STATE v. WILLIAMS

MEYER, Justice.

This appeal presents forty-seven assignments of error for our review. No meaningful summary statement of the numerous issues presented by these assignments is possible. We have grouped the assignments essentially as they are in the defendant's brief. Our conclusion is that there was no error in the proceedings below, and the judgment and sentence of death is affirmed.

The evidence at trial showed that during the dark hours of 2-3 June 1979, Eric Joines was working the third shift at Station Number 5 of Service Distributors on Highway 321 North in Gastonia. His duties were selling gas and oil and collecting money. Sidney Sivvoy Kirksey testified that he had seen Mr. Joines after dark at Service Distributors on 2 June, and had telephoned him at the station later from Belmont and heard voices in the background. Herbert William Frye testified that sometime during the early morning hours of 3 June he and Mack Wright stopped at the station to get some gas and found Mr. Joines lying on his stomach in a puddle of blood with part of the back of his head blown away. The police were summoned to the scene and when Officer Wilson of the Gastonia City Police arrived a few minutes later, at about 4:18 a. m., Mr. Joines was still alive, coughing and gagging. Dr. Sivalingam Siva, an expert in neurosurgery, saw Mr. Joines in the emergency room at Gastonia Memorial Hospital. He testified that in his opinion, the wound in the right side of Mr. Joines' neck was caused by a shotgun blast, possibly from a very close range and that the victim died from lack of oxygen to the brain caused by the gunshot wound.

The testimony of two accomplices, cousins of each other, Linda Massey and Darryl Brawley, established that on the evening of 2 June the defendant, the two witnesses, and another male, not positively identified, were together in Charlotte traveling in a car belonging to Robert Brown, another cousin of Linda Massey. The defendant and Brown had traded cars earlier in the day. The defendant had a 20-gauge sawed-off shotgun with him in the car.

During the course of the evening, the group was drinking alcohol, smoking marijuana, and taking Valium. They traveled onto Interstate 85 and left Charlotte. They later got off the interstate at an exit and passed the service station where Eric Joines worked. They came back up the road to the station and stopped there, apparently "casing" the service station. They then traveled down the road in the opposite direction and once again returned to the service station. The unidentified fourth person and the defendant, with shotgun in hand, went into the booth where Mr. Joines worked and robbed him. The defendant then shot him and they got back into the car with the money from the cash register they had put in a bag.

The defendant chose not to present any evidence during the guilt-innocence phase of the trial. The jury returned a verdict of guilty of first-degree murder under the felony murder rule.

At the sentencing phase, the State presented evidence of only one aggravating circumstance, that the murder of Eric Joines 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. G.S. § 15A-2000(e)(11). The evidence showed that after the Joines killing in Gastonia, the defendant and the other three occupants of the car proceeded to Concord and there stopped at a Seven-Eleven convenience store. The defendant and the unidentified male entered the store and the defendant returned to the car, got his shotgun and went back into the store where he fatally shot the clerk, Mrs. Susan Verle Pierce. The two then robbed the store of $67.00 in cash.2

The defendant presented evidence that he had cooperated with his attorney in a personal injury action, had voluntarily admitted himself to a drug treatment center, had been gainfully employed and was a good worker, had financially assisted his family members and was a loving family member. He also presented evidence tending to impeach the testimony of Darryl Brawley.

The judge submitted, and the jury found, the existence of the one aggravating circumstance. The judge submitted ten mitigating circumstances and the jury found the existence of seven of them:

The jury found beyond a reasonable doubt that the aggravating circumstance outweighed the mitigating circumstances and recommended that the defendant be sentenced to death. Judgment was entered pursuant to this recommendation.

I. PRETRIAL MOTIONS AND JURY SELECTION

The defendant assigns as error (Assignments Nos. 21 and 22) the trial court's excusal for cause of the three veniremen, Robertson, Melton, and Williams. The defendant argues that these three potential jurors were improperly excused for cause and thus the defendant was deprived of his life without due process of law and his right to trial by jury.

This argument concerns the trial court's excusal for cause during voir dire of the three veniremen because of their responses to the Witherspoon v. Illinois3 "death qualification" questions.

State v. Pinch, ___ N.C. ___, 292 S.E.2d 203 (1982). The defendant contends that the three jurors excused for cause on this basis did not unequivocally state that they were so unalterably opposed to the death penalty that they would be unwilling to vote in favor of the death sentence no matter how aggravated the facts and circumstances turned out to be. The record reveals that this contention is without merit, for considering contextually their responses to the questions propounded, the potential jurors expressed sufficient refusal to follow the law of capital punishment, should it become applicable to the case, to justify their excusal for cause. State v. Pinch, ___ N.C. ___, 292 S.E.2d 203; State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980).

The record reveals that Frances Williams unequivocally stated that she would not impose the death penalty:

EXAMINATION By the Court:

The record concerning Mrs. Melton consists of the following questions by the Court and her answers thereto:

The fact that her negative responses were phrased as "I'm not sure I could" or "I'm not positive I could" does not equivocate her refusal to follow the law as given by the judge to such an extent as to make the challenge for cause improper. State v. Avery, 299 N.C. 126, 261 S.E.2d 803. It is apparent that Mrs. Melton was "irrevocably committed before the trial [began], to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings." Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).

The defendant argues in connection with his Assignments 21 and 22 that the judge suggested that the defendant was obligated to examine the potential jurors about their death penalty feelings. This contention presents a misinterpretation of the judge's remarks. The exchange upon which the contention is based is as follows:

There is no indication that the judge was placing the burden of "death disqualification" on the defense. The judge was merely admonishing defense counsel of his duty of effective representation. By further questioning, the defense possibly could have shown that the potential juror did not actually mean to say that he or she could not return a recommendation of death no matter what the circumstances.

The defendant was not denied his constitutional rights to due process of law or trial by jury by the excusal of these jurors for cause. State v. Pinch, ___ N.C. ___, 292 S.E.2d 203; State v. Avery, 299 N.C. 126, 261 S.E.2d 803; 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). Assignments of Error Nos. 21 and 22 are overruled.

The defendant assigns as error (Assignments Nos. 1, 2 and 3) the trial court's failure to dismiss the indictment and to strike the venire of petty jurors on the ground that the grand and petty venires were discriminatorily selected and failed to represent a cross-section of the community. He further assigns as error the trial court's denial of defendant's motion that the court order the State of North Carolina to provide funds to hire a statistician to assist the defendant in his challenge to the array of the grand jury and the composition of the petty jury venire.

In ruling on these motions, the court found that it had been stipulated between the State and the defendant that the compilation of the master jury panel list for Gaston County, from which the members of the grand jury returning the indictments in this case were drawn, and the master panel, from which the venire of the trial jurors had been drawn for the trial in this case, were selected in accordance with the provisions of Chapter 9 of the General Statutes of North Carolina, i.e. from the voter registration lists and the property tax lists for the county. The State and the defendant also stipulated that there was no evidence of any intentional discrimination upon the grounds of race in preparing these lists. The court concluded therefore as a matter of law that the procedure followed was in conformity with the Constitution of the United States and the Constitution of North Carolina. Defendant's counsel did not investigate other sources from which information as to the racial computation of the master jury panel might be determined. Based on these factors, the judge properly denied the defendant's motions to dismiss the indictment. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

The trial court also properly denied the defendant's motion for a State-funded statistician. Our cases have established the rule that an expert assistant, in this case a statistician, must be provided "only upon a showing by the defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that the defendant will not receive a fair trial." State v. Gray, 292 N.C. 270, 279, 233 S.E.2d 905, 911 (1977); State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976).

The defendant also argued that it was error for the trial court to deny his motion for a court-appointed expert to aid him in his challenge to the jury compositions in his appeal to this Court of his Cabarrus County murder conviction. State v. Williams (I), 304 N.C. 394, 284 S.E.2d 437 (1981). There, this Court pointed out that the defendant had made no showing of a reasonable likelihood that the appointment of a statistician would have materially assisted him in the preparation or presentation of his contentions and thus overruled the assignment of error. The defendant concedes that he made no stronger showing of a reasonable likelihood that a statistician would be of material assistance in this case than he did in the Cabarrus County case, but asks the court to reconsider its rulings on this issue. We reaffirm our prior rulings, and Assignments of Error Nos. 1, 2 and 3 are overruled.

In Assignment of Error No. 15, the defendant contends that the court erred in denying his motions to allow him to participate as co-counsel in the trial and to participate in voir dire. This same argument also was rejected in Williams (I). We reaffirm our ruling there:

Id. at 204, 244 S.E.2d at 662.

Williams (I) at 407, 284 S.E.2d at 446.

This assignment of error is overruled.

The defendant next argues that (Assignments of Error Nos. 7, 16, 17, 18, 19, 20, and 41):

As acknowledged by the defendant, this Court has decided these issues against the defendant, and the assignments of error upon which this argument is made are without merit. State v. Pinch, ___ N.C. ___, 292 S.E.2d 203; State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981); State v. Avery, 299 N.C. 126, 261 S.E.2d 803.

II. GUILT-INNOCENCE PHASE

Under Assignments of Error Nos. 33 and 34, the defendant argues that the admission of Officer Rivelle's testimony to the effect that defendant chose to exercise his right to remain silent and waived his right to counsel deprived the defendant of his right to remain silent, his right to counsel, and his right to due process of law.

Officer Rivelle testified in pertinent part as follows:

A. There was no more questioning.

Defendant contends that the admission of the answers to the last two questions violated his right to remain silent and his right to counsel, citing the rules of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

Doyle concerns the use of defendant's silence after Miranda warnings for impeachment purposes. The testimony given here was during the State's case-in-chief. Thus, the thrust of the defendant's argument is based on a paragraph from footnote number 37 of the Miranda opinion:

This Court has often recognized that it is impermissible to use the accused's silence in the face of an accusation to imply guilt. See State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975); State v. Caster, 285 N.C. 286, 204 S.E.2d 848 (1974). However, that rule does not apply here. When informed of the topic which the police officer wanted to discuss, the defendant chose not to remain silent. He emphatically denied his guilt, and when finished with his denial, said he wanted to talk to a lawyer; thus the officer, as required by Miranda, did not question him further. There was no specific incriminating accusation leveled at the defendant at the time he asserted his rights which defendant, by his silence, might be said to have admitted. See State v. Love, 296 N.C. 194, 250 S.E.2d 220 (1978). Compare State v. McCall, 286 N.C. 472, 212 S.E.2d 132, wherein, after the officer advised the defendant that he had a warrant for his arrest for the killing of Mr. and Mrs. Hice and asked him why he killed them, defendant immediately asserted his right to remain silent.

It is apparent from the reading of this testimony that the State did not use the defendant's request for an attorney to infer guilt. The trial court conducted a voir dire hearing and concluded that the defendant had been fully advised of his Miranda rights and had knowingly and intelligently waived them and voluntarily made the statements to which the officer testified. Thus, they were admissible against him at trial. These assignments of error are overruled.

In Assignments of Error Nos. 36 and 49, defendant argues that he was prejudiced by the prosecutor's improper comments on his failure to testify or offer evidence to contradict the State's evidence; that the court's instructions did not cure the error; and that the court erred further in denying defendant's motion for appropriate relief on this basis.

The prosecution is privileged, when appropriate, to argue that the State's evidence is uncontradicted, and such argument may not be held improper as a comment upon the defendant's failure to testify. State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 301 (1976). Any contradictions existing could have been shown by the testimony of others or by cross-examination of the State's witnesses themselves. Thus the prosecutor's arguments concerning lack of cross-examination or rebuttal evidence to contradict the State's case are not improper.

When the prosecutor argued that the jury had "neither heard by cross-examination or direct evidence on behalf of Mr. Williams that he was not there," the court immediately sustained defense counsel's objection and instructed the jurors that they would "not consider any reference about Mr. Williams refuting anything." The court later instructed the jury that defendant's decision not to testify created no presumption against him and was not to influence their decision in any way.

Ordinarily a prosecutor's reference to the failure of the defendant to testify or to offer evidence in his defense is cured by the trial court's promptly instructing the jury not to consider it. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970); State v. Lindsay, 278 N.C. 293, 179 S.E.2d 364 (1971). The defendant's Memorandum of Additional Authority cites State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975), for the premise that a curative instruction by the judge does not always cure highly improper statements made by a prosecutor during closing arguments or improper cross-examination by a prosecutor. While we agree with this premise, we point out that the improper comment in this case does not compare with the highly improper cross-examination and comments by the prosecutor in Britt. The court's instructions in this case cured any error in the prosecutor's comments.

Further, defense counsel did not object at trial to all of the comments which are assigned as error. Unless the improper argument was so prejudicial that no instruction by the court could have removed it from the minds of the jury had an objection been seasonably made, an objection to the argument must be made before the verdict in order to preserve the error. State v. Coffey, 289 N.C. 431, 222 S.E.2d 217 (1976).

Assignments of Error Nos. 36 and 49 are overruled.

The defendant assigns as error (Assignments Nos. 25, 37, 38, 68, and 69) the trial court's failure to instruct the jury completely concerning the plea bargains of Linda Massey and Darryl Brawley. The defendant contends that since these witnesses' plea agreements provided that their ten-year sentences for accessory after the fact to the murder of Eric Joines would run concurrently with the ten-year sentences for accessory after the fact to the Concord murder, their effect was to provide a grant of immunity in this case and thus the judge should have informed the jury of their immunity pursuant to G.S. § 15A-1052.4 This contention is without merit.

Neither Linda Massey nor Darryl Brawley were granted immunity in this case. Their agreement was to plead guilty to accessory after the fact to the murder of Eric Joines for a sentence of ten years to run concurrently with their sentences in the Concord murder.

The applicable statute here is G.S. § 15A-1054:

This statute, unlike G.S. § 15A-1052, contains no requirement that the judge inform the jury of any agreement concerning charge reduction or sentence consideration.

The defense had the right and the opportunity both to cross-examine the witnesses about their arrangements and to argue to the jury with respect to the impact of the arrangements upon their credibility. See G.S. § 15A-1055. Indeed Mr. Brawley was cross-examined concerning his arrangement (Record at 124), and defense counsel in his argument to the jury repeatedly reminded the jury of both the witnesses' bargains:

In addition, the State entered into evidence the following stipulation:

During closing arguments, the State too reminded the jury of the agreements made with Massey and Brawley. Moreover, during the guilt determination phase, the judge instructed the jury that:

Later, during the sentencing phase, he again instructed the jury concerning the witnesses' arrangements.

The fact that these witnesses had made arrangements for charge reductions in exchange for their testimony was clearly before the jury. Assignments of Error Nos. 25, 37, 38, 68, and 69 are overruled.

III. SENTENCING

In Assignments of Error Nos. 35, 40, 47, and 48, the defendant argues that the judgment and sentence for the felony murder of Eric Joines deprived him of his right to be free from double jeopardy, violated the rules of res judicata and collateral estoppel, constituted an unlawful multiple use of aggravating circumstances, and amounted to cruel and unusual punishment. Thus, the defendant contends that the trial court erred in denying his motions to dismiss the charges against him and to strike the aggravating circumstance of the Concord robbery-murder, in denying his motion for a directed verdict of life imprisonment at the end of the State's case and instead sentencing him to death, and in precluding the defendant from presenting certain evidence which he sought to introduce at the sentencing phase of the trial.

The trial judge submitted to the sentencing jury in this case the aggravating circumstance that the murder of Eric Joines 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, i.e., the robbery-murder of Susan Verle Pierce in Concord.5 The jury found the existence of this circumstance, found that it was sufficiently substantial to call for imposition of the death penalty, found that it outweighed the seven mitigating factors they found, and recommended the death penalty. Prior to this trial, the defendant had been convicted of the murder of Mrs. Pierce in Cabarrus County. The murder of Eric Joines was found by the sentencing jury in the Concord robbery-murder case in Cabarrus County as an aggravating circumstance and the defendant received a death sentence for the Cabarrus County murder.6

The defendant argues that the use of the Gaston County Joines murder as an aggravating circumstance in the punishment phase of the Cabarrus County Pierce murder trial (1) precludes the use of the Pierce murder as an aggravating circumstance in the Joines murder trial and (2) precludes even trying the defendant in Gaston County for the Joines murder. We do not agree. This same argument was advanced and rejected by this Court in State v. Pinch, ___ N.C. ___, ___, 292 S.E.2d 203, 226 (1982):7

The principle of double jeopardy likewise does not preclude the trial of the defendant for the other capital crime. The defendant was not convicted of nor punished for the murder of Joines in the prior trial. The defendant has been convicted and sentenced only once for the murder of Joines and will only once be punished therefor. There exists no prohibition for his trial for the murder of Eric Joines, nor the use of the other murder for which he stands convicted as an aggravating circumstance.

Further, the defendant argues that the court erred in excluding as irrelevant evidence offered by the defendant regarding the lack of any deterrent effect of the imposition of the death penalty, the rehabilitative nature of people who have committed even heinous crimes, and the manner of execution in North Carolina. This contention is without merit, as such evidence is irrelevant. State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551. Assignments Nos. 35, 40, 47 and 48 are overruled.

In Assignments of Error Nos. 58, 72, 73, 80 and 83, the defendant, argues that his sentence of death for felony murder in this case is an excessive and disproportionate penalty constituting cruel and unusual punishment; thus the trial court should have directed a verdict of life imprisonment, declared the death penalty statute unconstitutional, instructed the jury that the death sentence could be imposed only if it found that the defendant personally committed the acts causing death and intended to cause death, and refused to enter a judgment of death.

The constitutionality of our death penalty statute has been repeatedly upheld. See, for example, State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981); State v. Bush, 289 N.C. 159, 221 S.E.2d 333 (1976); State v. Spaulding, 288 N.C. 397, 219 S.E.2d 178 (1975); State v. Woodson, 287 N.C. 578, 215 S.E.2d 607 (1975), reversed on other grounds, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). The specific contention that the imposition of the death penalty for felony murder constitutes cruel and unusual punishment has also been rejected by this Court. State v. Peplinski, 290 N.C. 236, 225 S.E.2d 568 (1975), cert. denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed.2d 301 (1976). This Court has repeatedly upheld the death penalty in felony murder cases. State v. Williams (I), 304 N.C. 394, 284 S.E.2d 437; State v. Taylor, 304 N.C. 249, 283 S.E.2d 761; and State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788.

Just as the Legislature acts within its constitutional power in defining first-degree murder to include felony murder, it is also within its constitutional power to determine that first-degree murder, including felony murder, may be punished by death, providing that the death penalty statute itself is constitutional. See State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982). We do not find that the death penalty imposed below amounts to cruel and unusual punishment. These assignments of error are overruled.

The defendant assigns as error (Assignment No. 50) the court's permitting the prosecutor on cross-examination of S. B. I. Agent B. M. Lee during the sentencing phase to elicit testimony concerning Darryl Brawley's prior inconsistent statements given to Agent Lee. The defendant argues that by this testimony, the State was permitted to impeach its own witness, Darryl Brawley. This is not the case. Darryl Brawley admitted on defendant's cross-examination in the guilt-innocence phase of the trial that he had changed his story about the robbery-murder several times. During the sentencing phase of the trial, in an attempt to impeach the testimony of Brawley, the defendant called S. B. I. Agent B. M. Lee as a witness. Agent Lee testified that he had a series of interviews with Brawley. The defense questioned him only about the first interview, which was inconsistent with Brawley's trial testimony. The State's cross-examination of Agent Lee elicited the contents of his other interviews of Brawley which corroborated Brawley's testimony that he kept changing his story. Thus, the rule against the State impeaching its own witness has no application here. There was no error in the State's eliciting testimony corroborating Brawley's earlier testimony after the defendant's attempt to impeach his credibility. See State v. Carter, 293 N.C. 532, 238 S.E.2d 493 (1977). Assignment of Error No. 50 is overruled.

The defendant assigns as error (Assignment No. 51) the trial judge's overruling of his objection to certain testimony of Agent Lee during the sentencing proceedings and the court's refusal to permit him to make known the nature of his objection out of the presence of the jury. The defendant contends that the witness Lee's reference to "Polygraphist Mike Humberg" when being cross-examined about Brawley's prior statement was a deliberate attempt to convey to the jury the impression that the statement given by Brawley on 11 June implicating the defendant was confirmed by a polygraph examination. This contention is without merit; it is based on mere speculation. Furthermore, the jury cannot be deemed to have inferred that a polygraph examination was conducted from the one isolated use of the word polygraphist. Throughout the rest of his testimony, Agent Lee referred to Mike Humberg as Mr. Humberg or Officer Humberg. No mention of any polygraph examination was ever made. Counsel may approach the bench only with the judge's permission. Rule 12, North Carolina General Rules of Practice for Superior and District Courts. The court gave counsel ample opportunity to state the basis for his objection, but he failed to do so. Although the objection was overruled, Mr. Humberg was not referred to as "polygraphist" again. There exists no reversible error here. The assignment of error is overruled.

The defendant argues that it was error (Assignments Nos. 45, 79, 85, and 86) for the judge to enter the judgment of death because the death penalty statute, and specifically G.S. § 15A-2000(e)(11), is unconstitutionally vague and because there was insufficient evidence to find beyond a reasonable doubt the existence of the aggravating circumstance submitted in this case.

In the sentencing phase, the State relied on a single aggravating circumstance, that provided in G.S. § 15A-2000(e)(11):

The defendant argues that the term "course of conduct" is vague and indefinite, and that for some of its possible meanings, the Joines killing and the Pierce killing were not part of the same course of conduct.8 We do not agree.

State v. Barfield, 298 N.C. 306, 353, 259 S.E.2d 510, 543 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137, rehearing denied, 448 U.S. 918, 101 S.Ct. 41, 65 L.Ed.2d 1181 (1980), and ___ U.S. ___, 102 S.Ct. 693, 70 L.Ed.2d 261 (1981). We are not persuaded that the term "course of conduct" is unconstitutionally vague or without definition. This Court has rejected such arguments before. State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981); State v. Barfield, 298 N.C. 306, 259 S.E.2d 510. The trial judge instructed the jury concerning the aggravating factor as follows:

The defendant's behavior clearly comes within the conduct intended by the Legislature to be covered. Assignments numbered 45, 79, 85 and 86 are overruled.

In Assignments of Error Nos. 60 and 78, defendant argues that the court erred in refusing to submit to the jury as a specified mitigating circumstance the fact that two accomplices received a plea bargain whereby the maximum punishment for their involvement would be limited to ten years in prison. While recognizing that the Court has rejected the same contention in State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981), the defendant requests that we reconsider our holding there. We reaffirm that holding. The fact that the defendant's accomplices received a lesser sentence is not an extenuating circumstance. It does not reduce the moral culpability of the killing nor make it less deserving of the penalty of death than other first-degree murders. See State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788. The accomplices' punishment is not an aspect of the defendant's character or record nor a mitigating circumstance of the particular offense. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). It bears no relevance to these factors, and thus there was no error in the judge's refusal to submit it to the jury. Moreover, the fact of the accomplices' bargains were before the jury, and had they deemed it a mitigating circumstance, they could have so considered it under the catch-all "any other circumstance ...." G.S. § 15A-2000(f)(9). These assignments are overruled.

In Assignment of Error No. 59, the defendant argues that the court erred in refusing to submit to the jury the defendant's use of alcohol on the night of the crime as a mitigating circumstance. There was no expert psychiatric or other evidence introduced to show that his capacity to appreciate the criminality of his conduct was impaired by alcohol, and therefore the trial court was correct in not submitting the mitigating factor in G.S. § 15A-2000(f)(6).9 Yet, defendant contends that the fact that he drank some alcohol on the evening of the crime should have been submitted for the jury's consideration as a general mitigating circumstance. We do not agree. We do not believe that the Legislature intended the mere ingestion of alcohol to be a mitigating circumstance. "If this were true, every murderer, conceivably, would consume strong drink before taking his victim's life." State v. Goodman, 298 N.C. 1, 32, 257 S.E.2d 569, 589 (1979). There was no contention that the defendant was intoxicated nor that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. This assignment must be overruled.

In Assignments of Error Nos. 74 and 75, the defendant argues that placing the burden on him to prove the mitigating circumstances by a preponderance of the evidence and failing to require the State to prove the absence of the existence of mitigating circumstances beyond a reasonable doubt is error. While recognizing that this Court has decided this issue against him, the defendant requests that we reconsider our position. We reaffirm our position and these assignments are overruled. State v. Pinch, ___ N.C. ___, 292 S.E.2d 203; State v. Barfield, 298 N.C. 306, 259 S.E.2d 510; State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979).

In Assignments of Error Nos. 81 and 82, defendant requests that we re-examine our prior rulings concerning the constitutionality of the death penalty and vacate the sentence imposed in this case on the grounds that the death penalty is applied in a discretionary and discriminatory manner. We adhere to our prior rulings, and these assignments of error are overruled. State v. Williams (I), 304 N.C. 394, 284 S.E.2d 437; State v. Barfield, 298 N.C. 306, 259 S.E.2d 510.

In Assignments of Error Nos. 63, 70, and 71,10 the defendant argues, as did the defendant in State v. Pinch, that it was error for the prosecutor to argue and the court to instruct the jury that if they found beyond a reasonable doubt that the aggravating circumstance existed, that it was substantially sufficient to call for the imposition of the death penalty, and that it outweighed any mitigating circumstance or circumstances found, then it would be their duty to recommend that the defendant be sentenced to death. We note that the court also instructed that if the jury did not find beyond a reasonable doubt any one or more of these, it would be their duty to recommend life imprisonment. As this Court pointed out in Pinch, this argument by the prosecutor and this instruction by the court are entirely proper. The defendant argues that it withdraws from the jury its final option to recommend life imprisonment notwithstanding its earlier findings. As we stated in Pinch:

State v. Pinch, ___ N.C. ___, ___, 292 S.E.2d 203, 227, (emphases original).

The defendant argues that even if the jury fails to find sufficient mitigating circumstance(s) which outweigh the aggravating circumstance(s) found, it may still, in its discretion, impose a sentence of life imprisonment. We find no authority for that position in G.S. § 15A-2000(e) or elsewhere. In several cases the jury has indeed done just that and returned a recommendation of life imprisonment. State v. Taylor (I), 298 N.C. 405, 259 S.E.2d 502 (1979); State v. King, 301 N.C. 186, 270 S.E.2d 98 (1980). While this was error, it was error favorable to the defendant from which the State could not appeal.

In two other cases wherein the jury found that the aggravating circumstances outweighed the mitigating circumstances but did not recommend a sentence, a life sentence was entered by the trial judge as G.S. § 15A-2000(b) requires him to do. State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980); State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), on rehearing in Superior Court, Columbus County (Case No. 79CRS1943).

G.S. § 15A-2000(b) requires the jury to deliberate and render a sentence recommendation "based upon" two considerations: (1) whether sufficient aggravating circumstances exist and (2) whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found. The statute specifically requires that the jury sentence recommendation be "based on these considerations"—not unbridled discretion. G.S. § 15A-2000(b)(3). This specific mandate is clear—it requires no interpretation.

The trial judge correctly instructed the jury on this point. Indeed, to instruct the jury otherwise would permit it to disregard the procedure established by the Legislature and impose the sentence of death with unbridled discretion contrary to the dictates of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and its successor cases. See State v. Pinch, ___ N.C. ___, 292 S.E.2d 203; State v. Goodman, 298 N.C. 1, 257 S.E.2d 569. These assignments are overruled.

Finally, the defendant argues that the infliction of the death penalty upon him would be an excessive and disproportionate penalty. This Court is required to review the sentence of death to determine whether it is "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." G.S. § 15A-2000(d)(2). We do not agree that the imposition of the death penalty in this case would amount to excessive or disproportionate punishment. The facts of this case show that the defendant deliberately sought out not one, but two lone employees of business establishments in relatively isolated areas during the early morning hours when no one was around, robbed them at gunpoint, and then shot them to death at very close range with a shotgun before fleeing with the money. This was a brutal murder. We cannot say that the sentence of death imposed here is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. See State v. Pinch, ___ N.C. ___, 292 S.E.2d 203; State v. Taylor, 304 N.C. 249, 283 S.E.2d 761; State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788; State v. Martin, 303 N.C. 246, 278 S.E.2d 214, cert. denied, ___ U.S. ___, 102 S.Ct. 431, 70 L.Ed.2d 240 (1981); State v. Barfield, 298 N.C. 306, 259 S.E.2d 510.

We have carefully examined defendant's other assignments of error not specifically treated herein. We find them to be without merit and they are overruled.

The record clearly supports the jury's guilty verdict and its finding of the aggravating circumstance upon which the sentencing court based its sentence of death. There is no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; nor is the sentence of death excessive or disproportionate. The defendant's conviction and the sentence imposed must be affirmed.

NO ERROR.

EXUM, Justice, dissenting as to sentence.

For the reasons stated in Part I of my dissenting opinion in State v. Pinch, ___ N.C. ___, 292 S.E.2d 203 (1982), I believe it was prejudicial error for the trial judge to instruct the jury that it had a duty to recommend the death sentence if it answered certain issues favorably to the state.

For the reasons stated in Part II of my dissenting opinion in State v. Pinch, supra, I conclude that prospective juror Melton was improperly excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Therefore I vote to vacate the death sentence and to remand for a new sentencing hearing. I concur in the majority's conclusion that no prejudicial error occurred in the guilt phase of the case.