On 23 February 1987, defendant Rowland Andrew Hedgepeth was indicted for the first-degree murder of Richard Casey and for assault with a deadly weapon with intent to kill inflicting serious injury on Beverly Hedgepeth, defendant's estranged wife. In October of 1987, defendant was tried capitally to a jury and found guilty. After a capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction, and the trial judge entered judgment accordingly. On appeal, we affirmed the murder conviction but found reversible error in the sentencing proceeding under McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). Accordingly, we vacated the sentence of death and remanded for a new capital sentencing proceeding. State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309 (1991).
The new capital sentencing proceeding was held at the 19 May 1997 Criminal Session of Superior Court, Halifax County. The jury found the aggravating circumstance that the murder was part of a course of conduct in which defendant engaged, including defendant's commission of other crimes of violence against another person or persons. N.C.G.S. § 15A-2000(e)(11) (1997). The jury also found the statutory mitigating circumstance that the murder was committed while defendant was under the influence of mental or emotional disturbance, N.C.G.S. § 15A-2000(f)(2), and seven nonstatutory mitigating circumstances. After determining that the aggravating circumstance found outweighed the mitigating circumstances found and that it was sufficiently substantial to call for imposition of the death penalty, the jury recommended a sentence of death for the first-degree murder conviction, and the trial judge entered judgment accordingly.
Defendant appeals as of right from the sentence of death. After thorough consideration of the assignments of error brought forth on appeal by defendant, the transcript of the proceeding, the record on appeal, the briefs, and oral arguments, we hold that defendant received a fair capital sentencing proceeding, free from prejudicial error, and that the sentence of death is not disproportionate.
Because the facts were presented fully in our earlier opinion, State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309, we restate them here only as necessary to address and determine the issues presented in this appeal. At the new sentencing hearing, the State presented evidence tending to show that Beverly Hedgepeth and defendant married in 1980 and separated in 1986. On 13 February 1987, Mrs. Hedgepeth; Richard Casey; Dennis Morgan; and Dennis Morgan's wife, Ruth Morgan, went to a Howard Johnson's restaurant for breakfast after attending a dance. At the time of the sentencing rehearing, Mrs. Hedgepeth had remarried. She is referred to as Ms. Jolly in the transcript. They were seated at a booth when defendant entered the restaurant and sat in a booth adjacent to theirs.
Because Mr. Morgan had noticed the handle of a gun sticking out from under defendant's coat as defendant entered the restaurant, he rose and sat in the booth with defendant. According to Mr. Morgan, defendant was angry and told Mr. Morgan, inter alia, that he loved Mrs. Hedgepeth; "that Ricky Casey had slept with every woman in Roanoke Rapids" but would not sleep with Mrs. Hedgepeth that night; and that he was going to kill Casey, Mrs. Hedgepeth, and himself. In the course of their conversation, Mr. Morgan informed defendant that Mrs. Hedgepeth's first husband had raped a child and subsequently killed himself. Defendant became more upset because he had not previously been informed of this occurrence.
A short time later, defendant approached the booth where Mrs. Hedgepeth, Casey, and Mrs. Morgan sat and asked Casey to step outside the restaurant. After Casey told defendant that he did not want any trouble, defendant replied, "Let me show you trouble" or "this is trouble"; pulled out the gun; and fired several times, killing Casey and wounding Mrs. Hedgepeth.
The defense, in mitigation, presented evidence by defendant's brother Billy Hedgepeth,
Billy Hedgepeth testified that in 1976 defendant fell from a three-story building and suffered head injuries. As a result, defendant was out of work for a year or more and was unable to return to his former position. From the late 1970s to the early 1980s, Billy and defendant worked at construction sites in Ashland, Virginia; Good Hope, Louisiana; and Georgetown, South Carolina. Defendant worked in Louisiana for six or seven months of the time he was married to Mrs. Hedgepeth and sent all his pay except what he needed to live on home to Mrs. Hedgepeth. Defendant had a good relationship with the son born of his union with Mrs. Hedgepeth and was supportive of Mrs. Hedgepeth's daughter from her previous marriage.
Dr. Joseph Neil Ortego, a board-certified psychiatrist and neurologist, testified based on his review of twelve reports of examinations of defendant, including school records and hospital records, and his two-hour evaluation of defendant. Dr. Ortego's testimony included his reading into the record a report prepared by him. In his report, Dr. Ortego concluded that defendant has a mixed personality disorder, is alcohol dependent and has permanent structural and functional brain damage as a result of the head injury. Dr. Ortego, reading from his report, testified that defendant's brain damage dramatically changed his degree of aggressiveness, rage, and inhibition when he was intoxicated, impairing his ability to control his emotions.
Dr. Ortego contrasted defendant's 1973 preinjury antisocial behavior when he had separated from his first wife with two incidents after the injury: defendant's behavior after he separated from Janis Hovis, a former girlfriend who once lived with him, and defendant's behavior on the night of 13 February 1987. In explaining defendant's behavior on the night of 13 February 1987, Dr. Ortego testified that "at the point when [defendant] was intoxicated and enraged his ability to appreciate the criminality and the consequences [of his actions was] very much impaired."
Dr. Helen Rogers, a clinical psychologist with a specialty in clinical neuropsychology, testified that she conducted a five-to six-hour neuropsychological evaluation that consisted of a battery of tests designed to gauge brain function. Dr. Rogers' evaluation of defendant indicated "impairment in memory, verbal memory performance and a variety of difficulties in areas that suggest frontal lobe damage." Dr. Rogers also reviewed other medical records of defendant's, including a report prepared by the North Carolina Department of Correction in 1980 and one prepared at Dorothea Dix Hospital in March 1987. Dr. Rogers further testified that a person with frontal lobe injury would be "more vulnerable to the effects of any kind of stress [including] chemical stressors like ... alcohol."
The State presented rebuttal evidence tending to show the following:
Over defendant's objection, the State presented rebuttal evidence of defendant's prior bad acts. Defendant's first wife, Donna Rice, testified to incidences of defendant's abusive behavior towards her and her uncle, Clyde Hargrave. Rice testified that on one occasion, defendant struck her after forcing her to leave an evening program at the elementary school where she was employed.
Rice testified further that after she left defendant in June 1973, she moved in with her grandmother. When defendant called and announced that he was coming to get her, Rice summoned her uncle, Clyde Hargrave, to protect her. When Hargrave informed defendant that Rice did not wish to go with him, defendant struck Hargrave. After Hargrave obtained a warrant for defendant's arrest, defendant attacked him again.
Hargrave also testified to the June 1973 incident in which defendant assaulted him. Carlon Nicholson, another of Rice's uncles, testified that a week after the incident in which Hargrave was assaulted, defendant appealed to him for help in getting Rice back.
Vicky Proctor, a former girlfriend of defendant's, testified that prior to defendant's head injury, defendant once took her out of a van and assaulted her in the street. On another occasion, she sustained injuries when she jumped out of a moving car that defendant was driving after he began beating her.
Several witnesses testified to a 10 August 1979 incident in which defendant chased Janet Hovis, who had been living with defendant at the Henry Street Apartments for several months. Defendant then got into his car and drove towards two of his neighbors who were standing in front of some apartments. He drove over the curb and onto the cement steps of an apartment, pinning two people between his car and an apartment door. Defendant then got out of his car, grabbed one of the neighbors by her throat, threatening to kill her. He eventually got back into his car and left the scene.
On appeal, defendant first argues that the trial court erred by allowing the State to introduce unfairly prejudicial evidence of prior bad acts committed by defendant. In mitigation, through the expert testimony of Drs. Rogers and Ortego and through the testimony of Billy Hedgepeth, defendant presented evidence that a personality disorder he had prior to 1976 was exacerbated by the brain injury he suffered in the 1976 fall and that defendant's lack of control of his emotions resulting from the fall contributed to the shooting. Defendant argues that because this evidence was not offered to show that defendant had been nonviolent prior to the fall and because defendant did not attempt to rely on good character as a mitigating circumstance, evidence of defendant's assaultive behavior was not permissible rebuttal under N.C.G.S. § 8C-1, Rule 404.
Defendant contends that evidence of his violent outbursts did not rebut mitigating evidence of his personality disorder and that evidence of his violent outburst in 1979 was not logically relevant in that it occurred after his head injury and, therefore, could not rebut defendant's evidence that his brain injury affected his impulse control and susceptibility to alcohol. Furthermore, he argues that the trial court's admission of extensive evidence of his violent acts was inflammatory and unfairly prejudicial and should have been excluded under Rule 403 of the North Carolina Rules of Evidence.
"Admissibility of evidence at a capital sentencing proceeding is not subject to a strict application of the rules of evidence, but depends on the reliability and relevance of the proffered evidence." State v. Atkins, 349 N.C. 62, 77, 505 S.E.2d 97, 107 (1998), cert. denied, ___ U.S. ___, 119 S.Ct. 2025, 143 L.Ed.2d 1036 (1999). Because the Rules of Evidence do not apply in capital sentencing proceedings, N.C.G.S. § 8C-1, Rule 1101(b)(3) (1992), "a trial court has great discretion to admit any evidence relevant to sentencing." State v. Thomas, 350 N.C. 315, 359, 514 S.E.2d 486, 513 (1999). "Any evidence that the trial court deems relevant to sentencing may be introduced in the sentencing proceeding." State v. Perkins, 345 N.C. 254, 283-84, 481 S.E.2d 25, 38, cert. denied, ___ U.S. ___, 118 S.Ct. 111, 139 L.Ed.2d 64 (1997).
Id. at 120, 449 S.E.2d at 740 (quoting State v. Silhan, 302 N.C. 223, 273, 275 S.E.2d 450, 484 (1981), overruled on other grounds by State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133 (1997)) (citation omitted).
The transcript reveals that the trial court conducted voir dire to determine the admissibility of the evidence to be presented by Donna Nicholson Rice, Clyde Hargrave, and Vicky Proctor and concluded that the evidence was relevant and admissible rebuttal evidence. The trial court also conducted inquiry as to the admissibility of the testimony of several witnesses to the Hovis incident and concluded that their testimony was admissible. We also cannot conclude that the trial court abused its discretion in admitting evidence of defendant's prior violent outbursts to rebut the testimony in mitigation of Drs. Rogers and Ortego. Since their evidence attempted to explain the impact of defendant's brain injury on his assaultive behavior, evidence regarding the circumstances surrounding these incidents as testified to by the victims of this behavior was appropriate on rebuttal. This assignment of error is overruled.
Furthermore, in State v. Williams, 350 N.C. 1, 510 S.E.2d 626 (1999), we addressed a similar issue. In Williams, the defendant argued that the trial court erred in allowing details of his prior criminal activity into evidence in his capital sentencing proceeding. As we stated in Williams, "[o]nce any evidence is introduced in a capital sentencing proceeding tending to show a history of prior criminal activity by defendant, defendant and the State are free to present all evidence available concerning the extent and significance of that history." Id. at 12, 510 S.E.2d at 634. Certainly, as in Williams, once defendant in the case sub judice proffered evidence of his prior violent outbursts, the State was free to offer a more comprehensive account of that assaultive behavior. We, therefore, conclude that the trial court did not err in allowing the testimony at issue.
Rule 403 of the North Carolina Rules of Evidence provides:
N.C.G.S. § 8C-1, Rule 403 (1992). We have consistently noted that "`[n]ecessarily, evidence which is probative in the State's case will have a prejudicial effect on the defendant; the question is one of degree.'" State v. Wilson, 345 N.C. 119, 127, 478 S.E.2d 507, 512-13 (1996) (quoting State v. Weathers, 339 N.C. 441, 449, 451 S.E.2d 266, 270 (1994)). It is also well established that "the exclusion of evidence under the balancing test of Rule 403... is within the trial court's sound discretion." State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
Here, the trial court found that the probative value of the evidence was not outweighed by the danger of unfair prejudice. We cannot conclude that the trial court abused its discretion in allowing evidence of defendant's prior violent acts, and we therefore reject defendant's contention that the probative value of the evidence of his prior violent acts was substantially outweighed by the danger of unfair prejudice under Rule 403.
In his next assignment of error, defendant contends that the trial court erred in excluding expert testimony that linked defendant's personality disorder and brain damage to the killing of Casey. During redirect examination and outside the presence of the jury, the following exchange occurred between defense counsel and Dr. Rogers:
The State objected, arguing that the question of whether defendant's injury contributed to the commission of the crime called for a legal conclusion, and the trial court sustained the State's objection.
Defendant argues that because Dr. Roger's testimony explained the link between defendant's medical condition and the commission of the crime, it was relevant, mitigating evidence, and the trial court's refusal to admit it was constitutional error. In sustaining the objection, the trial court duly noted that the question was being asked on redirect and that the testimony had previously been elicited from the witness.
On redirect examination of a witness, "the calling party is ordinarily not permitted to ... have the direct testimony repeated." State v. Weeks, 322 N.C. 152, 169, 367 S.E.2d 895, 905 (1988). Here, the testimony defendant attempted to elicit from Dr. Rogers is essentially the same as testimony previously elicited through direct examination of Dr. Rogers and testimony previously elicited from Dr. Ortego. Even assuming arguendo that the trial court erred, any prejudice to defendant is not sufficient so as to entitle him to a new sentencing hearing.
Defendant next contends that the trial court erred in refusing to give the requested peremptory instruction that the murder was committed while defendant was under the influence of a mental or emotional disturbance and that defendant's ability to conform his conduct to the requirements of the law was impaired as set forth in N.C.G.S. § 15A-2000(f)(2) and (f)(6), respectively. Even though the trial court refused to give the requested peremptory instruction on the (f)(2) mitigating circumstance that the murder was committed while defendant was under the influence of mental or emotional disturbance, one or more of the jurors still found it to exist; however, none of the jurors found the (f)(6) mitigator that defendant's ability to conform his conduct to the law was impaired.
Defendant argues that the facts in the instant case are similar to those in State v. Holden, 338 N.C. 394, 450 S.E.2d 878 (1994). In Holden, we held that the defendant was entitled to a new capital sentencing proceeding because the trial court refused to give a peremptory instruction to the jury on the (f)(2) mitigating circumstance despite the fact that the defendant presented uncontroverted evidence that the defendant suffered a mental or emotional disturbance at the time of the murder.
"[A] trial court should, if requested, give a peremptory instruction for any mitigating circumstance, whether statutory or nonstatutory, if it is supported by uncontroverted and manifestly credible evidence." State v. Adams, 347 N.C. 48, 70, 490 S.E.2d 220, 232 (1997), cert. denied, ___ U.S. ___, 118 S.Ct. 892, 139 L.Ed.2d 878 (1998). "If the evidence supporting the circumstance is controverted or is not manifestly credible, the trial court should not give the peremptory instruction." State v. Bishop, 343 N.C. 518, 557, 472 S.E.2d 842, 863 (1996), cert. denied, 519 U.S. 1097, 117 S.Ct. 779, 136 L.Ed.2d 723 (1997). Furthermore, "[t]he trial court's refusal to give the peremptory instruction does not prevent defendant from presenting, or the jury from considering, any evidence in support of the mitigating circumstance." Id.
Here, defendant's evidence supporting the (f)(2) and (f)(6) mitigating circumstances was in fact controverted. Dr. Ortego and Dr. Rogers testified that the brain injury defendant suffered in the 1976 fall resulted in defendant's lack of control of his emotions when enraged and intoxicated, which contributed to the shooting. While the testimony of Dr. Ortego and Dr. Rogers supported the (f)(2) and (f)(6) mitigating circumstances, the State presented evidence to the contrary.
The State's evidence tended to show that the shooting of Casey and Mrs. Hedgepeth was planned in advance and that defendant was cold, calm, and calculated in carrying out his plan. There is evidence that he was neither enraged nor intoxicated at the time of the shooting. For example, after defendant
In State v. Neal, 346 N.C. 608, 487 S.E.2d 734 (1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1072, 140 L.Ed.2d 131 (1998), we concluded that a peremptory instruction was inappropriate because the evidence surrounding the issue was conflicting. Because we conclude that the evidence as to the (f)(2) and (f)(6) mitigating circumstance was conflicting, we overrule this assignment of error.
In his next assignment of error, defendant contends that the trial court committed plain error in not instructing the jurors that they must give weight to statutory mitigating circumstances and in leading the jurors to believe they could give no weight to statutory mitigating circumstances. Defendant argues that the trial court's instruction to the jurors that they were "the sole judges of the weight to be given to any individual circumstance..., whether aggravating or mitigating," along with the trial court's failure to inform the jurors that statutory mitigating circumstances must be given mitigating weight, deprived defendant of his constitutional right to have the jury give mitigating effect to the evidence of his mental and emotional disturbance and to his impaired capacity to conform his conduct to the requirements of the law.
"If a juror determines that a statutory mitigating circumstance exists, ... the juror must give that circumstance mitigating value. The General Assembly has determined as a matter of law that statutory mitigating circumstances have mitigating value." State v. Jaynes, 342 N.C. 249, 285, 464 S.E.2d 448, 470 (1995) (citations omitted), cert. denied, 518 U.S. 1024, 116 S.Ct. 2563, 135 L.Ed.2d 1080 (1996). In State v. Howell, 343 N.C. 229, 239, 470 S.E.2d 38, 43 (1996), we found reversible error where the jury was "thrice instructed ... to decide whether any of the sixty-one mitigating circumstances had mitigating value."
Here, the trial court instructed the jury with regard to the (f)(2) and (f)(6) mitigating circumstances in part as follows:
As to nonstatutory circumstances, the trial court instructed the jury as follows:
With respect to the statutory catchall mitigating circumstance, the trial court instructed the jury as follows:
These instructions are consistent with the pattern jury instructions for separate capital sentencing proceedings. See N.C.P.I.—Crim. 150.10 (1996) (amended June 1997).
Id. at 56, 506 S.E.2d at 485. For the reasons stated in Davis, we conclude that the jury instructions in the instant case did not constitute error.
Defendant next contends that the trial court erred in allowing a lay opinion that the victim remained alive for a period of time following the shooting. On direct examination, Mike Lucas, a customer in the restaurant at the time of the shooting, testified in part as follows:
Defense counsel objected and moved to strike. The trial court overruled the objection.
Defendant argues that Lucas was not competent to assess whether Casey was alive when he was wheeled out of the restaurant. Allowing this testimony, defendant contends, was prejudicial error entitling defendant to a new capital sentencing proceeding because it led the jury to believe that Casey survived the shooting and suffered until the time of his death.
"The Rules of Evidence, although not applicable to capital sentencing proceedings, nevertheless may be relied upon for guidance when determining questions of reliability and relevance." State v. Strickland, 346 N.C. 443, 460, 488 S.E.2d 194, 204 (1997), cert. denied, ___ U.S. ___, 118 S.Ct. 858, 139 L.Ed.2d 757 (1998). Rule 701 of the North Carolina Rules of Evidence provides:
N.C.G.S. § 8C-1, Rule 701 (1992).
The Court of Appeals' decision in State v. McCain, 6 N.C. App. 558, 170 S.E.2d 531 (1969), is also instructive. There, the court held that a detective's opinion that the deceased was dead at the crime scene was admissible. The court stated, "The question of whether a person is living or dead is not wholly scientific or of such a nature as to render valueless any opinion but that of an expert. Common inferences derived from the appearance, condition, or mental or physical state of persons ... are proper subjects of opinion testimony by non-experts." Id. at 561, 170 S.E.2d at 533 (citation omitted).
Defendant next assigns error to the trial court's denial of his challenge for cause to two prospective jurors who he argues could not serve impartially and a prospective juror who suffered from a physical infirmity. Defendant contends that jurors Denise Boone and Charles Britton should have been excused because of their views on capital punishment and that juror Richard Thiele should have been excused because he suffered from memory loss. Defendant contends that the trial court's refusal to strike Boone, Britton, and Thiele for cause violated defendant's rights under the Fourteenth Amendment to the United States Constitution.
In voir dire in response to questioning by the State, Boone stated that she would listen to the evidence and keep an open mind. However, in filling out the jury questionnaire, Boone indicated that her view on the death penalty was that someone who kills someone should be executed. Defense counsel questioned Boone based on her responses in the questionnaire in part as follows:
After the prosecutor objected and the trial court overruled the objection, the dialogue continued as follows:
After defense counsel further questioned Boone, he challenged her for cause. The trial court then questioned Boone in part as follows:
In an attempt to reconcile and clarify Boone's responses, the trial court questioned Boone again as follows:
After questioning Boone further, the trial court denied defendant's challenge for cause, and defendant excused Boone peremptorily.
"[T]o determine whether a prospective juror may be excused for cause due to that juror's views on capital punishment, the trial court must consider whether those views would `["]prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.["]' Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985) [(quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980)) ]." State v. Bowman, 349 N.C. 459, 469-70, 509 S.E.2d 428, 435 (1998), cert. denied, ___ U.S. ___, 119 S.Ct. 2403, ___ L.Ed.2d ___ (1999). "Absent an abuse of discretion, it is the trial court's decision as to whether [a] prospective juror's beliefs would affect [his or] her performance as a juror." Id. at 471, 509 S.E.2d at 436.
"The trial court has the opportunity to see and hear a juror and has the discretion, based on its observations and sound judgment, to determine whether a juror can be fair and impartial." State v. Dickens, 346 N.C. 26, 42, 484 S.E.2d 553, 561 (1997). While Boone's questionnaire responses and some of her responses during voir dire indicated that she preferred the death penalty for those convicted of murder, the trial court was able upon further questioning to discern that she was capable of putting aside her personal preference for the death penalty and of following the law. We conclude that the trial court did not abuse its discretion in denying defendant's challenge for cause of prospective juror Boone.
During voir dire, defense counsel questioned prospective juror Britton as follows:
During further questioning by the trial court, Britton stated that he would do his best to follow the law as instructed by the trial court, that he believed that he could be a fair and impartial juror in the case, but that he was not certain that he could be fair and impartial. Upon further questioning from the trial court, Britton indicated that he could fairly and impartially apply the law, consider the evidence, and render a recommendation in the case based on the evidence
We have previously stated that "`in a case... in which a juror's answers show that he could not follow the law as given ... by the judge in his instructions to the jury, it is error not to excuse such a juror.'" State v. Cunningham, 333 N.C. 744, 754, 429 S.E.2d 718, 723 (1993) (quoting State v. Hightower, 331 N.C. 636, 641, 417 S.E.2d 237, 240 (1992)) (alterations in original). Britton's answers, however, do not sufficiently show that he could not follow the law. To the contrary, they evince a willingness to follow the law as instructed by the trial court. We, therefore, cannot conclude that the trial court abused its discretion in denying defendant's challenge for cause of prospective juror Britton.
Under N.C.G.S. § 15A-1212(2), a party may challenge a juror for cause on the grounds that the juror "[i]s incapable by reason of mental or physical infirmity of rendering jury service." N.C.G.S. § 15A-1212(2) (1997). Defendant argues that prospective juror Thiele suffered from memory loss that rendered him incompetent to serve as a juror.
During voir dire, in response to the prosecutor's questioning, Thiele discussed the fact that he was under treatment for an inoperable brain tumor. The following exchange later occurred between defense counsel and Thiele during voir dire:
After defense counsel challenged Thiele for cause, the trial court questioned Thiele further about his memory loss in part as follows:
In response to the trial court's questioning, Mr. Thiele went on to state that as a consequence of his memory loss, he had "to pay more attention to scheduling and writing things down" but that he was "functioning all right." He also stated that his memory loss sometimes caused him to lack confidence in his ability to recall facts. On further questioning by the trial court, Thiele stated that the ability to take notes during the trial would be helpful to him.
It is well settled that "[t]he trial court's ruling on a challenge for cause will not be overturned absent abuse of discretion." State v. Quick, 329 N.C. 1, 17, 405 S.E.2d 179, 189 (1991). In the case sub judice, the trial court seemed convinced that
We conclude that the denial of defendant's challenges for cause of prospective jurors Boone, Britton, and Thiele did not constitute an abuse of discretion. This assignment of error is overruled.
Defendant next contends that the trial court erred in excusing prospective jurors Harold Vick and Frank Luis for cause. Defendant argues that these prospective jurors should not have been excused for cause because although they stated that they would be uncomfortable imposing the death penalty, they also expressed support for the death penalty. Defendant contends that the trial court's excusing Vick and Luis for cause violated defendant's constitutional rights.
When, during voir dire, the prosecutor asked prospective juror Vick how he felt about the death penalty, Vick initially answered, "I don't quite know how to answer that." When asked again, he responded, "Well, I guess it would depend on the case." The following exchange occurred as the prosecutor questioned Vick further:
When the trial court questioned Vick further, the following exchange occurred:
Later, the prosecutor asked Vick the following question:
After the trial court overruled an objection by defense counsel, Vick answered as follows, and the following exchange took place:
After the prosecutor challenged Vick for cause, the court questioned Vick in part as follows:
The trial court then granted the prosecutor's challenge for cause and ruled "that the feelings expressed by this juror indicate that his views are such that [they] would prevent or substantially impair his ability to perform his sworn duties as a juror and that he would not be qualified to serve."
During questioning by the prosecutor in the voir dire of prospective juror Luis, Luis stated his belief that the death penalty is "necessary in certain circumstances." During further questioning, after Luis was asked, over defense counsel's objection, whether he "could be part of the legal machinery which might bring the death penalty about in this particular case as a juror," the following exchange occurred:
After further questioning in which Luis unequivocally stated that, because of both personal and religious reasons, he could not vote to impose the death penalty on Hedgepeth or anyone else and acknowledged that his views on the death penalty would either prevent or substantially impair his ability to perform his duties as a juror, the prosecutor challenged Luis for cause. Defense counsel objected but did not request to examine the witness,
"[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding [prospective jurors] for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776, 784-85 (1968). Jurors, however, may be excluded for cause if their views on capital punishment would "`prevent or substantially impair the performance of [their] duties as a juror in accordance with [their] instructions and [their] oath.'" Wainwright, 469 U.S. at 424, 105 S.Ct. at 852, 83 L.Ed.2d at 851-52 (quoting Adams, 448 U.S. at 45, 100 S.Ct. at 2526, 65 L.Ed.2d at 589). "A prospective juror's bias or inability to follow the law does not have to be proven with unmistakable clarity, and the decision as to whether a juror's views would substantially impair the performance of his [or her] duties is within the trial court's broad discretion." State v. Gregory, 340 N.C. 365, 394, 459 S.E.2d 638, 655 (1995), cert. denied, 517 U.S. 1108, 116 S.Ct. 1327, 134 L.Ed.2d 478 (1996).
Here, prospective juror Vick's responses during voir dire strongly indicated his potential inability to consider the death penalty, while the responses of prospective juror Luis revealed a complete unwillingness to consider the death penalty. The trial court reasonably found that the personal views of both Vick and Luis would substantially impair their performance as jurors. Thus, we conclude that the trial court did not abuse its discretion in excusing prospective jurors Vick and Luis for cause.
Having found no error in the guilt-innocence phase in State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309, and no error in defendant's new capital sentencing proceeding herein, we are required to review the record and determine (1) whether the record supports the aggravating circumstance found by the jury; (2) whether "the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor"; and (3) whether "the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." N.C.G.S. § 15A-2000(d)(2). We engage in proportionality review as a safeguard "against the capricious or random imposition of the death penalty." State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980).
Here, as noted above, the jury found the aggravating circumstance that the murder was part of a course of conduct in which defendant engaged, including defendant's commission of other crimes of violence against another person or persons. N.C.G.S. § 15A-2000(e)(11). After meticulous review and careful deliberation, we conclude that the aggravating circumstance submitted to and found by the jury is fully supported by the record. We further conclude that there is no indication that the sentence of death was imposed under the influence of passion, prejudice, or another arbitrary factor.
Finally, we must consider whether imposition of the death penalty in defendant's case is disproportionate or excessive in comparison to similar cases. We note that on seven occasions, this court has concluded that the sentence of death was disproportionate. State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 118 S.Ct. 248, 139 L.Ed.2d 177 (1997), and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).
This case has several characteristics that distinguish it from those cases in which we have determined the death penalty to be disproportionate. Here, in upholding defendant's conviction, we noted that "[t]here
Of the cases in which we found the death penalty disproportionate, Bondurant and Rogers are the only two where the jury found the (e)(11) aggravating circumstance, found in the instant case, that the defendant engaged in a course of conduct which involved a crime of violence against another. In Bondurant, immediately after he shot the victim, the defendant directed the driver of the car in which he and the victim had been riding to go the hospital. This Court was impressed by the fact that "[i]n no other capital case among those in our proportionality pool did the defendant express concern for the victim's life or remorse for his action by attempting to secure immediate medical attention for the deceased." Bondurant, 309 N.C. at 694, 309 S.E.2d at 182-83. Here, in fact, a news director testified that at the police station after the shooting, defendant looked at him; shrugged his shoulders; smirked; and said, "Man, I ran out of bullets." Such a statement strongly suggests that defendant's only regret was that he did not succeed in killing Mrs. Hedgepeth.
In Rogers, the only other case where the jury found the (e)(11) aggravating circumstance and in which we have found the death penalty disproportionate, the defendant mistakenly shot the victim while attempting to shoot a friend of the victim's. Here, there was evidence that defendant had contemplated killing Casey and Mrs. Hedgepeth for months prior to the shooting. After comparing the case sub judice to the seven cases in which this Court has concluded that the sentence of death was disproportionate, we conclude that this case is not substantially similar to any of them.
We continue our inquiry by comparing this case to the cases in which this Court has found the death penalty to be proportionate. "Although we review all of these cases when engaging in this statutory duty, we will not undertake to discuss or cite all of those cases each time we carry out that duty." Davis, 349 N.C. at 60, 506 S.E.2d at 488. As we noted in Bowman, 349 N.C. at 482, 509 S.E.2d at 442, the (e)(11) aggravating circumstance, found by the jury here, is one of "four statutory aggravating circumstances which, standing alone, this Court has held sufficient to support a sentence of death." See also State v. Bacon, 337 N.C. 66, 110 n. 8, 446 S.E.2d 542, 566 n. 8 (1994), cert. denied, 513 U.S. 1159, 115 S.Ct. 1120, 130 L.Ed.2d 1083 (1995). In addition, "[a] single aggravating circumstance may outweigh a number of mitigating circumstances and may be sufficient to support a death sentence." Id. at 110, 446 S.E.2d at 566.
Here, the trial court submitted and the jury found the aggravating circumstance that the murder of Casey was part of a course of conduct in which defendant engaged and which included another violent crime, the shooting of Mrs. Hedgepeth. Defendant intended to kill both Casey and Mrs. Hedgepeth and succeeded in killing Casey. We conclude that this case is more similar to cases in which we have found the sentence of death to be proportionate than to those in which juries consistently have returned recommendations of life imprisonment. Based on the nature of this crime, we cannot conclude that the sentence of death is disproportionate or excessive.
Defendant received a fair capital sentencing proceeding, free from prejudicial error. Accordingly, we leave the judgment of the trial court undisturbed.