded for cause because of his

views on capital punishment is "whether the juror’s

views would ’prevent or substantially impair the

performance of his duties «is a juror in accordance

with his instructions and his oath.’" Wainwright v.

Witt, 469 U.S. 412, 424, 83 L.Ed.2d 841, 851-52

(1985) (quoting Adams v. Texas, 448 U.S. 38, 45,

65 L.Ed.2d 581, 589 (1980)). The Court a

sized in Wainwright that the standard

does not require that a juror’s bias be

proved with "unmistakable clarity."

This is because determinations of juror

bias cannot be reduced to question-and-

answer sessions which obtain results in

the manner of a catechism. What com-

mon sense should have realized experi-

ence has proved: many veniremen sim-

ply cannot be asked enough questions to

reach the point where their bias has been

made "unmistakably clear"; these veni-

remen may not know how they will react

when faced with imposing the death sen-

tence, or may be unable to articulate, or

may wish to hide their true feelings.

Despite this lack of clarity in the printed

record, however, there will be situations

where the trial judge is left with the

definite impression that a prospective

juror would be unable to faithfully and

impartially apply the law. ... [TJhis is

why deference must be paid to the trial

judge who sees and hears the juror.

Id. at 424-26, 83 L.Ed.2d at 852-53.

The transcript reveals that Leon Newkirk,

the first juror, stated that he did not believe in capital

punishment. In response to the prosecutor’s ques-

OE EE

tion whether he would "be unable to vote to recom-

mend the death penalty under any circumstances,’

he responded affirmatively. In response to the

question, "[N]Jo matter how much evidence the

State presented to try to show you how bad a murder

was, how aggravated it was, but never would you

go back into that jury room and vote to recommend

the death penalty,” Mr. Newkirk responded, “It

depends on how, you know, how, how it was. How

it happened and everything. The evidence." The

prosecutor again asked him whether he could vote

to impose the death penalty, and he responded,

“Okay, no." Mr. Newkirk then agreed to the

prosecutor’s suggestion that he would be unable "to

be a fair and impartial juror in the trial stage where

we determine the guilt or innocence of the defen-

dant." On rehabilitative questioning by defendant,

Mr. Newkirk agreed with counsel’s suggestion that

he did not "have a problem with [following instruc-

tions] on guilt or innocence." He then agreed that

he could "consider all of the aggravating factors that

are presented . . . and consider all the mitigating

factors." When asked whether he could set aside

his personal biases, Mr. Newkirk responded, "I

have to stick with my beliefs, my personal beliefs."

Frances McFarland, the second juror, stated

from the outset that he would be unable to vote to

recommend a death sentence, though he did not

believe his views would impair his ability to sit as

a juror during the guilt phase of the trial. He agreed

that his beliefs would significantly impair his abil-

ity to perform the functions of a juror and that “no

matter how bad the murder would be or how bad

the defendant was," under no circumstances would

he ever vote to impose the death penalty. He stated

he did not want to be put in the position of having

to vote for a death sentence if the State met its

A-17

burden of proof during the sentencing phase.

Under rehabilitative questioning, Mr. McFarland

reiterated seve “al times that he would automatically

favor a life sentence. Defense counsel then asked:

Q: In other words, if you even follow

the law, you could find some way to

avoid the death penalty. Is that a fair

statement?

A: Not necessarily. That’s a problem

with me.

Q: Okay.

A: If the law, if all the parts of those

three points are within the law --

Q: Right.

A: -- and they point directly to the death

penalty, I would have to follow the death

penalty, but that would be something

that would be against my subjective de-

cision.

The questioning continued in this vein, with

Mr. McFarland stating, "I’d have to follow the law

but I wouldn’t like it at all," and that he was still

unsure whether he could vote to impose the death

sentence. Finally, the trial court asked Mr. McF-

arland: "[DJo you feel that [your own personal

views about capital punishment] would prevent or

substantially impair the performance of your duties

as a juror in accordance with your instructions and

your oath?" Mr. McFarland responded, "I think it

would if it came to that point where I had to make

that decision."

The conflicting answers given by these pro-

spective jurors illustrate clearly the United States

Supreme Court’s conclusion that a prospective

a

A-18

juror’s bias may, in some instances, not be provable

with unmistakable clarity. In such cases, reviewing

courts must defer to the trial court’s judgment con-

ceming wheiher the prospective juror would be able

to follow the law impartially. Mr. Newkirk stated

at various times that he did not believe in the death

penalty, could not vote to impose it, and could not

act as an impartial juror in the guilt phase. Mr.

McFarland’s answers reveal that he wanted to fol-

low the law, but thought his views on capital pun-

ishment would interfere with the performance of his

duties during the sentencing phase. The trial court

did not err in excusing either man for cause because

neither could affirmatively agree to follow the law

in carrying out his duties as a juror. N.C.GS. §

15A-1212(8) (1988); State v. Brown, 320 N.C. 179,

189-90, 358 S.E.2d 1, 10, cert. denied, 484 U.S.

970, 98 L.Ed.2d 406 (1987). This assignment of

error is overruled.

Defendant next argues that the prosecutor’s

use of peremptory challenges to exclude potential

jurors expressing reservations about capital punish-

ment violated his constitutional rights. Defendant

recognizes that this issue has been decided ad-

versely to his position, State v. Allen, 323 N.C. 208,

372 S.E.2d 855 (1988), but asks this Court to recon-

sider its position in light of Brown v. Rice, 693

F.Supp. 381 (W.D.N.C. 1988). We decline this

invitation, as we continue to adhere to the view

expressed by Justice O’Connor in her concurrence

to the denial of certiorari in Brown v. North Caro-

lina, 479 US. 940, 93 L.Ed.2d 373 (1986)

(O’Connor, J. concurring). She wrote:

Batson does not touch, indeed, it clearly

reaffirms . . . the ordinary rule that a

os (enaseeellammna atari ieee

A-19

prosecutor may exercise his peremptory

strikes for any reason at all... . It is

central io Batson that a "person’s race

simply ‘is unrelated to his fitness as a

juror.’ ... There is no basis for declaring

that a juror’s attitudes towards the death

penalty are similarly irrelevant to the

outcome of a capital sentencing pro-

ceeding.

Id. at 941, 93 L.Ed.2d at 374 (citations omitted)

(quoted in part in Robbins, 319 N.C. at 494, 356

S.E.2d at 296-97). Accordingly, we overrule this

assignment of error.

Defendant next contends that the trial court

committed plain error by failing to intervene, ab-

sent objection by defendant, in response to a ques-

tion asked by the prosecutor. The prosecutor asked

Judy Richardson whether she could vote to recom-

mend the death penalty "even knowing your deci-

sion would mean that the defendant might eventu-

ally be put to death?" Defendant argues that the

wording of this question impermissibly suggested

to the juror that a sentence of death might not be

carried out, thus diminishing the juror’s sense of

personal responsibility for the decision whether to

execute defendant. However, the cases defendant

cites in support of his position are inapposite. Cald-

well v. Mississippi, 472 U.S. 320, 86 L.Ed.2d 231

(1985) and State v. Jones, 296 N.C. 495, 251

S.E.2d 425 (1979) both involve sentencing pro-

ceeding arguments in which the prosecutor in-

formed the jury that death penalty cases are re-

viewed automatically by an appellate court. In

State v. Dockery, 238 N.C. 222, 226, 77 S.E.2d 664,

667 (1953), also cited by defendant, the prosecutor

argued to the jury, "There is no such thing as life

A-20

imprisonment in North Carolina today." None of

these cases addresses the propriety of a single voir

dire question, which is the issue here. In any event,

defendant can demonstrate no prejudice because

Ms. Richardson did not participate in the delibera-

tions in this case, but was excused during the trial

due to the illness of her child. Voir dire was con-

ducted individually, so no juror other than Ms.

Richardson heard the allegedly impermissible

question. We can perceive no plain error and no

prejudice to defendant from asking of this question.

Defendant next argues that the trial court

erred in removing a prospective juror for cause

based on his opposition to capital punishment on

religious grounds. Paul Dunn stated that based on

the teachings of the Catholic Church, he would be

unable to follow the law and consider voting to

impose a death penalty no matter what circum-

stances the case encompassed. This conviction

clearly mandated his removal for cause under the

Wainwright test discussed above. Nevertheless,

defendant argues that because the venireman’s op-

position to the death penalty stemmed from his

religious beliefs, his exclusion from the jury vio-

lated constitutional principles regarding the free

exercise of religion and the right to serve as a juror

regardless of one’s religion. U.S. Const. amend. I;

N.C. Const. art. I, § 26. We disagree. The transcript

establishes beyond peradventure that Dunn was

excused, not because of his choice of religion, but

because of his inability to follow the law. The fact

that the prospective juror’s religion provided the

basis for his views did not alter the propriety of

excluding him for cause. We find no merit in this

assignment of error.

eames cae

A-21

GUILT PHASE ISSUES

Defendant assigns error to the trial court’s

communication with a juror outside the presence of

defendant and to the court’s subsequent removal of

that juror. After the prosecution had presented all

its evidence and the attomeys had completed their

closing arguments, court recessed for the evening.

The next moming, prior to court reconvening, juror

Judy Richardson telephoned the jury pool room

clerk to say that her child was ill and she had no

child care available for the day. The clerk gave this

message to the judge. The judge conferred with

counsel, then telephoned the juror from his cham-

ders in the presence of the attorneys for both the

defendant and the State. The juror explained that

her son had a severe case of poison ivy which

prohibited him from attending school, and that she

had no one to stay with him that day. The judge

asked her to try to find child care and told her he

would call back in thirty minutes. He did so, again

in the presence of counsel, and the juror stated that

she was unable to find anyone to say with the child.

The judge then recapitulated the foregoing events

for the record, stating his intention to replace the

juror with an alternate, and invited defendant to

make his objections.

Defendant moved for a recess of one day to

allow the sitting juror to find child care. He empha-

sized that, during selection of the alternates, his

peremptory challenges were nearing exhaustion,

and he was unable to scrutinize prospective jurors

to the same extent that he had when he passed the

sitting juror, who was the first juror picked for the

case. Defendant also voiced concern that excusing

the sitting juror increased the chance that the third

alternate, accepted over his objection after he had

exhausted his peremptory challenges, might actu-

A-22

ally deliberate in the case (he did not in fact delib-

erate).

The judge denied defendant’s motion, stat-

ing that the trial had been going on since 7 October,

it then being 31 October, and he was

not inclined to send fourteen jurors back

home today without doing anything. We

have an alternate available and we have

a statutory procedure that provides for

this... . [The juror] herself stated to me

that she has concern that she would be

able to keep her mind on her duty today

and I am not going to recess this trial

until tomorrow morning to see what the

situation is at that tume. The child could

be worse tomorrow moming for all I

know.

We first must determine whether the tria!

court erred in communicating with the juror by

telephone, in the presence of counsel, but outside

the presence of defendant. Defendant’s constitu-

tional right to confront the witnesses against him

dictates that he be present at every stage of his tria!;

in a capital trial, this night may not be waived. State

v. Huff, 325 N.C.1, 30-31, 381 S.E.2d 635, 651

(1989). "[T]his constitutional requirement of

defendant’s presence at his capital trial protects not

only the defendant, but public interests as well. . . .

The requirement . . . protects the integrity of the

system by preserving the appearance of fairness and

by optimizing the conditions for finding the truth."

Id. at 30, 381 S.E.2d at 651. Assuming the tele-

phone conversation with the juror is properly de-

nominated as a stage of defendant’s trial, the trial

)

A-23

court had a duty to insure defendant’s presence. Id.

at 30-31, 381 S.E.2d at 651. The error, if any, is

subject to harmless error analysis, however. Id. at

32, 381 S.E.2d at 653. We hold that if it was error,

defendant’s absence during the telephone conver-

sations was harmless beyond a reasonable doubt.

Defendant’s counsel was present during both calls.

The judge reiterated for the record the content of

the calls. These facts assuage our concern for "op-

timizing the conditions for finding truth." Jd. at 30,

381 S.E.2d at 651. Unlike in State v. Payne, 320

N.C. 138, 357 S.E.2d 612 (1987), Defendant’s ab-

sence did not come at a critical stage in the case

when his presence “could have had a reasonably

substantial relation to his ability to present a full

defense." Payne, 320 N.C. at 139, 357 S.E.2d at

612. The juror with whom the judge communicated

outside defendant’s presence did not deliberate in

Defendant’s case, so any untoward influence result-

ing from defendant’s absence could not have been

conveyed to the remaining jurors during delibera-

tions, but was confined to that juror. Because the

incident took place in the judge’s chambers, the

appearance of fairness was not impermissibly com-

promised. As a practical matter, the trial judge

showed commendable concern for safeguarding the

integrity of the system and the appearance of fair-

ness by taking the call after consulting vith counsel

and in the presence of counsel. His failure to insure

defendant’s presence may be regarded as an exam-

ple of the “virtually inevitable presence of immate-

rial error" which does not require reversal on ap-

peal. Huff, 325 N.C. at 32, 381 S.E.2d at 653

(quoting Delaware v. Van Arsdall, 475 U.S. 673,

681, 89 L.Ed.2d 674, 685 (1986).

We next consider whether the trial court

abused its discretion in removing the juror and

A-24

replacing her with an alternate. A defendant ‘is not

entitled to a jury of his choice and has no vested

right to any particular juror." State v. McKenna,

289 N.C. 668, 681, 224 S.E.2d 537, 546 (juror

excused peremptorily after being accepted but be-

fore jury impaneled), vacated on other grounds,

429 U.S. 912, 50 L.Ed.2d 278 (1976). The trial

court’s discretion in supervising the jury continues

beyond jury selection and extends to decisions to

excuse a juror and substitute an alternate. State v.

Nelson, 298 N.C. 573, 593, 260 S.E.2d 629, 644

(1979) Guror replaced because could not appear on

Saturday), cert. denied, 446 U.S. 929, 64 L.Ed.2d

282 (1980). "These kinds of decisions relating to

the competency and service of jurors are not re-

viewable on appeal absent a showing of abuse of

discretion, or some imputed legal error.” Id.

(quoted in State v. Allen, 323 N.C. 208, 224, 372

S.E.2d 855, 864 (1988). We ascertain no abuse of

discretion in the judge’s decision to replace a juror

who had child care problems. This assignment of

error is overruled.

Defendant next maintains that the trial court

erred in denying his motion to dismiss the charge

of first-degree murder, as the evidence was insuffi-

cient to allow a reasonable inference of premedita-

tion and deliberation culminating in a specific in-

tent to kill. When the State relies on a theory of

premeditation and deliberation for first-degree

murder, it must prove as necessary elements of the

crime that defendant premeditated and deliberated

before killing the victim. State v. Vaughn 324 N.C.

301, 305, 377 S.E.2d 738, 740 (1989). Premedita-

tion means that the defendant thought out the act

beforehand for some length of time, however short.

State v. Jackson, 317 N.C. 1, 23, 343 S.E.2d 814,

A-25

827 (1986), vacated on other grounds, 479 U.S.

1077, 94 L.Ed.2d 133 (1987).

"Deliberation means an intent to kill, carried

out in a cool state of blood, in furtherance of a fixed

design for revenge or to accomplish an unlawful

purpose and not under the influence of a violent

passion, suddenly aroused by lawful or just cause

or legal provocation." Jd. "Premeditation and de-

liberation relate to mental processes and ordinarily

are not readily susceptible to proof by direct evi-

dence. Instead, they usually must be proved by

circumstantial evidence." Jd. Among other cir-

cumstances to be considered in determining

whether a defendant acted after premeditation and

deliberation are lack of provocation by the victim,

the dealing of lethal blows after the deceased has

been felled, evidence that the killing was done in a

brutal manner, and the nature and number of the

victim’s wounds. Id.

In ruling on a motion to dismiss, the trial

court must consider the evidence in the light most

favorable to the State, and the State is entitled to

every reasonable inference from the evidence. Id.

at 22, 343 S.E.2d at 827. The evidence in this case

allows a reasonable inference that defendant pre-

meditated and deliberated before killing the victim.

The victim was in a weakened condition prior to her

death. A woman’s voice was heard calling out in

distress from the vicinity of her apartment. the

victim was killed by manual strangulation, com-

pounded by blunt traumatic blows causing exten-

Sive jury to her internal organs. She was found

lying »n her back on the floor. Spermatozoa were

found in her vagina and rectum. Defendant was

examined following his arrest, the day after the

a

that he had been in a fight, none were discovered.

Defendant sold the victim’s radio and ring for a total

of three dollars within a few hours of the murder.

This circumstantial evidence allows a reasonable

inference that defendant targeted a vulnerable vic-

tim, felled her with blows, assaulted her sexually,

and manually strangled her until she died. The trial

court did not err in denying defendant's motion to

dismiss, and this assignment of error is accordingly

A-26

murder, for bruises, scratches, or other indications

overruled.

In a related assignment of error, defendant

contends that the trial court’s charge to the jury

regarding proof from which premeditation and de-

liberation may be inferred contained examples un-

supported by the evidence. The trial court gave the

: following instruction after defining premeditation

| and deliberation:

Neither premeditation or deliberation

) is usually susceptible of direct proof.

| They may be proved by proof of circum-

stances from which they may be in-

| ferred, such as the lack of provocation

by the victim, conduct of the defendant

before, during and after the killing, any

use of grossly excessive force, infliction

of lethal wounds after the victim is

felled, brutal or vicious circumstances of

the killing, and the manner in which or

means by which the killing was done.

The trial court did not err in so instructing, as the

evidence supported each of the examples given.

| Evidence of lack of provocation included the

victim’s weakened condition and defendant’s phys-

ical integrity on examination. Defendant’s conduct

anata ies

A-27

in leaving the scene of the assault and callously

selling the victim’s personal belongings constitutes

evidence from which premeditation can be inferred.

As discussed above, the nature and extent of the

victim’s injuries speak to the remaining factors

listed in the jury charge. We overrule this assign-

ment of error.

Defendant assigns error to the trial court’s

denial of his motion to dismiss the charge of com-

mon-law robbery. Defendant’s argument under

this assignment of error, if successful, would apply

with equal force to the State’s reliance on common-

law robbery as the predicate felony for defendant's

felony-murder conviction. Because we find

defendant’s argument unpersuasive, we overrule

both assignments of error.

To withstand a motion to dismiss acommon-

law robbery charge, the State must offer substantial

evidence that the defendant feloniously took money

or goods of any value from the person of another,

or in the presence of that person, against that

person’s will, by violence or putting the person in

fear. See State v. Norris, 264 N.C. 470, 472, 141

S.E.2d 869, 871 (1965). Defendant maintains that

the evidence suggests that any items taken from the

victim’s apartment were taken as an afterthought

following the murder; thus, the element of violence

or putting in fear" is unsupported by the evidence.

Defendant compares this case to State v. Powell,

299 N.C. 95, 261 S.E.2d 114 (1980), in which this

Court reversed a conviction of robbery with a dan-

gerous weapon. We stated: "The gist of the offense

is not the taking but the taking by force or putting

in fear.... We believe that even contouring the

evidence in a light most favorable to the State, it

indicates only that defendant took the objects as an

A-28

afterthought once the victim had died." Powell,

299 N.C. at 102, 261 S.E.2d at 119.

We noted in Powell that the evidence

showed the "house had not been ransacked, but was

neat and clean." Id. at 97, 261 S.E.2d at 116. Here,

by contrast, the testimony established that the

victim’s apartment was "a mess" and “in total dis-

array." The victim usually kept her apartment neat

and clean rather than in the state seen by the inves-

tigating officers. This evidence distinguishes the

) present case from Powell and negates defendant’s

suggestion that he merely picked up a few objects

as afterthoughts. Instead, the evidence permits a

reasonable inference that defendant engaged in a

purposeful search of the victim’s apartment, at least

some part of which occurred in her presence against

her will and by putting her in fear, culminating in

removal of the radio and ring.

There was sufficient evidence to support

each element of common-law robbery. Items of

some value, to wit a ring and a radio, were taken

from he victim’s apartment near the time of her

murder. The force used to threaten the victim, or

place her in fear, was such that ultimately she died

from it. Ahomicide victim is still a "person" within

the meaning of the statutory definition of armed

robbery so long as "the death and the taking are so

connected as to form a continuous chain of events.

...' State v. Fields, 315 N.C. 191, 202, 337 S.E.2d

518, 525 (1985). The same rule must hold for

common-law robbery.

In a related argument, defendant asks us to

find plain error in the trial court’s failure to instruct

the jury on misdemeanor larceny, a lesser-included

——————

A-29

offense of robbery. Defendant neither objected to

this omission at trial nor assigned error to it while

preparing the record on appeal. We discern no plain

error in the trial court’s choice of instructions be-

cause the evidence was insufficient to support the

offense of misdemeanor larceny. Defendant’s plea

of not guilty to the robbery charge will not suffice

to negate the State’s evidence supporting the ele-

ment of force or violence in the perpetration of the

robbery. The condition of the apartment, coupled

with the evidence of violent force displayed by the

victim’s body, suggest that a robbery, not a larceny,

was committed. Absent affirmative evidence that

defendant took the victim’s belongings only as an

afterthought, and that the violence committed

against her served no intimidating purpose, defen-

dant was not entitled to an instruction on misdemea-

nor larceny. See State v. Zuniga, 320 N.C. 233,

261, 357 S.E.2d 898, 916 (plea of not guilty, stand-

ing alone, insufficient to negate evidence of pre-

meditation and deliberation; defendant not entitled

to second degree murder instruction), cert. denied,

484 U.S. 959, 98 L.Ed.2d 384 (1987).

SENTENCING PHASE

Following a capital sentencing hearing, the

jury found the following aggravating circum-

stances: defendant was engaged in the commission

of common-law robbery, N.C.G.S. § 15A-

2000(e)(5); the murder was committed for pecuni-

ary gain, N.C.G.S. § 15A-2000(e)(6); and the mur-

der was especially heinous, atrocious, or cruel,

N.C.G.S. § 15SA-2000(e)(9). We previously have

held that submission of both (e)(5) and (e)(6) in

aggravation is redundant, and therefore comprises

error, when the evidence shows the supporting rob-

bery in fact was committed for the purpose of

pecuniary gain, as compared with one committed

A ‘ > ¢ x

IE LIN BRT BONS Gone a Bio ihe s

Riis nit, cindiin dia eee nt ee

A-30

for another motive. State v. Quesinberry, 319 N.C.

228, 239, 354 S.E.2d 446, 453 (1987). Because

all the evidence in this case suggests that defendant

committed the robbery for pecuniary gain, i.e., to

resell the ring and radio for cash, we hold that

submission of both (e)(5) and (e)(6) in aggravation

was duplicative and constituted error.

The question remains whether submission

of the duplicative (e)(6) factor constituted prejudi-

cial error.

When there is "a reasonable possibil-

ity that the erroneous submission of an

aggravating circumstance tipped the

scales in favor of the jury finding that the

aggravating circumstances were

sufficiently substantial’ to justify impo-

sition of the death penalty,” the test for

prejudicial error has been met.

Id. at 240, 354 S.E.2d at 453 (quoting State v. Irwin,

304 N.C. 93, 107, 282 S.E.2d 439, 449 (1981)

(emphasis in original). The jury here found twenty-

five mitigating circumstances, among them the fol-

lowing four statutory mitigating circumstances:

defendant had no significant history of prior crim-

inal activity, the murder was committed while de-

fendant was under the influence of mental or emo-

tional disturbance, defendant’s capacity to appreci-

ate the criminality of his conduct or to conform to

the requirements of the law was impaired, and

3 We note that this case was tried before we decided

Quesinberry, and the opinion in that case thus was not

available to the trial court here.

| A-31

defendant’s age at the time of the murder. Jury

deliberations regarding sentencing lasted two full

days, indicating that the jury did not reach a unan-

imous recommendation of a sentence of death eas-

ily. We thus cannot conclude that there is no rea-

sonable possibility that the erroneous submission

of a duplicative aggravating circumstance affected

the jury’s sentencing recommendation. Accord-

ingly, we set aside the sentence of death and remand

for a new capital sentencing hearing. We thus need

not address defendant’s remaining sentencing

phase assignments of error relating to the murder

charge.

As a final assignment of error, defendant

asserts that prejudicial error occurred during the

sentencing for the common-law robbery convic-

tion. In imposing the maximum ten-year sentence

for common-law robbery, the trial court found as

discrete aggravating factors that the victim was

very old and that she was physically infirm. Defen-

dant argues that the victim’s physical infirmity was

the sole evidence supporting both aggravating fac-

tors, in violation of N.C.G.S. § 15A-1340.4(a),

which prohibits use of the same evidence to prove

more than one factor in aggravation. We disagree.

The vulnerability accompanying advanced age is

not caused by physical disability alone, but encom-

passes the slowing of reflexes and lessening acuity

of senses which render older citizens relatively

defenseless against predators looking for unpro-

tected targets. We have said:

A victim’s age does not make a defen-

dant more blameworthy unless the

victim’s age causes the victim to be more

vulnerable than he or she otherwise

would be to the crime committed against

2

A-32

him or her, as where age impedes a

victim from fleeing, fending off attack,

recovering from its effects, or otherwise

avoiding being victimized. . . ."[V]ul-

nerability is clearly the concern ad-

dressed by this factor [of the victim's

age].”

State v. Hines 314 N.C. 522, 525-26, 335 S.E.2d 6,

8 (1985) (quoting State v. Ahearn, 307 N.C. 584,

603, 300 S.E.2d 689, 701 (1983) (emphasis in

original). The evidence established that the sev-

enty-year-old victim lived alone in an apartment

building for the elderly. Defendant knew the victim

well, and thus was in a position to assess her vul-

nerability. This evidence, discrete from that of the

victim’s physical infirmity, supports the aggrava-

tion of the robbery by virtue of the victim’s age.

FIRST DEGREE MURDER: GUILT

PHASE, NO ERROR;

SENTENCING PHASE, NEW HEAR-

ING.

COMMON-LAW ROBBERY: NO

ERROR.

A-33

No. 745A85 - State v. Davis

Justice Martin dissenting in part.

I remain convinced that the dissent in State

v. Quesinberry, 319 N.C. 228,241, 354 S.E.2d 446,

454 (1987) with respect to the sentencing issue is a

correct statement of the law and therefore dissent

from that part of the majority opinion awarding

defengant a new sentencing hearing. I concur in the

remainder of the opinion.

Justices Meyer and Mitchell join in this dis-

senting opinion.

A-35

OPINION OF THE NORTHCAROLINA

SUPREME COURT

State v. Michael Ray Quesinberry

[capticn omitted]

Appeal of right pursuant to N.C.G.S. § 7A-

27(a) from a judgment imposing the sentence of

death entered by Helms, J., at the 12 June 1985

Criminal Session of Superior Court, Randolph

County. Heard in the Supreme Court 10 March

1987.

LACY H. THORNBURG, Attomey

General, by ELLEN B. SCOUTEN, As-

sistant Attorney General, for the State.

GORDON WIDENHOUSE for defen-

dant-appellant.

WHICHARD, Justice.

Evidence presented, in the light most favor-

able to the State, tended to show the following:

Van Buren Luther, age 71, was discovered

lying on the floor of Luther’s Grocery Store at 1:37

p.m. on 20 July 1984. The rescue squad arrived

within minutes, by which time Mr. Luther was

walking carefully out of the door of the store,

holding his head. He was covered with blood, but

was no longer bleeding. An ambulance arrived at

2:09 p.m. and took him, intermittently unconscious

and restless, to the hospital, where ine died at 5:53

p.m.

A-36

Defendant was taken into custody and ad-

vised of his rights at around 4:30 p.m. the same day.

At 7:00 p.m. defendant made a statement to an SBI

agent confessing that he had inflicted blows to the

victim’s head with a hammer.

The jury found defendant guilty of robbery

with a dangerous weapon and murder in the first

degree on the basis of both felony murder and

malice, premeditation, and deliberation. See

N.C.G.S. § 14-17 (1986). The jury found that

mitigating circumstances were insufficient to out-

weigh aggravating circumstances and recom-

mended a sentence of death.

GUILT PHASE

Defendant raises six issues concerning the

guilt-innocence phase of the trial. In three of these

defendant contends that the trial court erred in

failing to dismiss the charge of first degree murder

because the evidence was insufficient to prove (1)

a specific intent to kill, (2) premeditation and delib-

eration, and (3) that defendant proximately caused

the victim’s death. This Court has observed that

while specific intent to kill is an essential element

of first degree murder, it is also a necessary constit-

uent of the elements of premeditation and deliber-

ation. State v. Propst, 274 N.C. 62, 71, 161 S.E.2d

560, 567 (1968). "Thus, proof of premeditation and

deliberation is also proof of intent to kill." State v.

Jones, 303 N.C. 500, 505, 279 S.E.2d 835, 839

(1981). We therefore treat these contentions to-

gether.

Premeditation has been defined as "thought

beforehand for some length of time, however

short." State v. Welch,316 N.C. 578, 589, 342

_S.E.2d 789, 796 (1986) (quoting State v. Corn, 303

N.C. 293, 297, 278 S.E.2d 221, 223 (1981). A

killing is committed with deliberation if it is done

in a "’cool state of blood,’ without legal provoca-

tion, and . . . to accomplish some unlawful purpose.

(Citation omitted.) The intent to kili must arise from

“a fixed determination previously formed after

weighing the matter.’" Jd. at 589-590, 342 S.E.2d

at 796 (quoting State v. Corn, 303 N.C. 293, 297,

278 S.E.2d 221, 223).

Because premeditation and deliberation re-

- late to mental processes, they are rarely susceptible

to proof by direct evidence. State v. Gladden, 315

N.C. 398, 430, 340 S.E.2d 673, 693, cert. denied,

U.S. , 93 L.Ed.2d 166 (1986). This Court has

identified a number of circumstances that may be

considered in determining whether a killing was

with premeditation and deliberation. Among these

are (1) a lack of provocation on the part of the

deceased, (2) the conduct and statements of the

defendant before and after the killing, (3) the deal-

ing of lethal blows after the deceased has been

felled and rendered helpless, (4) evidence that the

killing was done in a brutal manner, and (5) the

nature and number of the victim’s wounds. E.G.,

State v. Gladden, 315 N.C. at 430-31, 340 S.E.2d

at 693.

In this case there was both direct and circum-

stantial evidence before the trial court from which

the jury could find the presence of premeditation

and deliberation. Direct evidence consisted of

defendant’s statement, which indicated that defen-

dant had left work around 1:00 p.m., had gone to

his truck and smoked marijuana, then had driven to

a

A-38

Luther’s Grocery on his way home. Defendant said

that he stopped to get a drink, but noticed there was

no one else around.

While sitting in the truck, I started think-

ing about how broke I was and the baby

needing diapers and other things. I saw

a hammer laying in the floorboard of the

truck. I reached down and put the ham-

mer in my back pocket.-I went into the

store and got me a Pepsi Cola and told_

the man I wanted a pack of cigarettes.

The old man who was running the store

tumed to get the cigarettes. When the

old man turned to get the cigarettes, I

took the hammer from my pocket and hit

him in the back of the head. The man

fell on the floor. I hit the man one more

time in the head. I got the money out

from under a box in the back of the cash

register. The money was in a zip-up

purse. I took the money and the hammer

and ran out to the truck and got in it.

Defendant’s statement concluded by describing

how he had thrown the hammer out of the truck

window, hidden the money under a rock in a field,

and returned to work some time after 2:00 p.m.

The statement alone reveals defendant's

emotional state just prior to the attack. He had been

reflecting on his inability to provide for his family

when he was inspired to pick up a hammer lying on

the floor of the truck. He pocketed it, entered the

store, fetched a soft drink, then approached the

victim, asked for cigarettes, and hit the victim over

the head while his back was tumed. The jury could

eo

A-39

reasonably have concluded that these actions re-

sulted from deliberation --that they were not impul-

sive but governed by cool, reasoned thought.

Jason Coggins, defendant’s co-worker, tes-

tified that defendant had left work around 1:30 p.m.

because he said he had something he needed to do.

When defendant returned approximately a half an

hour later, Coggins noticed nothing unusual about

defendant’s conduct or demeanor. Coggins’ testi-

mony describing defendant’s absence of agitation,

along with defendant’s deliberate disposal of the

bloodied hammer and the money, similarly support

the jury’s finding of the deliberation element of

murder in the first degree.

In addition, the defendant’s statement re-

veals the unprovoked and brutal nature of the as-

sault upon the shopkeeper. Defendant confessed

that he inflicted a second blow to the victim’s head

after the victim had already been knocked to the

floor. If, as defendant contends, the first blow was

the result of a premeditated and deliberate decision

only to rob »ut not to kill, then the second blow

provided sufficient evidence for the jury to find

these essential elements for first degree murder.

The brutality of the attack was also apparent from

the testimony of the forensic pathologist who con-

ducted an autopsy on the victim. He described the

injuries to the victim’s head as ten distinct lacera-

tions, “the majority" of which reached to the skull.

In his opinion these wounds had been caused by

more than one blow of a blunt object.

For his contention that the evidence was

insufficient to prove that his hammer blows proxi-

mately caused the victim’s death, defendant relies

ry

A-40

upon the testimony of a hospital physician who

arrived in the emergency room five to ten minutes

before the official time of the victim’s death and

while cardio-pulmonary resuscitation was in prog-

ress. The physician initially determined that the

probable cause of the victim’s death was myocar-

dial infarction. However, in his testumony the phy-

sician stressed that this conclusion was a first im-

pression and that it was not borne out by the au-

topsy.

The forensic pathologist who performed the

autopsy testified that the victim had had severe

heart disease, including severe occlusion of two of

his three main coronary arteries. He noted an area

of fibrosis, indicating that the victim had suffered a

heart attack in the past, but he testified unequivo-

cally that in his opinion the victim's death had been

caused by blunt-force injuries to the head. If the

victim had had a heart attack "at the last minute,”

the pathologist testified, the injuries to his head and

the ensuing trauma had caused that attack.

A person ts criminally responsible for a ho-

micide if his act caused or directly contributed to

the death of the victim. State v. Brock, 305 N.C.

532, 539, 290 S.E.2d 566, 571 (1982); State v.

Atkinson, 298 N.C. 673, 682, 259 S.E.2d 858, 864

(1979), overruled in part on other grounds, State

v. Jackson, 302 N.C. 101, 273 S.E.2d 666 (1981).

The testimony of the pathologist was definitive on

the issue of proximate cause. The cause of death

tentatively cited by the emergency room physician

was, according to the physician’s own testimony,

not medically conclusive. Even if the jury had

perceived that testimony as contradicting the find-

ings of the forensic pathologist, such contradictions

A-41

and discrepancies are for the jury to resolve and do

not warrant dismissal. State v. Brown, 315 N.C.

40, 58, 337 S.E.2d 808, 822 (1985), cert. denied,

U.S. ,90 L.Ed.2d 733 (1986); State v. Powell, 299

N.C. 95, 99, 261 S.E.2d 114, 117 (1980).

In considering a motion to dismiss, the trial

court must view all of the evidence in the light most

favorable to the State, and the State is entitled to

every reasonable inference that may be drawn

therefrom supporting the charges against the defen-

dant. State v. Penley, 318 N.C. 30, 48, 347 S.E.2d

783, 793 (1986). "The trial court must determine

as a matter of law whether the State has offered

‘substantial evidence of all elements of the offense

charged so any rational trier of fact could find

beyond a reasonable doubt that the defendant com-

mitted the offense.’" Id., 347 S.E.2d at 794 (quot-

ing State v. Riddick, 315 N.C. 749, 759, 340 S.E.2d

55, 61 (1986). If the trial court determines that

"there is substantial evidence (a) of each essential

element of the offense charged, . . . and (b) of

defendant’s being the perpetrator of the offense,"

then the motion to dismiss is properly denied. /d.,

347 S.E.2d at 793.

We conclude that there was substantial evi-

dence before the jury that the victim’s death was the

proximate result of hammer blows to his head in-

flicted by defendant after premeditation and delib-

eration and with the specific intent to kill. The trial

court thus did not err in denying defendant’s motion

to dismiss the charge of first degree murder on that

basis.

Defendant next contends that the trial court

committed plain error by including the following

A-42

statement in its instructions to the jury: "Now, the

evidence for the State does tend to show that...

Mr. Luther was struck a total of some ten times and

sustained ten injuries to his head." Defendant notes

that the only source of evidence at trial concerning

how many times the victim was struck with the

hammer was defendant’s statement, which specif-

ically descried only two blows. Although the pa-

thologist testified that in his opinion the victim's

injuries were so separate that one blow could not

have cause them all, he offered no opinion as to how

many blows had caused the ten wounds, nor what

object(s) had dealt the blows.

Strictly speaking, the trial court’s statement

was factually accurate, if arguably misleading. The

pathologist’s testimony that the victim’s head had

ten lacerations did not necessarily imply that defen-

dant had struck all ten blows. It was possible, for

instance, that the victim cut his head on the counter

or floor when he first fell. Similarly, the trial court's

instruction that the victim had been "struck" ten

times did not necessarily imply that defendant's

hammer had done the striking. Even if this was the

jury’s understanding, any inaccuracy was cured by

prior and subsequent instructions and rulings.

First, the trial court told the jury more than once to

use its own recollection of the evidence rather than

the court’s summary. Second, the court accurately

recapitulated defendant’s statement that he had hit

the victim only twice. Third, the jury was permitted

to review defendant’s statement during its deliber-

ations. When, as here, the defendant fails to object

to the alleged error at trial, the appellate court must

be convinced that had the error been absent, the jury

probably would have reached a different verdict.

State v. Stanton, No. 80A86, slip op. at 10-13 (N.C.

4 March 1987). See State v. Black, 308 N.C. 736,

A-43

740-41, 303 S.E.2d 804, 806-07 (1983). We are

convinced that the trial court’s misstatement, if

indeed it was one, was of no substantial conse-

quence. See State v. Jones, 303 N.C. at 506-07,

279 S.E.2d at 839.

Defendant also assigns error to the trial

court’s treatment of challenges for cause of two

potential jurors. One of these expressed his belief

that every murderer should receive the death sen-

tence; but upon assuring the trial court that he could

and would follow the court’s instructions and re-

main open-minded regarding the appropriate sen-

tence, he was seated as a juror. The other potential

juror expressed his uncertainty about whether he

could impose the death penalty, even if he were

instructed to do so by the court.

We note preliminarily that defendant exer-

cised only six of the fourteen peremptory chal-

lenges permitted him under N.C.G.S. § 15A-

1217(a)(1). Because he did not exhaust his pe-

remptory challenges as provided by N.C.G:S. §

1SA-1214(h), no prejudice has been shown as to the

juror who remained on the panel. State v. Avery,

315 N.C. 1, 21, 337 S.E.2d 786, 797 (1985).

The constitutional standard for determining

when a prospective juror may be excluded for cause

because of his or her views on capital punishment

is "whether the juror’s views would ‘prevent or

substantially impair the performance of his duties

as a juror in accordance with his instructions and

his oath.’" Wainwright v. Witt, 469 U.S. 412, 424,

83 L.Ed.2d 841, 851-52 (1985) (quoting Adams v.

Texas, 448 U.S. 38,45, 65 L.Ed.2d 581, 589 (1980).

Both potential jurors were asked if they could put

Aad

aside their prejudices concerning the death penalty

and respond to the court’s instructions. One juror

said he could; the other responded equivocally.

Under the Adams-Witt standard, the first was prop-

erly not excused for cause; the second was properly

so excused. The trial court has "broad discretion

‘to see that a competent, fair and impartial jury is

impaneled.’" State v. Avery 315 N.C. 1, 21, 337

S.E.2d 786, 797 (quoting State v. Johnson, 298

N.C. 355, 362, 259 S.E.2d 752, 757 (1979). We

find no abuse of that discretion here.

In defendant’s final assignment of error con-

cerning the guilt phase of his trial, he complains that

the prosecutor’s closing argument was based upon

facts not in evidence. The prosecutor argued in

part:

That at the store [defendant] thought of

killing Mr. Luther, thought of robbing

him there. I would argue that that was

premeditation. ... That the Defendant

acted after premeditation, that he formed

the intent to kill. Once again, in his own

words, he thought of killing him before

he went into the store.

"[IJn his own words" could refer only to defendant’s

statement, defendant avers, since he did not testify

at the guilt phase of his trial. The statement con-

tains no admission that he had killing the shop-

keeper in mind before he entered the store.

Even if the jury had understood this portion

of the prosecutor’s argument to be a statement of

fact and not argument, defendant was not preju-

diced thereby. The jury had heard the statement

read to it during presentation of the State’s case, it

A-45

heard--more than once--the trial court’s charge that

it.was 'o take its own recollectin from the evi-

dence. .nd it had the text of defe:.Jant’s statement

in the jury room throughout its deliberations. We

note defendant’s failure to object when the prose-

cutor made these remarks, and hold that "in the

absence of [that] objection, the statement did not

amount to such gross impropriety as to require the

trial judge to act ex mero motu, or to recall that the

statement had been made and caution the jury to

disregard it." State v. Oliver, 309 N.C. 326, 359,

307 S.E.2d 304, 325-26 (1983).

SENTENCING PHASE

The only aggravating circumstances submit-

ted to and found by the jury in the sentencing phase

of the trial were that the murder was committed

while defendant was engaged in the commission of

a robbery, N.C.G.S. § 15A-2000(e)(5), and that the

murder was committed for pecuniary gain,

N.C.G.S. § 15A-2000(e)(6). Defendant contends

that submitting both factors violates due process

and renders the capital sentence arbitrary and capri-

cious. Under the particular facts of this case, we

find defendant’s contention that it was error to

submit both factors meritorious.

The jury found defendant guilty of murder

in the first degree based specifically upon both

felony murder and premeditation and deliberation.

The basis for the conviction dictates differences in

sentencing. Most notable among these is the appli-

cation of the merger rule to a felony murder: when

a murder is committed in the course of a felony and

the perpetrator is convicted of murder in the first

degree solely on that basis, "the underlying felony

becomes a part of the murder charge to the extent

A-46

of preventing a further prosecution of the defendant

for, or a further sentence of the defendant for,

commission of the underlying felony.” State v.

Cherry, 298 N.C. 86, 113, 257 S.E.2d 551, 567

(1979), cert. denied, 446 U.S. 941, 64 L.Ed.2d 796

(1980); State v. Silhan, 302 N.C. 223, 262, 275

S.E.2d 450, 477 (1981). It follows logically that

the underlying felony should not be submitted as an

aggravating circumstance at the sentencing phase

of the trial. In State v. Cherry, this Court observed

that a defendant convicted of a felony murder ‘will

have one aggravating circumstance pending’” sim-

ply by virtue of the nature of the underlying felony.

Cherry, 298 N.C. at 112, 275 S.E.2d at 568. Be-

cause this "flaw in the statute” would result in the

greater possibility that a felony-murder defendant

would be sentenced to death than one convicted on

the basis of premeditation and deliberation, we held

that aggravating circumstances "concerning the un-

derlying felony” could not be submitted as aggra-

vating factors in sentencing. Jd. at 113, 275 S.E.2d

at 568.

In State v. Oliver, 302 N.C. 28, 274 S.E.2d

183 (1981), the Cherry hoiding was refined for

cases in which the aggravating circumstance "for

pecuniary gain’ was submitted to a jury sentencing

a defendant convicted of a robbery-felony-murder.

The Court asserted constitutional grounds for its

refinement of Cherry, holding that the fifth

amendment’s protection against double jeopardy is

not violated because the "pecuniary gain” aggravat-

ing factor was not an element of the underlying

offense. "This circumstance examines the motive

of the defendant rather than his acts. While his

motive does not constitute an element of the of-

fense, it is appropriate for it to be considered on the

A-47

question of his sentence.” Id. at 62, 274 S.E.2d at

204 (emphisis added).

The rationale articulated in Oliver for sub-

mitting the "pecuniary gain" aggravating factor for

purposes of sentencing robber-murderers has been

consistently upheld in the context of a defendant’s

conviction of felony murder. E.g., State v. Jack-

son, 309 N.C. 26, 44, 305 S.E.2d 703, 716 (1983);

State v. Taylor, 304 N.C. 249, 288-89, 283 S.E.2d

761, 785 (1981), cert. denied, 463 U.S. 1213, 77

L.Ed.2d 1398, reh’g denied, 463 U.S. 1249, 77

L.Ed.2d 1456 (1983); State v. Irwin, 304 N.C. 93,

107, 282 S.E.2d 439, 448 (1981). See also State v.

Williams, 317 N.C. 474, 483-86, 346 S.E.2d 405,

411-13 (1986) (in sentencing defendant convicted

under robbery-felony-murder theory, use of pecu-

niary gain aggravating factor does not violate

eighth amendment’s proscription against cruel and

unusual punishment); State v. Oliver, 309 N.C. at

351, 307 S.E.2d at 321 (pecuniary gain factor not

unconstitutionally vague). This authority clearly

governs defendant’s contention here insofar as it

rests upon the felony murder basis for his convic-

tion. The aggravating factor that the murder was

committed in the course of a robbery drops out

under the authority of Cherry and the pecuniary

gain aggravating factor remains under the authority

of Oliver I and it progeny.

To this point our case law has addressed the

theoretical incompatibility of these two factors only

in the context of felony murders. In that context,

Cherry has permitted only the pecuniary gain factor

actually to be submitted to the jury. Thus, if

defendant’s conviction had been based solely on

felony murder, it would have been error to submit

A-48

the aggravating circumstance that the murder was

committed while defendant was engaged in the

commission of arobbery. Cherry 298 N.C. 86, 257

S.E.2d 551.

The new question now before us--one of first

impression in our jurisdiction--is whether these two

factors, when submitted together for purposes of

sentencing a defendant convicted of first-degree

murder on the basis of premeditation and delibera-

tion, are redundant. We conclude that one plainly

comprises the other. Although the pecuniary gain

factor addresses motive specifically, the other can-

not be perceived as conduct alone, for under the

facts of this case the motive of pecuniary gain

provided the impetus for the robbery itself. Admit-

tedly, situations are conceivable in which an armed

robber murders motivated by some impulse other

than pecuniary gain, e.g., where the robbery is

committed to obtain something of purely reputatio-

nal or sentimental, rather than pecuniary, value.

The facts of this case, though, reveal that defendant

murdered the shopkeeper for the single purpose of

pecuniary gain by means of committing an armed

robbery.

Not only is it illogical to divorce the motive

from the act under the facts of this case, but the same

evidence underlies proof of both factors. In State

v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979),

this Court held it improper to submit two aggravat-

ing factors supported by the same evidence when a

defendant has been convicted of murder in the first

degree on the basis of both felony murder and

premeditation and deliberation. In Goodman, the

aggravating circumstance that the ‘capital felony

was committed to disrupt or hinder the lawful ex-

I cn

A-49

ercise of any governmental function or the enforce-

ment of laws,” N.C.G.S. § 15A-2000(e)(7), was

supported by the same facts as those supporting the

aggravating circumstance that the ‘capital felony

was committed for the purpose of avoiding or pre-

venting a lawful arrest or effecting an escape from

custody.” N.C.G.S. § 1SA-2000(e)(4). The Court

wrote: "We think the submission of the two issues

on the same evidence was improper. This

amounted to an unnecessary duplication of the cir-

cumstances enumerated in the statute, resulting in

an automatic cumulation of aggravating circum-

stances against the defendant." Goodman, 298

N.C. at 29, 257 S.E.2d at 587.

Goodman is sound general authority that in

the context of a robbery-murder it is neither appro-

priate nor equitable to submit a statutorily-enumer-

ated aggravating factor that overlaps with another.

It is apparent that, in the particular context of a

premeditated and deliberate robbery-murder where

evidence is presented that the robbery was at-

tempted or effectuated for pecuniary gain, the sub-

mission of both the aggravating factors enumerated

at N.C.G.S. § 1SA-2000(e)(5) and (6) is redundant

and that one s’ ould be regarded as surplusage. We

therefore hold that it was error to submit both of

these aggravating factors to the jury.

Under the statutory sentencing scheme of

Florida, the Supreme Court of that state came to the

same conclusion:

|H]ere, as in all robbery-murders, both

subsections refer to the same aspect of

the defendant's crime. Consequently,

one who commits a capital crime in the

course of a robbery will always begin

with two aggravating circumstances

against him while those who commit

such a crime in the course of any other

enumerated felony will not be similarly

disadvantaged. . . . [W]e believe that

[defendant’s] pecuniary motive at the

time of the murder constitutes only one

factor which we must consider in this

case.

Provence v. State, 337 So.2d 783, 786 (Fla. 1976),

cert. denied, 431 U.S. 969, 53 L.Ed.2d 1065 (1977).

See also Cook v. State, 369 So.2d 1251, 1256 (Ala.

1978) ("[W]e do not think it appropriate to apply

this aggravating circumstance [pecuniary gain] to

situations already condemned under subsection 4

[committed in the course of a robbery] which by

definition involve an attempt at pecuniary gain.

Thus to avoid repetition, subsection 6 oe

gain] should not be applied to a robbery.")

]

In 1981 the Alabama legislature amended the sentencing statute

of that state to specifically provide for "double-counting": "The fact

that a particular capital offense . . . necessarily includes one or more

aggravating circumstances . . . shall not be construed to preclude the

finding and consideration of that relevant circumstance or

circumstances in determining sentence.” Ala. Code Sec. § 13A-5-50

(1982 & Supp. 1986). We note that in this jurisdiction the general

assembly has prohibited such redundancy under the Fair Sentencing

Act; "Evidence necessary to prove an element of the offense may not

be used to prove any factor in aggravation, and the same item of

evidence may not be used to prove more than one factor in

aggravation."N.C.G.S. 15A-1340.4(a) (1)(p) (1983). Statutory

provisions governing capital punishment, N.C.G.S. 15A-2000,

antedate those governing other felonies and have not been amended

either to similarly prohibit or to condone the "double-counting” of

aggravating factors. The "double-counting" is prohibited, however,

by this Court’s decision in Goodman, when the submission of the

two issues depends on the same evidence. Goodman, 298 N.C. at

29, 257 S.E.2d at 587.

A-51

When there is "a reasonable possibility that

the erroneous submission of an aggravating cir-

cumstance tipped the scales in favor of the jury

finding that the aggravating circumstances were

sufficiently substantial’ to justify imposition of the

death penalty," the test for prejudicial error has been

met. State v. Irwin, 304 N.C. at 107, 282 S.E.2d at

449. Because the jury arrived at a sentence of death

based upon weighing only two aggravating factors

against several mitigating factors and because it is

impossible now to determine the amount of weight

ascribed to each factor, we cannot hold the error of

submitting both redundant aggravating fattors

harmless. Defendant is accordingly entitled to a

new sentencing hearing pursuant to N.C.G.S. §

1SA-2000(d)(3).

The need to address defendant’s remaining

assignments of error concerning the sentencing

phase of his trial is obviated by our order for a new

hearing on sentencing.

GUILT PHASE: NO ERROR.

SENTENCING PHASE: NEW HEAR-

ING.

No. 407A85 - State v. Quesinberry

Justice Martin dissenting in part.

I dissent from the holding of the majority

awarding the defendant a new sentencing hearing.

Otherwise, I concur in the majority opinion.

The majority finds that the trial court erred

in submitting as aggravating circumstances that the

murder occurred while defendant was committing

A-52

a robbery and that the murder was committed for

pecuniary gain. Believing as I do that there is no

legislative impediment to submitting both aggra-

vating circumstances in this case, I disagree.

The majority candidly concedes that

N.C.G.S. § 15A-2000, our capital sentencing act,

does not prohibit the use of both circumstances in

a sentencing hearing based upon premeditated and

deliberate murder. Nevertheless, the majority pro-

ceeds to bar the use of both of these circumstances

in such sentencing hearings. In doing so, the ma-

jority misperceives the nature of and reason for the

aggravating circumstance that the murder was com-

mitted in the commission of a robbery. It is the

intent of the legislature that jurors should be al-

lowed to consider whether premeditated and delib-

erate murders committed-in the commission of a

robbery should be punished more severely than

other premeditated and deliberate murders. That

the defendant is seeking pecuniary gain is not the

only fact that makes robbery an aggravating cir-

cumstance. Robbery involves an assault, a taking

of the property of another by violence or by putting

the victim in fear. State v. Moore, 279 N.C. 455,

183 S.E.2d 546 (1971). Armed robbery addition-

ally involves the use of a deadly weapon endanger-

ing the life of the victim. So the crime of robbery

involves more than seeking pecuniary gain; it is

assaultive conduct that may, and often does, endan-

ger the lives of persons other than the murder

victim. It is extremely relevant to the purposes of

sentencing. It is the actions of defendant that are

being considered by the jury with respect to this

aggravating circumstance.

A-53

In contrast, when the jury considers the ag-

gravating circumstance of "pecuniary gain,” it is

evaluating the motive or reason why the murder

was committed. State v. Oliver, 309 N.C. 326, 307

S.E.2d 304 (1983). Rather than being concerned

with the actions of the defendant, here the jury is

considering the mental state of defendant. The

legislature has said that a jury should be allowed to

consider for the purposes of sentencing the circum-

stance that the defendant committed the murder for

the purpose of pecuniary gain.

The two aggravating circumstances are not

subsumed one into the other. By way of illustration,

the aggravating circumstance of the murder being

committed in the commission of a felony, N.C.G.S.

§ 15A-2000(e)(5), includes flight from an attempt

to commit robbery. In such case the motive would

be escape rather than pecuniary gain.

This Court has already held in a strong line

of cases that it is proper to submit the "pecuniary

gain’ aggravating circumstance in cases of murder

in the first degree based on felony murder with

robbery as the underlying felony. Oliver, 309 N.C.

326, 307 S.E.2d 304; State v. Jackson, 309 N.C.

26, 305 S.E.2d 703 (1983); State v. Taylor, 304

N.C. 249, 283 S.E.2d 761 (1981), cert. denied, 463

U.S. 1213, 77 L.Ed.2d 1398, reh’g denied, 463 U.S.

1249, 77 L.Ed.2d 1456 (1983); State v. Oliver, 302

N.C. 28, 274 S.E.2d 183 (1981); State v. Cherry,

298 N.C. 86 257 S.E.2d 551 (1979), cert. denied,

446 U.S. 941, 64 L.Ed.2d 796 (1980). This does

not violate the eighth amendment to the United

A-54

States Constitution. State y Williams, 317 N.C.

474, 346 S.E.2d 405 (1986).

Here Quesinberry was not sentenced for fel-

ony murder but for murder based upon premedita-

tion and deliberation. Of course, robbery is not an

essential element of premeditated and deliberate

murder. The contentions of the defendant are even

weaker where, as here, the robbery is not essential

to the state’s case. The General Assembly has

mandated that where there is evidence to support

the aggravating circumstances, as here, the jury

should be allowed to consider both the actions of

the Defendant (actus reus) (the killing occurred

during the commission of a robbery) and the mental

state or motive of the defendant (mens rea) (the

killing was for the purpose of pecuniary gain).

Because one aggravating circumstance focuses on

conduct and the other on mental state, the two are

by no means redundant and it was not error to

submit both in this case. This Court should find no

error in the sentencing phase and thereupon deter-

mine the issue of proportionality.

I am authorized to state that Justices Meyer

and Mitchell join in this dissenting opinion.

In State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985), this

Court upheld a sentencing hearing where both aggravating

circumstances at issue here were submitted to the jury, although the

Court’s opinion does not address the issue.

A-55

N.C.G.S. § 154-2000 CAPITAL PUNISHMENT

(e) Aggravating Circumstances. - Aggravating cir-

cumstances which may be considered shall be lim-

ited to the following:

(1) The capital felony was committed by a person

lawfully incarcerated.

(2) The defendant had been previously convicted of

another capital felony.

(3) The Defendant had been previously convicted of

a felony involving the use or threat of violence to the

person.

(4) The capital felony was committed for the pur-

pose of avoiding or preventing a lawful arrest or

effecting an escape from custody.

(5) The capital felony was committed while the

defendant was engaged, or was an aider or abettor,

in the commission of, or an attempt to commit, or

flight after committing or attempting to commit, any

homicide, robbery, rape or a sex offense, arson,

burglary, kidnapping, or aircraft piracy or the unlaw-

ful throwing, placing, or discharging of a destructive

device or bomb.

(6) The capital felony was committed for pecuniary

gain.

(7) The capital felony was committed to disrupt or

hinder the lawful exercise of any governmental func-

tion or the enforcement of laws.

(8) The capital felony was committed against a

law-enforcement officer, employee of the Depart-

ment of Correction, jailer, fireman, judge or justice,

former judge or justice, prosecutor or former prose-

cutor, juror or former juror, or witness or former

witness against the defendant while engaged in the

performance of his official duties or because of the

exercise of his official duty.

A-56

(9) The capital felony was especially heinous, atro-

cious, or cruel.

(10) The defendant knowingly created a great risk

of death to more than one person by means of a

weapon or device which would normally be hazard-

ous to the lives of more than one person.

(11) The murder for which the defendant stands

convicted was part of a course of conduct in which

the defendant engaged and which included the com-

mission by the defendant of other crimes of violence

against another person or persons.