STATE v. LAWSON

EXUM, Justice.

In this appeal defendant contends the trial court erred by failing to exclude certain evidence and by improperly expressing its opinion to the jury. He also asks us to declare North Carolina's death penalty statute unconstitutional. We find no merit in any assignment and leave undisturbed the judgments entered by the trial court.

I.

In December 1980, Buren Shinn resided in a house on old Salisbury Road approximately three miles from Concord. Buren's son Wayne lived in a house located about 100 yards away. Buren and Wayne worked together in a family electrical business.

After driving to his father's home on 4 December 1980, Wayne heard the burglar alarm at his own home. Wayne and Buren jumped into a truck and rushed over to Wayne's house, where they observed a dirty brown Ford parked in the driveway. Wayne got out of the truck and ran towards the patio at the side of his house. Buren then saw Wayne throw up his hands and heard a gun fire.

Buren ran to the truck, got in and began backing the truck in an effort to get away. Defendant ran toward him, waving a pistol. This sight diverted Buren's attention and he backed the truck into a ditch. Defendant approached the truck and ordered Buren to get out and move towards Wayne's house. Buren did so, pleading with defendant not to hurt him.

Before Buren reached the house, he heard another gun shot and felt a sharp blow to his head. He fell to the ground and lost consciousness. Sometime later he "came to," finding himself lying in a large pool of blood. Fearing that defendant might still be in the vicinity, he lay silently. Some twenty or thirty minutes later, he heard someone walk toward him and he felt a hand reach into his pocket and take his wallet.

Buren remained motionless for another twenty minutes. Hearing no more footsteps, he partly raised himself up. Seeing no one, he crawled away from the patio toward the road, hoping to stop a passing car. When no one stopped, he struggled to his feet and walked toward his home. As he entered his home, another son, Jerry, saw him and telephoned for help. After Jerry was told what had happened, he left to see about Wayne.

Law enforcement officers arrived at Wayne's house and found him lying in a pool of blood in the basement near the patio. Wayne and Buren were taken to a hospital where Wayne was pronounced dead as the result of a bullet wound to his head. Buren's injuries were not severe, as the bullet which struck him did not penetrate his skull. He recovered after a short stay in the hospital.

The police found Wayne's house ransacked. They found several jewelry items and a camera in a pillowcase, apparently dropped by the intruder. Marks on the kitchen door indicated the house had been forcibly entered.

Phyllis Soden, who had known defendant for several years, returned to her home from work at about 4 a.m. on 4 December 1980. Shortly after 9 a.m. defendant went to her home and stated that he needed her to take him some place immediately. Leaving his dirty brown Ford in her driveway, the two departed in her automobile. Defendant directed her to drive on the old Salisbury Road. As they neared the Shinn home he told her to stop, let him out, drive a short distance farther, turn around, and return to pick him up. She followed defendant's directions. When she returned, he ran to the car carrying a crowbar.

After they returned to Ms. Soden's home, defendant explained that he had broken into a house and had left the crowbar there. He wanted to retrieve the bar because it might have his fingerprints on it. A little while later, defendant showed her a wallet and removed the money from it. Thereafter, he told her: He had broken into a house after hearing that the residents had gold and jewelry. He found some items and stuffed them into a pillowcase. As he was preparing to leave, a man entered the patio door. He pointed his gun at the man who put up his hands. He ordered the man to turn around and shot him in the back of his head. After the man fell, he ran out of the house. When he left the house, he saw another man approaching the patio. The other man turned, ran and entered a truck. He ordered the man out of the truck; and, although the man begged defendant not to shoot, defendant forced him to walk toward the patio and shot him in the back of his head. He was confident both of the other men were dead because he shot them at close range. He killed them to eliminate witnesses because he did not want to go back to prison.

Defendant offered no evidence at the guilt-determination phase of the trial.

The jury convicted defendant of assault with a deadly weapon with intent to kill inflicting serious injury upon Buren Shinn and felonious breaking of the home of Wayne Shinn. It also convicted him of the first degree murder of Wayne Shinn.

The following transpired at the sentencing phase of the murder case. Outside the presence of the jury defendant was examined under oath by his counsel. During this examination defendant testified that his counsel had fully advised him regarding the nature of the sentencing phase of the proceeding. Defendant also acknowledged that on 6 June 1981 he signed an affidavit in which he acknowledged that he told his attorney, Mr. Johnson,

The trial judge then advised defendant that notwithstanding his desire to be sentenced to death, the jury must make that decision and that the court by law was required to submit whatever aggravating and mitigating circumstances were supported by the evidence. The trial judge said, "Even though you may ask the jury to recommend the death sentence in this case, the jury is not bound by it and the jury may ... still see fit to recommend life imprisonment."

The jury was then brought back into the courtroom. Defendant testified before the jury that his criminal record consisted of "two cases of breaking and entering some years ago in Stanly County." He had assisted the state "involving some criminal matters in Stanly County some years ago." The following colloquy then occurred:

There was a brief cross-examination by the state during which defendant admitted that he owned a .32 caliber pistol in September 1980; he had attempted to purchase a pistol shortly after 4 December 1980; and on 4 December 1980 he had gone to Salisbury with Phyllis Soden. At the guilt phase of his trial a ballistics expert had testified that the bullet which killed Wayne Shinn was a .32 caliber bullet.

The jury found as aggravating circumstances that the murder of Wayne Shinn was "committed for the purpose of avoiding a lawful arrest" and was "part of a course of conduct in which [defendant] engaged and [which] include[d] the commission by the defendant of other crimes of violence against [another person]." See N.C.Gen.Stat. § 15A-2000(e)(4) & (11). The jury next found that the aggravating circumstances were sufficiently substantial to call for the imposition of the death penalty. Two specific mitigating circumstances were submitted, i.e., defendant had "no significant history of prior criminal activity" and "defendant testified truthfully on behalf of the prosecution in another prosecution of a felony." See N.C.Gen.Stat. § 15A-2000(f)(1) & (8). The jury was also asked to consider whether any other circumstance existed which it deemed to have mitigating value. See N.C.Gen.Stat. § 15A-2000(f)(9). The jury did not specify which of the mitigating circumstances it found, but it did indicate that it found "one or more mitigating circumstances" to exist. The jury finally found that the aggravating circumstances outweighed the mitigating circumstances and recommended that defendant be sentenced to death.

II.

Guilt Phase

A.

Defendant assigns error to the admission of Phyllis Soden's testimony regarding statements he had made to her after the shootings. Defendant says this testimony was inadmissible for the reason that it was hearsay not falling within any exception to the hearsay rule. We disagree.

Generally, out-of-court statements of a person offered through a witness other than declarant to prove the truth of the matter asserted in the statements is hearsay. State v. Wood, 306 N.C. 510, 294 S.E.2d 310 (1982); 1 Brandis on North Carolina Evidence, § 138 at 551-53 (2d rev. ed. 1982). A well-recognized exception to the hearsay rule, however, permits out-of-court admissions of parties, including criminal defendants, to be related by a witness to whom the admissions were made. State v. Edwards, 286 N.C. 140, 209 S.E.2d 789 (1974); State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967); 2 Brandis, supra, § 167, at 6-10. Ms. Soden's testimony concerning defendant's statements to her about the offenses for which he was being tried were admissible under the party admission exception to the hearsay rule.

B.

Defendant contends it was error to admit testimony of police investigators relating Ms. Soden's prior statements to them made before and after defendant's arrest. At trial Ms. Soden testified at length about defendant's admissions to her that he had shot both Wayne Shinn and Buren Shinn at close range when they had come upon him in Wayne Shinn's home after he had broken in and was attempting to steal various articles which he had collected in a pillowcase. She also testified to defendant's efforts to persuade her to be an alibi witness for him and to her consenting to permit defendant to hide his pistol used in the shootings at her home. She related further that she had made several statements to investigating officers and she gave, generally and in summary fashion, the content of those statements. The investigating officers were then permitted to testify to the statements made to them by Ms. Soden for the sole purpose of corroborating her in-court testimony. The statements did, in fact, corroborate her in-court testimony. The trial judge gave appropriate limiting instructions regarding the officers' testimony.

It was proper for the officers to testify regarding Ms. Soden's prior statements consistent with her in-court testimony to corroborate that testimony. State v. Perry, 298 N.C. 502, 259 S.E.2d 496 (1979); State v. Hopper, 292 N.C. 580, 234 S.E.2d 580 (1977).

C.

Defendant assigns error to certain remarks made by the trial court, contending that the court impermissibly expressed an opinion to the jury.

The remarks of which defendant complains were made while Buren Shinn, one of the shooting victims, testified. The transcript indicates that he began testifying during the late afternoon. He had testified with respect to his being shot, carried to the hospital and treated for his injuries. He was then asked if he could identify the person who shot him. Defendant's objection necessitated a voir dire by the court. The following colloquy occurred:

Defendant argues that the trial court's comments (1) "emphasized to the jury that Mr. Shinn's testimony was extremely important"; (2) "implied that the judge personally was going to test the Shinn identification outside their presence to check its competence before he let them hear it"; and (3) "implied that Mr. Shinn obviously had seen the right man and that Mr. Shinn's identification was competent and thus believable because the judge brought [the jury] back in and allowed Mr. Shinn to testify ...." Defendant's argument relates only to those comments which follow immediately after the notation in the trial transcript, "(Jury leaves courtroom)," yet defendant's argument seems to assume the jury heard the comments complained of. Defendant's argument must fail for several reasons.

First, this Court must assume that the jury had been excused and had left the courtroom when the remarks were made because this is what the trial transcript shows. Except as permitted by the evidentiary doctrine of judicial notice, see 6 Strong's North Carolina Index 3d Evidence §§ 1-3.7 (1977), this Court is bound on appeal by the record on appeal as certified and can judicially know only what appears in it. State v. Gibbs, 297 N.C. 410, 255 S.E.2d 168 (1979); State v. Williams, 280 N.C. 132, 184 S.E.2d 875 (1971). When, pursuant to App.R. 9(c)(1), the trial transcript, "as agreed to by the opposing party... or as settled by the trial tribunal," is filed by appellant in lieu of narrating the evidence in the record on appeal, as was done in this case, the trial transcript must be treated as part of the record on appeal for purposes of applying the rule that this Court is bound by what appears in the record on appeal. So far as this Court can know, therefore, the jury never heard the remarks of which defendant complains.

Second, assuming arguendo the jury heard the complained of comments, we find no error was committed. There is nothing in the comments to suggest, as defendant urges, that "Mr. Shinn's testimony was extremely important." Mr. Shinn was the only eyewitness to the shooting. The importance of his testimony was so obvious that the jury must have known it without having to be told. Nevertheless, the trial court did not, as it should not have done, give undue emphasis to the importance of Mr. Shinn's testimony. It was not improper for the judge to tell the jury that he was going to rule on the competency of the proferred testimony. Trial judges frequently make rulings on competency of evidence in the presence of juries, and juries understand this to be one of the functions of the judge. Such rulings are not in themselves error. See State v. Hooks, 228 N.C. 689, 47 S.E.2d 234 (1948). It cannot be error, therefore, for the trial judge to announce to the jury merely that he is going to determine in a proceeding out of their presence the competency of certain evidence. We see nothing in the comments to suggest that Mr. Shinn "had seen the right man" or that his testimony was "believable evidence." The trial judge said only Mr. Shinn would be called on to testify "regarding who he saw." This statement in no way suggests that the trial judge thought the person whom Mr. Shinn saw was the defendant or that Mr. Shinn's testimony on this point should be believed.

Finally, even if these comments could by some stretch of judicial imagination be deemed error, we are completely satisfied that had the error not been committed, a different result would not have been reached at trial. The evidence against defendant was overwhelming. It consisted not only of Mr. Shinn's eyewitness testimony but the testimony of a friend of defendant to whom defendant had admitted committing the crimes. The details of these admissions coincided precisely with facts uncovered by investigators and with Mr. Shinn's testimony. The trial judge in his final jury instruction carefully and at length told the jury that it was the "sole judge" of the credibility of each witness. He specifically instructed the jury, "The identification witness is a witness just like any other witness. That is, you should assess the credibility of the identification witness in the same way you would any other witness." Under the standard of N.C.Gen.Stat. § 15A-1443(a), no reversible error was committed.

We have dealt with all defendant's assigned errors. In addition, we have considered all of the trial proceedings which are in the record and transcript before us.1 We find no error in the guilt phase of the trial.

III.

Sentencing Phase

Defendant assigns as error the failure of the trial court to hold our death penalty statute unconstitutional. We find no merit in this assignment.

Defendant argues, first, that our statute violates the Equal Protection of the Laws Clause of the Fourteenth Amendment because it affords the district attorney "unbridled" discretion in deciding against whom he will seek verdicts of first degree murder and the death penalty, and against whom he will seek verdicts of second degree murder and a lesser punishment. While defendant cites no authority, he contends that if unbridled discretion in juries to impose or not to impose the death penalty is unconstitutional, see Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), then complete discretion on the part of district attorneys is unconstitutional.

In a hearing on his motion to have the statute declared unconstitutional, defendant called the district attorney as a witness. He testified, among other things, that he exercised broad discretion in deciding whether (1) he would seek a first degree murder verdict and a recommendation of the death penalty, or (2) he would seek a lesser verdict, or (3) he would accept a plea to a lesser degree of homicide. He had no statutory or any other kind of guidelines to follow in making these decisions. Often he declined to seek a first degree murder verdict and the death penalty because of a case's technical or evidentiary problems.

In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), the defendant challenged the constitutionality of West Virginia's habitual criminal statute on the ground that there was selective enforcement by the prosecution. In rejecting this challenge, the Court said:

Id. at 456, 82 S.Ct. at 506 (citations omitted). In State v. Cherry, 298 N.C. 86, 103, 257 S.E.2d 551, 562 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980), the defendant claimed our death penalty procedure denied defendants constitutional due process because it placed no limits on the case calendaring prerogatives of the district attorney, who could, according to defendant, "calendar cases when he chooses, in front of whatever judge he chooses." In rejecting this argument, we said:

Id. Here, there is no allegation or even intimation that the district attorney had deliberately employed any "unjustifiable standard" in calendaring this or any other case involving the death penalty. The United States Supreme Court has rejected arguments identical to defendant's in the context of death penalty procedures. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

Defendant fails to show that the district attorney based his decision to seek the death penalty in defendant's or any other death case upon unjustifiable standards like "race, religion or other arbitrary classification." The United States Supreme Court says the federal Constitution does not prohibit the use of absolute prosecutorial discretion in determining which cases to prosecute for first degree murder so long as such discretionary decisions are not based on race, religion, or some other impermissible classification. We are not inclined to interpret our state constitution to require more.2

Defendant attacks the constitutionality of our statute providing for review of judgment and sentence by this Court. See N.C. Gen.Stat. § 15A-2000(d). First, he contends that this Court must find facts, a function for which it has no jurisdiction. Second, he contends that the standards for review are unconstitutionally vague.

Neither contention has merit. Section 15A-2000(d) provides, in pertinent part:

Review of Judgment and Sentence.—

Admittedly, this Court is not a fact-finding body. See State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975), cert. denied, 428 U.S. 909, 96 S.Ct. 3220, 49 L.Ed.2d 1216 (1976). "The Supreme Court shall have jurisdiction to review upon appeal any decision of the courts below, upon any matter of law or legal inference ...." N.C. Const. art. IV, § 12(1). While section 15A-2000(d)(2) uses the word "finding" in prescribing this Court's review of death sentences, a "finding of fact," as that term is generally understood, is not contemplated. Rather, "a finding," as used in the statute, means, rather, a "determination," or a "conclusion." The statute requires this Court to determine, as a matter of law, whether (1) the record supports the jury's finding of any aggravating circumstance upon which the trial court based its sentence of death, (2) the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, or (3) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. The statute neither contemplates nor requires this Court to make factual findings.

Defendant argues that the terms "under the influence of passion, prejudice, or any other arbitrary factor" are unconstitutionally vague. Statutes containing identical or similar words have been upheld against vagueness challenges. Gregg v. Georgia, 428 U.S. at 166-67, 204-06, 96 S.Ct. at 2922, 2939-41. We agree with the Supreme Court's interpretation of the federal constitution on this point, and we are not inclined to interpret our state constitution any differently.

IV.

Proportionality

Having found no error in the guilt or sentencing phase of the trial, we must now consider whether (1) "the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor" and (2) "the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." N.C.Gen.Stat. 15A-2000(d)(2).

We can find, and defendant has pointed to, nothing in the record which suggests that the sentence of death was influenced by "passion, prejudice, or any other arbitrary factor." The case was carefully and meticulously tried. The trial judge was assiduous at every stage to protect defendant's rights. The evidence of guilt was overwhelming. Defendant, against the advice of counsel, offered little, if anything, in mitigation of his sentence. Indeed defendant told the jury he preferred the death penalty to life imprisonment. The jury was carefully instructed at the sentencing phase regarding its duties under our capital sentencing statute. The instructions were in accordance with our case law on the subject. The jury was instructed that if it found the existence of aggravating and mitigating circumstances it

Nothing in the record before us suggests that the jury's ultimate determination of defendant's death sentence was based on anything other than its careful weighing of the aggravating against the mitigating circumstances in accordance with our capital sentencing statute.

Coming now to the question of whether the death sentence in this case "is excessive or disproportionate to the penalty imposed in similar cases, we note first our holding in State v. D. Williams, 308 N.C. 47, 301 S.E.2d 335, cert. denied, ___ U.S. ___, 104 S.Ct. 202, 78 L.Ed.2d 177 (1983):

Id. at 79, 301 S.E.2d at 355. The pool "includes only those cases which have been affirmed by this Court." State v. Jackson, 309 N.C. 26, 45, 305 S.E.2d 703, 717 (1983). In conducting our proportionality review, we do not "necessarily feel bound ... to give a citation to every case in the pool of `similar cases' used for comparison." State v. D. Williams, 308 N.C. at 81, 301 S.E.2d at 356. In D. Williams, we also described briefly the methods we employ in making our comparisons. Id. at 80-82, 301 S.E.2d at 355-57.

In essence, our task on proportionality review is to compare the case at bar with other cases in the pool which are roughly similar with regard to the crime and the defendant, such as, for example, the manner in which the crime was committed and defendant's character, background, and physical and mental condition. If, after making such a comparison, we find that juries have consistently been returning death sentences in the similar cases, then we will have a strong basis for concluding that a death sentence in the case under review is not excessive or disproportionate. On the other hand if we find that juries have consistently been returning life sentences in the similar cases, we will have a strong basis for concluding that a death sentence in the case under review is excessive or disproportionate.

Essentially, this case involves the murder of the owner of a dwelling and the attempted murder of the owner's father, both of whom caught defendant burglarizing the dwelling. Both the murder and the attempted murder were accomplished as a result of defendant's careful, cold and calculated determination that he would prefer murdering these persons to risking their being able to testify against him and possibly send him back to prison. At the sentencing hearing defendant told the jury that if it believed he committed the murder, "gas me" and "I'd like the death penalty." Defendant offered little in mitigation of the murder. The jury, on supporting evidence, concluded that the murder was aggravated because it was committed to avoid arrest and was part of a course of conduct which involved a crime of violence against another person. Since the jury did not specify which mitigating circumstances it found and specified that it found "one or more," we must assume for purposes of proportionality review that the jury found both mitigating circumstances submitted, i.e., that defendant had no significant criminal history and had testified for the prosecution in another felony case.

We note that of the fourteen cases in the pool in which a death sentence has been affirmed by this Court,4 seven of them were cases in which the jury found the aggravating factor that defendant engaged in a course of conduct involving violence against another person.5 In Williams II the only aggravating circumstance submitted and found by the jury was that defendant engaged in such a course of conduct. Further, the jury found as a mitigating circumstance, among others, that defendant had no significant history of prior criminal activity. Williams II involved the shooting of an employee of a service station during an armed robbery of the station. At the sentencing phase the state offered evidence of another robbery murder committed by defendant on the same evening as part of a course of conduct involving both robbery murders. D. Williams is like the instant case in that it involved the murder of the occupant of a private dwelling when defendant, bent on burglarizing the dwelling he thought was unoccupied, was surprised by the occupant. It is true that in D. Williams defendant also sexually molested the victim and the jury found the crime to be especially heinous; but there were no crimes of violence committed against other persons. Oliver also is like the instant case in that it involved the murder of an armed robbery victim for the purpose of avoiding arrest, i.e., to eliminate an eyewitness. There was also another murder committed in that case by Oliver's accomplice, Moore; although the "course of conduct" aggravating circumstance was not submitted to the jury.

We recognize, on the other hand, that in a number of robbery murder cases, juries have imposed sentences of life imprisonment rather than death.6 Of these cases, only in Barnett did the jury find that the capital offense was committed during a course of conduct in which defendant committed crimes of violence against others. In Barnett, however, the jury found one or more of various mitigating circumstances which included that defendant's capacity "to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired." N.C.Gen.Stat. § 15A-2000(f)(6). Likewise in Booker the jury found one or more of a number of mitigating circumstances which included the impaired capacity of defendant and the circumstance that defendant when the crime was committed "was under the influence of mental or emotional disturbance." Id. § 15A-2000(f)(2). In Hill the jury did find that defendant knowingly created a risk of death to more than one person by means of a weapon which would normally be hazardous to the lives of more than one person as an aggravating circumstance; but the jury found as a mitigating circumstance that defendant was under the influence of a mental or emotional disturbance at the time of his crime. In Crews two defendants, Crews and Turpin, were convicted of two murders committed at the same time, the cases being joined for trial and sentencing. The jury did find in mitigation that Crews "up to the time of his departure, AWOL, from the U.S. Army, ... enjoyed a good reputation in his home community and his promotion in the U.S. Army substantiated this reputation." It found that Turpin acted under duress or domination of another and was under the influence of a mental or emotional disturbance. It found both defendants had no significant history of criminal activity. Crews committed one murder and Turpin the other. Crews put up a relatively strong case in mitigation at the sentencing hearing. It included the testimony of seven family members who told of his good reputation in the community where he lived. He also denied participating in the murders, but admitted being with his accomplices. In Elkerson, Murvin, Rinck, and Alston, no sentencing hearings were conducted because there was no evidence of any aggravating circumstances. In Abdullah, at this writing, we have no information regarding the aggravating or mitigating circumstances submitted to or found by the jury.

The aggravating circumstance that the capital crime was committed during a course of conduct which included crimes of violence against another person is common to half the cases in which this Court has affirmed death sentences. Even in the presence of this factor, however, or other similar factors, juries in Barnett and Hill did not impose the death penalty where they also found defendant's capacity to appreciate the criminality of his act or to conform his conduct to law was impaired or that defendant was under a mental or emotional disturbance, or both. Here defendant did commit a capital murder in the course of which he also committed a crime of violence against another person. Indeed that crime of violence was an attempted murder itself. There is no suggestion in the case that defendant's mental capacity was impaired or that he was under the influence of a mental or emotional disturbance. All the evidence shows that the murder and the attempted murder were coldly and calculatedly perpetrated because defendant did not want to leave any witnesses who might send him back to prison. In Oliver, in sustaining on proportionality review a death sentence, this Court said:

309 N.C. at 375, 307 S.E.2d at 335. So it is here.

Because juries have returned death sentences in a number of cases similar to this one and the cases in which juries have returned life imprisonment are for the most part distinguishable on the basis of the absence of an aggravating factor present in this case or the presence of mitigating factors absent in this case, we conclude that the sentence of death in this case is not excessive or disproportionate to penalties imposed in similar cases, considering both the circumstances under which the crime was committed and the character, background and mental state of defendant.

Consequently, in defendant's trial and sentencing hearing, we find

NO ERROR.

MARTIN and FRYE, JJ., did not participate in the consideration or decision of this case.