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Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "96 S.Ct. 3203", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "202 S.E. 2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564781 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0670-01" ] }, { "cite": "257 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1979, "pin_cites": [ { "page": "578-79" }, { "page": "588" } ], "opinion_index": 0 }, { "cite": "298 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568313 ], "weight": 6, "year": 1979, "pin_cites": [ { "page": "12-14" }, { "page": "30-31" }, { "page": "33-34" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0001-01" ] }, { "cite": "283 S.E. 2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1981, "pin_cites": [ { "page": "773" }, { "page": "779" }, { "page": "783-85", "parenthetical": "erroneous submission of aggravating circumstance was not prejudicial" }, { "page": "783" } ], "opinion_index": 0 }, { "cite": "304 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567447 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "266" }, { "page": "277" }, { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0249-01" ] }, { "cite": "261 S.E. 2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "810" }, { "page": "810" }, { "parenthetical": "and cases cited in part I of the opinion, supra" } ], "opinion_index": 0 }, { "cite": "299 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574128 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "137" }, { "page": "137-38" }, { "parenthetical": "and cases cited in part I of the opinion, supra" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0126-01" ] }, { "cite": "274 S.E. 2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "191" } ], "opinion_index": 0 }, { "cite": "302 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563765 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "39-40" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0028-01" ] }, { "cite": "64 L.Ed. 2d 796", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 3, "year": 1980, "pin_cites": [ { "parenthetical": "discussing the use of an underlying felony, which accompanies the commission of a premeditated murder, as an aggravating circumstance under G.S. 15A-2000(e) (5)" } ], "opinion_index": 0 }, { "cite": "100 S.Ct. 2165", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 3, "year": 1980, "pin_cites": [ { "parenthetical": "discussing the use of an underlying felony, which accompanies the commission of a premeditated murder, as an aggravating circumstance under G.S. 15A-2000(e) (5)" } ], "opinion_index": 0 }, { "cite": "257 S.E. 2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "564" }, { "page": "559" }, { "page": "568" } ], "opinion_index": 0 }, { "cite": "298 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568503 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "106" }, { "page": "98-99" }, { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0086-01" ] }, { "cite": "391 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767501 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "1777" }, { "page": "785" } ], "opinion_index": 0, "case_paths": [ "/us/391/0510-01" ] }, { "cite": "428 U.S. 910", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6190241, 6190456, 6191077, 6190949, 6192167, 6191273, 6191945, 6190064, 6192369, 6191733, 6190742, 6191448 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/us/428/0910-02", "/us/428/0910-03", "/us/428/0910-06", "/us/428/0910-05", "/us/428/0910-11", "/us/428/0910-07", "/us/428/0910-10", "/us/428/0910-01", "/us/428/0910-12", "/us/428/0910-09", "/us/428/0910-04", "/us/428/0910-08" ] }, { "cite": "450 U.S. 1025", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6384011, 6384236, 6384379 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/us/450/1025-01", "/us/450/1025-02", "/us/450/1025-03" ] }, { "cite": "446 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6277664, 6275708, 6276260, 6274984, 6278967, 6278350, 6275343, 6278644, 6279286, 6277367, 6276539, 6275996, 6278014 ], "year": 1980, "pin_cites": [ { "parenthetical": "R. at 341, \"Based upon these considerations as instructed by the Court, you will advise the Court whether the defendant should be sentenced to life imprisonment or death\"" } ], "opinion_index": 1, "case_paths": [ "/us/446/0941-08", "/us/446/0941-03", "/us/446/0941-05", "/us/446/0941-01", "/us/446/0941-12", "/us/446/0941-10", "/us/446/0941-02", "/us/446/0941-11", "/us/446/0941-13", "/us/446/0941-07", "/us/446/0941-06", "/us/446/0941-04", "/us/446/0941-09" ] }, { "cite": "286 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "copy found in Case No. 80CRS5530, Onslow Superior Court" } ], "opinion_index": 1 }, { "cite": "268 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "300 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564130 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc/300/0594-01" ] }, { "cite": "275 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "259 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "298 N.C. 405", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572569 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/298/0405-01" ] }, { "cite": "270 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "301 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564609 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc/301/0186-01" ] }, { "cite": "272 S.E. 2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "R. at 618, \"Even though you are not required to do so, you may still recommend life in prison\"" } ], "opinion_index": 1 }, { "cite": "301 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567847 ], "year": 1980, "pin_cites": [ { "parenthetical": "R. at 618, \"Even though you are not required to do so, you may still recommend life in prison\"" } ], "opinion_index": 1, "case_paths": [ "/nc/301/0407-01" ] }, { "cite": "251 S.E. 2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "R. at 276, \"you may - 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Ct.", "year": 1981, "opinion_index": 1 }, { "cite": "278 S.E. 2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "303 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572740 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc/303/0246-01" ] }, { "cite": "448 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787596, 1787636, 1787637, 1787575, 1787641, 1787643 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/us/448/0907-04", "/us/448/0907-02", "/us/448/0907-06", "/us/448/0907-01", "/us/448/0907-05", "/us/448/0907-03" ] }, { "cite": "259 S.E. 2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "298 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572332 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/298/0306-01" ] }, { "cite": "275 S.E. 2d 450", 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"257 S.E. 2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "606" } ], "opinion_index": 1 }, { "cite": "298 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568416 ], "year": 1979, "pin_cites": [ { "page": "56" } ], "opinion_index": 1, "case_paths": [ "/nc/298/0047-01" ] }, { "cite": "438 U.S. 586", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1769215 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "595-96", "parenthetical": "plurality opinion" }, { "page": "604", "parenthetical": "plurality opinion" } ], "opinion_index": 1, "case_paths": [ "/us/438/0586-01" ] }, { "cite": "259 S.E. 2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "R. at 111, \"you may recommend\"" } ], "opinion_index": 1 }, { "cite": "298 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572408 ], "year": 1979, "pin_cites": [ { "parenthetical": "R. at 111, \"you may recommend\"" } ], "opinion_index": 1, "case_paths": [ "/nc/298/0355-01" ] }, { "cite": "279 S.E. 2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "parenthetical": "R. at 231, \"you would then further deliberate upon your sentence recommendation\"" } ], "opinion_index": 1 }, { "cite": "303 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573792 ], "weight": 2, "year": 1981, "pin_cites": [ { "parenthetical": "R. at 231, \"you would then further deliberate upon your sentence recommendation\"" } ], "opinion_index": 1, "case_paths": [ "/nc/303/0321-01" ] }, { "cite": "305 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566323 ], "year": 1982, "pin_cites": [ { "parenthetical": "copy found in Case No. 80CRS5530, Onslow Superior Court" } ], "opinion_index": 1, "case_paths": [ "/nc/305/0143-01" ] }, { "cite": "257 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "parenthetical": "R. at 185, \"you may then recommend the death penalty\"" } ], "opinion_index": 1 }, { "cite": "298 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568313 ], "weight": 3, "year": 1979, "pin_cites": [ { "parenthetical": "R. at 185, \"you may then recommend the death penalty\"" } ], "opinion_index": 1, "case_paths": [ "/nc/298/0001-01" ] }, { "cite": "283 S.E. 2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "304 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567447 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc/304/0249-01" ] }, { "cite": "274 S.E. 2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "R. at 668" } ], "opinion_index": 1 }, { "cite": "302 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563765 ], "year": 1981, "pin_cites": [ { "parenthetical": "R. at 668" } ], "opinion_index": 1, "case_paths": [ "/nc/302/0028-01" ] }, { "cite": "298 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568503 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/298/0086-01" ] }, { "cite": "391 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767501 ], "weight": 6, "year": 1968, "opinion_index": 1, "case_paths": [ "/us/391/0510-01" ] } ], "analysis": { "cardinality": 3228, "char_count": 143123, "ocr_confidence": 0.767, "pagerank": { "raw": 8.659018511735736e-07, "percentile": 0.9772143086334377 }, "sha256": "73a82ab0fd78eca0a63ab437d45a64574eed1942cbb88707b44f990fe7ab0976", "simhash": "1:996bf0527e2e1cc4", "word_count": 23433 }, "last_updated": "2023-07-14T20:30:26.892112+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice MITCHELL did not participate in the consideration or decision of this case.", "Chief Justice BRANCH joins in this concurring opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL EDWARD PINCH" ], "opinions": [ { "text": "COPELAND, Justice.\nDefendant brings forward many assignments of error which he contends require a new trial of these crimes, or a new sentencing hearing, or both. We disagree and affirm the sentences of death imposed upon the jury\u2019s recommendations.\nAt the outset, we must note that defendant\u2019s appellate counsel filed a brief which is 109 pages long. A defendant who stands convicted in a capital case is, of course, entitled to effective and diligent advocacy in the presentation of his appeal. However, defendant\u2019s brief seems unduly lengthy and quite repetitious. Common sense dictates that there must be an end to what can be said in behalf of any cause and that good judgment and prudence should prevail in the legal art of brief-writing. Indeed, the volume of a brief should always be an accurate reflection of the substance of the arguments presented therein. We therefore exhort practitioners before this Court to seek excellence first, not excessiveness, in the preparation of briefs and remind them that the ability to be direct and concise is a formidable weapon in the arsenal of appellate advocacy. We now direct our attention to the merits of the case and address defendant\u2019s arguments in the order in which they appear in his brief.\nGuilt Phase: I-V\nI.\nForty-two veniremen were examined over a period of five days before a jury of twelve was impanelled to try this case. During the selection process, the trial court excused eight prospective jurors for cause due to their stated opposition to the death penalty. Defendant contends that the trial court\u2019s action deprived him of his constitutional rights of due process and trial by jury. The record plainly refutes this argument.\nThe applicable constitutional standard permits the excuse of a potential juror for cause if it is established that he \u201cwould automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case. . . .\u201d Witherspoon v. Illinois, 391 U.S. 510, 522 at n. 21, 88 S.Ct. 1770, 1777, 20 L.Ed. 2d 776, 785 (1968); see State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed. 2d 796 (1980). It is unmistakably clear that seven of the eight potential jurors were properly excused according to this standard after they each stated unequivocally that, even before hearing any evidence in the case, they could not under any circumstances impose the death penalty upon this defendant. State v. Oliver, 302 N.C. 28, 39-40, 274 S.E. 2d 183, 191 (1981). It is equally clear that the remaining juror, Mary Neal, was also correctly removed from the panel when, after some initial equivocation, she finally stated that she did not \u201cbelieve\u201d that she could impose the death penalty regardless of the evidence. The court thereupon asked her, \u201cDo I understand that you could not even before you hear the testimony under any circumstances, impose the death penalty?\u201d Ms. Neal replied, \u201cNo, I just don\u2019t think so.\u201d Considering her answers contextually, we find that Ms. Neal expressed a sufficient refusal to follow the law, that of capital punishment, which might become applicable to the case. State v. Avery, 299 N.C. 126, 137, 261 S.E. 2d 803, 810 (1980); see State v. Taylor, 304 N.C. 249, 266, 283 S.E. 2d 761, 773 (1981).\nThe excuse of these jurors for cause did not deprive defendant of his constitutional rights to trial by a jury representing a cross-section of the community or due process of law. State v. Avery, supra, 299 N.C. at 137-38, 261 S.E. 2d at 810; State v. Cherry, supra, 298 N.C. at 106, 257 S.E. 2d at 564. We would add, moreover, that the need for their excuse was manifest. It would have amounted to an absurdity and a mockery of our law to have permitted these jurors to sit on a case where imposition of the death penalty was an available sentencing option. For, if capital cases could be tried by juries which included persons firmly opposed to the maximum prescribed penalty sought by the State, the separate sentencing hearing mandated by G.S. 15A-2000 would almost certainly become a futile and meaningless exercise, contrary to the expressed will of our citizenry in the enactment of capital punishment legislation.\nII.\nAt trial, defendant contested the premeditation and deliberation elements of first degree murder primarily through the presentation of an intoxication defense. Defendant believes that he was unconstitutionally deprived of the substance of this defense by certain improper comments of the prosecutor and a series of erroneous rulings by the trial court. We are not so persuaded and overrule these assignments of error.\n(a) In his closing argument to the jury, the district attorney stated, in pertinent part, the following:\n[E]ven if you want to conclude that Michael Pinch was drunk because he said in the statement some time that he was, he\u2019s still guilty because drunkenness is no defense. You have to be so drunk as to be utterly and totally incapable, unable to form the intent to kill and to carry that out; so drunk as to be unable, incapable of understanding the nature and consequence of your act. That is not present here. There is no way you can conclude that anybody was intoxicated to that extent \u2014not on these facts.\nYou can\u2019t find it in your conscience and mind, your heart to dignify what happened out there and impartially excuse it on voluntary intoxication. It is not present on this evidence. I suggest to you that there is not even ample evidence to find that he was intoxicated or drunk. ... No drugs in this case. Beer. Just beer. You just \u2014 you can\u2019t let him sell that to you. It is not there. It didn\u2019t happen. Nobody could have been intoxicated to the extent that the law requires and do what he did in the manner he did it. There just simply \u2014 it is offensive to reason and common sense. It stinks to high heaven. (Record at 241, 250.)\nWe can perceive no error in this. Contrary to defendant\u2019s assertions, the district attorney correctly conveyed the substance of the law of intoxication to the jury. See State v. Goodman, 298 N.C. 1, 12-14, 257 S.E. 2d 569, 578-79 (1979). In addition, although some of the foregoing comments were colorful in terminology, we find that as a whole the remarks were compatible with the evidence in the case and that the district attorney was certainly authorized to argue to the jury that the facts did not support a credible defense of intoxication. See State v. Noell, 284 N.C. 670, 202 S.E. 2d 750 (1974), death sentence vacated, 428 U.S. 902, 96 S.Ct. 3203, 49 L.Ed. 2d 1205 (1976).\n(b) We likewise believe that the trial court\u2019s instructions upon the intoxication defense were entirely correct. The record shows that the able judge carefully explained the law in every respect in accordance with the decisions of this Court. See State v. Propst, 274 N.C. 62, 161 S.E. 2d 560 (1968); N.C.P.I.-Crim. 305.10 (1970). See also 4 Strong\u2019s N.C. Index 3d, Criminal Law \u00a7 6 (1976). We also reject defendant\u2019s argument that the judge improperly shifted the burden to defendant to disprove his capacity to form a specific intent to kill after premeditation and deliberation. Viewed as a whole, the judge\u2019s charge was not reasonably susceptible of such an erroneous interpretation.\n(c) Defendant contends that the trial court erred in denying his pre-trial motion for an order directing the district attorney to make the State\u2019s eyewitnesses \u201cavailable\u201d for interviews with a medical expert who had been appointed to assist 'in the preparation and evaluation of an intoxication defense. It should be recognized at once that nothing in our statutory discovery provisions would require the State to compel its witnesses to submit to any form of interview or questioning by the defense prior to trial; in fact, the State does not even have to afford the defense pretrial access to a list of its potential witnesses or copies of any statements they may have made. See G.S. 15A-903 and 15A-904; State v. Lake, 305 N.C. 143, 286 S.E. 2d 541 (1982); State v. Abernathy, 295 N.C. 147, 244 S.E. 2d 373 (1978). Nevertheless, it is true that a prosecutor has an implicit duty not to obstruct defense attempts to conduct interviews with any witnesses; however, a reversal for this kind of professional misconduct is only warranted when it is clearly demonstrated that the prosecutor affirmatively instructed a witness not to cooperate with the defense. State v. Mason, 295 N.C. 584, 587-88, 248 S.E. 2d 241, 244 (1978), cert. denied, 440 U.S. 984, 99 S.Ct. 1797, 60 L.Ed. 2d 246 (1979); State v. Covington, 290 N.C. 313, 343, 226 S.E. 2d 629, 649 (1976).\nThis record contains no such showing. The only indication of possible prosecutorial misbehavior is the bare allegation of defense counsel in the motion that the district attorney had told him of his specific refusal to allow the interviews in question. We find nothing in the record to substantiate this claim nor any evidence tending to show that defense counsel actually approached the potential witnesses for the stated purpose only to be rejected on account of the district attorney\u2019s prior, direct instructions to them against their cooperation. Defendant has therefore failed to present adequate grounds for reversal. State v. Mason, supra. In addition, the bare summary of the proceedings held by the court upon the motion make it plain that the witnesses themselves refused to talk with the defense expert on the advice of their own individual attorneys. Record at 51. Under these circumstances, neither the State nor the trial court had the power to interfere with the attorney-client privileges of the witnesses or to jeopardize their own future defenses. Viewed in this light, it would have been a vain act indeed for the trial court to order the State to provide the defense with something which was, for all practical purposes, completely unavailable.\nIn this context, the trial court did all that it could reasonably do by initially providing the defense with $1500 in state funds to hire the medical expert. In denying the motion to compel the interviews, the court reminded the defense that the same necessary information could be obtained if the expert attended the trial and listened to the witnesses\u2019 actual testimony. If, as it is suggested, the additional cost of the psychiatrist\u2019s time to do just that was prohibitive, defense counsel could have taken notes upon the testimony or relayed a transcript to the doctor for his formulation of an opinion upon the extent of defendant\u2019s impairment from intoxication at the time of the killings. We conclude that the denial of the motion did not deprive defendant of effective assistance of counsel or a fair trial. See also State v. Williams (I), 304 N.C. 394, 404-06, 284 S.E. 2d 437, 445-46 (1981).\n(d) We must now consider whether defendant\u2019s constitutional rights of confrontation and due process were unlawfully restricted by the trial court\u2019s sustension \u201cof the prosecutor\u2019s objections to the defendant\u2019s cross-examination of the State\u2019s witnesses concerning the amount of beer drunk by the defendant, his level of intoxication and the nature of his behavior. . . .\u201d Defendant\u2019s Brief at 30. Our review is governed by the well-established rule that the scope of cross-examination rests largely within the discretion of the trial court, and its rulings thereon will not be disturbed absent a clear showing of abuse or prejudice. State v. Atkins, 304 N.C. 582, 585, 284 S.E. 2d 296, 298 (1981) (and authorities there cited). Defendant has failed to demonstrate error in the trial court\u2019s rulings; consequently, we overrule all of the pertinent underlying exceptions listed in defendant\u2019s brief.\nIn several instances, the witnesses actually answered the questions of defense counsel despite the prosecutor\u2019s objections and the trial court\u2019s sustension thereof (exceptions nos. 27, 28, 48A). The prosecutor did not move to strike the answers, and the trial court did not admonish the jury to disregard them. Thus, defendant effectively received the benefit of the evidence sought after, and he has no corresponding cause for complaint on appeal. State v. Hopkins, 296 N.C. 673, 252 S.E. 2d 755 (1979).\nIn another instance, defense counsel attempted to ask an expert medical witness on recross-examination whether the victims were legally intoxicated at the time of their deaths (exception no. 35). We believe that this question concerned irrelevant matters which had no logical tendency to prove a fact in issue at defendant\u2019s trial for murder. See 1 Stansbury\u2019s N.C. Evidence \u00a7 77, at 234 (Brandis rev. 1973). The relevant issue at trial was whether defendant was too intoxicated to form the specific intent to commit murder in the first degree. Obviously, the nature of his criminal acts was not diminished according to the sobriety or drunkenness of the unfortunate victims. Nevertheless, even assuming that this evidence had some degree of relevancy, however slight, it is unquestionably clear that defendant was not prejudiced by its exclusion on recross-examination when the doctor had already repeatedly stated during his direct, cross and redirect examinations that the blood alcohol levels of both victims indicated their intoxication at death.\nThe remaining exceptions argued herein by defendant are equally meritless. Exceptions no. 40 and 41 concerned defense counsel\u2019s questioning of the witness Eanes about whether he was \u201cinfluenced by the alcohol [he] had drunk\u201d on the night of the murders. Exception no. 44 related to the overly broad and legally ambiguous question to Eanes about whether he had ever seen defendant when he was not \"high\u201d on drugs or alcohol. Exception no. 48 involved a question as to whether defendant and Billy Wayne Stanley were \u201cdrunk\u201d when they \u201cmooned\u201d an officer earlier in the evening of the murder (at the trailer). The trial court did not abuse its discretion in sustaining the prosecutor\u2019s objections to these questions, and its rulings thereon did not improperly hinder defendant\u2019s efforts to present his intoxication defense. None of the questions sought to elicit relevant information having a direct bearing upon defendant\u2019s intoxication impairment at the time he committed the murders. Moreover, none of the questions were competently framed to elicit a witness\u2019s opinion about defendant\u2019s general, intoxication based upon the precise legal meaning of that term. See, e.g., State v. Carroll, 226 N.C. 237, 239-240, 37 S.E. 2d 688, 690-91 (1946).\nIII.\nThe jury was advised by both the prosecutor, in his closing argument, and the trial court, in its final instructions, that the elements of malice and unlawfulness were implied in an intentional killing with a deadly weapon. Defendant maintains that his constitutional right to trial by jury was violated because the jury was not also simultaneously informed that it was not compelled to infer malice and unlawfulness, as the presumption of their existence was rebuttable. See, e.g., State v. Hutchins, 303 N.C. 321, 346, 279 S.E. 2d 788, 804 (1981). Upon this record, defendant\u2019s position offends reason and is untenable.\nThe significant and controlling fact in this case is that defendant, through his trial counsel, conceded his guilt of the second degree murders of Pachaco and Ausley. Defense counsel stated in his closing argument to the jury:\nWhen we started the case in selecting the jury, we told you \u2014 and also in opening remarks . . . that we were not contesting the fact that this young man over here killed two people intentionally with malice. That\u2019s never been at issue in this case. He\u2019s guilty of second-degree murder. We\u2019ve admitted that all along. The State has proved it to you, but they didn\u2019t really have to. We admitted that.\n. . . [WJe\u2019re admitting the intentional killing and the malice involved in this thing. . . .\n. . . He\u2019s guilty of second-degree murder, two of them. (Record at 226, 236).\nIn light of defendant\u2019s own affirmative admissions of the existence of malice and unlawfulness in his commission of two \u201csecond degree\u201d murders, there could not possibly be any constitutional transgressions or prejudice in the remarks of either the prosecutor or the trial court concerning the presumption of the existence of those very same elements in the charges of first degree murder. \u201cThe State is not required to prove malice and unlawfulness unless there is some evidence of their non-existence. . . .\u201d State v. Simpson, 303 N.C. 439, 451, 279 S.E. 2d 542, 550 (1981); State v. Hankerson, 288 N.C. 632, 650, 220 S.E. 2d 575, 588 (1975), rev\u2019d on other grounds, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed. 2d 306 (1976). See also Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed. 2d 39 (1979); State v. White, 300 N.C. 494, 268 S.E. 2d 481 (1980). Moreover, it is evident from the record that the use of the presumption did not alleviate in any manner the State\u2019s overall burden of proving the existence of every element of first degree murder beyond a reasonable doubt. The assignment of error is overruled.\nIV.\nDr. John D. Butts, a forensic pathologist, performed the autopsies of the victims and testified at trial about the causes of their deaths. In the course of his testimony, Dr. Butts identified ten photographs as accurately depicting the appearance of the bodies at the time of his examinations. The State then introduced the photographs as exhibits (over defendant\u2019s objections). The trial court instructed the jury that it could consider the exhibits only for limited illustrative purposes, not as substantive evidence of guilt. As the jury viewed each photograph, Dr. Butts again identified its subject and explained the nature of the body\u2019s appearance as shown. Defendant argues that the introduction of these gruesome photographs and the repetitive testimony connected therewith effectively deprived him of a fair adjudication of his guilt and a fair sentencing hearing. Defendant believes that, since he \u201creadily admitted that he killed both victims with gunshot wounds,\u201d there was no legitimate purpose or need for the use of the photographs and that they only served to inflame the passions of the jury to his decided prejudice. We disagree.\nThe record clearly shows that the photographs were properly introduced according to our rules of evidence. See State v. Mar shall, 304 N.C. 167, 282 S.E. 2d 422 (1981); State v. Jenkins, 300 N.C. 578, 268 S.E. 2d 458 (1980). The illustrative relevancy of the photographs, which directly corresponded to Dr. Butts\u2019 testimony, was not nullified by defendant\u2019s \u201cstipulation\u201d as to the cause of the deaths. See State v. Elkerson, 304 N.C. 658, 285 S.E. 2d 784 (1982). In addition, the actual number of the photographs of the two bodies was not impermissibly excessive under the circumstances of this case. See State v. Sledge, 297 N.C. 227, 254 S.E. 2d 579 (1979). Finally, the probative force of these depictions of the unattractive markings of the victims\u2019 violent deaths (as seen by the medical examiner) was not outweighed by their tendency to repulse the sensibilities, or to arouse the sympathy, of the viewer. Compare State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979); State v. Mercer, 275 N.C. 108, 165 S.E. 2d 328 (1969).\nV.\nDefendant assigns as error the district attorney\u2019s numerous references to facts outside the record during his closing argument to the jury during the guilt phase. No objection was interposed at trial to any of the alleged instances of misconduct. Despite trial counsel\u2019s laxity, the State\u2019s argument in capital cases is subject to limited appellate review for the existence of gross improprieties which make it plain that the trial court abused its discretion in failing to correct the prejudicial matters ex mero mo tu. State v. Smith, 294 N.C. 365, 377-78, 241 S.E. 2d 674, 681-82 (1978) (and authorities there cited). Considering them contextually and according to the evidence in the case, we hold that the statements challenged here were not extremely or grossly improper.\nFirst, there was nothing wrong with the district attorney\u2019s remarks about defendant\u2019s enjoyment of the killings. Such comments were supported by the evidence and the reasonable inferences therefrom. See State v. Monk, 286 N.C. 509, 212 S.E. 2d 125 (1975). For example, Billy Wayne Stanley testified that defendant had a grin on his face when he shot the victims, and Officer Fuller testified that defendant had told him that his only regret about the death of Pachaco was that he would not be able to kill him again. Second, the district attorney\u2019s statements describing what defendant must have been thinking as he sat quietly behind the bar holding the shotgun were not so prejudicial that the trial court was required to take corrective action even in the absence of an objection. See State v. King, 299 N.C. 707, 711-13, 264 S.E. 2d 40, 43-44 (1980). Third, and finally, we perceive no gross error in the following \u201ccomparisons\u201d made by the State: \u201cYou\u2019ve got to understand the nature of the animal you\u2019re dealing with here. I\u2019m not a zoologist, but I don\u2019t know of a single living species on this planet that kills for pleasure. Tigers kill to eat, sharks kill to eat. Michael Pinch kills for pleasure. Think about that.\u201d Record at 250. This uncomplimentary and disparaging characterization of defendant was entirely warranted by the evidence, State v. Ruof, 296 N.C. 623, 252 S.E. 2d 720 (1979); State v. Westbrook, 279 N.C. 18, 181 S.E. 2d 572 (1971), death sentence vacated, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed. 2d 761 (1972).\nSentencing Phase: VI-XIX\nVI.\nDefendant again maintains that the district attorney improperly injected facts outside the record into his jury argument \u2014 this time during the sentencing phase of the trial. The scope of argument at the sentencing hearing is governed by the same general rules that apply to argument during the guilt proceedings; consequently, when the remarks challenged on appeal were not objected to at trial, the alleged impropriety must be glaring or grossly egregious for this Court to determine that the trial judge erred in failing to take corrective action sua sponte. See State v. Johnson, 298 N.C. 355, 368-69, 259 S.E. 2d 752, 760-61 (1979). The prosecutorial expressions attacked in this appeal do not fall within the realm of reversible transgressions.\nAll three of the exceptions set out in the brief under this assignment of error concern the district attorney\u2019s statements that the murders were especially despicable, heinous and cruel because defendant executed the victims for sport, recreation and the amusement of his friends. We have already held in part V of the opinion, supra, that the evidence in the case reasonably supported a conclusion that defendant enjoyed committing these crimes. That being so, it is clear that the district attorney\u2019s further extrapolations at sentencing about the unusually callous and playful nature of defendant\u2019s murderous acts were also legitimate under the evidence and were not extreme or prejudicial per se.\nVII.\nDefendant offered much evidence in mitigation of his acts during the penalty phase. In several instances, however, the trial court excluded certain evidence upon the prosecutor\u2019s objections. Defendant argues that the trial court thereby deprived him of due process and the right to be free from cruel and unusual punishment.\nDefendant\u2019s contentions must be examined against the backdrop of our capital punishment statute which provides, in conformity with the constitutional mandates of the Eighth and Fourteenth Amendments, that any evidence may be presented at the separate sentencing hearing which the court deems \u201crelevant to sentence\u201d or \u201cto have probative value,\u201d including matters related to aggravating or mitigating circumstances. G.S. 15A-2000(a)(3); see Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed. 2d 973 (1978). The circumstances of the offense and the defendant\u2019s age, character, education, environment, habits, mentality, propensities and criminal record are generally relevant to mitigation; however, the ultimate issue concerning the admissibility of such evidence must still be decided by the presiding trial judge, and his decision is guided by the usual rules which exclude repetitive or unreliable evidence or that lacking an adequate foundation. See State v. Johnson, 298 N.C. 355, 367, 259 S.E. 2d 752, 760 (1979); State v. Cherry, 298 N.C. 86, 98-99, 257 S.E. 2d 551, 559 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed. 2d 796 (1980). See also State v. Goodman, 298 N.C. 1, 30-31, 257 S.E. 2d 569, 588 (1979). Consequently, we believe that a new sentencing hearing should not be ordered by this Court for the trial judge\u2019s exclusion of evidence at the penalty phase unless the defendant demonstrates the existence of patent, prejudicial error. No such showing has been made here.\nSpecifically, defendant argues that the trial court\u2019s sustension of various objections by the prosecutor thwarted his attempts to inform the jury about his \u201cgrowing awareness of the uselessness of his life up to that point, the pain he caused others, a growing sense of maturity and feelings of remorse and regret.\u201d Defendant\u2019s Brief at 53. We find that, although some evidence was indeed excluded, the record as a whole is replete with evidence of these matters, and defendant suffered no prejudice whatsoever from the trial court\u2019s rulings.\nIt is true that the trial court sustained an initial and single objection to defendant\u2019s testimony about his current feelings of remorse over Pachaco\u2019s death; nevertheless, defendant thereafter proceeded to testify in detail about his change in heart and regret without further objection by the prosecutor. Record at 278-79. In addition, Dr. Royal, a forensic psychiatrist, testified about defendant\u2019s expressed remorse over Ausley\u2019s death. Record at 285. Since substantial evidence of defendant\u2019s regrets had already been received, it was not error for the court to exclude (upon objection) further testimony upon the same subject by the witness Sherry Olivey. In any event, defendant later succeeded in introducing more evidence about his repentant statements since the killings through the testimony of his sister and mother. Record at 289, 291-92. We likewise find no reversible error in the trial court\u2019s limited admission of defendant\u2019s five proffered exhibits consisting of letters he had written to his mother while he was incarcerated pending trial. These letters added little to the in-court testimony of defendant and his witnesses about his present awareness of what he had done and his sorrow for it. Even so, the trial court permitted defendant\u2019s mother to read to the jury all of exhibit five and portions of exhibits three and four in which defendant had essentially stated, both in prose and poem, that it hurt him to know that he was capable of taking another\u2019s life, that he was living for the future and cleaning up his act, and that he had a mature and sincere desire to fulfill his part in life and society properly. Record at 297-99. The letters totally excluded by the court, exhibits one and two, merely repeated the same things, howbeit using different words or examples, about his remorse and his wish to be a better person. Moreover, these two letters included much material which plainly was not relevant to sentencing, ie., his apologies to his mother for not having been a better son to her despite her good efforts and his rambling philosophical questionings about why he had turned out to be so bad.\nDefendant also maintains that the trial court erred in not permitting Sherry Olivey to testify about the circumstances of his various hospitalizations for drug overdoses. We disagree. Ms. Olivey testified that she knew of occasions where defendant had taken a drug overdose and that she had visited him in Cone Memorial Hospital three months after the crimes. Certainly, defendant\u2019s habits regarding alcohol and drug misuse were relevant mitigating factors for the jury\u2019s consideration; however, the precise details of his particular overdoses were not pertinent to his sentencing. It was enough that the jury was informed by Ms. Olivey that:\nI can honestly say that he [defendant] drank or took something every day that I\u2019ve known him [two years] . . . . He always went to the max on everything to where he couldn\u2019t walk anymore or was passed out. I have seen him when he has gone too far in the use of alcohol or the use of drugs. I have seen him take alcohol or drugs to the point where he is unconscious or in some state like that. Record at 286-87.\nDefendant finally challenges the trial court\u2019s refusal to admit certain expert testimony. These contentions lack merit. The court correctly sustained the prosecutor\u2019s objection to defense counsel\u2019s attempt to elicit an opinion from a psychiatrist about whether defendant \u201cwould be able to adjust to life in prison.\u201d Such an opinion would have concerned a matter totally irrelevant to sentencing. Defendant stood convicted of two first degree murders. Regardless of his ability to adjust to prison life, by law, defendant was already subject to the mandatory imposition of life imprisonment for those crimes. See G.S. 14-17; G.S. 15A-2000(a)(l), 15A-2002. The issue to be determined by the jury at the penalty phase was not whether defendant would prove to be a \u201cgood\u201d prisoner but whether the overall nature of the murders and defendant\u2019s attendant acts warranted imposition of the maximum available penalty \u2014 death in the gas chamber. The trial court also properly excluded the opinion of another psychiatrist about defendant\u2019s blood alcohol levels at the time of the shootings. Clearly, such evidence would have been relevant; however, as the doctor plainly admitted that he could not render an opinion within a reasonable degree of medical certainty, the evidence was unreliable and lacked probative value.\nIn sum, defendant is not entitled to a new sentencing hearing upon the ground that the foregoing classes of evidence were erroneously restricted or rejected by the trial court.\nVIII.\nAt the penalty phase, defendant testified that he had been drinking alcohol and taking or injecting all kinds of illicit drugs since he was fourteen years old. He also stated that he had been consuming approximately twelve beers a day for the three years preceding the murders. Obviously, this testimony tended to bolster defendant\u2019s evidence of mitigating circumstances. The prosecutor responded by cross-examining defendant about where he got the money to buy all the beer and drugs which he said he had taken every day for five years. Defendant answered that he had money even though he had not been employed. The prosecutor repeatedly asked defendant to identify the specific source of that money, but defendant only replied, \u201cI just got it.\u201d The prosecutor finally asked him, \u201cWho did you steal from?\u201d The trial court sustained defense counsel\u2019s immediate objection to the question. Defendant complains that the prosecutor\u2019s persistent questioning about the money improperly suggested to the jury that he must have committed other criminal offenses to support his habits. On the whole, we find no prejudicial error.\nAs a general matter, the truthfulness of any aspect of any witness\u2019s testimony may be attacked on cross-examination. See 1 Stansbury\u2019s N.C. Evidence \u00a7\u00a7 39-40 (Brandis rev. 1973). This basic rule applies to all trial proceedings, including both the guilt and sentencing phases in capital cases. Thus, it is clear that the prosecutor could properly attempt to impeach defendant\u2019s testimony about the actual extent of his destructive habits. Defendant\u2019s ability to afford the necessary items certainly bore' upon the credibility of his self-serving statements about their constant use.\nIn addition, the persistent nature of the prosecutor\u2019s questioning was not abusive in light of defendant\u2019s evasive and unresponsive answers. The scope and fairness of the cross-examination was a matter left to the sole discretion of the trial judge, and the prosecutor had a right to sift or press defendant in order to get a direct and clear response. See State v. Williams, 303 N.C. 142, 147, 277 S.E. 2d 434, 438 (1981); State v. Currie, 293 N.C. 523, 529, 238 S.E. 2d 477, 481 (1977).\nOn the other hand, however, it seems that defendant\u2019s objection to the prosecutor\u2019s inferential inquiry about the stealing was well taken. The question amounted to a speculative insinuation of prior criminal conduct with no ascertainable good faith factual basis. See State v. Shane, 304 N.C. 643, 651, 285 S.E. 2d 813, 818 n. 3 (1982). Still, it was a single impropriety, and this case is, therefore, markedly different from State v. Phillips, 240 N.C. 516, 82 S.E. 2d 762 (1954), where the prosecutor cross-examined the defendant in detail about seventeen unproved accusations of prior misconduct. Thus, we hold that the trial court\u2019s prompt sustension of defendant\u2019s objection to the disapproved question sufficiently averted any prejudice to defendant. See State v. Williams, supra, 303 N.C. at 147, 277 S.E. 2d at 438.\n1 \u00a1xj\nDefendant assigns further error to the district attorney\u2019s jury argument during the sentencing phase. We have already overruled several of the same supporting exceptions in Part VI of the opinion, supra, where we set forth the controlling standard of review of any jury argument which is not objected to at trial. To avoid redundancy, we shall not plow those rows again, instead, we shall limit our review to a consideration of the additional exceptions presented here.\nLet us begin by saying that prosecutorial statements are not placed in an isolated vacuum on appeal. Fair consideration must be given 'to the context in which the remarks were made and to the overall factual circumstances to which they referred. Moreover, it must be remembered that the prosecutor of a capital case has a duty to pursue ardently the goal of persuading the jury that the facts in evidence warrant imposition of the ultimate penalty. G.S. 15A-2000(a)(4); State v. Myers, 299 N.C. 671, 680, 263 S.E. 2d 768, 774 (1980); State v. Johnson, 298 N.C. 355, 367, 259 S.E. 2d 752, 760 (1979); State v. Westbrook, 279 N.C. 18, 37, 181 S.E. 2d 572, 583 (1971), death sentence vacated, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed. 2d 761 (1972).\nIn this case, it is evident that the district attorney argued for capital punishment of defendant\u2019s murder convictions with much vim and vigor. Record at 306-10. Contrary to defendant\u2019s assertions, however, we do not believe that the district attorney\u2019s zeal caused him to overstep the bounds of permissible argument. Examining his statements in their complete context, we are convinced that he did not say anything which would amount to a gross impropriety. His comment that defendant was \u201cnot Jack the Ripper yet\u201d was tempered by the prior explanation to the jury that it could consider any facts or circumstances which it deemed to have mitigating value, including defendant\u2019s admitted lack of significant criminal history. The district attorney\u2019s expressions concerning his belief in the death penalty and the propriety of its imposition in the case must be weighed with his frequent reminders to the jury that it would have to determine what the appropriate punishment should be. Compare State v. Smith, 279 N.C. 163, 181 S.E. 2d 458 (1971). The characterization of defendant\u2019s mind as a \u201ccesspool\u201d cannot be deemed unfair in light of defendant\u2019s own admissions that he killed the victims intentionally and maliciously simply because Pachaco had wrongfully worn the insignia or emblem of a motorcycle gang sometime in the past. The statement to the jury that it would not have hesitated to give defendant his \u201cjust reward\u201d right there on the spot if it had actually witnessed the murders, although disapproved by us, was not an inflammatory invitation for the jury to act like a lynch mob. The district attorney noted that the law did not work that way. His comment was a colorful attempt to emphasize the cruelty and callousness with which defendant killed the victims. Finally, there was nothing inherently prejudicial in the district attorney\u2019s complaints about how he could not bring in family members to testify about the \u201ctrials and travails\u201d of Pachaco\u2019s life, in contrast to all of the evidence about defendant\u2019s family and personal history received in mitigation. The district attorney was merely reminding the jury that, although it did not know much about him, it should also carefully consider the value of the victim\u2019s life in making its life or death decision about defendant.\nX.-XI.\nDefendant tendered in writing the following ten circumstances in mitigation:\n1. The defendant has no significant history of prior criminal activity.\n2. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.\n3. The age of the defendant at the time of the crime.\n4. The defendant voluntarily admitted his culpability immediately after his arrest and cooperated with police efforts to clarify the evidence in these cases and other pending cases arising out of the incident.\n5. The defendant since his incarceration has appreciated the severity and error of his conduct.\n6. The defendant since his incarceration has ceased the use of alcohol and drugs and is able to function with more maturity and responsibility.\n7. The defendant lacks education and has a relatively low mentality.\n8. The environment in which the defendant lived until the time of his arrest was infused with violence and accepted violence as an [sic] problem-solving technique.\n9. The defendant\u2019s childhood history, background, and record shows no indication of a habitually violent nature.\n10. Any other circumstances or circumstances arising from the evidence which you, the jury deem to have mitigating value. Record at 275.\nWith the exception of the last portion of number seven regarding defendant\u2019s \u201crelatively low mentality,\u201d the trial court honored defendant\u2019s request and submitted all ten of these mitigating factors to the jury. Defendant argues that the trial court thereby erred in two ways: (1) in failing to submit his low mentality in mitigation as requested and (2) in failing to submit upon its own motion the additional statutory mitigating circumstance of G.S. 15A-2000(f)(2), i. e., that he committed the murders while he was \u201cunder the influence of mental or emotional disturbance.\u201d We conclude that defendant\u2019s contentions cannot be sustained on this record.\nThis Court has previously established instructive guidelines for the trial judges of our State to follow in the submission of mitigating circumstances, including those which arise upon the evidence in a given capital case as well as those specified in G.S. 15A-2000(f). First, in State v. Goodman, we held that, although the jury\u2019s consideration of any factor relevant to the circumstances of the crime or the character of the defendant may not be restricted, the trial court \u201cis not required to sift through the evidence and search out every possible circumstance which the jury might find to have mitigating value,\u201d especially when the trial court instructs the jury upon the open-ended provision of G.S. 15A-2000(f) (9) and thus does not hinder it from evaluating on its own anything of mitigating value. 298 N.C. 1, 33-34, 257 S.E. 569, 589-90 (1979). Second, in State v. Johnson, we held that the trial court must include additional factors, which are timely requested by the defendant, on the written list submitted to the jury if they are \u201csupported by the evidence, and . . . are such that the jury could reasonably deem them to have mitigating value. . . .\u201d 298 N.C. 47, 72-74, 257 S.E. 2d 597, 616-17 (1979) (emphasis added). Third, in State v. Hutchins, we held that, although the trial court has a fundamental duty to declare and explain the law arising upon the evidence, it is not required to instruct upon a statutory mitigating circumstance sua sponte unless defendant, who has the burden of persuasion, brings forward sufficient evidence of the existence of the specified factor. 303 N.C. 321, 355-56, 279 S.E. 788, 809 (1981); see State v. Taylor, 304 N.C. 249, 277, 283 S.E. 2d 761, 779 (1981).\nThe rules of the foregoing cases are sound and practical, and we therefore exhort our trial judges to adhere to them carefully when presiding over the trial of capital cases. Moreover, we must also point out that common sense, fundamental fairness and judicial economy dictate that any reasonable doubt concerning the submission of a statutory or requested mitigating factor be resolved in the defendant\u2019s favor to ensure the accomplishment of complete justice at the first sentencing hearing. Nevertheless, the same standard of appellate review continues to apply whether the trial court commits error at the guilt phase or the penalty phase; thus, a new sentencing hearing will not be ordered for the erroneous failure to submit a mitigating circumstance if that error was harmless beyond a reasonable doubt. G.S. 15A-1443(b); see State v. Williams (I), 304 N.C. 394, 425-26, 284 S.E. 2d 437, 456-57 (1981) (erroneous submission of aggravating circumstance was prejudicial and required new sentencing hearing); State v. Taylor, supra, 304 N.C. at 285-88, 283 S.E. 2d at 783-85 (erroneous submission of aggravating circumstance was not prejudicial).\nThe sum of the matter is this \u2014a defendant demonstrates reversible error in the trial court\u2019s omission or restriction of a statutory or timely requested mitigating circumstance in a capital case only if he affirmatively establishes three things: (1) that the particular factor was one which the jury could have reasonably deemed to have mitigating value (this is presumed to be so when the factor is listed in G.S. 15A-2000(f)); (2) that there was sufficient evidence of the existence of the factor; and (3) that, considering the case as a whole, the exclusion of the factor from the jury\u2019s consideration resulted in ascertainable prejudice to the defendant. The defendant in the instant case fails this three-prong test for a new sentencing hearing.\nWe first analyze defendant\u2019s request for an instruction upon his \u201crelatively low mentality.\u201d This factor is not listed in G.S. 15A-2000(f); however, our cases plainly indicate that the mentality of a defendant is generally relevant to sentencing and that it can, with supporting evidence, be properly considered in mitigation of a capital felony. See State v. Johnson, 298 N.C. 355, 367, 259 S.E. 2d 752, 760 (1979), and part VII of the opinion, supra. In this case, a psychiatrist testified that defendant had scored 66 on an intelligence test. This fact unquestionably related to defendant\u2019s mentality, and we believe that defendant would have been entitled to an instruction about his specific intelligence quotient if he had tendered a properly worded request therefor. See, e.g., State v. Williams, 304 N.C. 394, 401, 284 S.E. 2d 437, 443 (1981); State v. Rook, 304 N.C. 201, 211 n. 1, 283 S.E. 2d 732, 739 (1981), cert. denied, --- U.S. ---, 81 S.Ct. 6143, 72 L.Ed. 2d 155 (1982). However, we do not believe that defendant\u2019s evidence adequately authorized the submission of the instruction he. did request which used the terms \u201crelatively low mentality.\u201d In this regard, the psychiatrist testified that defendant\u2019s \u201cother tests indicated that his I.Q. was probably a little higher than [66] and fell at least into the low-normal range of intelligence.\u201d Although we are not schooled in the medical art of psychiatry, we think that one would not commonly understand low to normal intelligence to be reasonably synonymous with relatively low mentality. Consequently, we hold that the trial court did not err in refusing to instruct the jury in this respect. In any event, the omission could not have possibly been prejudicial since the trial court told the jury it could evaluate \u201c[a]ny other circumstances or circumstances arising from the evidence which you, the jury deem to have mitigating value.\u201d G.S. 15A-2000(f)(9).\nFor similar reasons, we reject defendant\u2019s contention that the trial court erred in not instructing upon a statutory mitigating circumstance sua sponte. The evidence simply did not support the submission of G.S. 15A-2000(f)(2). The psychiatrist testified that defendant had \u201cpsychological problems\u201d and was \u201ca very passive person that exhibits some chronic depression in terms of how he functions in life.\u201d He also stated that defendant was \u201cnot basically a violent person\u201d and that there was no evidence \u201cthat he was an angry acting out type person that you ordinarily find in people that are prone to violence.\u201d On cross-examination, the psychiatrist further explained the results of his examination of defendant as follows:\nI also found no evidence of any thought disorder. I found his memory to be adequate and his perception to be adequate. I found that he was always oriented as the time, place and person. I would classify his depression as mild depression. I believe that part of his depression would be caused by the incarceration and facing two charges of murder in the first degree. I did not find any evidence of the type of anger that you normally find in people of these subculture groups.\nRecord at 283-86 (emphases added). This evidence did not, in our opinion, sufficiently show that defendant was somehow under the influence of a mental or emotional disorder at the time he committed the murders. We also have serious doubts as to whether \u201csome\u201d \u201cmild\u201d \u201cchronic depression\u201d qualifies as a bona fide mental or emotional disturbance under our capital punishment statute. Compare State v. Taylor, supra (evidence that defendant had \u201cparanoid psychosis\u201d); State v. Rook, supra (psychiatrists gave direct opinions that defendant had a mental disorder or illness); State v. Johnson, supra (defendant was diagnosed as schizophrenic). Again, even assuming that the trial court should have instructed upon G.S. 15A-2000(f)(2), its failure to do so did not constitute prejudicial error since the jury could have elected to consider this factor pursuant to the trial court\u2019s instruction upon G.S. 15A-2000(f)(9).\nXII.\nThe trial court submitted each of the two killings as an aggravating circumstance for the other under the \u201ccourse of conduct\u201d provision of G.S. 15A-2000(e)(ll). Defendant argues that this kind of reciprocal aggravation to enhance his punishment for both crimes constituted double jeopardy and deprived him of due process of law. For a precise understanding of the issue raised by defendant, we quote from his brief as follows:\nIn summary, the defendant\u2019s claim in this case ... is that the prosecution faced with two homicides committed by the same person in the same \u201ccourse of conduct\u201d must choose between two options. The prosecution may use one of the homicides as an aggravating circumstance under \u00a7 15A-2000 (e)(ll) to support the increased penalty of death for the other. The prosecution may seek a separate conviction for each of the homicides, in which case a death penalty for either must be based on aggravating factors that do not include the other homicide. The double jeopardy clause prohibits the prosecution from using both options, i.e., from obtaining a substantive conviction for a homicide and then using it again as an aggravating circumstance under \u00a7 15A-2000(e)(ll) to support punishment by death for the other killing. Defendant\u2019s Supplemental Brief at 4.\nTo the contrary, we find no constitutional authority mandating a conclusion by us that the submission of G.S. 15A-2000(e)(ll) in aggravation of both murders violated defendant\u2019s protection against double jeopardy, and we decline to adopt a position which would prevent the administration and availability of equal justice for equal crimes.\nIn the instant case, defendant killed two persons at the same place and within minutes of each other. The capital charges were tried together pursuant to defendant\u2019s own motion for joinder. The jury found defendant guilty of murder in the first degree, upon the theory of premeditation and deliberation, on both counts. The State was thereupon entitled to seek the death penalty for each murder, and it properly did so. The State sought the death penalty based upon the aggravating circumstances of both G.S. 15A-2000(e)(9) and (11). The jury found that these aggravating circumstances , outweighed the mitigating beyond a reasonable doubt and recommended the death penalty in each case. There was no constitutional error in the procedure employed.\nThe cases principally relied upon by defendant are clearly in-apposite, and the reasoning of those cases simply cannot be stretched to encompass the imaginative and innovative standard of double jeopardy which defendant seeks to impose at the initial sentencing hearing jointly held upon dual capital convictions. For example, both the United States Supreme Court\u2019s decision in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed. 2d 270 (1981), and the decision of this Court in State v. Silhan, 302 N.C. 223, 275 S.E. 2d 450 (1981), addressed the double jeopardy implications which arise in the event a new trial or a new sentencing hearing is required in a capital case after the jury has already decided the punishment issue either for or against the defendant. Such is plainly not the situation here, and we need not search out hidden nuances of the double jeopardy clause in order to decide the case before us. It is sufficient to recognize that the thrust of the concept of double jeopardy is that a defendant may not be unfairly subjected to multiple prosecutorial attempts to obtain a conviction or a certain penalty for the same offense nor may a defendant receive multiple punishment for the same offense. See Bullington v. Missouri supra; State v. Silhan, supra.\nRegardless of the formula utilized, the jury\u2019s consideration of a defendant\u2019s commission of \u201cother crimes of violence,\u201d in making its ultimate penalty recommendation for that defendant\u2019s conviction of a related but separate capital offense, is not logically equivalent to the defendant receiving multiple punishment for the same crime. This is especially true where, as here, the prosecution relies on an additional aggravating circumstance which is also subsequently found by the jury. In short, the principle of double jeopardy has not evolved, as defendant argues, to the point that it prevents the prosecution from relying, at the sentencing phase of a capital case, upon a related course of criminal conduct by the defendant as an aggravating factor to enhance the punishment of defendant for another distinct offense, and this is so, irrespective of whether the defendant was also convicted of another capital charge arising out of that very same course of criminal conduct and subjected to separate punishment therefor. See, e.g., State v. Hutchins, 303 N.C. 321, 347, 279 S.E. 2d 788, 804 (1981) (reciprocal aggravation of two first-degree murders under G.S. 15A-2000(e)(11)). See also State v. Cherry, 298 N.C. 86, 113, 257 S.E. 2d 551, 568 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed. 2d 796 (1980) (discussing the use of an underlying felony, which accompanies the commission of a premeditated murder, as an aggravating circumstance under G.S. 15A-2000(e) (5)).\nIn conclusion, we hold that the enhancement of defendant\u2019s penalty on the one hand for Pachaco\u2019s murder did not result in an unconstitutional duplication of defendant\u2019s penalty on the other hand for Ausley\u2019s death, and vice versa, simply because defendant\u2019s overall violent conduct was submitted in aggravation on each hand under G.S. 15A-2000(e)(ll). It is the very fact that defendant killed two people, and not just one, that aggravates the nature of his crimes, and it was entirely proper for the jury to consider this fact in determining whether defendant should pay the ultimate price for each life he took.\nXIII.\nDefendant assigns error to the trial court\u2019s direction to the jury that it need not specify which mitigating circumstances on the written list it found. This same issue was recently addressed at length in State v. Rook, where we stated: \u201cWhile defendant makes a good argument that it is the better practice, and we agree, to require the jury to specify mitigating factors found and not found for the benefit of this Court in reviewing the appropriateness of the death penalty, we find no such requirement in our statutes.\u201d 304 N.C. 201, 231, 283 S.E. 2d 732, 751 (1981), cert. denied, --- U.S. ---, 81 S.Ct. 6143, 72 L.Ed. 2d 155 (1982). Moreover, in State v. Taylor, we also found \u201cno merit in defendant\u2019s contention that since the jury had to answer each aggravating circumstance specifically but did not have to answer which mitigating circumstances they found, that placed undue emphasis on the aggravating circumstances.\u201d 304 N.C. 249, 285, 283 S.E. 2d 761, 783 (1981). It suffices to say that defendant\u2019s similar contentions must be overruled pursuant to the binding authority of both Rook and Taylor.\nXIV.\nBoth the prosecutor and the trial court advised the jury that it had a duty to recommend a sentence of death if it found three things: (1) that one or more statutory aggravating circumstances existed; (2) that the aggravating circumstances were substantial enough to warrant the death penalty; and (3) that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. On the other hand, the jury was also advised that it had the duty to recommend a sentence of life imprisonment if it did not find any one of those three things. These directions to the jury were based upon the statutory criteria set forth in G.S. 15A-2000(b) and (c) and conformed to the N.C. Criminal Pattern Jury Instructions \u00a7 150.10 (1980).\nNevertheless, defendant assigns error to the foregoing on the basis that such instructions \u201cprejudicially withdrew from the jury its final option ... to recommend a life sentence notwithstanding its earlier findings.\u201d Defendant\u2019s Brief at 75. This assignment lacks merit.\nThe jury had no such option to exercise unbridled discretion and return a sentencing verdict wholly inconsistent with the findings it made pursuant to G.S. 15A-2000(c). The jury may not arbitrarily or capriciously impose or reject a sentence of death. Instead, the jury may only exercise guided discretion in making the underlying findings required for a recommendation of the death penalty within the \u201ccarefully defined set of statutory criteria that allow them to take into account the nature of the crime and the character of the accused.\u201d State v. Johnson, 298 N.C. 47, 63, 257 S.E. 2d 597, 610 (1979); see State v. Barfield, 298 N.C. 306, 349-52, 259 S.E. 2d 510, 541-43 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed. 2d 1137 (1980). Moreover, defendant\u2019s contention was implicitly answered in State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569 (1979), in which this Court overruled an assignment of error alleging that the trial court had erred in failing to instruct the jury that it could still recommend life imprisonment even though it found that the aggravating circumstances outweighed the mitigating ones. Justice Britt, speaking for the Court in Goodman, explained that:\n[I]t would be improper to instruct the jury that they may, as defendant suggests, disregard the procedure outlined by the legislature and impose the sanction of death at their own whim. To do so would be to revert to a system pervaded by arbitrariness and caprice. The exercise of such unbridled discretion by the jury under the court\u2019s instruction would be contrary to the rules of Furman and the cases which have followed it.\nId. at 35, 257 S.E. 2d at 590. For these reasons, we hold that the jury was correctly informed that it had a duty to recommend a sentence of death if it made the three findings necessary to support such a sentence under G.S. 15A-2000(c).\nXV.\nThe trial court instructed the jury upon the statutory aggravating circumstance of G.S. 15A-2000(e)(9), that the murders were \u201cespecially heinous, atrocious, or cruel.\u201d Defendant essentially contends that the evidence did not support the existence of this factor and that the trial court\u2019s instruction upon it thus violated the Eighth Amendment.\nIn accordance with the dictates of the Eighth Amendment, our Court has adhered to the position that the aggravating circumstance of G.S. 15A-2000(e)(9) \u201cdoes not arise in cases in which death was immediate and in which there was no unusual infliction of suffering upon the victim.\u201d State v. Rook, 304 N.C. 201, 226, 283 S.E. 2d 732, 747 (1981), cert. denied, --- U.S. ---, 81 S.Ct. 6143, 72 L.Ed. 2d 155 (1982); see Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed. 2d 398 (1980); see, e.g., State v. Hamlette, 302 N.C. 490, 504, 276 S.E. 2d 338, 347 (1981) (submission of G.S. 15A-2000(e)(9) was erroneous). Instead, our Court has made it clear that the submission of G.S. 15A-2000(e)(9) is appropriate only when there is evidence of excessive brutality, beyond that normally present in any killing, or when the facts as a whole portray the commission of a crime which was conscienceless, pitiless or unnecessarily tortuous to the victim. State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569 (1979); see, e.g., State v. Martin, 303 N.C. 246, 278 S.E. 2d 214, cert. denied, --- U.S. ---, 102 S.Ct. 431, 70 L.Ed. 2d 240 (1981); State v. Oliver, 302 N.C. 28, 274 S.E. 2d 183 (1981). It is, therefore, plain that an issue concerning the propriety of the submission of this aggravating factor is resolved according to the peculiar surrounding facts of the capital case under consideration.\nExamining the case at bar, we hold that there was sufficient evidence whereby the jury could have reasonably concluded that the murders of Pachaco and Ausley were especially despicable and wanton under G.S. 15A-2000(e)(9). The evidence showed that defendant carefully executed a deliberate and premeditated plan for murder. We have already set out the details of the murders at length in the beginning of the opinion, and it would be repetitious to summarize them again here. It suffices to say that the deaths of the unsuspecting victims were not instantaneous and that both killings involved the infliction of unusual physical or psychological torture. Each victim essentially witnessed (or heard) the shooting of the other and was helpless to prevent this unprovoked horror. The killing of Pachaco was excessively brutal in that defendant, having already shot him once, walked over to where he lay moaning on the floor and shot him again at point blank range. The killing of Ausley was merciless and conscienceless in that defendant shot him as he begged and pleaded for his life. Defendant seemed to enjoy the killings, and he showed no remorse for what he had done at that time. In fact, defendant callously evaluated his conduct in his subsequent announcement to his companions that he had \u201cjust blown away two dudes.\u201d Viewing the circumstances of the murders as a whole, we hold that the trial court correctly instructed the jury upon G.S. 15A-2000(e)(9).\nXVI.\nThe sentence of death in a given case cannot be \u201cexcessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\u201d G.S. 15A-2000(d)(2). Defendant argues that the infliction of the death penalty for these murders would be excessive and disproportionate punishment. We disagree. All things considered, we cannot say, as a matter of law, that this defendant is somehow less deserving of capital punishment than the other occupants of death row. See, e.g., State v. Taylor, 304 N.C. 249, 283 S.E. 2d 761 (1981); State v. Rook, 304 N.C. 201, 283 S.E. 2d 732 (1981), cert. denied, --- U.S. ---, 81 S.Ct. 6143, 72 L.Ed. 2d 155 (1982); State v. Hutchins, 303 N.C. 321, 279 S.E. 2d 788 (1981); State v. Martin, 303 N.C. 246, 278 S.E. 2d 214, cert. denied, --- U.S. ---, 102 S.Ct. 431, 70 L.Ed. 2d 240 (1981); State v. McDowell, 301 N.C. 279, 271 S.E. 2d 286 (1980), cert. denied, 450 U.S. 1025, 101 S.Ct. 1731, 68 L.Ed. 2d 220 (1981); State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed. 2d 1137 (1980). The facts of the instant case speak for themselves and we shall not disturb the factual findings made by the jury under G.S. 15A-2000 (c) in reaching its recommendations for the death penalty in this case.\nWithin this argument, defendant also urged this Court to adopt several procedures to assist appellate review of the proportionality of the death sentence in a particular case. It would serve no useful purpose to address each suggestion here. Instead, we believe that all of the matters raised by defendant are adequately answered by our two-fold determination that: (1) the review mandated by G.S. 15A-2000(d)(2) {supra) provides a sufficient constitutional safeguard against the unconstitutional imposition of cruel and unusual punishment, and (2) the intended ultimate emphasis of proportionality review under G.S.,15A-2000(d)(2) is upon the independent consideration of the individual defendant and the nature of the crime or crimes which he has committed.\nXVII.-XIX.\nThe final three \u201carguments\u201d presented by defendant\u2019s appellate counsel ask us to re-examine the constitutional validity of several prior cases without advancing a single good, logical or compelling reason for doing so. Such spurious disputations lack merit, do not warrant discussion and are not well received. Even so, we shall take this opportunity to reaffirm today the constitutionality of the following aspects of our capital sentencing procedure: (1) the bifurcated trial proceedings of G.S. 15A-2000, in which the same jury determines both the guilt and punishment issues, and the use of challenges for cause to excuse therefrom prospective jurors who are unequivocally opposed to the death penalty; (2) the submission of the sufficiently clear statutory aggravating circumstance of G.S. 15A-2000(e)(9), that the capital felony is \u201cespecially heinous, atrocious, or cruel,\u201d in appropriate cases; and (3) the placement of the burden upon the defendant of persuading the jury, by a preponderance of the evidence, that a particular mitigating circumstance exists. State v. Rook, 304 N.C. 201, 283 S.E. 2d 732 (1981), cert. denied, --- U.S. ---, 81 S.Ct. 6143, 72 L.Ed. 2d 155 (1982); State v. Avery, 299 N.C. 126, 261 S.E. 2d 803 (1980) (and cases cited in part I of the opinion, supra); State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed. 2d 1137 (1980); State v. Johnson, 298 N.C. 47, 257 S.E. 2d 597 (1979); State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569 (1979).\nXX.\nThe decision to take a life pursuant to the law, for the life of another, or others, wrongfully taken, is a very grave and solemn matter. Thus, this Court accords the utmost diligence and care in its review of capital cases. In the instant case, we have fully considered all of the arguments in defendant\u2019s brief, which encompassed the multitudinous assignments of error and exceptions in the record on appeal. We are convinced that both phases of defendant\u2019s trial were competently conducted without the accompaniment of constitutional defect or prejudicial error, and we so hold.\nWe also hold that the judgments of death were lawfully imposed. The evidence supported submission of the aggravating circumstances listed in G.S. 15A-2000(e)(9) and (11). There is no indication that the jury recommended capital punishment under the influence of passion or prejudice. Finally, the penalties imposed do not seem excessive or disproportionate considering the premeditated and callous manner in which defendant calmly shot and killed two people in cold blood, suddenly and without any provocation by them, for reasons exhibiting a wanton disregard for human life. Indeed, the record impels the conclusion that justice has been done in every respect. In sum, we have no authority or cause to disturb the duly entered judgments of death.\nNo error.\nJustice MITCHELL did not participate in the consideration or decision of this case.\n. The State was understandably forced to respond in like kind with a 90 page brief.\n. Our Rules of Appellate Procedure do not set a formal limit upon the length of a brief.\n. This \u201csingle\u201d argument in defendant\u2019s brief really addresses four distinct issues (howbeit with a common denominator: the intoxication defense). Clarity of review is enhanced by the separate statement of each question and its corresponding argument. See N.C. Rules of Appellate Procedure, Rule 28(b)(3) [Revised Rule 28(b)(5) (Supp. 1981)].\n. Under this argument heading in the brief, appellate counsel improperly listed several other exceptions to remarks of the district attorney which were unrelated to the intoxication defense. Such exceptions are not pertinent to the precise question stated. See Rule 28(b)(3), supra, note 3. Five of these exceptions are argued again under assignment of error no. 27 which is reviewed in Part V of the opinion, infra. With regard to the remaining \u201cirrelevant\u201d exceptions presented here, it suffices to say that the comments, which were not objected to at trial, did not transcend the permissible bounds of argument in hotly contested cases and certainly did not amount to gross improprieties in any event. See State v. Lynch, 300 N.C. 534, 268 S.E. 2d 161 (1980); State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979).\n. The witnesses sought by the defense to construct its intoxication theory were the persons who were present during the commission of the murders (and participated in the concealment thereof).\n. It should perhaps be mentioned that the motion for the \u201cpre-trial\u201d interviews was actually filed after the jury selection process had already begun and only three working days before the full trial of the matter actually commenced. [In fact, the trial court heard and denied the motion on the very first day of the trial.]\n. Exceptions nos. 42, 45 and 50 bear no rational relationship to the argument concerning the \u201cimpairment\u201d of the intoxication defense. See Rule 28(b)(3), supra, note 4. We have nonetheless reviewed these exceptions and find that the prosecutor\u2019s objections were properly sustained within the trial court\u2019s discretion. Exception no. 42 involved a question which was argumentative and irrelevant. Exceptions nos. 45 and 50 involved questions which sought impermissible conclusions from the witnesses about matters which were not within the realm of their personal knowledge. See 1 Stansbury\u2019s N.C. Evidence \u00a7 122, at 384-85 (Brandis rev. 1973).\n. Defendant only contested his guilt of the more grievous offenses, that of murders in the first degree, with the requisite premeditation and deliberation.\n. This does not mean that the evidentiary rules which normally apply at the guilt phase of the trial should also apply with equal force in the sentencing phase. Evidentiary flexibility is encouraged in the serious and individualized process of life or death sentencing. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). However, as in any proceeding, evidence offered at sentencing must be pertinent and dependable, and, if it passes this test in the first instance, it should not ordinarily be excluded. G.S. 15A-2000(a)(3), supra; see Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed. 2d 738 (1979).\n. Even assuming that defendant\u2019s ability to cope in prison had some slight relevancy to his sentencing, we would still hold that the psychiatrist\u2019s opinion was properly excluded because there was an insufficient foundation in the record for a conclusion that he was better qualified to have an opinion on this subject than the jury. There was no evidence specifying the doctor\u2019s special experience with the prison environment, and the question posed to him essentially requested nothing more than his speculations about defendant\u2019s future prison \u201cperformance\u201d based merely upon his observations of defendant\u2019s behavior in a mental hospital for three and a half weeks.\n. We are compelled to question appellate counsel\u2019s organizational rationale for raising further challenges to the sentencing argument here when, logically, all contentions of this type should have been argued together in the same portion of the brief.\n. For example, the district attorney stated:\nI don\u2019t know what you will conclude is appropriate. I suggest to you, with all due respect, that the conduct is appropriate to be rewarded with the ultimate sanction that our law provides.\nWe\u2019re all people of great ability and conscience, and I ask you to consider what is appropriate for this act. Consider what is justice for Michael Pinch and for what he did. Consider the two dead boys that he left in his wake.\n. G.S. 15A-2000(e)(ll) lists the following factor for the jury\u2019s consideration: \u201cThe murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons.\u201d\n. Defendant\u2019s motion to file a supplemental brief on this question was allowed by the Court on 8 March 1982. We shall address defendant\u2019s contentions as they are presented in that amplified brief.\n. We reach the same conclusion in another death penalty case filed by our Court today: State v. Williams (II), 305 N.C. 656, 292 S.E. 2d 243 (1982). In Williams (II), the defendant was tried separately in two counties for two murders. Each murder was submitted as reciprocal aggravation for the other under G.S. 15A-2000(e)(11) at defendant\u2019s separate trials. See State v. Williams (I), 304 N.C. 394, 284 S.E. 2d 437 (1981).\n. Similar instructions about the jury\u2019s duty to return a certain sentencing verdict, based upon its affirmative findings under G.S. 15A-2000(c), were given in three other death cases previously decided by our Court, in which no corresponding exception or assignment of error was raised on appeal: State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed. 2d 1137 (1980); State v. Martin, 303 N.C. 246, 278 S.E. 2d 214, cert. denied, -- U.S. ---, 102 S.Ct. 431, 70 L.Ed. 2d 240 (1981); and State v. Rook, 304 N.C. 201, 283 S.E. 2d 732 (1981), cert. denied, --- U.S. ---, 81 S.Ct. 6143, 72 L.Ed. 2d 155 (1982).\n. There is no constitutional infirmity in such an instruction. See, e.g. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed. 2d 929 (1976) (cited in the dissent).", "type": "majority", "author": "COPELAND, Justice." }, { "text": "Justice Exum\ndissenting as to sentence.\nI.\nI find myself, first, in strong disagreement with the majority on an extremely important new question dealing with the construction of our death penalty statute. The majority holds, after somewhat cursory treatment and a bare-bones analysis, that under the statute, G.S. 15A-2000, if the jury finds: (1) the existence of one or more statutory aggravating circumstances, (2) that the aggravating circumstance(s) so found are sufficiently substantial to call for the death penalty and (3) the aggravating circumstance(s) outweigh the mitigating circumstances, then the jury must return the death penalty. Nowhere, of course, does the statute so provide. The majority construes the statute in this way on the sole ground that otherwise the statute would be subject to the constitutional attack that a jury could decide between life and death in its unbridled discretion. Yet decisions of the United States Supreme Court, none of which are mentioned in the majority\u2019s discussion, have made it abundantly clear that the majority\u2019s interpretation is not constitutionally required.\nIn one of its first cases construing our death penalty statute, this Court noted, \u201c[t]he first maxim of statutory construction is to ascertain the intent of the legislature. To do this, this Court should consider the statute as a whole, the spirit of the statute, the evils it was designed to remedy, and what the statute seeks to accomplish.\u201d State v. Johnson, 298 N.C. 47, 56, 257 S.E. 2d 597, 606 (1979). In Johnson, this Court recognized that our death penalty statute was enacted following a quintet of cases all decided by the United States Supreme Court on 2 July 1976. These c\u00e1ses struck down mandatory death penalty statutes in North Carolina, Woodson v. North Carolina, 428 U.S. 280 (1976) (plurality opinion), and Louisiana, Roberts v. Louisiana, 428 U.S. 325 (1976) (plurality opinion), but sustained death penalty statues which, in varying degrees, sought to control the discretion exercised in capital sentencing in Georgia, Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion); Florida, Proffitt v. Florida, 428 U.S. 242 (1976) (plurality opinion); and Texas, Jurek v. Texas, 428 U.S. 262 (1976) (plurality opinion). This Court noted in Johnson that these five cases \u201cmade clear that neither unbridled, unguided discretion nor the absence of all discretion in the imposition of the death penalty is constitutionally permissible.\u201d 298 N.C. at 58, 257 S.E. 2d at 607 (emphasis supplied). After further discussion of United States Supreme Court decisions and various provisions of the Model Penal Code, upon which our statute was largely based, this Court concluded in Johnson, 298 N.C. at 63, 257 S.E.2d at 610:\nIn summary, there are a number of controlling factors governing the interpretation of our death penalty statute. Unbridled discretion in the imposition of the sentence is not permitted. On the other hand, sentencing juries must have some discretion to determine in a rational and consistent manner those cases in which the death penalty should be imposed. Juries are to be guided in this process by a carefully defined set of statutory criteria that allow them to take into account the nature of the crime and the character of the accused. Thorough jury instructions, which incorporate and reflect the definitions accorded to these criteria and which are fully applied to the facts of each case, must be given. In each case the process must be directed toward the jury\u2019s having a full understanding of both the relevant aggravating and mitigating factors and the necessity of balancing them against each other in determining whether to impose the death penalty. Lastly, any imposition of the death penalty by the jury should be searchingly reviewed by the appellate courts to insure the absence of unfairness, arbitrariness or caprice in the result.\nRegarding the question before us, the statute, G.S. 15A-2000, provides in pertinent part as follows:\n(b) Sentence Recommendation by the Jury.\u2014 ... In all cases in which the death penalty may be authorized, the judge shall include in his instructions to the jury that it must consider any aggravating circumstance or circumstances or mitigating circumstance or circumstances from the lists provided in subsections (e) and (f) which may be supported by the evidence, and shall furnish to the jury a written list of issues relating to such aggravating or mitigating circumstance or circumstances.\nAfter hearing the evidence, argument of counsel, and instructions of the court, the jury shall deliberate and render a sentence recommendation to the court, based upon the following matters:\n(1) Whether any sufficient aggravating circumstance or circumstances as enumerated in subsection (e) exist;\n(2) Whether any sufficient mitigating circumstance or circumstances as enumerated in subsection (f), which outweigh the aggravating circumstance or circumstances found, exist; and\n(3) Based on these considerations, whether the defendant should he sentenced to death or to imprisonment in the State\u2019s prison for life.\n(c) Findings in Support of Sentence of Death.\u2014 When the jury recommends sentence of death, the foreman of the jury shall sign a writing on behalf of the jury which writing shall show:\n(1) The statutory aggravating circumstance or circumstances which the jury finds beyond a reasonable doubt; and\n(2) That the statutory aggravating circumstance or circumstances found by the jury are sufficiently substantial to call for the imposition of the death penalty; and,\n(3) That the mitigating circumstance or circumstances are insufficient to outweigh the aggravating circumstance or circumstances found.\n[Emphases supplied.]\nIn essence, then, the statute provides that in determining whether to impose death or life imprisonment the jury \u201cmust consider\u201d certain aggravating and mitigating circumstances; that the jury\u2019s sentence recommendation shall be \u201cbased upon\u201d the sufficiency of the aggravating circumstance(s) and the mitigating circumstanced) and their relative weights; and that \u201cwhen the jury recommends a sentence of death,\u201d it must sign a writing in which three questions are answered affirmatively and unanimously beyond a reasonable doubt.\nFrom this statutory scheme the legislative intent clearly emerges. The legislature has sought to strike a balance between fairness to the individual defendant and consistency among the cases in which the death penalty is imposed. It has designed a statute which avoids the two extremes of mandatory death penalties or unbridled discretionary action by juries. The legislature intended for the jury to consider: first, the sufficiency of the aggravating circumstance(s); second, whether any mitigating circumstance(s) exist which outweigh the aggravating circumstance(s); and third, based on these considerations whether to recommend a death sentence or life imprisonment. Only when the jury determines to recommend death is the jury required to sign a writing which shows its affirmative, unanimous findings that one or more statutory aggravating circumstances exist beyond a reasonable doubt, that they are sufficiently substantial to make the death penalty appropriate and that the mitigating circumstances do not outweigh the aggravating circumstances.. Subsection (b) states in two places that the jury\u2019s sentence recommendation is to be based on these considerations, not decreed by them. There is nothing in this scheme to suggest a legislative intent to require the jury to return a sentence of death even if it should answer the three crucial subsection (c) issues affirmatively, just as there is nothing in the statute which permits a jury to ignore the delineated considerations in its deliberations. To hold, as does the majority, that if affirmative answers in writing to these three issues are prerequisite to a jury\u2019s recommendation of death, then death must be recommended when the prerequisites are met is, logically, a non sequitur.\nThis logical trap is easily sprung; it caught me in my dissent in State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), cert. denied, --- U.S. --- (1982), where I lapsed into the same fallacy now being urged by the majority. In Rook, however, both my dissent and the majority opinion were addressing a different question, i.e., whether the jury was required to specify which mitigating factors it found to exist. The question now being addressed was not raised in Rook, and any conclusion about it was not necessary to the dissent. With the benefit of briefing, argument and my own research, I am convinced that my initial conclusion on the point here in issue, as I expressed it in Rook, was wrong, just as I believe the majority\u2019s similar conclusion is wrong. The conclusion is not less a non sequitur because I once subscribed to it.\nOur trial judges initially properly construed the statute to mean that if the jury answered the three issues affirmatively it could, but was not required to, recommend the death penalty. The first Pattern Jury Instruction promulgated after the statute provided that if the jury answered the crucial issues affirmatively then it \u201cmay recommend the death penalty.\u201d N.C.P.I. Crim. 150.10, p. 5 (June 1977) (emphasis supplied). A subsequent revision of the instruction emphasized this point by providing that the jury \u201cmay, although [it] need not, recommend that the defendant be sentenced to death.\u201d N.C.P.I. Crim. 150.10, p. 4 (Replacement, May 1979). These instructions, or a variation of them, have been followed in a large number of death penalty cases.\nAfter our decision in State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569 (1979), the Pattern Jury Instruction for our trial judges was changed so as to provide that if the jury answered the three issues affirmatively, it would be its \u201cduty to recommend that defendant be sentenced to death.\u201d N.C.P.I. Crim. 150.10, pp. 3-4 (Replacement, May 1980). The case cited in support of this change in the instruction is Goodman.\nThe issue in Goodman, however, was not whether the jury should be told it has a \u201cduty\u201d to recommend the death penalty if it answers the three issues affirmatively and unanimously. The issue in Goodman was whether, as the defendant contended, the trial court \u201cshould have explained to the jury that it had the option of returning a recommendation of life imprisonment even if aggravating circumstances were found to outweigh mitigating circumstances.\u201d Brief for Defendant Appellant at 15-16. Defendant argued that \u201c[i]t should be incumbent upon the trial Court to explain in detail that no mandatory recommendation of the death penalty is required regardless of findings as to aggravating and mitigating circumstances set forth in the statute.\u201d Id.\nThus, defendant Goodman was arguing that the trial court should be required to explain to the jury that it could, in effect, ignore the considerations which by statute it must consider in recommending a life or death sentence. This goes far beyond the permissive instruction actually given and upheld in Goodman, ie., the instruction that if the jury answered the three subsection (c) issues affirmatively and unanimously, it \u201cmay then recommend the death pen\u00e1lty.\u201d (R. at 185).\nThe state\u2019s brief in Goodman recognizes that \u201cthe Court left the jury with the understanding that, even should they find more aggravating than mitigating circumstances, they could still recommend life imprisonment .... At no point did the Court state that the jury could not recommend life imprisonment when the aggravating circumstances outweighed the mitigating. What the Court was saying was that (even where such aggravating circumstances appeared to be more substantial than mitigating circumstances) the jury could still recommend life imprisonment.\u201d Brief for the state at 19-20.\nThe Court in Goodman answered the defendant\u2019s argument as follows, 298 N.C. at 34-35, 257 S.E.2d at 590:\nHis argument is that without such instruction the jury will mathematically balance the two types of factors against each other and will impose the death penalty whenever aggravating circumstances outnumber mitigating ones. We do not agree that this is the manner in which a jury will reach its decision on this important question or that the instruction for which defendant contends is required by our statute.\nIt must be emphasized that the deliberative process of the jury envisioned by G.S. 15A-2000 is not a mere counting process. State v. Dixon, supra; State v. Stewart, supra. The jury is charged with the heavy responsibility of subjectively, within the parameters set out by the statute, assessing the appropriateness of imposing the death penalty upon a particular defendant for a particular crime. Nuances of character and circumstance cannot he weighed in a precise mathematical formula.\nAt the same time, we believe that it would be improper to instruct the jury that they may, as defendant suggests, disregard the procedure outlined by the legislature and impose the sanction of death at their own whim. To do so would be to revert to a system pervaded by arbitrariness and caprice. The exercise of such unbridled discretion by the jury under the court\u2019s instruction would be contrary to the rules of Furman and the cases which have followed it. For these reasons defendant\u2019s seventh assignment of error is overruled. [Emphases supplied.]\nThe majority\u2019s conclusion on this point in the instant case as well as the change in the Pattern Jury Instruction are based on a misreading of Goodman. Goodman simply recognized that, under the instructions as given, there would be no cause for the jury \u201cmathematically\u201d to balance the aggravating against the mitigating and \u201cimpose the death penalty whenever aggravating circumstances outnumber mitigating ones.\u201d Goodman cautioned that juries should not be instructed in a manner which would cause them to \u201cimpose the sanction of death at their own whim.\u201d Goodman does not support the proposition that a jury has a duty to impose the death penalty whenever it concludes that the statutory aggravating circumstances are sufficiently substantial to call for it and that the mitigating circumstances are insufficient to outweigh the aggravating. Goodman recognizes that given such determinations, a jury may yet opt for life imprisonment and notes that there is no way to escape some subjectivity in deciding who shall live and who shall die. Juries are called on in this kind of decision, we said in Goodman, to consider \u201c[n]uances of character and circumstance [which] cannot be weighed in a precise mathematical formula.\u201d\nIt is for this reason that a jury ought not be required to return the death penalty simply because it answers the crucial subsection (c) issues affirmatively. Conscientious juries may determine that these issues ought to be answered affirmatively and yet, because of circumstances of the case, \u201cnuances,\u201d if you will, not subject to articulation in a statute or a verdict and not perhaps articulable by the jurors themselves, feel impelled to recommend that the death penalty not be imposed. We should not construe our statute to require such a jury, nevertheless, to impose it.\nOur statute is designed simply to insure that certain specific (subsection (c)) prerequisites are met before the death penalty is imposed. Its only prerequisites for the imposition of life imprisonment are that the jury base such a decision (subsection (b)) on a weighing against each other of various aggravating and mitigating circumstances which it may find to exist. Although the jury may not recommend death without specifically, and in writing, answering subsection (c) issues affirmatively, even if it does so it may yet recommend life.\nThe United States Supreme Court has made it quite clear that these kinds of death penalty or life imprisonment decisions do not result in the unbridled discretionary determinations found wanting in Furman v. Georgia, 408 U.S. 238 (1972)(per curiam). In Bullington v. Missouri, 451 U.S. 430 (1981), the Court had before it a Missouri death penalty statute very similar to ours. In Bull-ington, the Supreme Court noted that a Missouri jury \u201cis instructed that it is not compelled to impose the death penalty, even if it decides that a sufficient aggravating circumstance or circumstances exist and that it or they are not outweighed by any mitigating circumstance or circumstances.\u201d 451 U.S. at 434-35. Although the question was not raised, there is no suggestion in Bullington that such a statute would be constitutionally infirm.\nIn Gregg v. Georgia, supra, 428 U.S. 153, the Supreme Court considered a Georgia death penalty statute which provided that the jury could return a sentence of death only if it found the existence of one of ten statutorily specified aggravating circumstances. The jury was not required to return a death sentence even if it found the existence of one or more of the ten statutorily specified aggravating circumstances and was \u201cnot required to find any mitigating circumstance in order to make a recommendation of mercy.\u201d Id. at 197. On appeal of his death sentence, defendant argued that because a Georgia jury had \u201cthe power to decline to impose the death penalty even if it finds that one or more statutory aggravating circumstances are present,\u201d the statute violated the Furman prohibition against unbridled discretion. Id. at 203. The United States Supreme Court answered by saying:\nThis contention misinterprets Furman .... Moreover, it ignores the role of the Supreme Court of Georgia which reviews each death sentence to determine whether it is proportional to other sentences imposed for similar crimes. Since the proportionality requirement on review is intended to prevent caprice in the decision to inflict the penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.\n428 U.S. at 203 (emphasis supplied). In answering defendant\u2019s contention that there were other discretionary decisions which could be made in the processing of a murder case which would result in some candidates for the death penalty actually escaping it, the Supreme Court said:\nNothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.\n428 U.S. at 199. Mr. Justice White, joined by the Chief Justice and Mr. Justice Rehnquist, said in a concurring opinion in Gregg:\nThe Georgia Legislature has plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute, and I cannot accept the naked assertion that the effort is bound to fail.\n428 U.S. at 222 (emphasis supplied).\nFinally, in Jurek v. Texas, supra, 428 U.S. 262, the Supreme Court considered a Texas statute which required the jury to impose the death sentence if it answered three questions affirma-lively. The attack made on the Texas statute was that it created a mandatory death penalty in violation of the principles laid down in Woodson v. North Carolina, supra, 428 U.S. 280, and Roberts v. Louisiana, supra, 428 U.S. 325. The Supreme Court struggled with this question because the Texas statute appeared to have no provision for the jury to consider mitigating circumstances. \u201cThus,\u201d the Court said, \u201cthe constitutionality of the Texas procedure turns on whether the enumerated questions allow consideration of particularized mitigating factors.\u201d 428 U.S. at 272. The Court concluded that the jury\u2019s consideration of mitigating circumstances, under the interpretation given the second question by the Texas Court of Criminal Appeals, was encompassed in its decision on that question. See supra note 5. Therefore, the Court concluded that the statute was not subject to the \u201cmandatory death sentence\u201d attack.\nApparently under the rationale of Jurek, the majority\u2019s interpretation of our statute would pass constitutional muster. But I am satisfied that the interpretation for which I argue is more solidly supported in the decisions of the United States Supreme Court; whereas the majority\u2019s view, which could be supported only by Jurek, is at least constitutionally suspect.\nAssuming that we are free under the United States Constitution to opt for either interpretation, we should adopt the one which most nearly comports with the legislature\u2019s intent as that intent is revealed in the plain words of the statute. The legislature has developed a statutory scheme designed to accommodate the twin \u201cgoals of measured, consistent application and fairness to the accused.\u201d Eddings v. Oklahoma --- U.S. ---, ---, 102 S.Ct. 869, 874, 71 L.Ed.2d 1, 8 (1982). In Goodman, supra, 298 N.C. 1, 257 S.E. 2d 569, we held that instructions which, in effect, explained to the jury that it could ignore the procedure devised by the legislature were not authorized by our statute and would be contrary to the Furman standards. Likewise, instructions that tell the jury they must impose the death penalty if they answer certain questions affirmatively and unanimously are not authorized by our statute and fail to give appropriate weight to inar-ticulable, intangible \u201c[njuances of character and circumstances.\u201d State v. Goodman, supra, 298 N.C. at 34, 257 S.E. 2d at 590.\nOur statute, like the Supreme Court said of its decision in Lockett, \u201cis the product of a considerable history reflecting the law\u2019s effort to develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual.\u201d Eddings v. Oklahoma, supra, --- U.S. at ---, 102 S.Ct. at 874, 71 L.Ed. 2d at 8. Both the instructions disapproved in Goodman and those given in the instant case upset the statute\u2019s finely tuned balance between consistency and sensibility to the uniqueness of an individual. The instruction sought by the defendant in Goodman tilts too much in favor of individualized consideration at the expense of consistency; whereas the instruction given here tilts too much in favor of consistency at the expense of individualized consideration.\nThe instruction most in keeping with the legislative design and which ought to be given in all cases is that recommended by the Superior Court Judges\u2019 Pattern Jury Instruction Committee in May 1979. In that instruction jury members are told that if they answer the crucial issues affirmatively and unanimously, \u201cyou may, although you need not, recommend that the defendant be sentenced to death.\u201d N.C.P.I. Crim. 150.10 at 4.\nII.\nAt least two jurors were excluded for cause in the instant case in violation of the limitations imposed by Witherspoon v. Illinois, 391 U.S. 510 (1968), an opinion by Mr. Justice Stewart. Some particularly pertinent language of this landmark case bears repeating, 391 U.S. at 519-23:\nA man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it ... . [A] jury that must choose between life imprisonment and capital punishment can do little more \u2014and must do nothing less \u2014than express the conscience of the community on the ultimate question of life or death .... [A] jury composed exclusively of . . . people [who believe in the death penalty] cannot speak for the community. Culled of all who harbor doubts about the wisdom of capital punishment \u2014 of all who would be reluctant to pronounce the extreme penalty \u2014 such a jury can speak only for [those who believe in the death penalty]-\nIf the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply \u2018neutral\u2019 with respect to penalty. But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die.\nSpecifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.\nTo execute [such a] death sentence would deprive him of his life without due process of law. [Footnotes omitted.] [Emphasis supplied. ]\nFurthermore, id. at 522-23 n. 21,\na prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out ....\nWe repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant\u2019s guilt. [Emphasis original.]\nThe test applicable to this case then, under Witherspoon, for excuses for cause on death penalty opposition grounds is that the prospective juror must make it \u201cunmistakably clear\u201d that he or she would \u201cautomatically\u201d vote against the death penalty \u201cwithout regard to any evidence that might be developed at the trial of the case.\u201d A juror who has scruples, or reservations, or who is even opposed to capital punishment, but who is not \u201cirrevocably committed, before the trial has begun, to vote against [it] regardless of the facts and circumstances\u201d that might be brought out at trial, may not be excused for cause. Neither may a juror who states merely that he or she has \u201c \u2018a fixed opinion against\u2019 capital punishment \u201d or that he or she does not \u201c \u2018believe in\u2019 capital punishment\u201d be excused for cause, because such juror may yet \u201cbe perfectly able as a juror to abide by existing law \u2014 to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.\u201d Boulden v. Holman, 394 U.S. 478, 483-84 (1969). Jurors may be excused for cause, however, if their opposition to the death penalty is so strong that they cannot take an oath to \u201cfollow the law\u201d in trying the case. Lockett v. Ohio, 438 U.S. 586, 595-96 (1978) (plurality opinion).\nThe United States Supreme Court\u2019s latest decision applying Witherspoon is Adams v. Texas, 448 U.S. 38 (1980). In Adams the Court made it clear that Witherspoon must be followed even under post-Furman guided discretion capital sentencing procedures. Adams held that because of Witherspoon limitations jurors may not be excused for cause on the ground that their opposition to the death penalty might \u201caffect\u201d their deliberations on issues of fact which might arise in the case. The Court said, 448 U.S. at 46-47:\n[A] Texas juror\u2019s views about the death penalty might influence the manner in which he performs his role but without exceeding the \u2018guided jury discretion,\u2019 577 SW2d, at 730, permitted him under Texas law. In such circumstances, he could not be excluded consistently with Witherspoon.\nIt said, further, 448 U.S. at 49-50, that jurors were improperly excluded\nwho stated that they would be \u2018affected\u2019 by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally. Others were excluded only because they were unable positively to state whether or not their deliberations would in any way be \u2018affected.\u2019 But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court\u2019s instructions and obey their oaths, regardless of their feelings about the death penalty. The grounds for excluding these jurors were consequently insufficient under the Sixth and Fourteenth Amendments. Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law.\nIf only one juror is excused for cause, in violation of Wither-spoon limitations, a sentence of death cannot stand. Davis v. Georgia, 429 U.S. 122 (1976)(per curiam). The Davis Court noted, 429 U.S. at 123:\nUnless a venireman is \u2018irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings,\u2019 391 US, at 522 n 21, he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand.\nThis Court held in State v. Bernard, 288 N.C. 321, 325, 218 S.E.2d 327, 330 (1975), that a juror could not be excused merely because \u201che thought he would automatically vote against the imposition of the death penalty regardless of the evidence.\u201d (Emphasis original.)\nFinally, the meaning of the voir dire colloquy is that which would be given it by the prospective juror rather than one trained in the law. \u201cThe critical question, of course, is not how the phrases employed in this area have been construed by courts and commentators. What matters is how they might be understood \u2014or misunderstood \u2014by prospective jurors.\u201d Witherspoon v. Illinois, supra, 391 U.S. at 515-16 n. 9 (quoted with approval in Boulden v. Holman, supra, 394 U.S. at 481-82).\nTurning now to the challenges for cause here under attack, I am satisfied that prospective juror Mary Neal was excused for cause on broader grounds than Witherspoon permits. Neal, after an extended colloquy with the prosecutor, never expressed any categorical opposition to the death penalty. She simply said that she would have to be absolutely certain of a defendant\u2019s guilt before she could vote to impose it. That portion of the colloquy which accurately reflects her attitude is the following:\nQ. Do you have any objection to the death penalty?\nA. Well, that\u2019s a hard question to answer.\nQ. Yes, ma\u2019am.\nA. I\u2019ve never been able to answer it like a cut dried thing. It\u2019s hard for me, very hard for me to make decisions, I\u2019ve never been able to make decisions very well. I had someone to help me, but I\u2019m hard to convince too. I almost have to see something before I could really say so. That\u2019s the only way I know to answer you.\nQ. Let me ask that question a different way, Mrs. Neal, if you\u2019re a member of this jury and we get to the second part of the trial, that means you\u2019ve already found him guilty of murder in the first degree in one or both cases, based on the evidence in this case, what happened in this case and based on the law that Judge Walker gives to you, as he tells you the law, if you deem it to be appropriate, could you impose the death penalty?\nA. I don\u2019t think so, I really don\u2019t believe so.\nQ. I understand this is a tough area, but we have to inquire about this now and everyone is entitled to their own opinion. Are you saying, ma\u2019am, that you could not and you would not vote to impose the death penalty in this case, regardless of the evidence?\nA. I don\u2019t know. I guess if it was proven to me, I guess I could.\nQ. If what was proven to you?\nA. I would have to be \u2014I would have to absolute know for sure, I mean no doubt whatsoever.\nQ. As a juror, can you envision a situation where you would impose the death penalty, you\u2019re not going to be an eyewitness, you\u2019re going to have to act on what other people tell you they saw or heard.\nA. Okay, already proven guilty \u2014 if I went along with the guilty part, if I decided they were guilty \u2014 no, I will not.\nQ. You could not impose the death penalty regardless of what the evidence is?\nA. I don\u2019t believe so.\nMr. WANNAMAKER: If your Honor please, we challenge for cause.\nTHE COURT: I understand, Mrs. Neal. I know this is very difficult for you, but it\u2019s necessary to have your candid and frank answers and I thank you for them.\nDo I understand that you could not even before you hear the testimony under any circumstances, impose the death penalty?\nMARY D. Neal: No, I just don\u2019t think so.\nAt most, Neal\u2019s attitude toward the death penalty \u201caffected\u201d her deliberations on the guilt phase of the case in the sense that she would have to be absolutely certain of defendant\u2019s guilt. \u201c[P]rospects of the death penalty may affect what [a juror\u2019s] honest judgment of the facts will be or what [a juror] may deem to be a reasonable doubt,\u201d Adams v. Texas, supra, 448 U.S. at 50, without the juror\u2019s subjection on that ground to a challenge for cause. Neal never \u201cunmistakably\u201d said that she would not impose the death penalty, or that she would \u201cautomatically\u201d vote for life imprisonment, regardless of what the evidence might show. She said she didn\u2019t \u201cbelieve\u201d and didn\u2019t \u201cthink\u201d she could vote for death. She never said, absolutely, that she could or would not. She should not have been excused for cause.\nProspective juror Frank Rogers said, \u201cI don\u2019t go for [the death penalty] too much\u201d and \u201cI don\u2019t think much of the death penalty.\u201d He never said he was categorically opposed to the death penalty. When asked whether he could consider imposing the death penalty, the following occurred:\nA. I can consider, but as I say\u2014\nQ. You tell me you would consider it but then you wouldn\u2019t do it, is that what you are saying?\nMr. Harrison: Objection.\nA. (By witness) I said I would lean toward life imprisonment, if you want me to tell the truth about it, that\u2019s what I\u2019m doing.\nAt that point, the court intervened as follows:\nTHE COURT: Mr. Juror, are you saying that before you have heard any evidence in this case, Mr. Rogers, if the defendant should be found guilty of either charge of murder in the first degree, without hearing any evidence, that under no circumstances would you return a verdict which would result in the imposition of the death penalty?\nMr. ROGERS: That is true.\nThus Rogers did not say that he could or would not impose the death penalty or that he would automatically vote for life imprisonment, regardless of evidence that might be introduced at the trial. He said he could not impose it under any circumstances \u201cwithout hearing any evidence.\u201d Obviously, the learned trial judge was attempting to ask Rogers whether he could impose it under any circumstances regardless of what evidence adduced at trial might show, and to one trained in the law that is what the court\u2019s question might mean. To Rogers, a layman, the question could mean no more than what the words actually used by the trial judge would ordinarily convey. Roger\u2019s position, then, was simply that he could not impose the death penalty until he at least had heard some evidence in the case. The thrust of the entire colloquy seems to be that, depending on what the evidence adduced tended to show, Rogers could consider the death penalty, that he tended to favor life imprisonment, but that he would not convince himself one way or the other without hearing some evidence. Rogers should not have been excused for cause.\nIII.\nThe majority concludes that the trial court did not err in refusing to submit both in his instructions and on the written list defendant\u2019s \u201crelatively low mentality\u201d as a mitigating circumstance because there was no evidence to support it and, even if there had been supporting evidence, the error could not have been prejudicial. As the majority correctly notes, a defendant\u2019s low mentality, if it exists, is \u201cproperly considered in mitigation of a capital felony.\u201d\nI cannot agree with the majority that the evidence does not support defendant\u2019s \u201crelatively low mentality\u201d mitigating circumstance. Defendant\u2019s psychiatric witness, Dr. Billy Royal, testified that defendant scored 66 on an intelligence test; but, he said, \u201c[w]e felt that his other tests indicated that his I.Q. was probably a little higher than that and fell at least into the low-normal range of intelligence.\u201d Apparently the majority concludes that any intelligence quotient which is within a \u201cnormal range\u201d cannot be considered by a jury in a capital case unless it is proffered by the defendant as an absolute score on an intelligence test. The majority concludes that if it is proffered under the label \u201crelatively low mentality,\u201d rather than as a raw score, it may not be considered.\nI simply cannot subscribe to, nor do I really understand, the distinction drawn by the majority. Any kind of absolute score on an intelligence test, in order to be meaningful to a lay jury or for that matter to lawyers and judges, needs explanation by competent expert testimony. The testimony in this case was that defendant\u2019s intelligence was in the \u201clow-normal range.\u201d Defendant asked that his \u201crelatively low mentality\u201d be submitted as a mitigating circumstance. The evidence supports that he did have a \u201crelatively low mentality.\u201d It should be for the jury to assess this quality in terms of its mitigating effect. It is not for the court to say that the jury could not, as a matter of law, consider a person\u2019s \u201crelatively low mentality\u201d as a mitigating circumstance because the mentality is within the outer limits of \u201cnormal.\u201d To me, the phrase \u201crelatively low mentality\u201d accords precisely with the evidence which was introduced. A person whose intelligence is in the low-normal range must perforce have a relatively low mentality. Contrary to the majority\u2019s conclusion, the terms are synonymous.\nNeither on this record am I able to say that not permitting the jury to consider this mitigating circumstance was harmless beyond a reasonable doubt. Not to permit a jury to consider any relevant mitigating circumstance is an error of constitutional dimension. Eddings v. Oklahoma, supra, --- U.S. ---, 102 S.Ct. 869, 71 L.Ed.2d 1; Lockett v. Ohio, supra, 438 U.S. 586. Before we can deem such an error harmless, we must be satisfied \u201cthat it was harmless beyond a reasonable doubt.\u201d Chapman v. California, 386 U.S. 18, 24 (1967); G.S. 15A-1443(b). The burden is upon the state to so demonstrate. Id.\nOf the ten mitigating circumstances submitted, we know from the record only that the jury found \u201cone or more.\u201d We do not know how many beyond one it found. It is possible that the jury found only one mitigating circumstance to exist out of the list of ten. If it did, the failure to submit an additional mitigating circumstance which should have been submitted and which the jury could have found to exist might well have made a difference in the jury\u2019s ultimate recommendation. At least I cannot say beyond a reasonable doubt that it would not have made a difference.\nThe United States Supreme Court has recently recognized that a youthful defendant\u2019s mental development is a significant mitigating circumstance. Eddings v. Oklahoma, supra, was a capital case in which, under Oklahoma procedure, the sentencing decision was made by the trial judge. The judge, after hearing evidence, found all of three alleged aggravating circumstances to exist beyond a reasonable doubt. He also found that the youth of the defendant (age sixteen) was a mitigating circumstance \u201cof great weight.\u201d The trial judge, however, did not believe he could consider \u201cthe fact of this young man\u2019s violent background.\u201d Id. at ---, 102 S.Ct. at 873, 71 L.Ed. 2d at 7 (emphasis original). For failure of the trial judge to consider this additional mitigating circumstance, the United States Supreme Court set aside the death penalty and remanded for further proceedings. The Court said, id. at ---, 102 S.Ct. at 877, 71 L.Ed. 2d at 12:\n[J]ust as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing. [Emphases supplied.]\nIn the case at bar the trial judge\u2019s refusal to submit and instruct on defendant\u2019s \u201crelatively low mentality\u201d as a mitigating circumstance deprived the defendant of his right to have the jury consider his \u201cmental . . . development.\u201d The error was not cured by submitting to the jury the catchall language of the tenth mitigating circumstance when it was unaccompanied by any specific instruction relating to the particular circumstance of defendant\u2019s low mentality.\nFor the foregoing reasons, I vote to vacate the death sentence imposed in this case and to remand for a new sentencing hearing. I concur in the majority\u2019s conclusion that there was no prejudicial error in the guilt phase of the case.\nIV.\nThis is yet another in a growing number of cases in which a majority of the Court has affirmed the death penalty and in conducting its statutorily mandated \u201cproportionality review\u201d of the death sentence has failed to advise the bar of the manner in which it conducts such a review. The majority, unlike courts in other jurisdictions which have statutes similar to ours, has yet to tell the bar whether its review is based on comparisons with those cases in which the death sentence was imposed at trial and affirmed on appeal, or with those cases in which the jury could have recommended the death penalty but instead recommended life imprisonment and which have been reviewed on appeal, or with cases from some other kind of pool. It is time for the majority to declare itself on this important question, and I urge it to use as a pool for comparison purposes all cases tried under the new death penalty statute, whether the jury recommended death or life imprisonment and which have been reviewed on appeal by this Court.\nThe statute, G.S. 15-2000(d)(2), requires us to impose a life sentence if we find that a death sentence imposed by the trial court \u201cis excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\u201d This language is identical to language in Georgia\u2019s death penalty statute. See Ga. Code Annot. \u00a7 27-2537(c)(3) (1978). The Georgia Supreme Court looks to all appealed murder cases, whatever the sentence imposed, in making its comparisons. Ross v. State, 233 Ga. 361, 365-66, 211 S.E. 2d 356, 359 (1974), cert. denied, 428 U.S. 910 (1976). In sustaining the Georgia death penalty statute, the United States Supreme Court relied on the Georgia Supreme Court\u2019s proportionality review safeguard. Of it, the United States Supreme Court said in Gregg v. Georgia, supra, 428 U.S. at 206:\nIn particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death. [Emphasis supplied.]\nThe Florida Supreme Court in conducting its proportionality review also compares all appealed murder cases, including those where a sentence less than death was imposed. It has concluded that ignoring life sentences imposed in factually similar cases would make its review procedure constitutionally defective. McCaskill v. State, 344 So. 2d 1276 (Fla. 1977) (per curiam).\nThe plain words of our statute require that we compare the case before us not only with similar cases in which the death penalty has been imposed but with similar cases in which the jury was permitted to consider it but decided instead to recommend life imprisonment. The basic purpose of proportionality review is to make sure that the death sentence in the case before us is not \u201cexcessive\u201d to sentences \u201cimposed in similar cases.\u201d If we look for comparison only to cases in which the death penalty has been imposed, the sentence in the case under review could never be excessive because one death sentence never \u201cexceeds\u201d another. It is only by comparing the case being reviewed in which a death sentence was imposed with other similar cases in which life was imposed that we can determine whether the death penalty in the case being reviewed is really excessive to the penalty being imposed in similar caes. For, to reiterate what the Supreme Court said in Gregg v. Georgia, supra, if there are certain kinds of murder cases in which our juries are generally not recommending death, then an occasional death sentence imposed in those kinds of cases ought to be set aside by this Court.\nWe ought not limit ourselves only to cases where the death sentence was imposed and affirmed. To do so means that we only ask whether the case under review is as bad as the other death cases. The legislature intended us not only to make that determination but also to determine whether the case under review is more deserving of the death penalty than similar cases in which life sentences have been imposed. The statute\u2019s plain language requires that we make both kinds of comparisons. Of the two, the latter is the more meaningful and is probably constitutionally required.\nFurther, by using only other death sentence cases affirmed on appeal, the Court severely limits the pool of cases available for comparison. Since the effective date of our capital punishment statute, 7 June 1977, there have been only six such cases. See State v. Taylor, 304 N.C. 249, 283 S.E. 2d 761 (1981); State v. Rook, supra, 304 N.C. 201, 283 S.E. 2d 732; State v. Hutchins, supra, 303 N.C. 321, 279 S.E. 2d 788; State v. Martin, 303 N.C. 246, 278 S.E. 2d 214, cert. denied, --- U.S. ---, 102 S.Ct. 431, 70 L.Ed. 2d 240 (1981); State v. McDowell, 301 N.C. 279, 271 S.E. 2d 286 (1980), cert. denied, 450 U.S. 1025 (1981); State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979), cert. denied, 448 U.S. 907 (1980). The statute requires that we compare factually \u201csimilar\u201d cases. Similar cases for comparison purposes are simply not present in such a small sampling. The Court should want to expand, rather than restrict, the pool of cases so that truly similar cases will be more quickly available and we can begin to make the comparisons which the statute requires.\nThe bar is entitled to know upon what basis we are conducting the proportionality review mandated by the statute. Defendant Pinch has expressly and reasonably requested that we provide this knowledge. We should grant the request. We should not continue to keep the manner in which we perform this duty shrouded in mystery.\n. Although the jury is not required by statute to answer these questions unless they recommend death, I believe documentation of the jury\u2019s findings in every capital sentencing proceeding, whether they recommend death or life, is necessary for this Court\u2019s use in conducting its proportionality review required under G.S. 15A-2000(d)(2).\n. In Rook, supra, I wrote:\nIndeed, in Georgia, the jury may return a death sentence upon finding one or more aggravating circumstances, no matter how it regards the mitigating circumstances. In contrast, under our statute the jury may return a death sentence recommendation only if it finds: (1) the existence of one or more aggravating circumstances; (2) that the aggravating circumstance(s) found by it are sufficiently substantial to call for the imposition of the death penalty; and (3) that the mitigating circumstances are insufficient to outweigh the aggravating circumstances. The clear import of our statute is that a jury, upon finding the requisite existence of aggravating circumstances and their sufficient substantiality, may not recommend life imprisonment unless it further finds that the mitigating circumstances are sufficient to outweigh the aggravating circumstances.\n304 N.C. at 242-43, 283 S.E. 2d at 757 (emphasis original) (footnote omitted).\n. See, e.g., State v. Silhan, 302 N.C. 223, 275 S.E. 2d 450 (1981) (R. at 192, \u201cyou may recommend death\u201d); State v. Detter, 298 N.C. 604, 260 S.E. 2d 567 (1979) (R. at 238, \u201cyou may recommend\u201d); State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979) (R. at 111, \u201cyou may recommend\u201d); State v. Spaulding, 298 N.C. 149, 257 S.E. 2d 391 (1979) (R. at 333, \u201cBased upon these considerations as instructed by the Court, you will advise the court whether the defendant should be sentenced to life imprisonment or death\u201d); State v. Cherry, 298 N.C. 86, 277 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941 (1980) (R. at 341, \u201cBased upon these considerations as instructed by the Court, you will advise the Court whether the defendant should be sentenced to life imprisonment or death\u201d); State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569 (1979) (R. at 185, \u201cyou may then recommend the death penalty\u201d); State v. Jones, 296 N.C. 495, 251 S.E. 2d 425 (1979) (R. at 276, \u201cyou may \u2014 but are not compelled to \u2014 recommend the death penalty\u201d).\nOther cases reviewed by this Court have contained instructions which went even further in telling the jury that the death sentence was not mandated by affirmative answers to the crucial issues. For example, in State v. Oliver, 302 N.C. 28, 274 S.E. 2d 183 (1981) (R. at 668), the jury was told:\nUnless you have answered Issues One, Two, Four \u2018yes\u2019 you must recommend that a defendant in a given case be sentenced to life. Only if you have answered Issues One, Two and Four \u2018yes\u2019 may you recommend that a defendant be sentenced to death. Even then, though, you are not required to do so. You still may recommend life imprisonment. However, if you answered Issues One, Two and Four \u2018yes\u2019 you are, on further deliberations, satisfied beyond a reasonable doubt that the only just punishment for this defendant is \u2014a given defendant in a given case, is the death penalty, then you may so recommend it; realizing, of course, the tremendous responsibility which rests on your shoulders when you make that recommendation.\nSee, also, State v. Hutchins, 303 N.C. 321, 279 S.E. 2d 788 (1981) (R. at 231, \u201cyou would then further deliberate upon your sentence recommendation\u201d); State v. Small, 301 N.C. 407, 272 S.E. 2d 128 (1980) (R. at 618, \u201cEven though you are not required to do so, you may still recommend life in prison\u201d).\n. Indeed, juries have answered the crucial subsection (c) issues affirmatively and yet either recommended life imprisonment, State v. King, 301 N.C. 186, 270 S.E.2d 98 (1980); State v. Taylor, 298 N.C. 405, 259 S.E.2d 502 (1979); or were unable unanimously to agree on a sentence, thus requiring the judge to impose a life sentence pursuant to 6.S. 15A-2000(b). State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), on resentencing in Columbus Superior Court (Case No. 79CRS1943); State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980).\nAt least one jury has found ambiguity in the \u201cIssues and Recommendation as to Punishment\u201d form generally submitted to juries deliberating on sentences in capital cases. State v. Lake, 305 N.C. 143, 286 S.E.2d 541 (1981) (copy found in Case No. 80CRS5530, Onslow Superior Court).\n. The questions are these:\n(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;\n(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and\n(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.\nSee 428 U.S. at 269 (quoting Tex. Code Crim. Proc., art. 37.071(b) (Supp. 1975-76)).\n. Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion).\n. See supra note 5 and accompanying text.\n. The Georgia Supreme Court also noted \u201cthat nothing in the statute forecloses this court during the course of its independent review from examining non-appealed cases and cases in which the defendant pleaded guilty to a lesser offense.\u201d Ross v. State, supra, 233 Ga. at 366, 211 S.E. 2d at 359.\n. In my dissenting opinion in State v. Rook, supra, 304 N.C. at 245-46, 283 S.E. 2d at 758-59, I pointed out that rarely do juries in this state impose the death penalty in cases where a defendant was found to have been under the influence of a mental or emotional disturbance or whose capacity to appreciate the criminality of his conduct or to conform his conduct to law was impaired. I suggested that this Court should be slow to affirm death penalties in which either of these mitigating circumstances was found to exist because the penalty might well be excessive to the penalty imposed generally by juries in these kinds of cases.", "type": "dissent", "author": "Justice Exum" }, { "text": "Justice Carlton\nconcurring.\nI concur with the majority opinion. However, I wish to add that I agree with the views expressed by Justice Exum in section IV. of his dissenting opinion. In my opinion, the comparison pool for proportionality review for first degree murder cases should include all cases tried under the present death penalty statute which have been affirmed on appeal by this Court, regardless of the punishment imposed. I think it is time for this Court to address this issue.\nChief Justice BRANCH joins in this concurring opinion.", "type": "concurrence", "author": "Justice Carlton" } ], "attorneys": [ "Attorney General Rufus L. Edmisten by Assistant Attorney General Joan H. Byers for the State.", "Appellate Defender Adam Stein and Ann B. Peterson pro hac vice for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL EDWARD PINCH\nNo. 43A81\n(Filed 2 June 1982)\n1. Constitutional Law \u00a7 62; Criminal Law \u00a7 135.3\u2014 excusal of jurors opposed to death penalty \u2014 defendant not deprived of constitutional rights\nThe trial court properly excused eight prospective jurors for cause due to their stated opposition to the death penalty in a prosecution for first degree murder where seven jurors unequivocally stated they could not impose the death penalty under any circumstances and where the eighth juror, after some initial equivocation, stated that she did not \u201cbelieve\u201d that she could impose the death penalty regardless of the evidence. The excusal of the jurors did not deprive defendant of his constitutional rights to trial by a jury representative of a cross-section of the community or due process of law.\n2. Criminal Law \u00a7\u00a7 102.6, 113.2\u2014 prosecutor\u2019s argument and court\u2019s instructions concerning defense of intoxication proper\nIn a prosecution for first degree murder, the district attorney correctly conveyed the substance of the law and the evidence of defendant\u2019s intoxication defense to the jury and the trial court properly instructed upon the defense.\n3. Constitutional Law \u00a7 30\u2014 no duty of State to make eyewitnesses \u201cavailable\u201d for interviews with medical experts\nThe trial court did not err in denying defendant's pretrial motion for an order directing the district attorney to make the State\u2019s eyewitnesses \u201cavailable\u201d for interviews with a medical expert who had been appointed to assist in the preparation and evaluation of an intoxication defense since nothing in our statutory discovery provisions would require the State to compel its witnesses to submit to any form of interview or questioning by the defense prior to trial. Further, there was nothing in the record to substantiate defendant\u2019s claim that defense counsel actually approached the potential witnesses for the stated purpose only to be rejected on account of the district attorney\u2019s prior, direct instructions to them not to cooperate.\n4. Criminal Law \u00a7 38; Homicide \u00a7 15\u2014 exclusion of testimony concerning intoxication defense proper\nIn a prosecution for first degree murder, the trial court properly excluded questions which were not competently framed to elicit a witness\u2019s opinion about defendant\u2019s general intoxication. The court\u2019s ruling did not improperly hinder defendant\u2019s effort to present his intoxication defense, and none of the questions sought to elicit relevant information having a direct bearing upon defendant\u2019s intoxication impairment at the time he committed the murders.\n5. Homicide \u00a7 24.2\u2014 instructions concerning presumption of malice proper \u2014 defendant conceding guilt\nThe trial court did not err in its final instructions by stating that the elements of malice and unlawfulness were implied in an intentional killing with a deadly weapon where the defendant, through his trial counsel, conceded his guilt of the second degree murders of the victims and admitted \u201cthe intentional killing and the malice involved in\u201d the murders.\n6. Homicide \u00a7 20.1\u2014 introduction of photographs of victims\u2019 bodies proper\nIn a prosecution for first degree murder, the trial court properly admitted into evidence ten photographs of the victims' bodies to illustrate the testimony of a forensic pathologist who had performed autopsies on the bodies. The illustrative relevancy of the photographs was not nullified by defendant\u2019s stipulation that \u201che killed both victims with gunshot wounds.\u201d\n7. Criminal Law \u00a7 102.1\u2014 prosecutor\u2019s argument to jury \u2014 proper\nThe district attorney\u2019s remarks to the jury concerning (1) defendant\u2019s pleasure in killing, (2) what defendant must have been thinking before he shot the victims, and (3) \u201ccomparisons\u201d between defendant and animals were either entirely warranted by the evidence or not so prejudicial that the trial court was required to take corrective action in the absence of an objection.\n8. Criminal Law \u00a7 135.4\u2014 sentencing hearing \u2014 exclusion of evidence \u2014not prejudicial\nThe trial court did not commit prejudicial error by excluding testimony about defendant\u2019s current feelings of remorse over the victims\u2019 deaths, about the circumstances of defendant\u2019s various hospitalizations for drug overdoses, and testimony concerning defendant\u2019s ability to adjust to life in prison in defendant\u2019s sentencing hearing after being convicted of two first degree murders. Some of the evidence sought to be introduced was irrelevant and the record as a whole was replete with evidence of other matters which defendant sought to introduce.\n9. Criminal Law \u00a7 135.4\u2014 sentencing phase \u2014 improper question by prosecutor \u2014 no prejudicial error\nAt the sentencing phase of defendant\u2019s trial for first degree murder, the prosecutor erred in suggesting that defendant stole money in order to support his drug habit; however, as it was a single impropriety, and as the trial court promptly sustained defendant\u2019s objection to the disapproved question, the court sufficiently averted any prejudice to defendant.\n10. Criminal Law \u00a7 135.4\u2014 sentencing phase \u2014 prosecutor\u2019s argument to jury \u2014 within hounds of permissible argument\nAlthough the district attorney argued for capital punishment of defendant\u2019s murder convictions with vim and vigor, his zeal did not cause him to overstep th\u00e9 bounds of permissible argument.\n11. Criminal Law \u00a7 135.4\u2014 sentencing phase \u2014 submission of mitigating circumstances to jury \u2014 no prejudicial error\nIn order for a defendant to demonstrate reversible error in the trial court\u2019s omission or restriction of a statutory or timely requested mitigating circumstance in a capital case, he must affirmatively establish three things: (1) that the particular factor was one which the jury could have reasonably deemed to have mitigating value; (2) that there was sufficient evidence of the existence of the factor; and (3) that, considering the case as a whole, the exclusion of the factor from the jury\u2019s consideration resulted in ascertainable prejudice to the defendant. Therefore, although there was evidence that defendant\u2019s I.Q. fell into the \u201clow-normal range of intelligence,\u201d the trial court did not err in failing to submit as a mitigating factor defendant\u2019s \u201crelatively low mentality\u201d since one would not commonly understand low to normal intelligence to be synonymous with relatively low mentality. Further, the evidence did not support the submission of the statutory mitigating circumstance of G.S. 15A-2000(f)(2), that he committed the murders while he was \u201cunder the influence of mental or emotional disturbance.\u201d\n12. Criminal Law \u00a7 135.4\u2014 sentencing phase \u2014submission of two killings as aggravating circumstance for one another \u2014no double jeopardy\nIn the sentencing phase of defendant\u2019s trial, the trial court\u2019s submission of each of two killings as an aggravating circumstance for the other under the \u201ccourse of conduct\u201d provision of G.S. 15A-2000(e)(ll) did not violate defendant\u2019s protection against double jeopardy.\n13. Criminal Law \u00a7 135.4\u2014 sentencing phase \u2014 mitigating circumstances not specified by jury\nThe statutes do not require the jury to specify in the sentencing phase of a trial which mitigating circumstances it found.\n14. Criminal Law \u00a7 135.4\u2014 sentencing phase \u2014duty to recommend death or life imprisonment\nThe trial court correctly advised the jury that it had a duty to recommend a death sentence if it found three things: (1) that one or more statutory aggravating circumstances existed; (2) that the aggravating circumstances were substantial enough to warrant the death penalty; and (3) that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. The jury was also correctly advised that it had the duty to recommend a sentence of life imprisonment if it did not find any one of those three things. G.S. 15A-2000(b) and (c).\n15. Criminal Law \u00a7 135.4\u2014 sentencing phase \u2014submission of aggravating circumstance that murders were heinous, atrocious, or cruel\nThe trial court correctly instructed the jury upon the statutory aggravating circumstance of G.S. 15A-2000(e)(9), that the murders were \u201cespecially heinous, atrocious, or cruel,\u201d where the evidence tended to show that one of the victims was shot once and then shot again at point blank range as he lay moaning on the floor, and the other killing was merciless and conscienceless in that defendant shot the victim as he begged and pleaded for his life.\n16. Criminal Law \u00a7 135.4\u2014 sentencing phase \u2014sentence of death not disproportionate as matter of law\nIn a prosecution for first degree murder, the sentence of death was not, as a matter of law, \u201cexcessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\u201d G.S. 15A-2000(d)(2).\nJustice Mitchell did not participate in the consideration or decision of this case.\nJustice Carlton concurring.\nChief Justice Branch joins in this concurring opinion.\nJustice Exum dissenting as to sentence.\nOn appeal by defendant as a matter of right from the judgments of Walker, Judge, entered at the 25 August 1980 Criminal Session, GUILFORD Superior Court. Defendant was charged in indictments, proper in form, with the first degree murders of Freddie Pachaco and Tommy Ausley. Upon defendant\u2019s motion, the cases were joined for trial. The jury returned verdicts of guilty and recommended the sentence of death in each case. The trial court ordered the imposition of the death penalty for both killings.\nIn relevant part, the evidence for the State tended to show the following. On 16 October 1979, defendant, a nineteen year old white male, was walking on Merritt Drive in Greensboro with his friend Jimmy Eanes when he happened to meet Freddie Pachaco. Defendant did not like Pachaco because he had been friendly with a girl defendant liked and had, without proper entitlement, worn the personal insignia (\u201ccolors\u201d) of a motorcycle gang on his jacket. On this occasion, defendant told Eanes that he \u201chated that punk\u201d (Pachaco) and wanted to fight him right then and there. This did not occur, however, because Pachaco was conciliatory and offered defendants some marijuana. The group then went to a trailer where they smoked marijuana and drank beer. Sometime later, Pachaco asked defendant outright whether he was \u201cafter\u201d him. Defendant replied that he was not and further said that \u201cif [he] was going to kick [Pachaco\u2019s] ass, [he] would have already done it.\u201d\nOn the following day starting at about noon, several people began to congregate at the trailer, where defendant apparently lived, to drink beer and listen to music. The merrymakers included Jimmy Eanes, Shawn Feeney, Keith Way, Billy Stanley and Leslie Hearl (who later married Stanley before trial). Pachaco and his friend Tommy Ausley also unexpectedly joined the party and bought two cases of beer. Everybody was calm and pleasant and seemed to be having a good time. However, defendant told several of his friends during the course of the party that he disliked, or didn\u2019t have \u201cmuch use for\u201d, Pachaco and said he would like to kill him. Later in the evening, defendant took Feeney\u2019s shotgun and fired it at the clothesline three times. A deputy sheriff came to the trailer to investigate the disturbance, but he soon departed after talking to defendant.\nUpon defendant\u2019s suggestion, everyone decided to leave the trailer and go to the Stroker Motorcycle Clubhouse, which was located in some woods near Wendover Avenue in Greensboro. Defendant had reasoned that they could make as much noise as they wanted to out there and get more beer besides. [It was approximately 10:00 p.m.] While everyone prepared to move, defendant quickly slipped out to a nearby trailer where he borrowed a shotgun. He returned with the gun and told Eanes to ride with Pachaco and Ausley to make sure they got to the clubhouse. The entire party then proceeded to the rendezvous in various vehicles, caravan style. En route, defendant retained the shotgun and told his companions that he was going to kill Pachaco and Ausley.\nWhen the group arrived at the clubhouse, defendant opened the door while he continued to hold the shotgun. Once inside, the members of the party played games, drank beer and listened to music. Billy Stanley and Leslie Hearl left the company and went into an adjacent room to have sexual intercourse. While everyone else engaged in these various recreational activities, defendant sat silently behind the bar with the shotgun in his lap. Sometime later, defendant gave his knife to Eanes and instructed him to cut Pachaco\u2019s jugular vein and promised to back him up with the shotgun. Eanes attacked Pachaco but only succeeded in cutting him on the throat. Pachaco became emotional at this point but did not fight back. Ausley attempted to help Pachaco and was confronted by Eanes who threw a chair at him. At this point in the evening\u2019s events, the testimony of the eyewitnesses differed somewhat. Nevertheless, the overall weight of that testimony combined with the evidence of defendant\u2019s own pre-trial statements to law officers tended to show the following occurrences.\nImmediately after the throat-slashing incident between Eanes and Pachaco, defendant raised the shotgun and pointed it at Pachaco. Pachaco told defendant, \u201cI will go down laughing.\u201d Without saying a word, defendant shot him in the chest. Defendant then turned toward Ausley, whom he had never seen before that day. Ausley pleaded with defendant and said, \u201cdon\u2019t shoot me,\u201d \u201c[n]o, not me.\u201d Defendant shot him anyway. Pachaco was still moaning. Defendant walked over to where he lay helpless on the floor and shot him again at point blank range just below the heart. Pachaco and Ausley died from the gunshot wounds. During the shootings, defendant had \u201ca sort of grin\u201d on his face.\nDefendant, apparently with a full realization of what he had just done, walked outside to the porch of the clubhouse and told Feeney and Way that he had \u201cblown away\u201d two dudes. He then directed everyone to help him dispose of the bodies. The bodies were placed in an automobile which Eanes drove to Causey Street and abandoned in a ditch. Defendant did not return to his residence; instead, he went home with Stanley and Hearl. On the way, he told Stanley that he had killed Pachaco and Ausley because he \u201cdidn\u2019t have any use for people like that.\u201d Defendant was not upset and seemed to have no regrets about the murders. He went to sleep. The next day, Stanley and Hearl returned to the clubhouse at defendant\u2019s behest and cleaned up the blood on the floor. Another member of the Stroker motorcycle gang painted the steps to conceal bloodstains.\nThe bloody car and bodies of Pachaco and Ausley were discovered in the early morning hours of 19 October 1979. Defendant took a bus to California where he was subsequently arrested on 28 January 1980. Defendant waived extradition on 4 February 1980 and was picked up by two officers of the Greensboro Police Department two days later. During the flight back to North Carolina, defendant made a full confession to the murders. [He was advised of his constitutional rights and executed the required waiver form.]\nDefendant presented no independent evidence during the guilt determination phase of the proceedings. The defense did, however, elicit evidence during cross-examination of prosecution witnesses tending to show that defendant was drunk when the killings occurred.\nThe jury found defendant guilty of two counts of first-degree murder. The State relied on its evidence presented during the guilt phase of the trial and did not offer additional evidence during the sentencing hearing. The State did, however, argue that the murders were especially heinous because defendant committed them for sport and amusement. In addition, the State contended that the killing of the eighteen-year-old Ausley was particularly despicable because defendant had shot him in cold blood as he begged and pleaded for his life. On the other hand, defendant offered much evidence in mitigation of his criminal acts, including the following facts: his youth; the divorce of his parents during his childhood; his chronic drug and alcohol abuse since the age of twelve; his leaving home at the age of thirteen (from that time on, he had lived on his own); his low intelligence; his psychological problems of depression, conflicts in relationships and poor judgment; and his feelings of remorse over the killing of Ausley. In its instructions upon the sentencing phase of the case, the court submitted two aggravating circumstances for the jury\u2019s consideration: (1) the murders were especially heinous, atrocious or cruel, G.S. 15A-2000(e)(9); and (2) each murder was part of a course of conduct in which defendant committed a crime of violence against another person, G.S. 15A-2000(e)(ll). The court also submitted ten mitigating circumstances to the jury. The jury subsequently found one or more of the mitigating factors but also unanimously found them to be outweighed by the foregoing aggravating circumstances beyond a reasonable doubt. The jury therefore recommended imposition of the death penalty for both murders, and the court so ordered.\nAdditional facts, which become relevant to defendant\u2019s specific assignments of error, shall be incorporated into the opinion.\nAttorney General Rufus L. Edmisten by Assistant Attorney General Joan H. Byers for the State.\nAppellate Defender Adam Stein and Ann B. Peterson pro hac vice for the defendant-appellant." }, "file_name": "0001-01", "first_page_order": 29, "last_page_order": 90 }