Filed 2 June 1982
1. Constitutional Law 62; Criminal Law 135.3 — excusal of jurors opposed to death penalty — defendant not deprived of constitutional rights The trial court properly excused eight prospective jurors for cause due to their stated opposition to the death penalty in a prosecution for first degree murder where seven jurors unequivocally stated they could not impose the death penalty under any circumstances and where the eighth juror, after some initial equivocation, stated that she did not "believe" that she could impose the death penalty regardless of the evidence. The excusal of the jurors did not deprive defendant of his constitutional rights to trial by a jury representative of a cross-section of the community or due process of law.
2. Criminal Law 102.6, 113.2 — prosecutor's argument and court's instructions concerning defense of intoxication proper In a prosecution for first degree murder, the district attorney correctly conveyed the substance of the law and the evidence of defendant's intoxication defense to the jury and the trial court properly instructed upon the defense.
3. Constitutional Law 30 — no duty of State to make eyewitnesses "available" for interviews with medical experts The trial court did not err in denying defendant's pretrial motion for an order directing the district attorney to make the State's eyewitnesses "available" for interviews with a medical expert who had been appointed to assist in the preparation and evaluation of an intoxication defense since nothing in our statutory discovery provisions would require the State to compel its witnesses to submit to any form of interview or questioning by the defense prior to trial. Further, there was nothing in the record to substantiate defendant's claim that defense counsel actually approached the potential witnesses for the stated purpose only to be rejected on account of the district attorney's prior, direct instructions to them not to cooperate.
4. Criminal Law 38; Homicide 15 — exclusion of testimony concerning intoxication defense proper In a prosecution for first degree murder, the trial court properly excluded questions which were not competently framed to elicit a witness's opinion about defendant's general intoxication. The court's ruling did not improperly hinder defendant's effort to present his intoxication defense, and none of the questions sought to elicit relevant information having a direct bearing upon defendant's intoxication impairment at the time he committed the murders.
5. Homicide 24.2 — instructions concerning presumption of malice proper — defendant conceding guilt The trial court did not err in its final instructions by stating that the elements of malice and unlawfulness were implied in an intentional killing with a deadly weapon where the defendant, through his trial counsel, conceded his guilt of the second degree murders of the victims and admitted "the intentional killing and the malice involved in" the murders.
6. Homicide 20.1 — introduction of photographs of victims' bodies proper In a prosecution for first degree murder, the trial court properly admitted into evidence ten photographs of the victims' bodies to illustrate the testimony of a forensic pathologist who had performed autopsies on the bodies. The illustrative relevancy of the photographs was not nullified by defendant's stipulation that "he killed both victims with gunshot wounds."
7. Criminal Law 102.1 — prosecutor's argument to jury — proper The district attorney's remarks to the jury concerning (1) defendant's pleasure in killing, (2) what defendant must have been thinking before he shot the victims, and (3) "comparisons" between defendant and animals were either entirely warranted by the evidence or not so prejudicial that the trial court was required to take corrective action in the absence of an objection.
8. Criminal Law 135.4 — sentencing hearing — exclusion of evidence — not prejudicial The trial court did not commit prejudicial error by excluding testimony about defendant's current feelings of remorse over the victims' deaths, about the circumstances of defendant's various hospitalizations for drug overdoses, and testimony concerning defendant's ability to adjust to life in prison in defendant's sentencing hearing after being convicted of two first degree murders. Some of the evidence sought to be introduced was irrelevant and the record as a whole was replete with evidence of other matters which defendant sought to introduce.
9. Criminal Law 135.4 — sentencing phase — improper question by prosecutor — no prejudicial error At the sentencing phase of defendant's trial for first degree murder, the prosecutor erred in suggesting that defendant stole money in order to support his drug habit; however, as it was a single impropriety, and as the trial court promptly sustained defendant's objection to the disapproved question, the court sufficiently averted any prejudice to defendant.
10. Criminal Law 135.4 — sentencing phase — prosecutor's argument to jury — within bounds of permissible argument Although the district attorney argued for capital punishment of defendant's murder convictions with vim and vigor, his zeal did not cause him to overstep the bounds of permissible argument.
11. Criminal Law 135.4 — sentencing phase — submission of mitigating circumstances to jury — no prejudicial error In order for a defendant to demonstrate reversible error in the trial court's omission or restriction of a statutory or timely requested mitigating circumstance in a capital case, he must affirmatively establish three things: (1) that the particular factor was one which the jury could have reasonably deemed to have mitigating value; (2) that there was sufficient evidence of the existence of the factor; and (3) that, considering the case as a whole, the exclusion of the factor from the jury's consideration resulted in ascertainable prejudice to the defendant. Therefore, although there was evidence that defendant's I.Q. fell into the "low-normal range of intelligence," the trial court did not err in failing to submit as a mitigating factor defendant's "relatively low mentality" since one would not commonly understand low to normal intelligence to be synonymous with relatively low mentality. Further, the evidence did not support the submission of the statutory mitigating circumstance of G.S. 15A-2000 (f)(2), that he committed the murders while he was "under the influence of mental or emotional disturbance."
12. Criminal Law 135.4 — sentencing phase — submission of two killings as aggravating circumstance for one another — no double jeopardy In the sentencing phase of defendant's trial, the trial court's submission of each of two killings as an aggravating circumstance for the other under the "course of conduct" provision of G.S. 15A-2000 (e)(11) did not violate defendant's protection against double jeopardy.
13. Criminal Law 135.4 — sentencing phase — mitigating circumstances not specified by jury The statutes do not require the jury to specify in the sentencing phase of a trial which mitigating circumstances it found.
14. Criminal Law 135.4 — sentencing phase — duty to recommend death or life imprisonment The trial court correctly advised the jury that it had a duty to recommend a death sentence if it found three things: (1) that one or more statutory aggravating circumstances existed; (2) that the aggravating circumstances were substantial enough to warrant the death penalty; and (3) that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. The jury was also correctly advised that it had the duty to recommend a sentence of life imprisonment if it did not find any one of those three things. G.S. 15A-2000 (b) and (c).
15. Criminal Law 135.4 — sentencing phase — submission of aggravating circumstance that murders were heinous, atrocious, or cruel The trial court correctly instructed the jury upon the statutory aggravating circumstance of G.S. 15A-2000 (e)(9), that the murders were "especially heinous, atrocious, or cruel," where the evidence tended to show that one of the victims was shot once and then shot again at point blank range as he lay moaning on the floor, and the other killing was merciless and conscienceless in that defendant shot the victim as he begged and pleaded for his life.
16. Criminal Law 135.4 — sentencing phase — sentence of death not disproportionate as matter of law In a prosecution for first degree murder, the sentence of death was not, as a matter of law, "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." G.S. 15A-2000 (d)(2).
ON appeal by defendant as a matter of right from the judgments of Walker, Judge, entered at the 25 August 1980 Criminal Session, GUILFORD Superior Court. Defendant was charged in indictments, proper in form, with the first degree murders of Freddie Pachaco and Tommy Ausley. Upon defendant's motion, the cases were joined for trial. The jury returned verdicts of guilty and recommended the sentence of death in each case. The trial court ordered the imposition of the death penalty for both killings.
Attorney General Rufus L. Edmisten by Assistant Attorney General Joan H. Byers for the State.
Appellate Defender Adam Stein and Ann B. Peterson pro hac vice for the defendant-appellant.
Justice MITCHELL did not participate in the consideration or decision of this case.
Justice CARLTON concurring.
Chief Justice BRANCH joins in this concurring opinion.
Justice EXUM dissenting as to sentence.
In relevant part, the evidence for the State tended to show the following. On 16 October 1979, defendant, a nineteen year old white male, was walking on Merritt Drive in Greensboro with his friend Jimmy Eanes when he happened to meet Freddie Pachaco. Defendant did not like Pachaco because he had been friendly with a girl defendant liked and had, without proper entitlement, worn the personal insignia ("colors") of a motorcycle gang on his jacket. On this occasion, defendant told Eanes that he "hated that punk" (Pachaco) and wanted to fight him right then and there. This did not occur, however, because Pachaco was conciliatory and offered defendant some marijuana. The group then went to a trailer where they smoked marijuana and drank beer. Sometime later, Pachaco asked defendant outright whether he was "after" him. Defendant replied that he was not and further said that "if [he] was going to kick [Pachaco's] ass, [he] would have already done it."
On the following day starting at about noon, several people began to congregate at the trailer, where defendant apparently lived, to drink beer and listen to music. The merrymakers included Jimmy Eanes, Shawn Feeney, Keith Way, Billy Stanley and Leslie Hearl (who later married Stanley before trial). Pachaco and his friend Tommy Ausley also unexpectedly joined the party and bought two cases of beer. Everybody was calm and pleasant and seemed to be having a good time. However, defendant told several of his friends during the course of the party that he disliked, or didn't have "much use for", Pachaco and said he would like to kill him. Later in the evening, defendant took Feeney's shotgun and fired it at the clothesline three times. A deputy sheriff came to the trailer to investigate the disturbance, but he soon departed after talking to defendant.
Upon defendant's suggestion, everyone decided to leave the trailer and go to the Stroker Motorcycle Clubhouse, which was located in some woods near Wendover Avenue in Greensboro. Defendant had reasoned that they could make as much noise as they wanted to out there and get more beer besides. [It was approximately 10:00 p.m.] While everyone prepared to move, defendant quickly slipped out to a nearby trailer where he borrowed a shotgun. He returned with the gun and told Eanes to ride with Pachaco and Ausley to make sure they got to the clubhouse. The entire party then proceeded to the rendezvous in various vehicles, caravan style. En route, defendant retained the shotgun and told his companions that he was going to kill Pachaco and Ausley.
When the group arrived at the clubhouse, defendant opened the door while he continued to hold the shotgun. Once inside, the members of the party played games, drank beer and listened to music. Billy Stanley and Leslie Hearl left the company and went into an adjacent room to have sexual intercourse. While everyone else engaged in these various recreational activities, defendant sat silently behind the bar with the shotgun in his lap. Sometime later, defendant gave his knife to Eanes and instructed him to cut Pachaco's jugular vein and promised to back him up with the shotgun. Eanes attacked Pachaco but only succeeded in cutting him on the throat. Pachaco became emotional at this point but did not fight back. Ausley attempted to help Pachaco and was confronted by Eanes who threw a chair at him. At this point in the evening's events, the testimony of the eyewitnesses differed somewhat. Nevertheless, the overall weight of that testimony combined with the evidence of defendant's own pre-trial statements to law officers tended to show the following occurrences.
Immediately after the throat-slashing incident between Eanes and Pachaco, defendant raised the shotgun and pointed it at Pachaco. Pachaco told defendant, "I will go down laughing." Without saying a word, defendant shot him in the chest. Defendant then turned toward Ausley, whom he had never seen before that day. Ausley pleaded with defendant and said, "don't shoot me," "[n]o, not me." Defendant shot him anyway. Pachaco was still moaning. Defendant walked over to where he lay helpless on the floor and shot him again at point blank range just below the heart. Pachaco and Ausley died from the gunshot wounds. During the shootings, defendant had "a sort of grin" on his face.
Defendant, apparently with a full realization of what he had just done, walked outside to the porch of the clubhouse and told Feeney and Way that he had "blown away" two dudes. He then directed everyone to help him dispose of the bodies. The bodies were placed in an automobile which Eanes drove to Causey Street and abandoned in a ditch. Defendant did not return to his residence; instead, he went home with Stanley and Hearl. On the way, he told Stanley that he had killed Pachaco and Ausley because he "didn't have any use for people like that." Defendant was not upset and seemed to have no regrets about the murders. He went to sleep. The next day, Stanley and Hearl returned to the clubhouse at defendant's behest and cleaned up the blood on the floor. Another member of the Stroker motorcycle gang painted the steps to conceal bloodstains.
The bloody car and bodies of Pachaco and Ausley were discovered in the early morning hours of 19 October 1979. Defendant took a bus to California where he was subsequently arrested on 28 January 1980. Defendant waived extradition on 4 February 1980 and was picked up by two officers of the Greensboro Police Department two days later. During the flight back to North Carolina, defendant made a full confession to the murders. [He was advised of his constitutional rights and executed the required waiver form.]
Defendant presented no independent evidence during the guilt determination phase of the proceedings. The defense did, however, elicit evidence during cross-examination of prosecution witnesses tending to show that defendant was drunk when the killings occurred.
The jury found defendant guilty of two counts of first-degree murder. The State relied on its evidence presented during the guilt phase of the trial and did not offer additional evidence during the sentencing hearing. The State did, however, argue that the murders were especially heinous because defendant committed them for sport and amusement. In addition, the State contended that the killing of the eighteen-year-old Ausley was particularly despicable because defendant had shot him in cold blood as he begged and pleaded for his life. On the other hand, defendant offered much evidence in mitigation of his criminal acts, including the following facts: his youth; the divorce of his parents during his childhood; his chronic drug and alcohol abuse since the age of twelve; his leaving home at the age of thirteen (from that time on he had lived on his own); his low intelligence; his psychological problems of depression, conflicts in relationships and poor judgment; and his feelings of remorse over the killing of Ausley. In its instructions upon the sentencing phase of the case, the court submitted two aggravating circumstances for the jury's consideration: (1) the murders were especially heinous, atrocious or cruel G.S. 15A-2000 (e)(9); and (2) each murder was part of a course of conduct in which defendant committed a crime of violence against another person, G.S. 15A-2000 (e)(11). The court also submitted ten mitigating circumstances to the jury. The jury subsequently found one or more of the mitigating factors but also unanimously found them to be outweighed by the foregoing aggravating circumstances beyond a reasonable doubt. The jury therefore recommended imposition of the death penalty for both murders, and the court so ordered.
Additional facts, which become relevant to defendant's specific assignments of error, shall be incorporated into the opinion.
Defendant brings forward many assignments of error which he contends require a new trial of these crimes, or a new sentencing hearing, or both. We disagree and affirm the sentences of death imposed upon the jury's recommendations.
At the outset, we must note that defendant's appellate counsel filed a brief which is 109 pages long. A defendant who stands convicted in a capital case is, of course, entitled to effective and diligent advocacy in the presentation of his appeal. However, defendant's brief seems unduly lengthy and quite repetitious. Common sense dictates that there must be an end to what can be said in behalf of any cause and that good judgment and prudence should prevail in the legal art of brief-writing. Indeed, the volume of a brief should always be an accurate reflection of the substance of the arguments presented therein. We therefore exhort practitioners before this Court to seek excellence first, not excessiveness, in the preparation of briefs and remind them that the ability to be direct and concise is a formidable weapon in the arsenal of appellate advocacy. We now direct our attention to the merits of the case and address defendant's arguments in the order in which they appear in his brief.
The State was understandably forced to respond in like kind with a 90 page brief.
Our Rules of Appellate Procedure do not set a formal limit upon the length of a brief.
GUILT PHASE: I-V
Forty-two veniremen were examined over a period of five days before a jury of twelve was impanelled to try this case. During the selection process, the trial court excused eight prospective jurors for cause due to their stated opposition to the death penalty. Defendant contends that the trial court's action deprived him of his constitutional rights of due process and trial by jury. The record plainly refutes this argument.
The applicable constitutional standard permits the excuse of a potential juror for cause if it is established that he "would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case. . . ." Witherspoon v. Illinois, 391 U.S. 510, 522 at n. 21, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776, 785 (1968); see State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980). It is unmistakably clear that seven of the eight potential jurors were properly excused according to this standard after they each stated unequivocally that, even before hearing any evidence in the case, they could not under any circumstances impose the death penalty upon this defendant. State v. Oliver, 302 N.C. 28, 39-40, 274 S.E.2d 183, 191 (1981). It is equally clear that the remaining juror, Mary Neal, was also correctly removed from the panel when, after some initial equivocation, she finally stated that she did not "believe" that she could impose the death penalty regardless of the evidence. The court thereupon asked her, "Do I understand that you could not even before you hear the testimony under any circumstances, impose the death penalty?" Ms. Neal replied, "No, I just don't think so." Considering her answers contextually, we find that Ms. Neal expressed a sufficient refusal to follow the law, that of capital punishment, which might become applicable to the case. State v. Avery, 299 N.C. 126, 137, 261 S.E.2d 803, 810 (1980); see State v. Taylor, 304 N.C. 249, 266, 283 S.E.2d 761, 773 (1981).
The excuse of these jurors for cause did not deprive defendant of his constitutional rights to trial by a jury representing a cross-section of the community or due process of law. State v. A very, supra, 299 N.C. at 137-38, 261 S.E.2d at 810; State v. Cherry, supra, 298 N.C. at 106, 257 S.E.2d at 564. We would add, moreover, that the need for their excuse was manifest. It would have amounted to an absurdity and a mockery of our law to have permitted these jurors to sit on a case where imposition of the death penalty was an available sentencing option. For, if capital cases could be tried by juries which included persons firmly opposed to the maximum prescribed penalty sought by the State, the separate sentencing hearing mandated by G.S. 15A-2000 would almost certainly become a futile and meaningless exercise, contrary to the expressed will of our citizenry in the enactment of capital punishment legislation.
At trial, defendant contested the premeditation and deliberation elements of first degree murder primarily through the presentation of an intoxication defense. Defendant believes that he was unconstitutionally deprived of the substance of this defense by certain improper comments of the prosecutor and a series of erroneous rulings by the trial court. We are not so persuaded and overrule these assignments of error.
This "single" argument in defendant's brief really addresses four distinct issues (howbeit with a common denominator: the intoxication defense). Clarity of review is enhanced by the separate statement of each question and its corresponding argument. See N.C. Rules of Appellate Procedure, Rule 28 (b)(3) [Revised Rule 28 (b)(5) (Supp. 1981)].
(a) In his closing argument to the jury, the district attorney stated, in pertinent part, the following:
[E]ven if you want to conclude that Michael Pinch was drunk because he said in the statement some time that he was, he's still guilty because drunkenness is no defense. You have to be so drunk as to be utterly and totally incapable, unable to form the intent to kill and to carry that out; so drunk as to be unable, incapable of understanding the nature and consequence of your act. That is not present here. There is no way you can conclude that anybody was intoxicated to that extent — not on these facts.
. . . . . . .
You can't find it in your conscience and mind, your heart to dignify what happened out there and impartially excuse it on voluntary intoxication. It is not present on this evidence. I suggest to you that there is not even ample evidence to find that he was intoxicated or drunk. . . . No drugs in this case. Beer. Just beer. You just — you can't let him sell that to you. It is not there. It didn't happen. Nobody could have been intoxicated to the extent that the law requires and do what he did in the manner he did it. There just simply — it is offensive to reason and common sense. It stinks to high heaven. (Record at 241, 250.)
We can perceive no error in this. Contrary to defendant's assertions, the district attorney correctly conveyed the substance of the law of intoxication to the jury. See State v. Goodman, 298 N.C. 1, 12-14, 257 S.E.2d 569, 578-79 (1979). In addition, although some of the foregoing comments were colorful in terminology, we find that as a whole the remarks were compatible with the evidence in the case and that the district attorney was certainly authorized to argue to the jury that the facts did not support a credible defense of intoxication. See State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974), death sentence vacated, 428 U.S. 902, 96 S.Ct. 3203, 49 L.Ed.2d 1205 (1976).
Under this argument heading in the brief, appellate counsel improperly listed several other exceptions to remarks of the district attorney which were unrelated to the intoxication defense. Such exceptions are not pertinent to the precise question stated. See Rule 28 (b)(3), supra, note 3. Five of these exceptions are argued again under assignment of error no. 27 which is reviewed in Part V of the opinion, infra. With regard to the remaining "irrelevant" exceptions presented here, it suffices to say that the comments, which were not objected to at trial, did not transcend the permissible bounds of argument in hotly contested cases and certainly did not amount to gross improprieties in any event. See State v. Lynch, 300 N.C. 534, 268 S.E.2d 161 (1980); State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979).
(b) We likewise believe that the trial court's instructions upon the intoxication defense were entirely correct. The record shows that the able judge carefully explained the law in every respect in accordance with the decisions of this Court. See State v. Propst, 274 N.C. 62, 161 S.E.2d 560 (1968); N.C.P.I. — Crim. 305.10 (1970). See also 4 Strong's N.C. Index 3d, Criminal Law 6 (1976). We also reject defendant's argument that the judge improperly shifted the burden to defendant to disprove his capacity to form a specific intent to kill after premeditation and deliberation. Viewed as a whole, the judge's charge was not reasonably susceptible of such an erroneous interpretation.
(c) Defendant contends that the trial court erred in denying his pre-trial motion for an order directing the district attorney to make the State's eyewitnesses "available" for interviews with a medical expert who had been appointed to assist in the preparation and evaluation of an intoxication defense. It should be recognized at once that nothing in our statutory discovery provisions would require the State to compel its witnesses to submit to any form of interview or questioning by the defense prior to trial; in fact, the State does not even have to afford the defense pretrial access to a list of its potential witnesses or copies of any statements they may have made. See G.S. 15A-903 and 15A-904; State v. Lake, 305 N.C. 143, 286 S.E.2d 541 (1982); State v. Abernathy, 295 N.C. 147, 244 S.E.2d 373 (1978). Nevertheless, it is true that a prosecutor has an implicit duty not to obstruct defense attempts to conduct interviews with any witnesses; however, a reversal for this kind of professional misconduct is only warranted when it is clearly demonstrated that the prosecutor affirmatively instructed a witness not to cooperate with the defense. State v. Mason, 295 N.C. 584, 587-88, 248 S.E.2d 241, 244 (1978), cert. denied, 440 U.S. 984, 99 S.Ct. 1797, 60 L.Ed.2d 246 (1979); State v. Covington, 290 N.C. 313, 343, 226 S.E.2d 629, 649 (1976).
This record contains no such showing. The only indication of possible prosecutorial misbehavior is the bare allegation of defense counsel in the motion that the district attorney had told him of his specific refusal to allow the interviews in question. We find nothing in the record to substantiate this claim nor any evidence tending to show that defense counsel actually approached the potential witnesses for the stated purpose only to be rejected on account of the district attorney's prior, direct instructions to them against their cooperation. Defendant has therefore failed to present adequate grounds for reversal. State v. Mason, supra. In addition, the bare summary of the proceedings held by the court upon the motion make it plain that the witnesses themselves refused to talk with the defense expert on the advice of their own individual attorneys. Record at 51. Under these circumstances, neither the State nor the trial court had the power to interfere with the attorney-client privileges of the witnesses or to jeopardize their own future defenses. Viewed in this light, it would have been a vain act indeed for the trial court to order the State to provide the defense with something which was, for all practical purposes, completely unavailable.
The witnesses sought by the defense to construct its intoxication theory were the persons who were present during the commission of the murders (and participated in the concealment thereof).
In this context, the trial court did all that it could reasonably do by initially providing the defense with $1500 in state funds to hire the medical expert. In denying the motion to compel the interviews, the court reminded the defense that the same necessary information could be obtained if the expert attended the trial and listened to the witnesses' actual testimony. If, as it is suggested, the additional cost of the psychiatrist's time to do just that was prohibitive, defense counsel could have taken notes upon the testimony or relayed a transcript to the doctor for his formulation of an opinion upon the extent of defendant's impairment from intoxication at the time of the killings. We conclude that the denial of the motion did not deprive defendant of effective assistance of counsel or a fair trial. See also State v. Williams (I), 304 N.C. 394, 404-06, 284 S.E.2d 437, 445-46 (1981).
It should perhaps be mentioned that the motion for the "pre-trial" interviews was actually filed after the jury selection process had already begun and only three working days before the full trial of the matter actually commenced. [In fact, the trial court heard and denied the motion on the very first day of the trial.]
(d) We must now consider whether defendant's constitutional rights of confrontation and due process were unlawfully restricted by the trial court's sustension "of the prosecutor's objections to the defendant's cross-examination of the State's witnesses concerning the amount of beer drunk by the defendant, his level of intoxication and the nature of his behavior. . . ." Defendant's Brief at 30. Our review is governed by the well-established rule that the scope of cross-examination rests largely within the discretion of the trial court, and its rulings thereon will not be disturbed absent a clear showing of abuse or prejudice. State v. Atkins, 304 N.C. 582, 585, 284 S.E.2d 296, 298 (1981) (and authorities there cited). Defendant has failed to demonstrate error in the trial court's rulings; consequently, we overrule all of the pertinent underlying exceptions listed in defendant's brief.
Exceptions nos. 42, 45 and 50 bear no rational relationship to the argument concerning the "impairment" of the intoxication defense. See Rule 28 (b)(3), supra note 4. We have nonetheless reviewed these exceptions and find that the prosecutor's objections were properly sustained within the trial court's discretion. Exception no. 42 involved a question which was argumentative and irrelevant. Exceptions nos. 45 and 50 involved questions which sought impermissible conclusions from the witnesses about matters which were not within the realm of their personal knowledge. See 1 Stansbury's N.C. Evidence 122, at 384-85 (Brandis rev. 1973).
In several instances, the witnesses actually answered the questions of defense counsel despite the prosecutor's objections and the trial court's sustension thereof (exceptions nos. 27, 28, 48A). The prosecutor did not move to strike the answers, and the trial court did not admonish the jury to disregard them. Thus, defendant effectively received the benefit of the evidence sought after, and he has no corresponding cause for complaint on appeal. State v. Hopkins, 296 N.C. 673, 252 S.E.2d 755 (1979).
In another instance, defense counsel attempted to ask an expert medical witness on recross-examination whether the victims were legally intoxicated at the time of their deaths (exception no. 35). We believe that this question concerned irrelevant matters which had no logical tendency to prove a fact in issue at defendant's trial for murder. See 1 Stansbury's N.C. Evidence 77, at 234 (Brandis rev. 1973). The relevant issue at trial was whether defendant was too intoxicated to form the specific intent to commit murder in the first degree. Obviously, the nature of his criminal acts was not diminished according to the sobriety or drunkenness of the unfortunate victims. Nevertheless, even assuming that this evidence had some degree of relevancy, however slight, it is unquestionably clear that defendant was not prejudiced by its exclusion on recross-examination when the doctor had already repeatedly stated during his direct, cross and redirect examinations that the blood alcohol levels of both victims indicated their intoxication at death.
The remaining exceptions argued herein by defendant are equally meritless. Exceptions no. 40 and 41 concerned defense counsel's questioning of the witness Eanes about whether he was "influenced by the alcohol [he] had drunk" on the night of the murders. Exception no. 44 related to the overly broad and legally ambiguous question to Eanes about whether he had ever seen defendant when he was not "high" on drugs or alcohol. Exception no. 48 involved a question as to whether defendant and Billy Wayne Stanley were "drunk" when they "mooned" an officer earlier in the evening of the murder (at the trailer). The trial court did not abuse its discretion in sustaining the prosecutor's objections to these questions, and its rulings thereon did not improperly hinder defendant's efforts to present his intoxication defense. None of the questions sought to elicit relevant information having a direct bearing upon defendant's intoxication impairment at the time he committed the murders. Moreover, none of the questions were competently framed to elicit a witness's opinion about defendant's general intoxication based upon the precise legal meaning of that term. See, e.g., State v. Carroll, 226 N.C. 237, 239-240, 37 S.E.2d 688, 690-91 (1946).
The jury was advised by both the prosecutor, in his closing argument, and the trial court, in its final instructions, that the elements of malice and unlawfulness were implied in an intentional killing with a deadly weapon. Defendant maintains that his constitutional right to trial by jury was violated because the jury was not also simultaneously informed that it was not compelled to infer malice and unlawfulness, as the presumption of their existence was rebuttable. See, e.g., State v. Hutchins, 303 N.C. 321, 346, 279 S.E.2d 788, 804 (1981). Upon this record, defendant's position offends reason and is untenable.
The significant and controlling fact in this case is that defendant, through his trial counsel, conceded his guilt of the second degree murders of Pachaco and Ausley. Defense counsel stated in his closing argument to the jury:
Defendant only contested his guilt of the more grievous offenses, that of murders in the first degree, with the requisite premeditation and deliberation.
When we started the case in selecting the jury, we told you — and also in opening remarks . . . that we were not contesting the fact that this young man over here killed two people intentionally with malice. That's never been at issue in this case. He's guilty of second-degree murder. We've admitted that all along. The State has proved it to you, but they didn't really have to. We admitted that.
. . . . . . . .
. . . [W]e're admitting the intentional killing and the malice involved in this thing. . . .
. . . . . . . . .
. . . He's guilty of second-degree murder, two of them. (Record at 226, 236). In light of defendant's own affirmative admissions of the existence of malice and unlawfulness in his commission of two "second degree" murders, there could not possibly be any constitutional transgressions or prejudice in the remarks of either the prosecutor or the trial court concerning the presumption of the existence of those very same elements in the charges of first degree murder. "The State is not required to prove malice and unlawfulness unless there is some evidence of their non-existence. . . ." State v. Simpson, 303 N.C. 439, 451, 279 S.E.2d 542, 550 (1981); State v. Hankerson, 288 N.C. 632, 650, 220 S.E.2d 575, 588 (1975), rev'd on other grounds, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1976). See also Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); State v. White, 300 N.C. 494, 268 S.E.2d 481 (1980). Moreover, it is evident from the record that the use of the presumption did not alleviate in any manner the State's overall burden of proving the existence of every element of first degree murder beyond a reasonable doubt. The assignment of error is overruled.
Dr. John D. Butts, a forensic pathologist, performed the autopsies of the victims and testified at trial about the causes of their deaths. In the course of his testimony, Dr. Butts identified ten photographs as accurately depicting the appearance of the bodies at the time of his examinations. The State then introduced the photographs as exhibits (over defendant's objections). The trial court instructed the jury that it could consider the exhibits only for limited illustrative purposes, not as substantive evidence of guilt. As the jury viewed each photograph, Dr. Butts again identified its subject and explained the nature of the body's appearance as shown. Defendant argues that the introduction of these gruesome photographs and the repetitive testimony connected therewith effectively deprived him of a fair adjudication of his guilt and a fair sentencing hearing. Defendant believes that, since he "readily admitted that he killed both victims with gunshot wounds," there was no legitimate purpose or need for the use of the photographs and that they only served to inflame the passions of the jury to his decided prejudice. We disagree.
The record clearly shows that the photographs were properly introduced according to our rules of evidence. See State v. Marshall, 304 N.C. 167, 282 S.E.2d 422 (1981); State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980). The illustrative relevancy of the photographs, which directly corresponded to Dr. Butts' testimony, was not nullified by defendant's "stipulation" as to the cause of the deaths. See State v. Elkerson, 304 N.C. 658, 285 S.E.2d 784 (1982). In addition, the actual number of the photographs of the two bodies was not impermissibly excessive under the circumstances of this case. See State v. Sledge, 297 N.C. 227, 254 S.E.2d 579 (1979). Finally, the probative force of these depictions of the unattractive markings of the victims' violent deaths (as seen by the medical examiner) was not outweighed by their tendency to repulse the sensibilities, or to arouse the sympathy, of the viewer. Compare State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969).
Defendant assigns as error the district attorney's numerous references to facts outside the record during his closing argument to the jury during the guilt phase. No objection was interposed at trial to any of the alleged instances of misconduct. Despite trial counsel's laxity, the State's argument in capital cases is subject to limited appellate review for the existence of gross improprieties which make it plain that the trial court abused its discretion in failing to correct the prejudicial matters ex mero motu. State v. Smith, 294 N.C. 365, 377-78, 241 S.E.2d 674, 681-82 (1978) (and authorities there cited). Considering them contextually and according to the evidence in the case, we hold that the statements challenged here were not extremely or grossly improper.
First, there was nothing wrong with the district attorney's remarks about defendant's enjoyment of the killings. Such comments were supported by the evidence and the reasonable inferences therefrom. See State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975). For example, Billy Wayne Stanley testified that defendant had a grin on his face when he shot the victims, and Officer Fuller testified that defendant had told him that his only regret about the death of Pachaco was that he would not be able to kill him again. Second, the district attorney's statements describing what defendant must have been thinking as he sat quietly behind the bar holding the shotgun were not so prejudicial that the trial court was required to take corrective action even in the absence of an objection. See State v. King, 299 N.C. 707, 711-13, 264 S.E.2d 40, 43-44 (1980). Third, and finally, we perceive no gross error in the following "comparisons" made by the State: "You've got to understand the nature of the animal you're dealing with here. I'm not a zoologist, but I don't know of a single living species on this planet that kills for pleasure. Tigers kill to eat, sharks kill to eat. Michael Pinch kills for pleasure. Think about that." Record at 250. This uncomplimentary and disparaging characterization of defendant was entirely warranted by the evidence, State v. Ruof, 296 N.C. 623, 252 S.E.2d 720 (1979); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), death sentence vacated, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d 761 (1972).
SENTENCING PHASE: VI-XIX
Defendant again maintains that the district attorney improperly injected facts outside the record into his jury argument — this time during the sentencing phase of the trial. The scope of argument at the sentencing hearing is governed by the same general rules that apply to argument during the guilt proceedings; consequently, when the remarks challenged on appeal were not objected to at trial, the alleged impropriety must be glaring or grossly egregious for this Court to determine that the trial judge erred in failing to take corrective action sua sponte. See State v. Johnson, 298 N.C. 355, 368-69, 259 S.E.2d 752, 760-61 (1979). The prosecutorial expressions attacked in this appeal do not fall within the realm of reversible transgressions.
All three of the exceptions set out in the brief under this assignment of error concern the district attorney's statements that the murders were especially despicable, heinous and cruel because defendant executed the victims for sport, recreation and the amusement of his friends. We have already held in part V of the opinion, supra, that the evidence in the case reasonably supported a conclusion that defendant enjoyed committing these crimes. That being so, it is clear that the district attorney's further extrapolations at sentencing about the unusually callous and playful nature of defendant's murderous acts were also legitimate under the evidence and were not extreme or prejudicial per se.
Defendant offered much evidence in mitigation of his acts during the penalty phase. In several instances, however, the trial court excluded certain evidence upon the prosecutor's objections. Defendant argues that the trial court thereby deprived him of due process and the right to be free from cruel and unusual punishment.
Defendant's contentions must be examined against the backdrop of our capital punishment statute which provides, in conformity with the constitutional mandates of the Eighth and Fourteenth Amendments, that any evidence may be presented at the separate sentencing hearing which the court deems "relevant to sentence" or "to have probative value," including matters related to aggravating or mitigating circumstances. G.S. 15A-2000 (a)(3); see Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The circumstances of the offense and the defendant's age, character, education, environment, habits, mentality, propensities and criminal record are generally relevant to mitigation; however, the ultimate issue concerning the admissibility of such evidence must still be decided by the presiding trial judge, and his decision is guided by the usual rules which exclude repetitive or unreliable evidence or that lacking an adequate foundation. See State v. Johnson, 298 N.C. 355, 367, 259 S.E.2d 752, 760 (1979); State v. Cherry, 298 N.C. 86, 98-99, 257 S.E.2d 551, 559 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980). See also State v. Goodman, 298 N.C. 1, 30-31, 257 S.E.2d 569, 588 (1979). Consequently, we believe that a new sentencing hearing should not be ordered by this Court for the trial judge's exclusion of evidence at the penalty phase unless the defendant demonstrates the existence of patent, prejudicial error. No such showing has been made here.
This does not mean that the evidentiary rules which normally apply at the guilt phase of the trial should also apply with equal force in the sentencing phase. Evidentiary flexibility is encouraged in the serious and individualized process of life or death sentencing. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). However, as in any proceeding, evidence offered at sentencing must be pertinent and dependable, and, if it passes this test in the first instance, it should not ordinarily be excluded. G.S. 15A-2000 (a)(3), supra; see Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979).
Specifically, defendant argues that the trial court's sustension of various objections by the prosecutor thwarted his attempts to inform the jury about his "growing awareness of the uselessness of his life up to that point, the pain he caused others, a growing sense of maturity and feelings of remorse and regret." Defendant's Brief at 53. We find that, although some evidence was indeed excluded, the record as a whole is replete with evidence of these matters, and defendant suffered no prejudice whatsoever from the trial court's rulings.
It is true that the trial court sustained an initial and single objection to defendant's testimony about his current feelings of remorse over Pachaco's death; nevertheless, defendant thereafter proceeded to testify in detail about his change in heart and regret without further objection by the prosecutor. Record at 278-79. In addition, Dr. Royal, a forensic psychiatrist, testified about defendant's expressed remorse over Ausley's death. Record at 285. Since substantial evidence of defendant's regrets had already been received, it was not error for the court to exclude (upon objection) further testimony upon the same subject by the witness Sherry Olivey. In any event, defendant later succeeded in introducing more evidence about his repentant statements since the killings through the testimony of his sister and mother. Record at 289, 291-92. We likewise find no reversible error in the trial court's limited admission of defendant's five proffered exhibits consisting of letters he had written to his mother while he was incarcerated pending trial. These letters added little to the in-court testimony of defendant and his witnesses about his present awareness of what he had done and his sorrow for it. Even so, the trial court permitted defendant's mother to read to the jury all of exhibit five and portions of exhibits three and four in which defendant had essentially stated, both in prose and poem, that it hurt him to know that he was capable of taking another's life, that he was living for the future and cleaning up his act, and that he had a mature and sincere desire to fulfill his part in life and society properly. Record at 297-99. The letters totally excluded by the court, exhibits one and two, merely repeated the same things, howbeit using different words or examples, about his remorse and his wish to be a better person. Moreover, these two letters included much material which plainly was not relevant to sentencing, i.e., his apologies to his mother for not having been a better son to her despite her good efforts and his rambling philosophical questionings about why he had turned out to be so bad.
Defendant also maintains that the trial court erred in not permitting Sherry Olivey to testify about the circumstances of his various hospitalizations for drug overdoses. We disagree. Ms. Olivey testified that she knew of occasions where defendant had taken a drug overdose and that she had visited him in Cone Memorial Hospital three months after the crimes. Certainly defendant's habits regarding alcohol and drug misuse were relevant mitigating factors for the jury's consideration; however, the precise details of his particular overdoses were not pertinent to his sentencing. It was enough that the jury was informed by Ms. Olivey that:
I can honestly say that he [defendant] drank or took something every day that I've known him [two years] . . . . He always went to the max on everything to where he couldn't walk anymore or was passed out. I have seen him when he has gone too far in the use of alcohol or the use of drugs. I have seen him take alcohol or drugs to the point where he is unconscious or in some state like that. Record at 286-87.
Defendant finally challenges the trial court's refusal to admit certain expert testimony. These contentions lack merit. The court correctly sustained the prosecutor's objection to defense counsel's attempt to elicit an opinion from a psychiatrist about whether defendant "would be able to adjust to life in prison." Such an opinion would have concerned a matter totally irrelevant to sentencing. Defendant stood convicted of two first degree murders. Regardless of his ability to adjust to prison life, by law, defendant was already subject to the mandatory imposition of life imprisonment for those crimes. See G.S. 14-17; G.S. 15A-2000 (a)(1), 15A-2002. The issue to be determined by the jury at the penalty phase was not whether defendant would prove to be a "good" prisoner but whether the overall nature of the murders and defendant's attendant acts warranted imposition of the maximum available penalty — death in the gas chamber. The trial court also properly excluded the opinion of another psychiatrist about defendant's blood alcohol levels at the time of the shootings. Clearly, such evidence would have been relevant; however, as the doctor plainly admitted that he could not render an opinion within a reasonable degree of medical certainty, the evidence was unreliable and lacked probative value.
Even assuming that defendant's ability to cope in prison had some slight relevancy to his sentencing, we would still hold that the psychiatrist's opinion was properly excluded because there was an insufficient foundation in the record for a conclusion that he was better qualified to have an opinion on this subject than the jury. There was no evidence specifying the doctor's special experience with the prison environment, and the question posed to him essentially requested nothing more than his speculations about defendant's future prison "performance" based merely upon his observations of defendant's behavior in a mental hospital for three and a half weeks.
In sum, defendant is not entitled to a new sentencing hearing upon the ground that the foregoing classes of evidence were erroneously restricted or rejected by the trial court.
At the penalty phase, defendant testified that he had been drinking alcohol and taking or injecting all kinds of illicit drugs since he was fourteen years old. He also stated that he had been consuming approximately twelve beers a day for the three years preceding the murders. Obviously, this testimony tended to bolster defendant's evidence of mitigating circumstances. The prosecutor responded by cross-examining defendant about where he got the money to buy all the beer and drugs which he said he had taken every day for five years. Defendant answered that he had money even though he had not been employed. The prosecutor repeatedly asked defendant to identify the specific source of that money, but defendant only replied, "I just got it." The prosecutor finally asked him, "Who did you steal from?" The trial court sustained defense counsel's immediate objection to the question. Defendant complains that the prosecutor's persistent questioning about the money improperly suggested to the jury that he must have committed other criminal offenses to support his habits. On the whole, we find no prejudicial error.
As a general matter, the truthfulness of any aspect of any witness's testimony may be attacked on cross-examination. See 1 Stansbury's N.C. Evidence 39-40 (Brandis rev. 1973). This basic rule applies to all trial proceedings, including both the guilt and sentencing phases in capital cases. Thus, it is clear that the prosecutor could properly attempt to impeach defendant's testimony about the actual extent of his destructive habits. Defendant's ability to afford the necessary items certainly bore upon the credibility of his self-serving statements about their constant use.
In addition, the persistent nature of the prosecutor's questioning was not abusive in light of defendant's evasive and unresponsive answers. The scope and fairness of the cross-examination was a matter left to the sole discretion of the trial judge, and the prosecutor had a right to sift or press defendant in order to get a direct and clear response. See State v. Williams 303 N.C. 142, 147, 277 S.E.2d 434, 438 (1981); State v. Currie, 293 N.C. 523, 529, 238 S.E.2d 477, 481 (1977).
On the other hand, however, it seems that defendant's objection to the prosecutor's inferential inquiry about the stealing was well taken. The question amounted to a speculative insinuation of prior criminal conduct with no ascertainable good faith factual basis. See State v. Shane, 304 N.C. 643, 651, 285 S.E.2d 813, 818 n. 3 (1982). Still, it was a single impropriety, and this case is, therefore, markedly different from State v. Phillips, 240 N.C. 516 82 S.E.2d 762 (1954), where the prosecutor cross-examined the defendant in detail about seventeen unproved accusations of prior misconduct. Thus, we hold that the trial court's prompt sustension of defendant's objection to the disapproved question sufficiently averted any prejudice to defendant. See State v. Williams supra, 303 N.C. at 147, 277 S.E.2d at 438.
Defendant assigns further error to the district attorney's jury argument during the sentencing phase. We have already overruled several of the same supporting exceptions in Part VI of the opinion, supra, where we set forth the controlling standard of review of any jury argument which is not objected to at trial. To avoid redundancy, we shall not plow those rows again, instead, we shall limit our review to a consideration of the additional exceptions presented here.
We are compelled to question appellate counsel's organizational rationale for raising further challenges to the sentencing argument here when, logically, all contentions of this type should have been argued together in the same portion of the brief.
Let us begin by saying that prosecutorial statements are not placed in an isolated vacuum on appeal. Fair consideration must be given to the context in which the remarks were made and to the overall factual circumstances to which they referred. Moreover, it must be remembered that the prosecutor of a capital case has a duty to pursue ardently the goal of persuading the jury that the facts in evidence warrant imposition of the ultimate penalty. G.S. 15A-2000 (a)(4); State v. Myers, 299 N.C. 671, 680, 263 S.E.2d 768, 774 (1980); State v. Johnson, 298 N.C. 355, 367, 259 S.E.2d 752, 760 (1979); State v. Westbrook, 279 N.C. 18, 37, 181 S.E.2d 572, 583 (1971), death sentence vacated, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d 761 (1972).
In this case, it is evident that the district attorney argued for capital punishment of defendant's murder convictions with much vim and vigor. Record at 306-10. Contrary to defendant's assertions, however, we do not believe that the district attorney's zeal caused him to overstep the bounds of permissible argument. Examining his statements in their complete context, we are convinced that he did not say anything which would amount to a gross impropriety. His comment that defendant was "not Jack the Ripper yet" was tempered by the prior explanation to the jury that it could consider any facts or circumstances which it deemed to have mitigating value, including defendant's admitted lack of significant criminal history. The district attorney's expressions concerning his belief in the death penalty and the propriety of its imposition in the case must be weighed with his frequent reminders to the jury that it would have to determine what the appropriate punishment should be. Compare State v. Smith, 279 N.C. 163, 181 S.E.2d 458 (1971). The characterization of defendant's mind as a "cesspool" cannot be deemed unfair in light of defendant's own admissions that he killed the victims intentionally and maliciously simply because Pachaco had wrongfully worn the insignia or emblem of a motorcycle gang sometime in the past. The statement to the jury that it would not have hesitated to give defendant his "just reward" right there on the spot if it had actually witnessed the murders, although disapproved by us, was not an inflammatory invitation for the jury to act like a lynch mob. The district attorney noted that the law did not work that way. His comment was a colorful attempt to emphasize the cruelty and callousness with which defendant killed the victims. Finally, there was nothing inherently prejudicial in the district attorney's complaints about how he could not bring in family members to testify about the "trials and travails" of Pachaco's life, in contrast to all of the evidence about defendant's family and personal history received in mitigation. The district attorney was merely reminding the jury that, although it did not know much about him, it should also carefully consider the value of the victim's life in making its life or death decision about defendant.
For example, the district attorney stated: I don't know what you will conclude is appropriate. I suggest to you, with all due respect, that the conduct is appropriate to be rewarded with the ultimate sanction that our law provides. We're all people of great ability and conscience, and I ask you to consider what is appropriate for this act. Consider what is justice for Michael Pinch and for what he did. Consider the two dead boys that he left in his wake.
X. — XI
Defendant tendered in writing the following ten circumstances in mitigation:
1. The defendant has no significant history of prior criminal activity.
2. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.
3. The age of the defendant at the time of the crime.
4. The defendant voluntarily admitted his culpability immediately after his arrest and cooperated with police efforts to clarify the evidence in these cases and other pending cases arising out of the incident.
5. The defendant since his incarceration has appreciated the severity and error of his conduct.
6. The defendant since his incarceration has ceased the use of alcohol and drugs and is able to function with more maturity and responsibility.
7. The defendant lacks education and has a relatively low mentality.
8. The environment in which the defendant lived until the time of his arrest was infused with violence and accepted violence as an [sic] problem-solving technique.
9. The defendant's childhood history, background, and record shows no indication of a habitually violent nature.
10. Any other circumstances or circumstances arising from the evidence which you, the jury deem to have mitigating value. Record at 275.
With the exception of the last portion of number seven regarding defendant's "relatively low mentality," the trial court honored defendant's request and submitted all ten of these mitigating factors to the jury. Defendant argues that the trial court thereby erred in two ways: (1) in failing to submit his low mentality in mitigation as requested and (2) in failing to submit upon its own motion the additional statutory mitigating circumstance of G.S. 15A-2000 (f)(2), i.e., that he committed the murders while he was "under the influence of mental or emotional disturbance." We conclude that defendant's contentions cannot be sustained on this record.
This Court has previously established instructive guidelines for the trial judges of our State to follow in the submission of mitigating circumstances, including those which arise upon the evidence in a given capital case as well as those specified in G.S. 15A-2000 (f). First, in State v. Goodman, we held that, although the jury's consideration of any factor relevant to the circumstances of the crime or the character of the defendant may not be restricted the trial court "is not required to sift through the evidence and search out every possible circumstance which the jury might find to have mitigating value," especially when the trial court instructs the jury upon the open-ended provision of G.S. 15A-2000 (f) (9) and thus does not hinder it from evaluating on its own anything of mitigating value. 298 N.C. 1, 33-34, 257 S.E. 569, 589-90 (1979). Second, in State v. Johnson, we held that the trial court must include additional factors, which are timely requested by the defendant, on the written list submitted to the jury if they are "supported by the evidence, and . . . are such that the jury could reasonably deem them to have mitigating value. . . ." 298 N.C. 47, 72-74, 257 S.E.2d 597, 616-17 (1979) (emphasis added). Third, in State v. Hutchins, we held that, although the trial court has a fundamental duty to declare and explain the law arising upon the evidence, it is not required to instruct upon a statutory mitigating circumstance sua sponte unless defendant, who has the burden of persuasion, brings forward sufficient evidence of the existence of the specified factor. 303 N.C. 321, 355-56, 279 S.E. 788, 809 (1981); see State v. Taylor, 304 N.C. 249, 277, 283 S.E.2d 761, 779 (1981).
The rules of the foregoing cases are sound and practical, and we therefore exhort our trial judges to adhere to them carefully when presiding over the trial of capital cases. Moreover, we must also point out that common sense, fundamental fairness and judicial economy dictate that any reasonable doubt concerning the submission of a statutory or requested mitigating factor be resolved in the defendant's favor to ensure the accomplishment of complete justice at the first sentencing hearing. Nevertheless, the same standard of appellate review continues to apply whether the trial court commits error at the guilt phase or the penalty phase; thus, a new sentencing hearing will not be ordered for the erroneous failure to submit a mitigating circumstance if that error was harmless beyond a reasonable doubt. G.S. 15A-1443 (b); see State v. Williams (I), 304 N.C. 394, 425-26, 284 S.E.2d 437, 456-57 (1981 ) (erroneous submission of aggravating circumstance was prejudicial and required new sentencing hearing); State v. Taylor, supra, 304 N.C. at 285-88, 283 S.E.2d at 783-85 (erroneous submission of aggravating circumstance was not prejudicial).
The sum of the matter is this — a defendant demonstrates reversible error in the trial court's omission or restriction of a statutory or timely requested mitigating circumstance in a capital case only if he affirmatively establishes three things: (1) that the particular factor was one which the jury could have reasonably deemed to have mitigating value (this is presumed to be so when the factor is listed in G.S. 15A-2000 (f)); (2) that there was sufficient evidence of the existence of the factor; and (3) that, considering the case as a whole, the exclusion of the factor from the jury's consideration resulted in ascertainable prejudice to the defendant. The defendant in the instant case fails this three-prong test for a new sentencing hearing.
We first analyze defendant's request for an instruction upon his "relatively low mentality." This factor is not listed in G.S. 15A-2000 (f); however, our cases plainly indicate that the mentality of a defendant is generally relevant to sentencing and that it can, with supporting evidence, be properly considered in mitigation of a capital felony. See State v. Johnson, 298 N.C. 355, 367, 259 S.E.2d 752, 760 (1979), and part VII of the opinion, supra. In this case, a psychiatrist testified that defendant had scored 66 on an intelligence test. This fact unquestionably related to defendant's mentality, and we believe that defendant would have been entitled to an instruction about his specific intelligence quotient if he had tendered a properly worded request therefor. See, e.g., State v. Williams, 304 N.C. 394, 401, 284 S.E.2d 437, 443 (1981); State v. Rook, 304 N.C. 201, 211 n. 1, 283 S.E.2d 732, 739 (1981), cert. denied, 455 U.S. 1038, 81 S.Ct. 6143, 72 L.Ed.2d 155 (1982). However, we do not believe that defendant's evidence adequately authorized the submission of the instruction he did request which used the terms "relatively low mentality." In this regard, the psychiatrist testified that defendant's "other tests indicated that his I.Q. was probably a little higher than  and fell at least into the low-normal range of intelligence." Although we are not schooled in the medical art of psychiatry, we think that one would not commonly understand low to normal intelligence to be reasonably synonymous with relatively low mentality. Consequently, we hold that the trial court did not err in refusing to instruct the jury in this respect. In any event, the omission could not have possibly been prejudicial since the trial court told the jury it could evaluate "[a]ny other circumstances or circumstances arising from the evidence which you, the jury deem to have mitigating value." G.S. 15A-2000 (f)(9).
For similar reasons, we reject defendant's contention that the trial court erred in not instructing upon a statutory mitigating circumstance sua sponte. The evidence simply did not support the submission of G.S. 15A-2000 (f)(2). The psychiatrist testified that defendant had "psychological problems" and was "a very passive person that exhibits some chronic depression in terms of how he functions in life." He also stated that defendant was "not basically a violent person" and that there was no evidence "that he was an angry acting out type person that you ordinarily find in people that are prone to violence." On cross-examination, the psychiatrist further explained the results of his examination of defendant as follows:
I also found no evidence of any thought disorder. I found his memory to be adequate and his perception to be adequate. I found that he was always oriented as the time, place and person. I would classify his depression as mild depression. I believe that part of his depression would be caused by the incarceration and facing two charges of murder in the first degree. I did not find any evidence of the type of anger that you normally find in people of these subculture groups.
Record at 283-86 (emphases added). This evidence did not, in our opinion, sufficiently show that defendant was somehow under the influence of a mental or emotional disorder at the time he committed the murders. We also have serious doubts as to whether "some" "mild" "chronic depression" qualifies as a bona fide mental or emotional disturbance under our capital punishment statute. Compare State v. Taylor, supra (evidence that defendant had "paranoid psychosis"); State v. Rook, supra (psychiatrists gave direct opinions that defendant had a mental disorder or illness); State v. Johnson, supra (defendant was diagnosed as schizophrenic). Again, even assuming that the trial court should have instructed upon G.S. 15A-2000 (f)(2), its failure to do so did not constitute prejudicial error since the jury could have elected to consider this factor pursuant to the trial court's instruction upon G.S. 15A-2000 (f)(9).
The trial court submitted each of the two killings as an aggravating circumstance for the other under the "course of conduct" provision of G.S. 15A-2000 (e)(11). Defendant argues that this kind of reciprocal aggravation to enhance his punishment for both crimes constituted double jeopardy and deprived him of due process of law. For a precise understanding of the issue raised by defendant, we quote from his brief as follows:
G.S. 15A-2000 (e)(11) lists the following factor for the jury's consideration: "The murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons."
Defendant's motion to file a supplemental brief on this question was allowed by the Court on 8 March 1982. We shall address defendant's contentions as they are presented in that amplified brief.
In summary, the defendant's claim in this case . . . is that the prosecution faced with two homicides committed by the same person in the same "course of conduct" must choose between two options. The prosecution may use one of the homicides as an aggravating circumstance under 15A-2000 (e)(11) to support the increased penalty of death for the other. The prosecution may seek a separate conviction for each of the homicides, in which case a death penalty for either must be based on aggravating factors that do not include the other homicide. The double jeopardy clause prohibits the prosecution from using both options, i.e., from obtaining a substantive conviction for a homicide and then using it again as an aggravating circumstance under 15A-2000 (e)(11) to support punishment by death for the other killing. Defendant's Supplemental Brief at 4.
To the contrary, we find no constitutional authority mandating a conclusion by us that the submission of G.S. 15A-2000 (e)(11) in aggravation of both murders violated defendant's protection against double jeopardy, and we decline to adopt a position which would prevent the administration and availability of equal justice for equal crimes.
We reach the same conclusion in another death penalty case filed by our Court today: State v. Williams (II), 305 N.C. 656, 292 S.E.2d 243 (1982). In Williams (II), the defendant was tried separately in two counties for two murders. Each murder was submitted as reciprocal aggravation for the other under G.S. 15A-2000 (e)(11) at defendant's separate trials. See State v. Williams (I), 304 N.C. 394, 284 S.E.2d 437 (1981).
In the instant case, defendant killed two persons at the same place and within minutes of each other. The capital charges were tried together pursuant to defendant's own motion for joinder. The jury found defendant guilty of murder in the first degree, upon the theory of premeditation and deliberation, on both counts. The State was thereupon entitled to seek the death penalty for each murder, and it properly did so. The State sought the death penalty based upon the aggravating circumstances of both G.S. 15A-2000 (e)(9) and (11). The jury found that these aggravating circumstances outweighed the mitigating beyond a reasonable doubt and recommended the death penalty in each case. There was no constitutional error in the procedure employed.
The cases principally relied upon by defendant are clearly inapposite, and the reasoning of those cases simply cannot be stretched to encompass the imaginative and innovative standard of double jeopardy which defendant seeks to impose at the initial sentencing hearing jointly held upon dual capital convictions. For example, both the United States Supreme Court's decision in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), and the decision of this Court in State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), addressed the double jeopardy implications which arise in the event a new trial or a new sentencing hearing is required in a capital case after the jury has already decided the punishment issue either for or against the defendant. Such is plainly not the situation here, and we need not search out hidden nuances of the double jeopardy clause in order to decide the case before us. It is sufficient to recognize that the thrust of the concept of double jeopardy is that a defendant may not be unfairly subjected to multiple prosecutorial attempts to obtain a conviction or a certain penalty for the same offense nor may a defendant receive multiple punishment for the same offense. See Bullington v. Missouri, supra; State v. Silhan, supra.
Regardless of the formula utilized, the jury's consideration of a defendant's commission of "other crimes of violence," in making its ultimate penalty recommendation for that defendant's conviction of a related but separate capital offense, is not logically equivalent to the defendant receiving multiple punishment for the same crime. This is especially true where, as here, the prosecution relies on an additional aggravating circumstance which is also subsequently found by the jury. In short, the principle of double jeopardy has not evolved, as defendant argues, to the point that it prevents the prosecution from relying, at the sentencing phase of a capital case, upon a related course of criminal conduct by the defendant as an aggravating factor to enhance the punishment of defendant for another distinct offense, and this is so, irrespective of whether the defendant was also convicted of another capital charge arising out of that very same course of criminal conduct and subjected to separate punishment therefor. See, e.g., State v. Hutchins, 303 N.C. 321, 347, 279 S.E.2d 788, 804 (1981) (reciprocal aggravation of two first-degree murders under G.S. 15A-2000 (e)(11) ). See also State v. Cherry, 298 N.C. 86, 113, 257 S.E.2d 551, 568 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980) (discussing the use of an underlying felony, which accompanies the commission of a premeditated murder, as an aggravating circumstance under G.S. 15A-2000 (e) (5)).
In conclusion, we hold that the enhancement of defendant's penalty on the one hand for Pachaco's murder did not result in an unconstitutional duplication of defendant's penalty on the other hand for Ausley's death, and vice versa, simply because defendant's overall violent conduct was submitted in aggravation on each hand under G.S. 15A-2000 (e)(11). It is the very fact that defendant killed two people, and not just one, that aggravates the nature of his crimes, and it was entirely proper for the jury to consider this fact in determining whether defendant should pay the ultimate price for each life he took.
Defendant assigns error to the trial court's direction to the jury that it need not specify which mitigating circumstances on the written list it found. This same issue was recently addressed at length in State v. Rook, where we stated: "While defendant makes a good argument that it is the better practice, and we agree, to require the jury to specify mitigating factors found and not found for the benefit of this Court in reviewing the appropriateness of the death penalty, we find no such requirement in our statutes." 304 N.C. 201, 231, 283 S.E.2d 732, 751 (1981), cert. denied, 455 U.S. 1038, 81 S.Ct. 6143, 72 L.Ed.2d 155 (1982). Moreover, in State v. Taylor, we also found "no merit in defendant's contention that since the jury had to answer each aggravating circumstance specifically but did not have to answer which mitigating circumstances they found, that placed undue emphasis on the aggravating circumstances." 304 N.C. 249, 285, 283 S.E.2d 761, 783 (1981). It suffices to say that defendant's similar contentions must be overruled pursuant to the binding authority of both Rook and Taylor.
Both the prosecutor and the trial court advised the jury that it had a duty to recommend a sentence of death if it found three things: (1) that one or more statutory aggravating circumstances existed; (2) that the aggravating circumstances were substantial enough to warrant the death penalty; and (3) that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. On the other hand, the jury was also advised that it had the duty to recommend a sentence of life imprisonment if it did not find any one of those three things. These directions to the jury were based upon the statutory criteria set forth in G.S. 15A-2000 (b) and (c) and conformed to the N.C. Criminal Pattern Jury Instructions 150.10 (1980).
Similar instructions about the jury's duty to return a certain sentencing verdict, based upon its affirmative findings under G.S. 15A-2000 (c), were given in three other death cases previously decided by our Court, in which no corresponding exception or assignment of error was raised on appeal: State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980); State v. Martin, 303 N.C. 246, 278 S.E.2d 214, cert. denied, 454 U.S. 933, 102 S.Ct. 431, 70 L.Ed.2d 240 (1981); and State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), cert. denied, 455 U.S. 1038, 81 S.Ct. 6143, 72 L.Ed.2d 155 (1982).
Nevertheless, defendant assigns error to the foregoing on the basis that such instructions "prejudicially withdrew from the jury its final option . . . to recommend a life sentence notwithstanding its earlier findings." Defendant's Brief at 75. This assignment lacks merit.
The jury had no such option to exercise unbridled discretion and return a sentencing verdict wholly inconsistent with the findings it made pursuant to G.S. 15A-2000 (c). The jury may not arbitrarily or capriciously impose or reject a sentence of death. Instead, the jury may only exercise guided discretion in making the underlying findings required for a recommendation of the death penalty within the "carefully defined set of statutory criteria that allow them to take into account the nature of the crime and the character of the accused." State v. Johnson, 298 N.C. 47, 63, 257 S.E.2d 597, 610 (1979); see State v. Barfield, 298 N.C. 306, 349-52, 259 S.E.2d 510, 541-43 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980). Moreover, defendant's contention was implicitly answered in State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979), in which this Court overruled an assignment of error alleging that the trial court had erred in failing to instruct the jury that it could still recommend life imprisonment even though it found that the aggravating circumstances outweighed the mitigating ones. Justice Britt, speaking for the Court in Goodman, explained that:
[I]t would be improper to instruct the jury that they may, as defendant suggests, disregard the procedure outlined by the legislature and impose the sanction of death at their own whim. To do so would be to revert to a system pervaded by arbitrariness and caprice. The exercise of such unbridled discretion by the jury under the court's instruction would be contrary to the rules of Furman and the cases which have followed it.
Id. at 35, 257 S.E.2d at 590. For these reasons, we hold that the jury was correctly informed that it had a duty to recommend a sentence of death if it made the three findings necessary to support such a sentence under G.S. 15A-2000 (c).
The trial court instructed the jury upon the statutory aggravating circumstance of G.S. 15A-2000 (e)(9), that the murders were "especially heinous, atrocious, or cruel." Defendant essentially contends that the evidence did not support the existence of this factor and that the trial court's instruction upon it thus violated the Eighth Amendment.
In accordance with the dictates of the Eighth Amendment, our Court has adhered to the position that the aggravating circumstance of G.S. 15A-2000 (e)(9) "does not arise in cases in which death was immediate and in which there was no unusual infliction of suffering upon the victim." State v. Rook, 304 N.C. 201, 226, 283 S.E.2d 732, 747 (1981), cert. denied, 455 U.S. 1038, 81 S.Ct. 6143, 72 L.Ed.2d 155 (1982); see Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); see, e.g., State v. Hamlette, 302 N.C. 490, 504, 276 S.E.2d 338, 347 (1981) (submission of G.S. 15A-2000 (e)(9) was erroneous). Instead, our Court has made it clear that the submission of G.S. 15A-2000 (e)(9) is appropriate only when there is evidence of excessive brutality, beyond that normally present in any killing, or when the facts as a whole portray the commission of a crime which was conscienceless, pitiless or unnecessarily tortuous to the victim. State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979); see, e.g., State v. Martin, 303 N.C. 246, S.E.2d 214, cert. denied, 455 U.S. 933, 102 S.Ct. 431, 70 L.Ed.2d 240 (1981); State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981). It is, therefore, plain that an issue concerning the propriety of the submission of this aggravating factor is resolved according to the peculiar surrounding facts of the capital case under consideration.
Examining the case at bar, we hold that there was sufficient evidence whereby the jury could have reasonably concluded that the murders of Pachaco and Ausley were especially despicable and wanton under G.S. 15A-2000 (e)(9). The evidence showed that defendant carefully executed a deliberate and premeditated plan for murder. We have already set out the details of the murders at length in the beginning of the opinion, and it would be repetitious to summarize them again here. It suffices to say that the deaths of the unsuspecting victims were not instantaneous and that both killings involved the infliction of unusual physical or psychological torture. Each victim essentially witnessed (or heard) the shooting of the other and was helpless to prevent this unprovoked horror. The killing of Pachaco was excessively brutal in that defendant, having already shot him once, walked over to where he lay moaning on the floor and shot him again at point blank range. The killing of Ausley was merciless and conscienceless in that defendant shot him as he begged and pleaded for his life. Defendant seemed to enjoy the killings, and he showed no remorse for what he had done at that time. In fact, defendant callously evaluated his conduct in his subsequent announcement to his companions that he had "just blown away two dudes." Viewing the circumstances of the murders as a whole, we hold that the trial court correctly instructed the jury upon G.S. 15A-2000 (e)(9).
The sentence of death in a given case cannot be "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." G.S. 15A-2000 (d)(2). Defendant argues that the infliction of the death penalty for these murders would be excessive and disproportionate punishment. We disagree. All things considered, we cannot say, as a matter of law, that this defendant is somehow less deserving of capital punishment than the other occupants of death row. See, e.g., State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981); State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), cert. denied, 455 U.S. 1038, 81 S.Ct. 6143, 72 L.Ed.2d 155 (1982); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981); State v. Martin, 303 N.C. 246, 278 S.E.2d 214, cert. denied, 454 U.S. 933, 102 S.Ct. 431, 70 L.Ed.2d 240 (1981); State v. McDowell, 301 N.C. 279, 271 S.E.2d 286 (1980), cert. denied, 450 U.S. 1025, 101 S.Ct. 1731, 68 L.Ed.2d 220 (1981); State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980). The facts of the instant case speak for themselves and we shall not disturb the factual findings made by the jury under G.S. 15A-2000 (c) in reaching its recommendations for the death penalty in this case.
Within this argument, defendant also urged this Court to adopt several procedures to assist appellate review of the proportionality of the death sentence in a particular case. It would serve no useful purpose to address each suggestion here. Instead, we believe that all of the matters raised by defendant are adequately answered by our two-fold determination that: (1) the review mandated by G.S. 15A-2000 (d)(2) (supra) provides a sufficient constitutional safeguard against the unconstitutional imposition of cruel and unusual punishment, and (2) the intended ultimate emphasis of proportionality review under G.S. 15A-2000 (d)(2) is upon the independent consideration of the individual defendant and the nature of the crime or crimes which he has committed.
XVII. — XIX.
The final three "arguments" presented by defendant's appellate counsel ask us to re-examine the constitutional validity of several prior cases without advancing a single good, logical or compelling reason for doing so. Such spurious disputations lack merit, do not warrant discussion and are not well received. Even so, we shall take this opportunity to reaffirm today the constitutionality of the following aspects of our capital sentencing procedure: (1) the bifurcated trial proceedings of G.S. 15A-2000, in which the same jury determines both the guilt and punishment issues, and the use of challenges for cause to excuse therefrom prospective jurors who are unequivocally opposed to the death penalty; (2) the submission of the sufficiently clear statutory aggravating circumstance of G.S. 15A-2000 (e)(9), that the capital felony is "especially heinous, atrocious, or cruel," in appropriate cases; and (3) the placement of the burden upon the defendant of persuading the jury, by a preponderance of the evidence, that a particular mitigating circumstance exists. State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), cert. denied, 455 U.S. 1038, 81 S.Ct. 6143, 72 L.Ed.2d 155 (1982); State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980) (and cases cited in part I of the opinion, supra); State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980); State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979); State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979).
The decision to take a life pursuant to the law, for the life of another, or others, wrongfully taken, is a very grave and solemn matter. Thus, this Court accords the utmost diligence and care in its review of capital cases. In the instant case, we have fully considered all of the arguments in defendant's brief, which encompassed the multitudinous assignments of error and exceptions in the record on appeal. We are convinced that both phases of defendant's trial were competently conducted without the accompaniment of constitutional defect or prejudicial error, and we so hold.
We also hold that the judgments of death were lawfully imposed. The evidence supported submission of the aggravating circumstances listed in G.S. 15A-2000 (e)(9) and (11). There is no indication that the jury recommended capital punishment under the influence of passion or prejudice. Finally, the penalties imposed do not seem excessive or disproportionate considering the premeditated and callous manner in which defendant calmly shot and killed two people in cold blood, suddenly and without any provocation by them, for reasons exhibiting a wanton disregard for human life. Indeed, the record impels the conclusion that justice has been done in every respect. In sum, we have no authority or cause to disturb the duly entered judgments of death.
Justice MITCHELL did not participate in the consideration or decision of this case.