# Appendix — North Carolina v. Davis

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1311%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1990
- **Citation:** 496 U.S. 905

## Text

, ”
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1311%3A2. Public record. Not legal advice.