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Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "259 S.E. 2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "524" }, { "page": "526" } ], "opinion_index": 0 }, { "cite": "298 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572332 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "320" }, { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0306-01" ] } ], "analysis": { "cardinality": 2253, "char_count": 89289, "ocr_confidence": 0.767, "pagerank": { "raw": 9.880382439403174e-07, "percentile": 0.9823194325229 }, "sha256": "d132cd6940cb27e34917cf8126392a6b190c7b0263413b0b4c8614d248243dea", "simhash": "1:a3374c73af741c5c", "word_count": 14747 }, "last_updated": "2023-07-14T17:25:15.704346+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice MEYER did not participate in the consideration and decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN WESLEY OLIVER and GEORGE MOORE, JR." ], "opinions": [ { "text": "EXUM, Justice.\nDefendants assign a multitude of errors to the guilt and sentence determination phases of the trial. Many are frivolous; because, however, this is a capital case, we touch upon them all. We find no error in the guilt phase warranting a new trial. For error in the sentencing phase we vacate the death sentences and remand those cases in which the death penalty was imposed for new sentencing hearings and determinations.\nThe state\u2019s evidence tends to show as follows:\nOn the morning of 12 December 1978 Bobby Hodge, a seven-year old boy at the time of trial, rode with his grandfather, Dayton Hodge, to Watts\u2019 Convenient Mart in Fairmont. The store was operated by Allen Watts. While Dayton Hodge was putting gas in his truck Bobby saw a man, whom he identified as defendant Oliver, run from Watts\u2019 store with a pistol in his hand. This man shot his grandfather at close range with the pistol and then \u201cran to the woods.\u201d Shortly thereafter, at approximately 9:35 a.m., Mitchell Ivey was driving by Watts\u2019 store. He observed a \u201ctall guy running away\u201d wearing a long brown coat with a \u201csilver shiny object in his hand.\u201d He then saw another person wearing \u201csomething red.\u201d \u201cThe first guy was running. The big, tall guy was running and the little guy turned around and started running maybe ten feet away . . . .\u201d Bobby Hodge flagged Ivey, and Ivey stopped. Ivey observed Dayton Hodge lying beside his truck with blood on his head and on the pavement. He went inside the store and found Allen Watts lying on his back with \u201cblood all on his side.\u201d Ivey telephoned police. Ivey identified defendants Moore and Oliver as the persons he saw running down the shoulder of the road.\nEmergency medical technicians with the Robeson County Ambulance Service arrived and transported both Dayton Hodge and Allen Watts to Southeastern General Hospital in Lumberton. When they arrived at the scene neither Dayton Hodge nor Allen Watts displayed any vital signs. Hodge died from a bullet which entered the back of his neck and lacerated his spinal cord. Watts died from a bullet which entered the right side of his forehead and pierced his brain. Both entry wounds were about three-eighths inches in diameter.\nRobeson County deputy sheriffs arrived at the scene at approximately 9:50 a.m. They searched a wooded area around the Square Deal Warehouse, near which was parked a white over brown Chevrolet truck approximately two to three tenths of a mile north of Watts\u2019 store on Highway 41. They apprehended defendants Oliver and Moore in the wooded area. Oliver jumped up from some thick underbrush with his hands up and was handcuffed. They discovered Moore some 81 feet away lying in a ditch. They found a paper sack containing $225.00 cash in ones, fives, and tens, and fifty-three $1.00 foodstamps in the ditch near where Moore was lying. Moore wore a red sweatshirt with a hood. Thirty minutes after deputies apprehended defendants they returned to the area and found a long, brown coat partially submerged in water in the ditch.\nJohnny Lee Lewis, while an inmate in the Robeson County jail on 18 January 1979, overheard defendant Moore talking with other inmates. Moore said he was \u201cin Mr. Watts\u2019 store two or three times that week, and on the night before the shooting.\u201d Moore said before he left home on 12 December 1978 \u201che started to take his 12-gauge shotgun and changed his mind at the last minute.\u201d He went to Watts\u2019 store and got candy and a drink. When Watts opened the cash register, Moore said, \u201che pulled out a gun and Mr. Watts said \u2018Please don\u2019t shoot me. Go ahead and take the money.\u2019\u201d Then Moore \u201cjust shot Mr. Watts and then laid the gun on the counter.\u201d\nOther circumstantial evidence strongly implicated both defendants Moore and Oliver as principal perpetrators of the two murders and the robbery. William Lands sold Oliver a .38 caliber pistol and a black holster in August 1978. On 30 April 1979 deputies returned to the wooded area where they had earlier apprehended defendants. They found the pistol sold to Oliver, partially buried, in the area some 600 feet from where defendants were apprehended. Marion Eady sold Oliver a 1972 Chevrolet, white over brown pickup truck on 22 September 1978. This truck was parked near the Square Deal Warehouse on the day of the crimes.\nOn the evening of 11 December 1978, shortly after 7:00 p.m., defendants came into Watts\u2019 store and \u201cjust walked around and looked and turned and went down the middle aisle and then came back up the first aisle.\u201d Oliver bought Vienna sausages. Then the men \u201cmoved around in the store continuously.\u201d They walked \u201cup and down the aisles for seven to eight minutes.\u201d Defendants were seen together at 8:00 a.m. on 12 December 1978 in a \u201cbrown pickup truck.\u201d Another witness observed two men walking toward Watts\u2019 store at approximately 9:00 a.m. on 12 December. One had on \u201csomething red. Looked like maybe a red hood. And the other one had on a coat about knee-length.\u201d Yet another witness identified both Moore and Oliver in Watts\u2019 store on 12 December at approximately 9:15 a.m.\nWitnesses who observed defendants at or near the time of the crimes consistently said Oliver was wearing a long, knee-length coat similar to that found in the woods near where he was arrested. They said Moore was wearing a red sweatshirt with a hood on it like that which he was wearing at the time of his arrest. Another witness said Moore was wearing a dark toboggan.\nOliver\u2019s fingerprints were found on the Chevrolet truck parked at the Square Deal Warehouse. Found in the truck was the black holster sold to Oliver by William Lands; a blue coat similar to that which some witnesses said Moore had worn over his red sweatshirt; and a black toboggan. In the right pocket of the blue coat were several pieces of multi-colored Christmas candy wrapping paper which matched the paper on candies found on the counter of Watts\u2019 store on the day of the crimes.\nDefendants offered evidence as follows:\nOliver\u2019s father testified that although Oliver lived with him, he had never seen the long, brown coat allegedly worn by his son, nor had he ever seen his son with a pistol.\nAccording to the testimony of state\u2019s witness Johnny Lee Lewis, Robert Earl Brown was one of those inmates to whom Moore made incriminating statements. Brown, testifying for Moore, denied that the conversation ever occurred. He related several exculpatory statements made by Moore.\nDefendants filed separate briefs. Assignments of error in the guilt phase made by both defendants will be discussed in Part I of the opinion. Assignments of error in the guilt phase raised only by defendant Oliver will be discussed in Part II; assignments of error in the guilt phase raised only by defendant Moore, in Part III; and errors assigned in the sentencing phase of the trial, in Part IV.\nI.\nDefendants first assign error in the denial of their motion for a change of venue. Defendants allege that adverse pre-trial publicity precluded their receiving a fair trial in Robeson County. In support of the motion defendants offered newspaper clippings, transcripts of radio and television news broadcasts and the testimony of five media representatives. Evidence offered or stipulated tended to show: The Robesonian, a local newspaper with a circulation of about 14,000, printed five articles discussing the murders and the apprehension of defendants. The Fairmont Town Messenger, a newspaper with a circulation of approximately 1,750, printed six such articles. The Whiteville News Reporter, a newspaper with a circulation of approximately 40 in Robeson County, published one such article. Broadcasts concerning the pending trial from WTSB radio, reaching an indeterminable number of persons throughout Robeson County, were made on nine different days. In addition, an undetermined number of broadcasts were made by WAGR radio reaching an indeterminable number of persons in Robeson County. The trial court took judicial notice of the fact that Robeson County has a population of approximately 90,000 persons.\nA motion for change of venue is addressed to the sound discretion of the trial judge and his ruling will not be overturned on appeal in the absence of an abuse of discretion. State v. Barfield, 298 N.C. 306, 320, 259 S.E. 2d 510, 524 (1979), cert. denied,_U.S. _, 65 L. Ed. 2d 1137, 100 S.Ct. 3050 (1980). In State v. Alford, 289 N.C. 372, 222 S.E. 2d 222, death sentence vacated, 429 U.S. 809 (1976), the defendant offered exhibits similar to those relied on here in support of his motion for change of venue. In Alford we concluded that with the exception of the coverage of the defendant\u2019s arrest, the articles were of a general nature likely to be found in any jurisdiction to which the trial might be moved. Here, as in Alford, the coverage of the arrests only indicated that defendants had been charged with a crime. The articles were factual, non-inflammatory, and contained for the most part information that could have been offered in evidence at defendants\u2019 trial.\nJudge Gavin, who ruled on the motions for change of venue, fully considered defendants\u2019 arguments. When the jury was selected at trial, defendants were allowed adequate opportunity for voir dire examination of potential jurors. No juror objected to by defendants because of pre-trial publicity was seated on the jury.\nThe burden of showing \u201cso great a prejudice\u201d by reason of pretrial publicity that a defendant cannot receive a fair trial is on defendant. State v. Faircloth, 297 N.C. 100, 105, 253 S.E. 2d 890, 893 (1979). Defendants did not successfully carry this burden. The motion for change of venue was properly denied.\nDefendants next challenge the denial of their motions for a probable cause hearing. At defendants\u2019 first appearance in this matter a probable cause hearing was scheduled for 20 December 1978. The state\u2019s request for a continuance was granted and the hearing rescheduled for 4 January 1979. The grand jury returned indictments against defendants on 2 January 1979. Defendants Oliver and Moore moved, respectively, for a probable cause hearing on 25 January and 22 January 1979. The motions were denied. Defendants contend that not affording them a probable cause hearing conflicts with the controlling North Carolina statute and is a denial of equal protection and due process of law. We do not agree.\nThe North Carolina statute upon which defendants rely is G.S. 15A-606(a):\n\u201cDemand or waiver of probable-cause hearing. \u2014 (a) The judge must schedule a probable-cause hearing unless the defendant waives in writing his right to such hearing. A defendant represented by counsel, or who desires to be represented by counsel, may not before the date of the scheduled hearing waive his right to a probable-cause hearing without the written consent of the defendant and his counsel.\u201d\nDefendants maintain that this section changes our former rule which allowed trial following indictment without a probable cause hearing. State v. Vick, 287 N.C. 37, 213 S.E. 2d 335 (1975), cert. dismissed, 423 U.S. 918 (1975). Defendants\u2019 argument was fully considered and rejected by this Court in State v. Lester, 294 N.C. 220, 240 S.E. 2d 391 (1978). It would serve no good purpose to repeat the rationale of Lester; suffice it to say that we see no need to disturb the conclusion we reached in that case.\nLester also disposes of defendants\u2019 claim that failure to provide them a probable cause hearing denied them due process and equal protection under the North Carolina and United States Constitutions. \u201c[N]either [constitution] requires a preliminary hearing as a necessary step in the prosecution of a defendant.\u201d Id. at 224, 240 S.E. 2d at 396. Since Lester, the California Supreme Court has concluded that deprivation of a post-indictment probable cause hearing denies a defendant equal protection of the law as guaranteed by the California Constitution. Hawkins v. Superior Court, 22 Cal. 3d 584, 586 P. 2d 916, 150 Cal. Rptr. 435 (1978). The rationale of Hawkins has been rejected expressly by Nevada, Seim v. State, 95 Nev. 89, 590 P. 2d 1152 (1979), and Illinois, People v. Franklin, 80 Ill. App. 3d 128, 398 N.E. 2d 1071 (1979). Federal courts have uniformly held that a defendant is not constitutionally entitled to a probable cause hearing following a grand jury indictment. Harris v. Estelle, 487 F. 2d 1293 (5th Cir. 1974); United States v. Anderson, 481 F. 2d 685 (4th Cir. 1973), aff\u2019d 417 U.S. 211 (1974); United States v. LePera, 443 F. 2d 810 (9th Cir. 1971), cert. denied, 404 U.S. 958 (1971); United States v. Conway, 415 F. 2d 158 (3d Cir. 1969), cert. denied, 397 U.S. 994 (1970). We continue to adhere to our decision in Lester. This assignment of error, consequently, is overruled.\nDefendants assign as error the trial court\u2019s denial of their motion for sequestration of jurors and individual voir dire of jurors. The voir dire procedure used followed the pattern approved by this Court in State v. Barfield, supra. Twelve prospective jurors were seated in the jury box, and the remainder of the jury pool was sequestered outside the courtroom until a replacement was needed for a venireman who had been excused. Defendants contend the record shows that jury selection became more difficult as it wore on because jurors realized that by expressing adamant opposition to the death penalty they would be excused. Defendants allege that this produced a kind of \u201cdomino effect\u201d alluded to by defendant in Barfield, and resulted therefore in the impaneling of an unrepresentative jury. As we did in Barfield, we now conclude this argument to be speculative at best and unpersuasive. The record does not support defendants\u2019 contentions. These motions were addressed to the sound discretion of the court whose rulings will not be disturbed except for an abuse of discretion. State v. Barfield, supra, 298 N.C. at 323, 259 S.E. 2d at 526; State v. Thomas, 294 N.C. 105, 240 S.E. 2d 426 (1978). Defendants have shown no abuse. The assignment of error is overruled.\nWith regard to the jury selection process'defendants first allege the trial court committed error in allowing the state to challenge for cause certain jurors who voiced general objections to capital punishment or expressed only conscientious or religious scruples against the death penalty. A close examination of the record belies defendants\u2019 contentions on this point. Rather, jurors were excused for cause only where they admitted a specific inability to impose the death penalty under any circumstances. Thus the challenges met the Witherspoon test. State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979); State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), cert. denied,_U.S_, 64 L. Ed. 2d 796, 100 S.Ct. 2165 (1980). Defendants next contend that the \u201cdeath qualification\u201d jury selection process deprived them of a jury selected from a representative, fair cross-section of the community on the guilt phase of the case. This argument was expressly rejected by a majority of the Court in State v. Avery, 299 N.C. 126, 261 S.E. 2d 803 (1979). Finally, defendants also complain of the trial court\u2019s refusal to allow defendants to ask additional questions of jurors disqualified because of their opposition to the death penalty. When challenges for cause are supported by prospective jurors\u2019 answers to questions propounded by the prosecutor and by the court, the court does not abuse its discretion, at least in the absence of a showing that further questioning by defendant would likely have produced different answers, by refusing to allow the defendant to question the juror challenged. See State v. Harris, 283 N.C. 46, 194 S.E. 2d 796 (1973), cert. denied, 414 U.S. 850 (1973). Since defendants have made no showing that additional questioning would likely have produced different answers, their position is without merit.\nDefendants moved in the trial court on 11 May 1979 to dismiss the charges because their statutory right to a speedy trial under G.S. 15A-701 was violated. The statute requires a defendant\u2019s trial to begin \u201c[w]ithin 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last.\u201d G.S. 15A-701(al)(l)(1980 Interim Supplement). Defendants here were indicted on 2 January 1979; trial began on 14 May 1979, more than 120 days thereafter. But 15A-701(b) goes on to provide:\n\u201cThe following periods shall be excluded in computing the time within which the trial of a criminal offense must begin:\n(1) Any period of delay resulting from other proceedings concerning the defendant including, but not limited to, delays resulting from ....\nd. Hearings on pretrial motions or the granting or denial of such motions ...\nDefendant Moore filed a motion for change of venue on 27 December 1978. Defendant Oliver filed such a motion on 5 January 1979. Both motions for change of venue were heard and denied on 25 January 1979. In denying the motions to dismiss Judge Smith ruled that the filing of a motion for change of venue tolls the running of the 120-day statutory period until the motion is determined.\nDefendant Moore contends that since the calendaring of a hearing on a change of venue motion is controlled by the state, the period during which the motion is pending should not be excluded from the statutory speedy trial period. He maintains that his motion could have been heard on 2 January 1979, the date of the indictment. Thus only the days between 27 December and 2 January should be excluded. We reject this argument. While motions should be promptly calendared for hearing, both sides are entitled to a reasonable time within which to prepare. We conclude that a motion for change of venue is included within the statutory reference to \u201cpretrial motions.\u201d G.S. 15A-701(b)(l)(d). Provided the motion is heard within a reasonable time after it is filed and the state does not delay the hearing for the purpose of thwarting the speedy trial statute, the time between the filing of the motion and its disposition is properly excluded in computing the time within which a trial must begin. The time here between filing and disposition of the motion, 29 days, we find to be a reasonable time. There is nothing in the record to show any purposeful delay on the part of the state. Therefore this time was properly excluded by Judge Smith; there was no error in his denial of defendant Moore\u2019s motion.\nDefendant Oliver argues that only those motions whose determination will necessarily delay the date of trial beyond the 120-day period should be considered within the meaning of G.S. 15A-701(b) (l)(d). Since the motion for change of venue was determined well before the expiration of the 120-day period, the state\u2019s opportunity to try defendant within the period was not affected and the trial date was not necessarily delayed by the motion. This argument has some merit; but we reject it insofar as it applies to motions for change of venue. The state is in fact stymied in its scheduling of any case for trial until a ruling is made on such a motion. A motion for change of venue so long as it is pending must necessarily delay the setting of a case for trial until it is determined, and this is so whether the determination be soon after the 120-day period begins to run or at some later time within the period. We believe the legislature intended through G.S. 15A-701(b)(l)(d) to exclude from the 120-day speedy trial period all time reasonably required to determine any motion the determination of which must be made before a case can be scheduled for trial. A motion for change of venue, as we have noted, is such a motion. The motion here was determined within a reasonable time. Judge Smith, therefore, properly excluded the time during which this motion was pending. Oliver\u2019s assignment of error to Judge Smith\u2019s denial of his motion is overruled.\nDefendants assign as error the failure of the trial court to award a mistrial because of alleged prosecutorial misconduct during the state\u2019s closing argument in the guilt phase. The record shows that the prosecutor on one occasion waved before the jury the .38 caliber revolver which was offered in evidence in the trial. On another occasion he made a reference to the weapon while displaying it to the jury. Defendants\u2019 objections were overruled. The rulings were proper. The gun was in evidence. It was not improper for the prosecutor to utilize it in his summation so long as he did not attempt to draw inferences from the weapon which were not supported by the evidence or to frighten or intimidate the jury with it. The prosecutor may argue \u201cthe facts in evidence and all reasonable inferences to be drawn therefrom_\u201d State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976). The record reveals no improper use of the weapon in the prosecutor\u2019s closing argument.\nDefendants contend that all charges against them should have been dismissed at the close of the evidence on the ground that the evidence was insufficient to be submitted to the jury. The contention is frivolous. There was substantial evidence of all elements of each offense of which the defendants were convicted. Their assignments of error directed to the denials of their motion to dismiss for insufficiency of the evidence are overruled.\nII.\nWe turn now to the guilt phase assignments of error brought forward by defendant Oliver.\nDefendant Oliver claims error in the trial court\u2019s denial of his motion to dismiss the murder indictments on the ground they described him as being a resident of Robeson County when in fact he resided in Columbus County. The indictments recited that \u201cJohn Wesley Oliver, late of the County of Robeson . . .\u201d committed the offenses charged. Defendant\u2019s argument is, of course, frivolous. His residence is immaterial. General Statute 15A-924 requires a criminal pleading to contain \u201c[t]he name or other identification of the defendant....\u201d The indictments contained defendant\u2019s name. The allegations as to his county of residence, if this is what was intended by the language in the indictment, is at most surplusage. Consequently any such error is not fatal. The motion to dismiss was properly denied.\nDefendant Oliver assigns as error the denial of his motion for a continuance filed 8 May 1979 as a result of the discovery, on 2 May 1979, of the .38 caliber pistol.\" In the original discovery order entered 24 January 1979, the presiding judge had ordered that all discovery be completed two weeks before the trial. Defendant Oliver contends this order was violated because he was unable to view the pistol a full two weeks before the trial commenced on 14 May 1979. The argument is frivolous. The state could not produce what it had not yet discovered. The day after the discovery of the weapon, 3 May, the state informed defendant Oliver\u2019s attorney that the weapon had been discovered. Defendant\u2019s attorney, however, chose not to view the weapon until 9 May after which the attorney received by mail a copy of the permit for the purchase of the weapon issued to defendant Oliver. The bullet which killed Hodge could not be located, and the bullet which killed Watts was badly fragmented. No ballistics analysis was possible. Defendant\u2019s preparation for trial was in no way inhibited by the late discovery of this pistol. There was no error in denying the motion for continuance.\nDefendant Oliver claims error in the denial of his motion to suppress both the out-of-court and in-court identifications of him by the witness Bobby Hodge. A voir dire was conducted on the motion. The uncontradicted testimony of Deputy Sheriff Joel Locklear and the witness Bobby Hodge on voir dire tended to show as follows: Shortly after the incident Bobby Hodge described his grandfather\u2019s assailant to Deputy Locklear as being a black man about the same height as Locklear with hair \u201call over his face,\u201d wearing a long coat, and wielding a pistol about the same color as the deputy\u2019s with a brown handle. Bobby was then taken to the police station where he was told that \u201cI could see that man again.\u201d At the police station, before any formal charge was made against defendants, Bobby first viewed defendant Moore through a two-way mirror. Bobby said that he had never seen Moore before. Moore was removed, and defendant Oliver was led into the room for Bobby\u2019s viewing. Bobby upon seeing Oliver immediately and unhesitatingly identified him as the man who had shot his grandfather, \u201cexcept,\u201d Bobby said, \u201che had on a long coat down to here.\u201d At that time Deputy Locklear instructed the other officers to go out and look for a coat, \u201cbecause that little boy knew what he was talking about.\u201d Moore was then led back into the room in order to give Bobby another opportunity to see him. Moore and Oliver were then in the viewing room together. Bobby said that he had never seen Moore before but repeated his identification of Oliver as the man who had shot his grandfather. When asked, \u201cAre you sure, son?\u201d Bobby replied, \u201cI\u2019m sure that\u2019s the man . . . .\u201d During voir dire Bobby also identified Oliver in the courtroom as being the man who shot his grandfather. Upon this evidence Judge Smith concluded that both the out-of-court identification procedure and Bobby\u2019s in-court identification of defendant Oliver were admissible into evidence. Before the jury Bobby Hodge unhesitatingly and without equivocation identified defendant Oliver as the man who shot his grandfather. He also testified regarding his actions at the pre-trial identification procedure.\nDefendant Oliver contends that the out-of-court confrontation between the witness Bobby Hodge and Oliver \u201cwas so unnecessarily suggestive and conducive to irreparable mistaken identification that he [Oliver] was denied due process of law,\u201d Stovall v. Denno, 388 U.S. 293, 302 (1967); therefore Hodge\u2019s in-court and out-of-court identification of Oliver should have been suppressed. We disagree.\nBoth the United States Supreme Court and this Court have criticized the \u201cpractice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup ....\u201d Stovall v. Denno, supra, 388 U.S. at 302; State v. Matthews, 295 N.C. 265, 245 S.E. 2d 727 (1978), cert. denied, 439 U.S. 1128 (1979); State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974), death sentence vacated, 428 U.S. 902 (1976). This Court has recognized that such a procedure, sometimes referred to as a \u201cshowup,\u201d may be \u201cinherently suggestive\u201d because the witness \u201cwould likely assume that the police had brought [him] to view persons whom they suspected might be the guilty parties.\u201d State v. Matthews, supra, 295 N.C. at 385-86, 245 S.E. 2d at 739. We find, consequently, that the investigator\u2019s statement to Bobby Hodge to the effect that the boy would be taken to the police station where he \u201ccould see that man again\u201d coupled with the showup procedure was unnecessarily suggestive.\nThis determination, however, does not end our inquiry. In all investigatory identification procedures \u201cthe primary evil to be avoided is \u2018a very substantial likelihood of irreparable misidentification.\u2019\u201d Neil v. Biggers, 409 U.S. 188, 198 (1972). When the pre-trial investigatory identification procedures have created a likelihood of irreparable misidentification, neither the pre-trial procedures nor an in-court identification is admissible. Id., United States v. Simmons, 390 U.S. 377 (1968). Stated another way, in-court identifications are permissible \u201conly if the out-of-court suggestiveness was not \u2018conducive to irreparable mistaken identify.\u2019 In this jurisdiction, this often meant that the in-court identification was admissible if the state could show that the in-court identification was of independent origin from the suggestive pre-trial procedures.\u201d State v. McCraw, 300 N.C. 610, 614, 268 S.E. 2d 173, 176 (1980). If an out-of-state identification procedure is so suggestive that it leads to a substantial likelihood of misidentification, the out-of-court identification is inadmissible. Neill v. Biggers, supra.\nSuggestive pre-trial identification procedures, even if unnecessary, do not create a substantial likelihood of misidentification so as to preclude an in-court identification nor are the pre-trial proce-601, 260 S.E. 2d 629 (1979); State v. Headen, 295 N.C. 437, 245 S.E. stances surrounding the crime itself \u201cthe identification possesses sufficient aspects of reliability.\u201d Manson v. Brathwaite, 432 U.S. 98, 106 (1977); State v. McCraw, supra; State v. Nelson, 298 N.C. 573, 601, 260 S.E. 2d 629 (1979); State v. Headen, 295 N.C. 437, 245 S.E. 2d 706 (1978). As the Supreme Court noted in Manson, 432 U.S. at 114:\n\u201c[Reliability is the lynchpin in determining the admissibility of identification testimony. . . . The factors to be considered are set out in Biggers, 409 U.S. at 199-200_ These include the opportunity of the witness to view the criminal at the time of the crime, the witness\u2019 degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.\u201d\nThis Court has applied Manson in at least three recent cases so as to conclude that an in-court identification was admissible despite possible unnecessarily suggestive out-of-court identification procedures. State v. McCraw, supra; State v. Nelson, supra; State v. Headen, supra. Manson, itself, dealt with an unnecessarily suggestive pre-trial identification confrontation. The Supreme Court concluded that notwithstanding its suggestiveness it was admissible because after weighing the factors indicating reliability of the identification against the corrupting effect of the suggestiveness itself, the conclusion was inescapable that the identification was reliable and therefore admissible.\nSo it is here. Considering the totality of circumstances and applying the standards laid down in Biggers and Manson, we conclude that Bobby Hodge\u2019s identification of Oliver was inherently reliable so that both his out-of-court and in-court identifications were properly admitted into evidence. Bobby had ample opportunity to view his grandfather\u2019s assailant since the shooting occurred near him, in an open area, outside, during daylight. Bobby was no casual observer but a witness to the slaying of his own grandfather. He gave an accurate description of Oliver prior to the showup. His identification was consistent, unequivocal and made without the slightest hesitancy or uncertainty. Bobby, consequently, was not as subject to suggestion as would have been the case with a witness who was less sure of the appearance of the suspect. Bobby\u2019s independence of mind was further demonstrated by the fact that he was quite careful not to implicate defendant Moore but was quite firm in his consistent identification of defendant Oliver. Finally the length of time between the crime and the confrontation was no more than a few hours. Weighing these factors against the corrupting effect of the suggestiveness of the pre-trial identification procedure itself, we conclude that there was not a substantial likelihood of misidentification. All of Bobby Hodge\u2019s identification testimony was, therefore, properly admissible.\nIII.\nDefendant Moore brings forward a number of additional questions. First, he assigns error to the trial court\u2019s denial of his motion to set bond. This argument is frivolous. Moore orally moved at arraignment for bond. The district attorney objected. Bond was denied when the court determined that Moore would be tried on a charge of first degree murder and that the state would seek the death penalty. Whether a defendant charged with a capital offense is entitled to a bail bond is a matter in the discretion of the trial judge. G.S. 15A-533. We find no abuse of that discretion here.\nDefendant Moore complains that the trial court erred in failing to allow his challenge for cause of alternate juror Locklear. In response to questions by defense counsel, Locklear stated that she was sixty-five years old, had a history of heart trouble, took medication daily for high blood pressure, and if she experienced pain or became upset she utilized nitroglycerin pills. She thought her health would allow her to sit for one day, but beyond that she was not sure, except that she felt a trial lasting more than a week would be too strenuous. In response to inquiries of the court, juror Locklear also stated that if her health did not interfere, she could render a fair and impartial verdict. The court observed that the work of a juror was not strenuous, that often veniremen with heart conditions serve on a jury, and that counsel on both sides had agreed that the trial would not last more than a week. The court then denied defendant Moore\u2019s challenge for cause of juror Locklear.\nQuestions concerning the competency of a juror are within the discretion of the trial judge, whose rulings thereon will not be overturned on appeal absent an abuse of discretion or error of law. State v. Smith, 290 N.C. 148, 155, 226 S.E. 2d 10, 15 (1976), cert. denied, 429 U.S. 932 (1976). Judge Smith fully questioned the juror about her health and allowed defense counsel the opportunity to do the same. No abuse of discretion has been shown. We also note that juror Locklear was ultimately removed on peremptory challenge by defendant Oliver.\nBy his next assignment of error, defendant Moore challenges the use of leading questions in the examination by the district attorney of several of the state\u2019s witnesses. Defendant cites six questions asked of four different adult witnesses and two questions asked of Bobby Hodge, and argues that, cumulatively, the use of leading questions over the course of the trial was prejudicial. Objections, however, to five of the questions were sustained. As for the question asked of Bobby Hodge the objection to which was overruled, we find it to be within the rules permitting some leading in the examination of young witnesses. State v. Cobb, 295 N.C. 1, 243 S.E. 2d 759 (1978).\nEven if the question were improper we are satisfied the answer could not have prejudiced defendant.\nDefendant Moore also challenges the determination by the trial court that Bobby Hodge, age seven, was a competent witness. There is no fixed age below which one is incompetent as a matter of law to testify. State v. Cooke, 278 N.C. 288, 179 S.E. 2d 365 (1971). The test of competency of a child as a witness is the capacity of the child to understand and to relate, under the solemn obligation of an oath, facts which will assist the jury in reaching its decision. State v. Turner, 268 N.C. 225, 150 S.E. 2d 406 (1966). The determination of a child\u2019s competency to testify rests in the sound discretion of the trial judge. State v. Cooke, 280 N.C. 642, 187 S.E. 2d 104 (1972). Judge Smith conducted an extensive voir dire of Bobby Hodge to determine his competency. Bobby testified that he knew the importance of telling the truth, knew the difference between truth and falsehood, and intended to tell the truth. The trial court\u2019s conclusion that the witness was competent was well within the boundaries of sound discretion.\nDefendant Moore raises the additional objection that Bobby\u2019s answers on voir dire were in response to leading questions of the prosecutor. The rule allowing some leading in examining a child on direct examination applies with equal force to the voir dire examination of a child. Absent an abuse of discretion resulting in actual prejudice to a defendant, a decision by the trial judge to allow some leading of a youthful witness is not subject to reversal on appeal. Defendant Moore makes no showing of abuse or prejudice; his assignment of error is without merit.\nDefendant Moore next charges the trial court with error in allowing the district attorney to offer into evidence what defendant describes as incompetent and prejudicial matter for the sole purpose of inflaming the jury. Defendant complains of a portion of the testimony of Minnie Waddell, Elbert Ford, and Robert Vereen. Minnie Waddell testified, in part, that she had seen Moore and Oliver together \u201cat different times\u201d prior to 12 December 1978. Elbert Ford testified that on 12 December 1978 at approximately 9:00 a.m. he observed \u201ctwo boys walking down south toward Watts\u2019 store.\u201d The following then occurred:\n\u201cQ. All right. Do you know what color these people were?\nA. Well, no, I don\u2019t, but they were dark people. I don\u2019t know what color they were.\nQ. All right.\nMR. JACOBSON: Move to strike.\nTHE COURT: Denied.\nThis constitutes Defendant Moore\u2019s EXCEPTION NO. 141\u201d \u25a0\nRobert Vereen was permitted to testify that he had seen the defendant Moore in Vereen\u2019s father\u2019s store on 11 December 1978 and to give a description of defendant Moore\u2019s clothing at that time.\nRegarding Minnie Waddell\u2019s testimony defendant\u2019s objection to it was sustained, his motion to strike was allowed, and the jury was instructed to disregard it. Elbert Ford\u2019s testimony as to what he observed shortly before the incident under investigation was admissible. As to Robert Vereen\u2019s testimony, to the extent that his description of defendant Moore\u2019s clothing on the day before the shootings matched descriptions given of defendant\u2019s clothing on the day of the shooting, his testimony is admissible. Even if we assume, for the purpose of argument, error in the admission of Ford\u2019s and Vereen\u2019s testimony, we fail to see how such testimony was offered for the purpose of inflaming the jury or how it could have had such an effect. Its admission would be, at most, harmless error. See 1 Stansbury\u2019s North Carolina Evidence \u00a7 77 (Brandis rev. 1973).\nDefendant Moore further objects to certain cross-examination by the district attorney of defense witness Robert Brown claiming that it exceeded the boundaries of \u201cappropriate\u201d cross-examination. Brown testified on direct that he had met defendant Moore in jail where they became cell mates for two months. During this time he overheard defendant Moore say that on the day of the murders Moore was trying to fix his truck in the vicinity of Watts\u2019 store. He went into the woods to relieve himself and the \u201cnext thing he know, \u2018Boom,\u2019 police.\u201d Brown testified further that defendant Moore had never told him that he, Moore, had killed Allen Watts. On cross-examination the district attorney was permitted to ask, \u201cBrown, you will do anything to cover up for your old friend, won\u2019t you?\u201d Again, the district attorney was permitted to ask, \u201cWere you covering up for your old buddy and cell mate sitting over there at the next table?\u201d These questions were permissible cross-examination. They were designed to show, if they could, bias and prejudice on the part of the witness. This is a proper function of cross-examination.\nOn another occasion the district attorney was permitted to ask the witness Brown whether he was tried and convicted in Robeson County for armed robbery. The witness replied that he was \u201ctried and railroaded, yeah, in this courthouse.\u201d The district attorney was then permitted to ask the witness, over defendant Moore\u2019s objection, if he had testified in the case against him. The witness replied that he had. Whether the witness had testified in his own case was not a proper subject for cross-examination in the case against defendant Moore. The fact that he testified or did not testify in no way bears on his credibility nor does it tend to impeach him as a witness. The inquiry, in short, was irrelevant. Even so, we are satisfied the result of the trial would not have been different had this incident not occurred; therefore defendant was not prejudiced by this aspect of the district attorney\u2019s cross-examination.\nDefendant Moore challenges the admission of certain evidence offered by the state on the ground the state failed to show that the items in question had undergone no material change in their condition since the incident occurred and on the further ground, as to some of the items, of irrelevancy. The items offered by the state were: two \u201cfootball candies,\u201d a Robesonian newspaper, a plastic bag of paper money and food stamps, a blue coat with a fur lined collar, two toboggans, several pieces of multi-colored Christmas wrappings, a red pullover shirt with a hood, and a pistol and bullets. State\u2019s witness Lee Sampson, an SBI agent specializing in crime scene investigations, identified the \u201cfootball candies\u201d and the Robesonian newspaper as having been recovered by him from the counter at Watts\u2019 store on 12 December 1978. He identified the coat and two toboggans as having been recovered from the truck used by defendants on the day of the crimes. He identified the multi-colored Christmas wrappings matching that on the \u201cfootball candies\u201d as having come from the right coat pocket of the coat found in the truck. He identified the red pullover shirt with a hood as being the shirt which defendant Moore was wearing when the witness observed him at the Sheriff\u2019s Department in Lumberton on the day of the shootings. He identified the pistols and shells as having been recovered by him and other investigators on 30 April 1979 in the area where defendants had been earlier apprehended. He identified the plastic bag of paper money and food stamps as having been given to him by Deputy Ernest Chavis on the day of the shootings. Chavis had earlier testified that he had taken the plastic bag from a ditch near the place where and at the time when defendants were apprehended. He gave the bag, in turn, to Lee Sampson.\nThe rules governing the admission of this kind of physical evidence, sometimes denoted \u201creal evidence,\u201d were well set out by Justice Huskins, writing for the Court in State v. Harbison, 293 N.C. 474, 483-84, 238 S.E. 2d 449, 454 (1977):\n\u201cObjects offered as having played an actual direct role in the incident giving rise to the trial are denoted \u2018real evidence.\u2019 McCormick, Evidence \u00a7 212 (2d ed. 1972); 1 Stansbury\u2019s North Carolina Evidence \u00a7 117, n. 1 (Brandis rev. 1973). Such evidence must be identified as the same object involved in the incident in order to be admissible. State v. Winford, 279 N.C. 58, 181 S.E. 2d 423 (1971). It must also be shown that since the incident in which it was involved the object has undergone no material change in its condition. See McCormick, supra, \u00a7 212, p. 527. See also Hunt v. Wooten, 238 N.C. 42, 76 S.E. 2d 326 (1953). According to Professor Stansbury, when a tangible object is offered it must be first authenticated or identified, \u2018and this can be done only by calling a witness, presenting the exhibit to him and asking him if he recognizes it and, if so, what it is.\u2019 1 Stansbury\u2019s North Carolina Evidence \u00a7 26 (Brandis rev. 1973).\n\u201cThere are no simple standards for determining whether an object sought to be offered in evidence has been sufficiently identified as being the same object involved in the incident giving rise to the trial and shown to have been unchanged in any material respect. \u2018No specific rules have grown up about the authentication of chattels, chiefly because the variety of circumstances involved are so great that no specific rules would be suitable.\u2019 7 Wig-more, Evidence \u00a7 2129, at 569 (3d ed. 1940). Consequently, the trial judge possesses and must exercise a sound discretion in determining the standard of certainty required to show that the object offered is the same as the object involved in the incident giving rise to the trial and that the object is in an unchanged condition. McCormick, supra \u00a7 212, p. 527, at nn. 25-27. See, e.g., Walker v. Firestone Tire and Rubber Co., 412 F. 2d 60 (2d Cir. 1969).\u201d\nIn Harbison we held that a tire with bullet holes in it was properly excluded from evidence when defendant, who sought to offer it, offered no evidence of the tire\u2019s unchanged condition in the presence of evidence that there were no bullet holes in the tire at the time of the incident under investigation.\nIn the case at bar there is no evidence that the condition of any of the items in question had changed between the time of their recovery on the day of the shootings and the time of trial. Indeed the very nature of the items themselves would make a change in condition extremely unlikely in the short time between the crimes\u2019 commission and the trial. All the items were positively identified as being the very items recovered by those investigating the incident in question. Considering the nature of the items themselves and the absence of any suggestion that they had undergone some relevant change between the time of their recovery and the time of trial, we conclude that the failure of the state to offer positive testimony that the objects had undergone no material change was not fatal to their admission. That they had in fact undergone no material change is clearly implied in the testimony of Sampson. His failure expressly to so state does not so detract from his otherwise positive identification of the items so as to render them inadmissible.\nDefendant argues that the \u201cfootball candies,\u201d the \u201cfootball candy wrappers\u201d and the toboggan were irrelevant inasmuch as there was no showing that they played any part in the incident whatsoever. Although it is not entirely clear from the record, it appears reasonably certain that the football candy wrappers found in the pocket of the jacket which was, in turn, found in the truck defendants used, matched in appearance the wrappers on the football candy found in Watts\u2019 store. This evidence was clearly relevant as a circumstance tending to show that defendants had, at sometime, been in the store. The dark toboggan, also found in the truck, was relevant inasmuch as one witness observed Moore wearing a dark toboggan shortly after the crimes were committed. This assignment of error is, consequently, overruled.\nDefendant Moore assigns as error the failure of the trial judge to instruct as to him on the offenses of accessory before and accessory after the fact to the crimes of armed robbery and murder. This assignment is frivolous. Suffice it to say there is no evidence that Moore was either an accessory before or an accessory after the fact. The thrust of all the state\u2019s evidence is that he was a principal perpetrator of all crimes committed either because he was an aider and abettor or because he and Oliver were acting in concert in the commission of these crimes. Defendant Moore\u2019s brief accurately summarizes the state\u2019s evidence and, itself, demonstrates that Moore is guilty, if at all, as a principal perpetrator. Moore says the state\u2019s evidence tended to show:\n\u201cThe two Defendants went into [Watts\u2019] store and purchased several items. Allen Watts was in the store behind the counter. Several other people were in the store who made purchases and then left. Dayton Hodge and his grandson, Bobby Lynn Hodge, pulled up to the gas pumps out in front of the store and Mr. Hodge proceeded to pump gas into his pickup truck. The Defendants shot and killed Allen Watts, removed money and food stamps from the cash register placing it in a brown paper sack, and ran outside where Defendant, J. W. Oliver, shot and killed Dayton Hodge. The Defendants then ran north on Highway 41-Bypass and turned into the woods about 300 feet north of Allen Watts\u2019 convenience store. The two Defendants continued through the woods and across North Carolina Highway No. 130 to the brown and white pickup truck which was parked at the Square Deal Warehouse. The truck would not start and the Defendants then ran into the woods behind the Square Deal Oliver shoot his grandfather, Dayton Hodge. The Defendants were apprehended in the woods behind the Square Deal Warehouse at approximately 10:15 a.m. by Deputies Bruce Bullock and B. C. Bass. A brown paper bag containing money and food stamps was found in a ditch near where the Defendant Moore was apprehended.\u201d\nIn addition, the State\u2019s evidence also tended to show that both defendants had reconnoitered Watts\u2019 store before the crimes. On the morning of the crimes defendants were seen riding together in Oliver\u2019s truck. Defendants were seen together inside the store shortly before the killings occurred. Immediately after the shootings both defendants were seen to run into the woods near Watts\u2019 store. Both defendants were arrested together.\nAn accessory before the fact is one who is absent from the scene of the crime but who counseled, procured, or commanded its commission. State v. Small, 301 N.C. 407, 272 S.E. 2d 128 (filed 2 December 1980, No. 101, Fall Term 1980); State v. Squire, 292 N.C. 494, 234 S.E. 2d 563 (1977), cert. denied, 434 U.S. 998 (1977); State v. Benton, 276 N.C. 641, 174 S.E. 2d 793 (1970). An accessory after the fact is one who, knowing that a felony has been committed by another, receives, relieves, comforts or assists such felon, or who in any manner aids him to escape arrest or punishment. State v. Squire, supra; State v. McIntosh, 260 N.C. 749, 133 S.E. 2d 652 (1963).\nThere is no evidence here that Moore was an accessory. The evidence shows that both defendants were present at the scene and were acting together in the commission of the armed robbery. The murders occurred in furtherance of their common purpose to commit this crime or as a natural consequence thereof. Where two or more persons \u201cjoin in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose ... or as a natural or probable consequence thereof.\u201d State v. Westbrook, 279 N.C. 18,41-42, 181 S.E. 2d 572, 586 (1971), death sentence vacated, 408 U.S. 939 (1972) (emphasis supplied); accord, State v. Lovelace, 272 N.C. 496, 158 S.E. 2d 624 (1968). There was, consequently, no error in the trial judge\u2019s failing to submit the offenses of accessory before or accessory after the fact in the cases against defendant Moore.\nIV.\nWe turn now to the sentencing phase of the case.\nThe jury found both defendants guilty of first degree murder of Allen Watts, first degree murder of Dayton Hodge, and armed robbery of Watts. The verdicts were returned on Monday, 22 May 1979.\nThe following day Judge Smith convened the sentencing phase of the proceeding before the same jury which had heard the guilt phase. Correctly taking the position that inasmuch as the state bore the burden of proof in the sentencing phase it should first go forward with its evidence, Judge Smith asked the state to proceed. The state announced that it had no additional evidence on the sentencing phase. Defendant Moore then offered evidence as follows: On 12 December 1978, the date of the crimes charged, he was 19 years, 11 months old. Defendant Oliver offered evidence tending to show that at the time of trial he was 28 years old, had finished the 11th grade in school, had since been working steadily, attends church, and had a good character and reputation in the community where he lived. Defendant Oliver\u2019s character witnesses, his sister and a friend of the family, conceded on cross-examination that Oliver had been convicted twice in 1978 for breaking and entering and larceny. His sister further admitted that he had spent some time in a South Carolina prison.\nIn the absence of the jury there was considerable discussion between the court and counsel as to the propriety of the state\u2019s offering into evidence a particular document referred to as an \u201cFBI check\u201d showing that Moore had a prior criminal record. Ultimately Moore and the state stipulated that the state could read from the document only those offenses of which Moore had in fact been finally convicted. Moore waived all objections to the form by which the evidence would be admitted but reserved his objections to the \u201crelevancy and competency\u201d of the evidence. Portions of this document were then read to the jury pursuant to the stipulation. This evidence showed that Moore had been convicted in Columbus County of trespass twice, \u201cfelonious breaking and entering and felonious larceny,\u201d \u201cdamage to real property,\u201d and \u201clarceny\u201d twice.\nAfter the jury heard arguments and the court\u2019s instructions on the question of sentence, the jury returned verdicts recommending sentences. As to defendant Oliver the jury recommended that he be given the death penalty in both murder cases. As to defendant Moore the jury recommended that he be sentenced to death for the murder of Allen Watts and to life imprisonment for the murder of Dayton Hodge.\nJudge Smith submitted aggravating and mitigating circumstances together with the other questions required by G.S. ISA-2000 separately as to each defendant and, again, as to each murder. Four sets of issues, one in each of the four murder cases, were thus submitted. Identical aggravating and mitigating circumstances, however, were submitted in all four cases, except that as to Moore the jury was permitted to find his age as a mitigating circumstance. The jury answered all issues identically in all four cases except that as to Moore in the Hodge murder case it concluded that this murder was actually committed by defendant Oliver and that Moore was only an accomplice whose \u201cparticipation was relatively minor.\u201d See G.S. 15A-2000(f)(4).\nThus in all four murder cases the jury found beyond a reasonable doubt the existence of the following aggravating circumstances: (1) the murders were committed while defendants were \u201cengaged in the commission of or a flight after committing the felony of robbery with a dangerous weapon\u201d (emphasis supplied); (2) the murders were committed while defendants were \u201caiders and abettors in the commission of or flight after committing the felony of robbery with a dangerous weapon\u201d (emphasis supplied); (3) the murders were committed \u201cfor pecuniary gain\u201d; (4) the murders were \u201cespecially heinous, atrocious or cruel.\u201d See G.S. 15A-2000(e) (5), (6), and (9). In all four cases the jury found beyond a reasonable doubt that the aggravating circumstances were \u201csufficiently substantial to call for the imposition of the death penalty.\u201d See G.S. 15A-2000(c)(2). In all four cases the jury failed to find as mitigating circumstances that the defendants had \u201cno significant history of prior criminal activity\u201d and failed to find \u201cany other circumstance arising from the evidence which it deemed to have mitigating value.\u201d See G.S. 15A-2000(f)(l) and (9). It also failed to find the age of Moore to be a mitigating circumstance. See G.S. 15A-2000(f)(7). As to defendant Oliver it failed to find he was only an accomplice in or accessory to the murders such that his participation \u201cwas relatively minor.\u201d See G.S. 15A-2000(f)(4). It likewise failed to find this to be a mitigating circumstance with regard to defendant Moore in the Watts\u2019 murder case. In all four cases the jury found beyond a reasonable doubt that the mitigating circumstances were insufficient to outweigh the aggravating circumstances. See G.S. 15A-2000(c)(3).\nBoth defendants assign as error the submission of that aggravating circumstance defined by G.S. 15A-2000(e)(5), i.e., that the murders were committed while defendants were \u201cengaged, or [were] aider[s] or abettor[s] in the commission of... or flight after committing... robbery.\u201d We agree that it was prejudicial error to submit this aggravating circumstance; therefore defendant Oliver is entitled to a new sentencing hearing in both the Watts and Hodge murder cases and defendant Moore is entitled to a new sentencing hearing in the Watts\u2019 case.\nWhen a defendant is convicted of the capital offense of first degree murder on the theory of felony murder, it is error to submit the underlying felony to the jury in the sentencing phase of the trial as an aggravating circumstance. State v. Cherry, supra, 298 N.C. 86, 257 S.E. 2d 551. Here both defendants were convicted of both murders solely on a felony murder theory. Thus it was error to submit the first two aggravating circumstances in the three eases in which the death penalty was imposed.\nThe state concedes the error. It argues, however, that it was not prejudicial. Under circumstances similar to those in this case we concluded in Cherry that the error was prejudicial. We said in Cherry, id. at 114, 257 S.E. 2d at 568:\n\u201cWe are unable to say that under the circumstances of this particular case the trial judge\u2019s submission of the issue concerning the underlying felony constituted harmless error. Had the jury not considered the underlying felony as an aggravating circumstance, it may well have decided that the remaining aggravating circumstances were not sufficiently substantial to call for imposition of the death penalty.\u201d\nSo it is here. As in Cherry both these murders were committed in the course of an armed robbery which constituted the underlying felony giving rise to the convictions of first degree murder in all four cases. The jury found only two other aggravating circumstances, i.e., that the murders were committed for pecuniary gain and were especially heinous, atrocious, or cruel. In Cherry the jury likewise found that the murder was committed for pecuniary gain.\nAn error, other than one of constitutional dimensions, is prejudicial \u201cwhen there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial. .. G.S. 15A-1443(a). We are unable to say, under the circumstances of this case, that had the first two aggravating circumstances not been submitted there is no reasonable possibility that a different result might have been reached on the sentencing phase of these proceedings. This is so because two out of four aggravating circumstances would have been eliminated. These two circumstances related to the underlying felony of armed robbery. The jury might well have concluded that these were the most serious of all the aggravating circumstances it was permitted to consider. This is particulary true in the Hodge murder cases in which we conclude below that circumstance number four, i.e., the murder was \u201cespecially heinous, atrocious, or cruel\u201d should not have been submitted.\nDefendants next contend that aggravating circumstance number four, i.e., that the murders were \u201cespecially heinous, atrocious, or cruel\u201d should not have been submitted. We conclude that this circumstance was properly submitted in the Watts, but not in the Hodge, murder case.\nThe meaning of this aggravating circumstance was fully considered in State v. Goodman, 298 N.C. 1, 24-26, 257 S.E. 2d 569, 585 (1979), where he said:\n\u201cWhile we recognize that every murder is, at least arguably, heinous, atrocious, and cruel, we do not believe that this subsection is intended to apply to every homicide, by using the word \u2018especially\u2019 the legislature indicated that there must be evidence that the brutality involved in the murder in question must exceed that normally present in any killing before the jury would be instructed upon this subsection.\u201d\nIn Goodman we adopted the Florida and Nebraska view that for this aggravating circumstance to apply the murder must be a \u201cconscienceless or pitiless crime which is unnecessarily torturous to the victim,\u201d and we approved the following jury instruction:\n\u201cYou are instructed that the words \u2018especially heinous, atrocious or cruel\u2019 means extremely or especially or par-ti culary heinous or atrocious or cruel. You\u2019re instructed that \u2018heinous\u2019 means extremely wicked or shockingly evil. \u2018Atrocious\u2019 means marked by or given to extreme wickedness, brutality or cruelty, marked by extreme violence or savagely fierce. It means outrageously wicked and vile. \u2018Cruel\u2019 means designed to inflict a high degree of pain, utterly indifferent to or enjoyment of the suffering of others.\u201d\nWe noted in Goodman that by so limiting the application of this aggravating circumstance it would not become \u201ca catch all provision which can always be employed in cases where there is no evidence of other aggravating circumstances.\u201d Id. at 26,257 S.E. 2d at 585.\nSeveral cases have concluded that certain kinds of murders could be \u201cespecially heinous.\u201d In Goodman the deceased was shot several times, cut repeatedly with a knife, placed in the trunk of a car where he remained alive for several hours and where his struggles to escape could be heard by his assailants who drove him to another county, took him from the car, placed him on the ground and shot him twice through the head. We concluded this murder was \u201cmarked by extremely vicious brutality\u201d calling for the application, if the jury so found, of the \u201cheinous, atrocious, or cruel\u201d aggravating circumstance. We held in State v. Johnson, 298 N.C. 47, 257 S.E. 2d 597 (1979) that submission of this aggravating circumstance was proper where the defendant tried to strangle his victim to death and, upon rendering her unconscious, sexually molested her when, realizing she was not dead, then stabbed her until she died. A number of decisions from other jurisdictions have had occasion to consider whether particular murders could be \u201cespecially heinous, atrocious, or cruel\u201d under capital sentencing statutes similar to ours. At least one court has determined that the murder of one pleading for mercy may fall within the category of an \u201cespecially heinous\u201d offense. Lucas v. State, 376 So. 2d 1149 (Fla. (1979).\nOn the other hand in State v. Cherry, supra, where the deceased was shot by defendant during the course of an armed robbery under circumstances indicating that the shooting may not have been intentional, although defendant was threatening the deceased and others with his pistol at the time, the jury failed to find that the killing was especially heinous. This Court consequently had no occasion to consider whether that particular aggravating circumstance should have been submitted.\nIn the Watts murder cases the state\u2019s evidence shows that Watts, after opening his cash register in response to defendants\u2019 demands, begged for his life. Watts said, \u201cPlease don\u2019t shoot me. Go ahead and take the money.\u201d With Watts pleading for his life defendant Moore, according to his evidence, mercilessly shot him to death. In our view the jury could find from these circumstances that the murder of Watts was especially heinous, atrocious or cruel. This aggravating circumstance was appropriately submitted in the Watts cases. In the Hodge cases, however, the state\u2019s evidence tends to show that defendant Oliver, as he was running from the store, shot and killed Hodge who had.pulled up to purchase gas. Although Hodge was an innocent bystander, his murder by defendant Oliver was, according to the evidence, the product of a sudden act, and death apparently was instantaneous. There was no unusual infliction of pain or suffering on the victim. The shooting was undoubtedly the result of Oliver\u2019s excitement and haste in his attempt to escape from crimes he had already committed. We can find nothing in the brutality of this killing which exceeds that normally present in a case of first degree murder.\nWhere it is doubtful whether a particular aggravating circumstance should be submitted, the doubt should be resolved in favor of defendant. When \u201ca person\u2019s life is at stake... the jury should not be instructed upon one of the [aggravating] statutory circumstances in a doubtful case.\u201d State v. Goodman, supra, 298 N.C. at 30, 257 S.E. 2d at 588. We conclude, therefore, that the \u201cespecially heinous\u201d aggravating circumstance should not have been submitted in the Hodge murder cases.\nDefendant Moore assigns as error permitting certain portions of his criminal record to be read to the jury. The assignment is without merit. Defendant Moore stipulated the use of this method in getting the evidence before the jury. He objected only to its \u201crelevancy and competency.\u201d The evidence was relevant and competent to negate the fact that defendant had no significant history of prior criminal activity which was submitted to the jury on his behalf as a possible mitigating circumstance.\nDefendant Moore further objects to the submission of the aggravating circumstance in the Hodge murder cases that the murder was committed \u201cfor.pecuniary gain.\u201d Moore argues that since the evidence showed the money had already been obtained from Allen Watts, there is no evidence that Hodge was murdered \u201cfor pecuniary gain.\u201d While the argument is plausible we reject it. The hope of pecuniary gain provided the impetus for the murder of both Watts and Hodge. This hope and the murders were inextricably intertwined. The murder of Hodge was apparently committed in an effort to eliminate a witness to the robbery; and the murder of Watts, in the hope that defendants could successfully escape, avoid prosecution, and enjoy the fruits of their sordid endeavor. The evidence is such that the jury could find that both murders were committed for the purpose of permitting defendants to enjoy pecuniary gain.\nNeither is there any error in submitting this circumstance in a felony murder case in which the underlying felony is robbery notwithstanding the rule that the robbery itself cannot be submitted as such a circumstance. The robbery constitutes an essential element of felony murder. In a capital case tried solely on a felony murder theory a jury, in the absence of this element, could not find defendant guilty of the capital offense. The circumstance that the capital felony was committed for pecuniary gain, however, is not such an essential element. This circumstance examines the motive of the defendant rather than his acts. While his motive does not constitute an element of the offense, it is appropriate for it to be considered on the question of his sentence. In Cherry the murder was committed during the course of the robbery of a convenience store. The aggravating circumstance of \u201cpecuniary gain\u201d was submitted and answered by the jury against the defendant. Although we remanded the case for a new sentencing hearing, we did not suggest in Cherry that this particular aggravating circumstance should not be submitted at the new hearing. We reject the position taken by the Nebraska Court that this aggravating circumstance does not apply to a murder committed during a robbery. See State v. Rust, 197 Neb. 528, 250 N.W. 2d 867 (1977). This aggravating circumstance, we hold, was properly submitted to the jury in both murder cases.\nDefendant Moore objects to the order in which the issues were submitted in the sentencing hearing. Suffice it to say that the order in which the issues were presented follows the order suggested by G.S. 15A-2000(c). While there is some logic in the order suggested by defendant, see n. 17, we find no error in the order in which the issues were submitted.\nOther errors in the sentencing phase suggested by defendants are not likely to arise at the new hearing.\nCONCLUSION\nThe result is this: We find no error in the convictions of both defendants for armed robbery and two counts of murder in the first degree. For error, however, in the sentencing phase of both the Hodge and the Watts murder cases as to defendant Oliver and the Watts murder case as to defendant Moore we remand these cases for a new sentencing hearing to be conducted in a manner not inconsistent with this opinion.\nNO ERROR in Cases Nos. 78-CRS-25574 and 78-CRS-25579 (the armed robbery cases)\nNO ERROR in the convictions in Cases Nos. 78-CRS-25575, 78-CRS-25576, 78-CRS-25577, and 78-CRS-25578 (the murder cases)\nREMANDED FOR NEW SENTENCING HEARING in Cases Nos. 78-CRS-25575,78-CRS-25576, and 78-CRS-25578 (the murder cases in which defendants were sentenced to death)\nJustice MEYER did not participate in the consideration and decision of this case.\nNot only are many of the assignments of error frivolous, but the briefs are poorly organized, difficult to follow, and on the whole unpersuasive. We have nevertheless examined the case with care to insure that the convictions and sentences are free from prejudicial error.\nOut of the presence of the jury on voir dire Johnny Lee Lewis testified that Moore also said, \u201cOliver picked the gun up off the counter and he carried the money out of the store.\u201d The trial judge assiduously prevented any out-of-court statement made by Moore which tended to implicate defendant Oliver from being placed before the j ury so as to avoid violating the rule laid down in Bruton v. United States, 391 U.S. 123 (1968).\nMotions for a change of venue are governed by G.S. 15A-957:\n\u201cMotion for change of venue. \u2014 If, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either:\n(1) Transfer the proceeding to another county in the judicial district or to another county in an adjoining judicial district, or\n(2) Order a special venire under the terms of G.S. 15A-958.\nThe procedure for change of venue is in accordance with the provisions of Article 3 of this Chapter, Venue.\u201d\nWitherspoon v. Illinois, 391 U.S. 510 (1968), reh. denied, 393 U.S. 898 (1968).\nDefendants raise no claim that their Sixth Amendment speedy trial right was denied.\nThe statute applies to a defendant \u201cwho is arrested, served with criminal process, waives an indictment or is indicted, on or after October 1,1978, and before October 1, 1981....\u201d G.S. 15A-701(al) (1980 Interim Supplement).\nDefendants also filed motions for discovery, a bill of particulars, a pre-trial release order, individual voir dire and sequestration of jurors, dismissal, and for a probable cause hearing.\n\u201cQ. All right. Did you see anything on the ground or on the pavement there under his [grandfather\u2019s] head, or not?\nMR. GIBSON: Object.\nTHE COURT: Overruled.\nThis constitutes Defendant Oliver\u2019s EXCEPTION NO. 160\nTHE WITNESS: No, sir.\nQ. (By Mr. Britt) Did you see anything, any blood or anything?\nMR. JACOBSON: Object to leading, Your Honor.\nTHE COURT: Overruled.\nThis constitutes Defendant Moore\u2019s EXCEPTION NO. 161\nTHE WITNESS: I saw some blood.\nQ. (By Mr. Britt) You saw what?\nA. I saw blood.\nThis constitutes Defendant Moore\u2019s EXCEPTION NO. 162.\nI don\u2019t remember where the blood was.\u201d\nIt is clear that the youthful witness had indeed seen some blood. He did not recall having seen it under the head of his grandfather. Some amount of leading was an acceptable method of eliciting this fact from this witness. The matter, in any event, was of little moment.\nSeveral other witnesses testified without objection to the presence of blood under Dayton Hodge's head.\nOnly the dark toboggan was actually offered in evidence.\nAn additional reason for not submitting accessory after the fact as an alternative verdict is that one may not be convicted of the crime of accessory after the fact upon an indictment charging him as a principal perpetrator. State v. McIntosh, supra; State v. Jones, 254 N.C. 450, 119 S.E. 2d 213 (1961). At the time of defendants\u2019 trial here, one could have convicted of an accessory before the fact on an indictment charging him as a principal perpetrator. State v. Holmes, 296 N.C. 47, 249 S.E. 2d 380 (1978). Effective 1 October 1979, however, newly enacted G.S. 14-5.1 provides that one indicted as a principal perpetrator may not be convicted on that indictment as an accessory before the fact. 1979 Sess. Laws, Chapter 811.\nNotwithstanding this last finding the jury recommended that defendant Moore be sentenced to life imprisonment for the murder of Dayton Hodge apparently on the basis of its earlier finding that his participation in this murder \u201cwas relatively minor.\u201d\nThe jury in Cherry failed, however, to find that the murder was especially heinous, atrocious, or cruel.\nThere is a good discussion of all these cases and their holdings in Vague and Overlapping Guidelines: A Study of North Carolina\u2019s Capital Sentencing Statute, 16 Wake Forest L. Rev. 765, 796-800 (1980).\nThe underlying felony is merged into and forms a part of the capital offense and may not be considered again as a circumstance which aggravates that offense.\nThe record shows that issues were submitted in all four murder cases as follows:\n\u201cISSUE ONE: Do you unanimously find from the evidence beyond a reasonable doubt that one or more of the followi ng aggravating circumstances existed at the time of the commission of the murder of [Allen Watts or Dayton Hodge] ... ?\nISSUE TWO: Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances in the murder of [Allen Watts or Dayton Hodge] found by you are sufficiently substantial to call for the imposition of the death penalty as to [George Moore, Jr., or John Oliver]... ?\nISSUE THREE: Do you find one or more mitigating circumstances as to [George Moore, Jr., or John Oliver]... ?\nISSUE FOUR: Do you unanimously find beyond a reasonable doubt that the mitigating circumstances are insufficient to outweigh the aggravating circumstances?\u201d\nDefendant Moore suggests that a preferable order would be:\n\u201cISSUE ONE: Do you unanimously find from the evidence beyond a reasonable doubt that one or more of the following aggravating circumstances existed at the time of the commission of the murder of [Allen R.\nWatts or Dayton Hodge]... ?\nISSUE TWO: Do you find one or more mitigating circumstances as to George Moore, Jr ... ?\nISSUE THREE: Do you unanimously find beyond a reasonable doubt that the mitigating circumstances are insufficient to outweigh the aggravating circumstances .. . ?\nISSUE FOUR: Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances in the murder of [Allen R. Watts or Dayton Hodge] found by you are sufficiently substantial to call for the imposition of the death penalty as to George Moore, Jr.... ?\u201d", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Tiare Bowe Smiley, Assistant Attorney General, for the state.", "Murchison, Fox & Newton, by Frank B. Gibson, Jr., Attorneys for defendant appellant Oliver.", "Robert D. Jacobson, Attorney for defendant appellant Moore." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN WESLEY OLIVER and GEORGE MOORE, JR.\nNo. 78\n(Filed 27 January 1981)\n1. Criminal Law \u00a7 15.1\u2014 pretrial publicity \u2014 denial of change of venue\nThe trial court in a prosecution for first degree murder and armed robbery did not abuse its discretion in denying defendants\u2019 motion for change of'venue based on pretrial publicity in radio broadcasts and newspaper articles where the articles were of a general nature likely to be found in any jurisdiction to which the trial might be moved; the coverage of defendants\u2019 arrest only indicated that defendants had been charged with a crime; the articles were factual, noninflammatory, and contained for the most part information that could have been offered in evidence at defendants\u2019 trial; and no juror objected to by defendants because of pretrial publicity was seated on the jury.\n2. Criminal Law \u00a7 21.1\u2014 denial of post-indictment probable cause hearing\nThe denial of defendants\u2019 post-indictment motions for a probable cause hearing did not violate G.S. 15 A-606(a) or deprive defendants of equal protection and due process of law.\n3. Jury \u00a7 6\u2014 denial of individual voir dire \u2014 no abuse of discretion\nDefendants failed to show that the trial court abused its discretion in the denial of defendants\u2019 motion for an individual voir dire of each juror and sequestration of the jurors during voir dire.\n4. Jury \u00a7 7.11\u2014 opposition to capital punishment \u2014 excusal for cause\nThe trial court in a first degree murder prosecution properly excused for cause prospective jurors who admitted a specific inability to impose the death penalty under any circumstances.\n5. Constitutional Law \u00a7 63; Jury \u00a7 7.11\u2014 exclusion of jurors for capital punishment views \u2014 cross-section of community\nThere is no merit in defendants\u2019 contention that the \u201cdeath qualification\u201d jury selection process in a first degree murder case deprived them of a jury selected from a representative, fair cross-section of the community on the guilt phase of the case.\n6. Jury \u00a7 6.4\u2014 excusal of jurors for capital punishment views \u2014 absence of questioning by defense counsel\nWhen challenges for cause are supported by prospective jurors\u2019 answers to questions propounded by the prosecutor and by the court, the courtdoes notabuse its discretion, at least in the absence of a showing that further questioning by defendant would likely have produced different answers, by refusing to allow defendant to question the juror challenged.\n7. Criminal Law \u00a7 91\u2014 statutory speedy trial \u2014 exclusion of time pending motion for change of venue\nA motion for change of venue is a \u201cpretrial motion\u201d within the meaning of G.S. 15A-701(b)(l)(d), and the time between the filing of the motion and its disposition is properly excluded in computing the statutory speedy trial period provided the motion is heard within a reasonable time after it is filed and the State does not delay the hearing for the purpose of thwarting the speedy trial statute.\n8. Criminal Law \u00a7 102.6\u2014 use of gun in jury argument\nIt was not improper for the prosecutor to use in his jury argument a revolver which had been offered in evidence in the trial so long as he did not attempt to draw any inferences from the weapon which were not supported by the evidence or to frighten or intimidate the jury with it.\n9. Indictment and Warrant \u00a7 7.1\u2014 allegation of defendant\u2019s residence \u2014 surplusage\nThe trial court properly denied defendant\u2019s motion to dismiss murder indictments against him on the ground they described him as being a resident of Robeson County when in fact he resided in Columbus County since defendant\u2019s residence was immaterial and the allegations as to his county of residence were at most surplusage.\n10. Constitutional Law \u00a7 30; Criminal Law \u00a7 91.6\u2014 discovery of pistol short time before trial \u2014 denial of continuance\nThe trial court in a murder and armed robbery case did not err in the denial of defendant\u2019s motion for a continuance of his trial made on the ground that the court had ordered that discovery be completed two weeks before trial and he did not have a full two weeks before his trial commenced on 14 May to view a pistol discovered by the State on 2 May where the State informed defendant\u2019s attorney on 3 May of the discovery; defendant\u2019s attorney chose not to view the weapon until 9 May after which he received by mail a copy of a permit to purchase the pistol issued to defendant; no ballistics analysis was possible because the bullet which killed one victim could not be found and the bullet which killed the second victim was badly fragmented; and defendant\u2019s preparation for trial was thus in no way inhibited by the late discovery of the pistol.\n11. Criminal Law \u00a7\u00a7 66.10, 66.17\u2014 unnecessarily suggestive showup procedure \u2014 inherent reliability of identification \u2014 admissibility of pretrial and in-court identifications\nAlthough an officer\u2019s statement to a seven-year-old witness that he would be taken to the police station where he \u201ccould see that man again\u201d coupled with a showup procedure in which the witness viewed the defendant singly through a two-way mirror constituted an unnecessarily suggestive pretrial identification procedure, the witness\u2019s identification of defendant was inherently reliable considering the totality of circumstances and did not create a substantial likelihood of misidentification so that both his out-of-court and in-court identifications of defendant were admissible in evidence where the witness was no casual observer but was a witness to the slaying of his own grandfather; he had ample opportunity to view his grandfather\u2019s assailant since the shooting occurred near him, in an open area, outside, and during daylight; he gave an accurate description of defendant prior to the showup; his identification was consistent, unequivocal and made without the slightest hesitancy or uncertainty; he was careful not to implicate a codefendant whom he also viewed singly through the two-way mirror but was quite firm in his consistent identification of defendant; and the length of time between the crime and the confrontation was no more than a few hours.\n12. Arrest and Bail \u00a7 9\u2014 bail in capital case \u2014 discretion of court\nWhether a defendant charged with a capital offense is entitled to a bail bond is a matter in the discretion of the trial judge. G.S. 15A-533.\n13. Jury \u00a7 7.8\u2014 denial of challenge for cause of juror based on health\nThe trial court did hot abuse its discretion in the denial of defendant\u2019s challenge for cause of a 65-year-old juror who stated that she had a history of heart trouble, took medication daily for high blood pressure, utilized nitroglycerin if she experienced pain or became upset, was not sure her health would allow her to sit for more than one day and felt that a trial lasting more than a week would be too strenuous where the trial court fully questioned the juror about her health and observed that the work of a juror was not strenuous, that often veniremen with heart conditions serve on a jury, and that counsel on both sides had agreed that the trial would not last more than a week.\n14. Witnesses \u00a7 1.2\u2014 competency of youthful witness \u2014 leading questions on voir dire\nThe trial court did not abuse its discretion in ruling that a seven-year-old boy was a competent witness in a murder and armed robbery case or in permitting the prosecutor to ask the youthful witness leading questions during the voir dire examination to determine his competency.\n15. Criminal Law \u00a7 33.1\u2014 observations of witnesses \u2014 relevancy\nThe trial court in a first degree murder and armed robbery case did not err in the admission of a witness\u2019s testimony that he saw two boys walking toward the crime scene shortly before the crimes occurred and that they were \u201cdark people\u201d and another witness\u2019s testimony tending to show that clothing he saw one defendant wearing on the day before the crimes matched the description of such defendant\u2019s clothing on the day of the crimes; furthermore, such testimony could not have had the purpose of inflaming the jury and would be, at most, harmless error.\n16. Criminal Law \u00a7 88.1\u2014 cross-examination to show bias or prejudice\nThe district attorney was properly permitted to ask a defense witness on cross-examination, \u201cBrown, you will do anything to cover up for your old friend, won\u2019t you?\u201d and \u201cWere you covering up for your old buddy and cell mate sitting over there at the next table?\u201d since the questions were designed to show bias and prejudice on the part of the witness, and this is a proper function of cross-examination.\n17. Criminal Law \u00a7 42.2\u2014 physical evidence connected with crime \u2014 failure to show objects had undergone no material change\nIn this prosecution for first degree murder and armed robbery, two \u201cfootball candies,\u201d a toboggan, candy wrappers, a red pullover shirt with a hood, and a pistol and bullets were not inadmissible because the State failed to offer positive testimony that the objects had undergone no material change where all of the items were positively identified as being the very items recovered by those investigating the incident in question; there was no evidence that the condition of any of the items had changed between the time of their recovery on the day of the crimes and the day of trial; the very nature of the items themselves would make a change in condition extremely unlikely in the short time between the commission of the crimes and the trial; and the fact that the items had undergone no material change was clearly implied in the testimony of the officer who identified them.\n18. Criminal Law \u00a7 33.1\u2014 relevancy of candies and toboggan\nIn this prosecution for first degree murder and armed robbery, evidence that candy wrappers discovered in the pocket of a jacket found in a truck used by defendants matched in appearance wrappers on candy found on the counter of the store where the crimes occurred was relevantas a circumstance tending to show that defendants had, at some time, been in the store, and a dark toboggan, also found in the truck, was relevant inasmuch as a witness observed one defendant wearing a dark toboggan shortly after the crimes were committed.\n19. Criminal Law \u00a7\u00a7 10.3, 11\u2014 failure to charge on accessory before or after the fact\nThe trial court did not err in failing to instruct as to one defendant on the offenses of accessory before and accessory after the fact to the crimes of armed robbery and murder where the evidence showed that both defendants were present at the scene and were acting together in the commission of the armed robbery, and that the murders occurred in furtherance of their common purpose to commit this crime or as a natural consequence thereof.\n20. Criminal Law\u00a7 135.4\u2014 conviction under felony-murder rule \u2014 underlying felony not aggravating circumstance\nWhere defendants were convicted of the capital offense of first degree murder on the theory that the murder was committed during the perpetration of an armed robbery, it was error for the court to submit the underlying felony of armed robbery to the jury in the sentencing phase of the trial as an aggravating circumstance, and defendants who were sentenced to death are entitled to a new sentencing hearing since the jury may well have decided that the remaining aggravating circumstances were not sufficiently substantial to call for imposition of the death penalty had the jury not considered the underlying felony as an aggravating circumstance.\n21. Criminal Law \u00a7 135.4\u2014 first degree murder \u2014 sentencing hearing \u2014 aggravating circumstance of especially heinous, atrocious, or cruel crime\nThe trial court properly submitted to the jury the aggravating circumstance as to whether the first degree murder of a storekeeper was \u201cespecially heinous, atrocious or cruel\u201d where the State\u2019s evidence showed that the storekeeper, after opening his cash register in response to defendants\u2019 demands, begged for his life and that one defendant mercilessly shot him to death. However, the trial court erred in submitting the aggravating circumstance as to whether the death of an innocent bystander was \u201cespecially heinous, atrocious or cruel\u201d where the State\u2019s evidence showed that one defendant, as he was running from the store, shot and killed the bystander who had pulled up to purchase gas, there was no unusual infliction of pain or suffering on the victim, and the brutality of the killing did not exceed that normally present in a case of first degree murder.\n22. Criminal Law \u00a7 135.4\u2014 first degree murder \u2014 sentencing hearing \u2014 competency of criminal record\nPortions of defendant\u2019s criminal record which were read to the jury during the sentencing phase of a first degree murder ease were relevant and competent to negate evidence that defendant had no significant history of prior criminal activity which was submitted to the jury on his behalf as a possible mitigating circumstance.\n23. Criminal Law \u00a7 135.4\u2014 murder committed in perpetration of robbery \u2014 submission of aggravating circumstance of commission for pecuniary gain\nIn a prosecution for the first degree murder of a storekeeper during the perpetration of an armed robbery and the first degree murder of an innocent bystander who had pulled up to the store to purchase gas, the trial court properly submitted to the jury during the sentencing phase of the trial the aggravating circumstance as to whether the bystander was murdered for \u201cpecuniary gain\u201d although the evidence showed that the money had already been obtained from the storekeeper at the time the bystander was shot, since the murder of the bystander was apparently committed in an effort to eliminate a witness to the robbery, and the jury could find that both murders were committed for the purpose of permitting the defendants to enjoy pecuniary gain.\n24. Criminal Law \u00a7 135.4\u2014 murder committed in perpetration of robbery \u2014 submission of aggravating circumstance of commission for pecuniary gain\nThere is no error in submitting the aggravating circumstance as to whether a murder was committed \u201cfor pecuniary gain\u201d in a felony-murder case in which the underlying felony is robbery notwithstanding the rule that the robbery itself cannot be submitted as such a circumstance, since the circumstance that the capital felony was committed for pecuniary gain does not constitute an element of the offense.\nJustice Meyer did not participate in the consideration and decision of this case.\nBEFORE Judge Donald L. Smith presiding at the 14 May 1979 Session of ROBESON Superior Court, defendants were convicted by a jury of armed robbery and two counts of murder in the first degree. At the sentencing phase of the trial the jury recommended that defendant Moore be sentenced to life imprisonment for the murder of Dayton Hodge and to death for the murder of Allen Watts. As to defendant Oliver the jury recommended death in both murder cases. From judgments imposing life sentences in the robbery cases and sentences according to the jury\u2019s determination in the murder cases, defendants hppeal of right to this Court pursuant to G.S. 7A-27.\nRufus L. Edmisten, Attorney General, by Tiare Bowe Smiley, Assistant Attorney General, for the state.\nMurchison, Fox & Newton, by Frank B. Gibson, Jr., Attorneys for defendant appellant Oliver.\nRobert D. Jacobson, Attorney for defendant appellant Moore.\nNorth Carolina General Statute 15A-2000 requires a separate proceeding to determine the sentence of a defendant convicted of the capital felony of first degree murder." }, "file_name": "0028-01", "first_page_order": 60, "last_page_order": 96 }