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Ed. 2d", "weight": 4, "year": 1987, "opinion_index": 0 }, { "cite": "356 S.E. 2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 473513 ], "weight": 14, "year": 1987, "pin_cites": [ { "page": "310" }, { "page": "312" }, { "page": "313" }, { "page": "308-09" }, { "page": "315" }, { "page": "316", "parenthetical": "emphasis in original" }, { "page": "316" }, { "page": "316" }, { "page": "317" }, { "page": "316" }, { "page": "317" }, { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/ga-app/182/0279-01" ] }, { "cite": "319 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748970 ], "weight": 9, "year": 1987, "pin_cites": [ { "page": "518" }, { "page": "524" }, { "page": "515" }, { "page": "526" }, { "page": "529" }, { "page": "529" }, { "page": "530" }, { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0465-01" ] }, { "cite": "850 F. 2d 1055", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1792763 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "1060", "parenthetical": "citations omitted" }, { "page": "1060-61" }, { "page": "1061" } ], "opinion_index": 0, "case_paths": [ "/f2d/850/1055-01" ] }, { "cite": "828 F. 2d 257", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1747948 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "261-62" } ], "opinion_index": 0, "case_paths": [ "/f2d/828/0257-01" ] }, { "cite": "94 L.Ed. 2d 133", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 4, "year": 1987, "opinion_index": 0 }, { "cite": "343 S.E. 2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "827" } ], "opinion_index": 0 }, { "cite": "317 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779521 ], "year": 1986, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0001-01" ] }, { "cite": "161 S.E. 2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "567" } ], "opinion_index": 0 }, { "cite": "274 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559380 ], "year": 1968, "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0062-01" ] }, { "cite": "326 S.E. 2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "898" }, { "page": "898" }, { "page": "898" } ], "opinion_index": 0 }, { "cite": "313 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725898 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "23-24" }, { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0001-01" ] }, { "cite": "372 S.E. 2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "323 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564109 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/nc/323/0208-01" ] }, { "cite": "372 S.E. 2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "323 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560587 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/nc/323/0001-01" ] }, { "cite": "100 L.Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6217594 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/us/486/0367-01" ] }, { "cite": "372 S.E. 2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 2 }, { "cite": "323 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564109 ], "year": 1988, "opinion_index": 2, "case_paths": [ "/nc/323/0208-01" ] }, { "cite": "372 S.E. 2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 2 }, { "cite": "323 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560587 ], "year": 1988, "opinion_index": 2, "case_paths": [ "/nc/323/0001-01" ] }, { "cite": "100 L.Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6217594 ], "year": 1988, "opinion_index": 2, "case_paths": [ "/us/486/0367-01" ] } ], "analysis": { "cardinality": 1853, "char_count": 68968, "ocr_confidence": 0.812, "pagerank": { "raw": 1.7138406375826385e-07, "percentile": 0.7028052600750082 }, "sha256": "419c992f7e48a507084b6c0e804848881e231366b7ee76692738418336564939", "simhash": "1:8ba95232368c08f4", "word_count": 11664 }, "last_updated": "2023-07-14T20:39:53.264050+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. LEROY McNEIL" ], "opinions": [ { "text": "WHICHARD, Justice.\nDefendant was convicted of two counts of first degree murder on the basis of premeditation and deliberation and under the felony murder rule. The court submitted and the jury found three aggravating circumstances in the murder of Elizabeth Stallings: defendant previously had been convicted of a felony involving the use of violence to the person, the murder took place during the commission of robbery with a firearm, and the murder was especially heinous, atrocious or cruel. The court submitted and the jury found two aggravating circumstances in the murder of Deborah Fore: defendant previously had been convicted of a felony involving the use of violence to the person, and the murder took place during the commission of robbery with a firearm. In both cases, the court submitted the following possible mitigating circumstances: defendant has no significant history of prior criminal activity; defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired; defendant confessed to the crime shortly after the crimes were committed; defendant has an I.Q. of seventy-eight and is borderline mentally retarded; defendant had been a good and useful employee of Rea Construction Company prior to the events of April 1983; and any other circumstance or circumstances arising from the evidence which the jury deems to have mitigating value. The jury found one or more of those mitigating circumstances, without specifying which ones. Upon the jury\u2019s recommendation, the trial court sentenced defendant to death in both cases. We find no error.\nThe evidence presented by the State tended to show that on 8 April 1983 defendant and Penny Faye McNeil had been drinking alcoholic beverages and discussing their need for money to pay rent. They went out driving around Raleigh. While driving, defendant saw Elizabeth Stallings, whom neither he nor Ms. McNeil knew, walking down the street. Defendant asked her if she wanted a ride. She got in the car and told defendant that she was going to the post office to get food stamps. Defendant drove her there and told her he would wait for her. After Ms. Stallings got out of the car, defendant told Ms. McNeil that he was going to rob Ms. Stallings. When Ms. Stallings came back out, defendant convinced her to go with them to have a beer and get some cocaine.\nDefendant drove to a vacant house next door to his home. Defendant, Ms. McNeil, and Ms. Stallings went in the vacant house. Defendant grabbed Ms. Stallings around the neck, flipped out a knife, and forced her into the bedroom to the closet. He asked her for the food stamps. She gave them to defendant, then he gave them to Ms. McNeil. He choked Ms. Stallings until she was unconscious. Defendant asked Ms. McNeil to go next door and get his rifle, which she did; then he told her to leave the room. After she left the room, she heard a shot. Defendant took off some of Ms. Stallings\u2019 clothes so it would look like someone had raped and robbed her. Defendant later sold the food stamps for around $109.00. He also sold a ring he took from her finger.\nDr. Gordon LeGrand, the pathologist who performed the autopsy on Ms. Stallings\u2019 body, testified that, in his opinion, she died as a result of the bullet wound to her head. He testified that she also had a stab wound in her chest, penetrating her diaphragm, liver and stomach, and an abdominal wound caused, in his opinion, by blunt trauma such as the impact of a fist or foot. There were bruises and abrasions on her left arm, left hand, left shoulder, right shoulder, right buttock, and left eyebrow. There was a wound below the left eye. A broken window frame with nails sticking out was found at the crime scene; Dr. LeGrand testified that the wound under the eye could have been caused by a blow with the window frame. Dr. LeGrand testified that, in his opinion, the stab wound, the abdominal wound, and the wounds around the left eye were premortem wounds. There was fecal matter around the anal orifice and inside the vagina. Dr. LeGrand testified that feces are \u201coften present in the agonal phase, just prior to death, if there\u2019s any kind of struggle, or stress, or whatever, loss of continent [sic] of the bowel.\u201d In his opinion it would have taken a probing force to insert feces into the vagina.\nAfter the murder of Ms. Stallings, defendant and Ms. McNeil went to several places and drank alcoholic beverages. On 9 April 1983, the next day, they drank most of the day. On 10 April 1983 they continued to drink. Defendant told Ms. McNeil that they would need money to pay the rent because they had \u201crode around and drinked up the money.\u201d Defendant said that they might get money from Deborah Fore. Defendant called Ms. Fore and talked her into going out with them.\nDefendant and Ms. McNeil went to Ms. Fore\u2019s home. She went with them to a store. Defendant then drove out into the country. He stopped the car, got his pistol from under the seat, put it in his belt, and got out of the car. He told the women that they had a flat tire. Ms. Fore got out of the car. Defendant shot her in the head. He took her keys and a dollar bill, then left her body by the side of the road. Defendant and Ms. McNeil went to Ms. Fore\u2019s apartment, used her key to get inside, and stole her television, her pocketbook, and a set of rings. Defendant drove to a teller machine and tried unsuccessfully to get money with Ms. Fore\u2019s teller card. He later dropped her pocketbook into an abandoned well in his back yard and sold for $90.00 the pistol he had used to kill Ms. Fore and the rifle he had used to kill Ms. Stallings.\nDefendant presented no evidence during the guilt-innocence phase of the trial. During the sentencing phase, he called two witnesses. Dr. Selwyn Rose, a psychiatrist, testified that defendant is an alcoholic and, prior to the time of the murders, defendant and Ms. McNeil spent most of their money drinking heavily on the weekends. A1 Peace testified that defendant was a good employee who worked well with others, but that he was often late to work or absent from work, particularly on Fridays.\nGuilt Phase\nDefendant first contends that the trial court erred in allowing the two murder charges to be joined for trial. He argues that the murders were not related transactionally. We disagree.\nThe State made a pretrial motion to consolidate for trial three first degree murder charges against defendant. The three crimes with which defendant was charged occurred within a period of eight days. The court allowed the State\u2019s motion to join the Stallings and Fore cases, but denied the State\u2019s motion to join the third case.\nThe statute allowing joinder of offenses provides:\n(a) Joinder of Offenses. \u2014Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.\nN.C.G.S. \u00a7 15A-926(a) (1988). The decision to consolidate for trial cases having a transactional connection is within the discretion of the trial court and, absent a showing of abuse of discretion, will not be disturbed on appeal. State v. Kornegay, 313 N.C. 1, 23-24, 326 S.E. 2d 881, 898 (1985).\nDefendant argues that consolidation of the two cases for trial was improper because the cases had no \u201ctransactional connection\u201d necessary for proper joinder under N.C.G.S. \u00a7 15A-926(a). Our review of the evidence, however, shows ample support for the trial court\u2019s decision to join the two cases. The evidence showed that defendant, on the weekend of the murders, needed money to pay his rent and other bills. He apparently went out to find someone to rob on 8 April 1983. He got Ms. Stallings to ride in the car with him and Ms. McNeil, then he drove to an empty house, where he robbed and murdered her. On 10 April 1983, defendant told Ms. McNeil that they still needed money because they had spent what they had on alcohol. He apparently planned to rob Ms. Fore. He got her to ride in the car with him and Ms. McNeil. He drove out in the country, killed her, then stole several items from her apartment. These two robberies and murders were acts constituting parts of defendant\u2019s plan to obtain money for rent and other bills. He carried out his plan by getting each woman into his car, then driving to another location and killing her.\nIn Kornegay, the trial court consolidated for trial a charge of obtaining property by false pretenses, a charge of embezzlement, and a charge of malfeasance of a corporate agent. Kornegay, 313 N.C. at 23, 326 S.E. 2d at 898. The evidence there showed that the defendant\u2019s act of obtaining funds by false pretenses from a client was part of his scheme to embezzle funds from his law firm. Id. at 24, 326 S.E. 2d at 898. We held that the trial court did not abuse its discretion in joining the offenses because \u201c[t]he common thread connecting the crimes is defendant\u2019s shortage of ready cash in April of 1982.\u201d Id. In the case before us, the \u201ccommon thread\u201d connecting the crimes was defendant\u2019s need for cash to pay his rent and other bills. This need for money motivated him to begin his search for victims and led to the eventual robberies and murders of Ms. Stallings and Ms. Fore two days apart. We hold that there is sufficient evidence of a \u201ctransactional connection\u201d to support joinder of the offenses. Therefore, the trial court did not abuse its discretion in consolidating the two cases for trial.\nDefendant next contends that the trial court erred in denying his motion to dismiss the charge of first degree murder of Ms. Fore. He argues that there was insufficient evidence to prove premeditation and deliberation.\nPremeditation and deliberation are necessary elements of first degree murder. State v. Propst, 274 N.C. 62, 71, 161 S.E. 2d 560, 567 (1968). Premeditation means that the defendant thought out the act beforehand for some length of time, however short. State v. Jackson, 317 N.C. 1, 23, 343 S.E. 2d 814, 827 (1986), vacated on other grounds, 479 U.S. 1077, 94 L.Ed. 2d 133 (1987). \u201cDeliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.\u201d Id. The State may prove the elements of premeditation and deliberation by circumstantial evidence as well as by direct evidence. Id. Among the circumstances to be considered in determining whether a defendant acted after premeditation and deliberation are the want of provocation by the victim and the defendant\u2019s conduct before and after the killing. Id.\nThe State\u2019s evidence tended to show that defendant needed money to pay rent and other bills and decided that Ms. Fore might have some money. Defendant called her and persuaded her to go out with him and Ms. McNeil. They went to her house and picked her up. Defendant had a pistol under the seat. Before he got out of the car, he took the pistol and put it in his belt. When Ms. Fore got out of the car, he shot her in the head. He then took her keys and money and left her body by the side of the road. This evidence is sufficient to support a finding of premeditation and deliberation. Therefore, we hold that the trial court did not err in denying defendant\u2019s motion to dismiss.\nDefendant next contends that the trial court erred in denying his request to question potential jurors as to their understanding of the length of time a person would serve if sentenced to life imprisonment for first degree murder. The following exchange took place when defense counsel attempted to elicit this information from a potential juror on voir dire:\nQ. Do you think that life imprisonment means an individual would stay in jail for the rest of his natural life?\nMr. Stephens [prosecutor]: Objection.\nCOURT: Sustained.\nQ. Do you understand that a person who is sentenced to life imprisonment after being convicted of first degree murder is not entitled to be released?\nMr. STEPHENS: Objection.\nCOURT: Sustained.\nDefendant argues that he needed this information to exercise effectively his challenges for cause and his peremptory challenges. He argues that misconceptions of jurors about the possibility of early parole for a defendant sentenced to life imprisonment create an unacceptable risk that the jury will sentence that defendant to death.\nDefendant cites King v. Lynaugh, 828 F. 2d 257 (5th Cir. 1987), in support of his argument. In King, the appeals panel held that a defendant\u2019s Sixth and Fourteenth Amendment rights were infringed when the trial court refused to allow defense counsel to ask questions directed toward determining whether venire members had misconceptions about parole law that might bias them in favor of capital punishment. The panel therefore ordered a new sentencing hearing. King, 828 F. 2d at 261-62.\nSince the filing of briefs and the presentation of the initial oral arguments in this case, the Fifth Circuit Court of Appeals, after a rehearing en banc, has reversed the panel decision in pertinent part. King v. Lynaugh, 850 F. 2d 1055 (5th Cir. 1988). The court stated:\nWe . . . are unable to distinguish possible prejudice based on jurors\u2019 misconceptions about parole law from \u201ca host of other possible similar prejudices.\u201d The views of a lay venireman about parole are no more likely to be both erroneous and prejudicial than are his views on the defendant\u2019s right not to take the stand, the law of parties, the reasonable doubt standard, or any other matter of criminal procedure. It is difficult to conceive how we could constitutionalize the inquiry concerning Texas parole while leaving these similar but also potentially influential matters to the broad discretion of the state trial court. . . . Deference to the state courts in those matters counsels deference here as well. Interrogating veniremen about Texas parole law . . . does not approach a level of constitutional sensitivity.\nId. at 1060 (citations omitted).\nThis Court has held that the possibility of parole cannot be considered by a jury during sentencing. State v. Robbins, 319 N.C. 465, 356 S.E. 2d 279, cert. denied, --- U.S. ---, 98 L.Ed. 2d 226 (1987); State v. Brown, 306 N.C. 151, 293 S.E. 2d 569, cert. denied, 459 U.S. 1080, 74 L.Ed. 2d 642 (1982). In Robbins, the jury returned to the courtroom to question whether it had the right to recommend a life sentence without the possibility of parole. The trial court responded by giving the following instruction, which has evolved from this Court\u2019s decision in State v. Conner, 241 N.C. 468, 85 S.E. 2d 584 (1955):\nThe question of eligibility for parole is not a proper matter for you to consider in recommending punishment, and it should be eliminated entirely from your consideration and dismissed from your minds.\nIn considering whether to recommend death or life imprisonment, you should determine the question as though life imprisonment means exactly what the statute says, imprisonment in the State\u2019s prison for life. You should decide the question of punishment according to the issues submitted to you by the Court, wholly uninfluenced by consideration of what another arm of the government might or might not do in the future.\nRobbins, 319 N.C. at 518, 356 S.E. 2d at 310. We rejected the defendant\u2019s argument that the trial court was constitutionally required to inform the jury about parole procedures in order to dispel the misconceptions most jurors have about parole. We held that because parole procedures are irrelevant to a sentencing determination, they cannot be considered by the jury during sentencing. Id. at 521-22, 356 S.E. 2d at 312.\nHere, defendant argues that the court erred by refusing to allow defense counsel to question potential jurors concerning their misconceptions about parole. Because parole eligibility is irrelevant to the issues at trial and is not a proper matter for the jury to consider in recommending punishment, we hold that the court properly refused to allow defense counsel to question potential jurors as to their knowledge about parole eligibility. The Fifth Circuit noted on rehearing in King that \u201cTexas policy follows that of the large majority of states and avowedly seeks to assist defendants by forbidding a jury to increase their punishment in anticipation of possible parole or clemency,\u201d and that to accept the defendant\u2019s contention would be contrary to that policy. King, 850 F. 2d at 1060-61. We agree with that court that to \u201cre-inject notions of parole eligibility at the forefront of the judicial proceedings,\u201d id. at 1061, would be an improvident practice. Therefore, we hold that the trial court did not err in denying defendant\u2019s request.\nDefendant next contends that the trial court erred by excusing three prospective jurors for cause due to their feelings about the death penalty without proper inquiry as to their ability to follow the law and by denying defendant the opportunity to question these prospective jurors. We find no error.\nThe first prospective juror challenged for cause indicated that she might not be able to vote for the death penalty under any circumstances. The court questioned her:\nNow, the question that we\u2019re asking at this point is in that context, in that sentencing proceeding, could you consider both of the alternative punishments, both death and life imprisonment or would you automatically in every case vote for one particular punishment, specifically life imprisonment?\nA. I \u2014 I could consider both but I don\u2019t think I\u2019d want to be a part of a jury that had anything to do with putting anyone to death.\nCOURT: Well \u2014\nA. I wouldn\u2019t want to be part of a jury that decided to put someone to death.\nCOURT: Whether you would want to be part of a jury which did that or not, could you consider both alternative punishments and if you determined that the death penalty was appropriate vote for the death penalty.\nA. No.\nCOURT: You could not?\nA. I don\u2019t think I could.\nCOURT: Not under any circumstances?\nA. No, I don\u2019t think so.\nDefendant argues that the excusal for cause of this prospective juror violated Wainwright v. Witt, 469 U.S. 412, 83 L.Ed. 2d 841 (1985). In Wainwright, the United States Supreme Court held that a juror could not be excluded for cause based on that juror\u2019s views about the death penalty unless those views would \u201cprevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.\u201d Id. at 424, 83 L.Ed. 2d at 851-52 (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L.Ed. 2d 581, 589 (1980)). The prospective juror here stated that she did not think that she could, under any circumstances, be part of a jury that sentenced someone to death. It is evident that her views on capital punishment impaired her ability to perform her duties as a juror in accordance with the trial court\u2019s instructions and with her oath. Therefore, the trial court did not abuse its discretion by removing her for cause.\nThe second prospective juror responded that he was opposed to the death penalty. When asked whether his beliefs were so strong that he could not under any circumstances vote for the death penalty, he answered, \u201cThat\u2019s right.\u201d The third prospective juror answered \u201cyes\u201d to the question whether she would vote against the death penalty no matter what the evidence showed. It is evident that these prospective jurors\u2019 views on capital punishment impaired their ability to perform their duties as jurors. Therefore, the trial court did not abuse its discretion by removing them for cause.\nDefendant also argues that the trial court erred by not allowing him to question each of these prospective jurors before they were excused. However, there is nothing in the record to indicate that any of these prospective jurors would have been rehabilitated by defendant. Their answers to questions propounded by the prosecutor were unambiguous and indicated that they could not put aside their personal views and fulfill their duty according to North Carolina law. In State v. Reese, 319 N.C. 110, 353 S.E. 2d 352 (1987), we held:\nWhen challenges for cause are supported by prospective jurors\u2019 answers to questions propounded by the prosecutor and by the court, the court does not abuse its discretion, at least in the absence of a showing that further questioning by defendant would likely have produced different answers, by refusing to allow the defendant to question the juror challenged.\nId. at 120-21, 353 S.E. 2d at 358 (quoting State v. Oliver, 302 N.C. 28, 40, 274 S.E. 2d 183, 191 (1981)). Defendant has not made a showing that further questioning would have revealed different answers. Therefore, we find no abuse of discretion in the trial court\u2019s decision to deny further inquiry.\nDefendant next contends that the trial court abused its discretion by denying his challenges for cause of three prospective jurors. When the court denied defendant\u2019s challenges for cause of Ms. Moell and Mr. McLean, defendant used peremptory challenges to remove them. Defendant contends that he had exhausted his fourteen peremptory challenges when the trial court refused to excuse Ms. Jones, and that he improperly was precluded from challenging her.\nThe record reveals, however, that defendant only used thirteen of his fourteen peremptory challenges during jury voir dire, leaving one remaining peremptory challenge which he could have used to strike Ms. Jones. N.C.G.S. \u00a7 15A-1214(h) and (i) state:\n(h) In order for a defendant to seek reversal of the case on appeal on the ground that the judge refused to allow a challenge made for cause, he must have:\n(1) Exhausted the peremptory challenges available to him;\n(2) Renewed his challenge as provided in subsection (i) of this section; and\n(3) Had his renewal motion denied as to the juror in question.\n(i) A party who has exhausted his peremptory challenges may move orally or in writing to renew a challenge for cause previously denied if the party either:\n(1) Had peremptorily challenged the juror; or\n(2) States in the motion that he would have challenged that juror peremptorily had his challenges not been exhausted.\nN.C.G.S. \u00a7 15A-1214(h), (i) (1988). In State v. Saunders, 317 N.C. 602, 346 S.E. 2d 451 (1986), we held that \u201c[t]he statutory method for preserving a defendant\u2019s right to seek appellate relief when a trial court refuses to allow a challenge for cause is mandatory and is the only method by which such rulings may be preserved for appellate review.\u201d Id. at 608, 346 S.E. 2d at 456; see also State v. Quesinberry, 319 N.C. 228, 235, 354 S.E. 2d 446, 450 (1987) (\u201c[b]ecause [defendant] did not exhaust his peremptory challenges as provided by N.C.G.S. \u00a7 15A-1214(h), no prejudice has been shown as to the juror who remained on the panel\u201d). Because defendant did not exhaust his peremptory challenges, he did not comply with the statute. Therefore, he has not preserved his right to appeal on this issue.\nDefendant next contends that the trial court erred by failing to intervene ex mero mo tu in portions of the prosecutor\u2019s closing argument. The arguments of counsel are left largely to the control and discretion of the trial judge. State v. Gladden, 315 N.C. 398, 422, 340 S.E. 2d 673, 688, cert. denied, 479 U.S. 871, 93 L.Ed. 2d 166 (1986). Counsel will be granted wide latitude in the argument of fiercely contested cases. Id. Counsel may argue the law, the facts in evidence, and all reasonable inferences to be drawn from them. Id. Counsel may not refer to facts not in evidence or argue his or her own knowledge, beliefs and personal opinions not supported by the evidence. Id. Because defendant did not object to the portions of the argument to which he now assigns error, \u201creview is limited to an examination of whether the argument was so grossly improper that the trial [court] abused [its] discretion in failing to intervene ex mero motu. \u201d Id. at 417, 340 S.E. 2d at 685.\nFirst, defendant argues that the prosecutor improperly told the jury that he \u201crepresented\u201d the victim by saying, \u201cBeing a prosecutor is not always a pleasant task, for I speak, Mr. Hob-good speaks for two dead ladies who can not speak.\u201d Defendant claims that this statement violates the holding in Booth v. Maryland, 482 U.S. 496, 96 L.Ed. 2d 440 (1987). There, the United States Supreme Court held that a sentencing jury must make its recommendation based on the character of the defendant and the circumstances of the crime and not on the personal characteristics of the victim. Id. at 502-505, 96 L.Ed. 2d at 448-49. The Supreme Court held that the use of a victim impact statement at the sentencing phase of a capital trial violated the Eighth Amendment. Id. at 509, 96 L.Ed. 2d at 452. Here, unlike in Booth, the district attorney did not mention any of the personal characteristics of the victims, nor did he discuss the impact of their deaths on their families. Rather, he reminded the jury that he was an advocate for the two victims. We do not find this argument so grossly improper that the court abused its discretion in failing to intervene ex mero motu.\nSecond, defendant claims that the prosecutor argued facts not in evidence when he said about Ms. Stallings, \u201cShe\u2019s been stabbed. She\u2019s been stripped. . . . Obviously from this evidence she has been abused. She stands naked begging for her life and he needs a rifle to frighten her.\u201d We conclude that there is evidence to support the prosecutor\u2019s statements. There was evidence indicating that defendant had removed part of Ms. Stallings\u2019 clothes before he shot her. Ms. McNeil testified that defendant took off Ms. Stallings\u2019 clothes after he had strangled her and that the strangling took place before Ms. McNeil went to get the rifle. The clothes, found in a pile on the floor, had very little blood on them, although there was much blood on the floor and the walls around the body. The autopsy revealed that the victim had been stabbed and otherwise abused. Dr. LeGrand testified that several of the wounds, including the stab wound, the abdominal wound, and the wounds around the left eye, were inflicted before the victim died. Moreover, Ms. McNeil testified that when defendant started choking Ms. Stallings, she said, \u201cPlease, y\u2019all, don\u2019t hurt me.\u201d It is a reasonable inference from the evidence that, before defendant killed Ms. Stallings, he removed her clothes and she begged for her life. This argument was not so grossly improper as to require ex mero motu intervention by the trial court.\nThird, defendant claims that the prosecutor improperly argued what the victim must have thought as she died. The prosecutor said:\nI\u2019m sure she could speak to you quite vividly if she was here to tell you what is fair and what is unfair. I\u2019m sure she said to Leroy McNeil in her own mind, I\u2019m eighteen years old and I don\u2019t want to die. I\u2019m going to die and that\u2019s just not fair. No doubt she must have thought she\u2019d never see her mother and her sister and her friends again, and [that] just wasn\u2019t fair. No doubt she thought to herself that the last person that she would see on this earth is the man who would murder her, and that\u2019s certainly not fair.\nIn State v. King, 299 N.C. 707, 264 S.E. 2d 40 (1980), we held that the prosecutor\u2019s comments concerning the thoughts of the victim before he died that he never would see his family again were not so improper as to require the trial court to intervene ex mero motu. Id. at 711-13, 264 S.E. 2d at 43-44. Likewise, the prosecutor\u2019s argument here was not so grossly improper as to require the court to intervene. It was based on facts in evidence and on reasonable inferences from those facts.\nWe conclude that the guilt phase of defendant\u2019s trial was fair and free of prejudicial error.\nSentencing Phase\nDefendant first contends that the trial court erred in failing to submit as a nonstatutory mitigating circumstance that he was remorseful. When defense counsel requested this circumstance, the court asked what evidence showed remorse. Defense counsel responded that \u201cthe evidence of the confession shortly after the murders took place is evidence of the remorsefulness of the defendant.\u201d The court then refused to submit defendant\u2019s remorse as a mitigating circumstance.\nA trial court has no duty to instruct on a mitigating circumstance unless the record discloses evidence from which the jury reasonably could infer that the circumstance exists. State v. Wilson, 322 N.C. 117, 143, 367 S.E. 2d 589, 604 (1988). We have examined defendant\u2019s confession and find no expression of remorse. Therefore, we hold that the trial court did not err in failing to submit remorse as a mitigating circumstance.\nDefendant argues, however, that his statement to the jury in the form of an allocution supports an instruction on this mitigating circumstance. After the court refused to submit defendant\u2019s remorse as a mitigating circumstance, and prior to the special prosecutor\u2019s closing argument to the jury, the court allowed defendant to address the jury. Defendant stated:\nI won\u2019t take up too much of your time because I realize there\u2019s nothing that I can say or anyone here in this courtroom can say that would bring back the lives of those two girls, even my saying that I\u2019m sorry is not going to bring them back. This thirteen or fourteen months that I have been locked up or incarcerated has really brought a lot back to me. It made me realize that there\u2019s a lot that I have done, minor things and major things, that if I had to do them again now today I know that I would not do and I deeply say inside that I am sorry for what I have done and I wish there was some way that you all could take it under consideration and spare my life and give me a chance.\nBefore the court charged the jury, defendant did not renew his request that the court submit remorse as a mitigating circumstance. After the court charged the jury, the court asked whether defendant had requests for additional instructions. Defense counsel responded that he did not.\nThe trial court did not err in refusing to submit remorse as a mitigating circumstance based on defendant\u2019s statement that he was sorry for committing the crimes. Defendant\u2019s statement to the jury was made in allocution. He was not under oath, nor was he subject to cross-examination. Absent such, his statement was not evidence. Therefore, the court had no duty to instruct on remorse. See id.\nDefendant next contends that the trial court erred by failing to intervene ex mero motu in portions of the prosecutor\u2019s closing argument. Because defendant did not object to the portions of the argument to which he now assigns error, \u201creview is limited to an examination of whether the argument was so grossly improper that the trial [court] abused [its] discretion in failing to intervene ex mero motu. \u201d State v. Gladden, 315 N.C. 398, 417, 340 S.E. 2d 673, 685, cert. denied, 479 U.S. 871, 93 L.Ed. 2d 166 (1986).\nDefendant first argues that the prosecutor made assertions which were not supported by the evidence. The prosecutor commented on defendant\u2019s allocution as follows:\nHe has the right of eloquention [sic] and he just expressed that right. He spoke with you about that request. He also had that right in 1977, and I wonder what he told the Judge when he pled guilty to killing his wife before he was sentenced.\nDo you believe him? Do you really think he\u2019s sorry?\nThe prosecutor then said that the only appropriate sentence for defendant was death, and asked, \u201cIf you tell me we have not yet reached that point, then please tell me how many bodies it takes. Is there some magic number? Is three not enough?\u201d Finally, the prosecutor called the women on the jury by name, then asked them collectively how they would have felt\nif he had said to you as you stood naked before him and you begged for your life with all the fiber in your being, if he had said to you: Today you will die I have decided, not God, not nature, I have decided. I have decided the place where you will die. I have decided the time of your death. I have decided the manner of your death. Can you conceivably close your eyes and think how you would have felt? You can\u2019t, you can\u2019t, you really can\u2019t. There\u2019s no way that you can appreciate the horror of that or the terror of that, nor can I, and I certainly hope that you never will have to, nor will I.\nWe conclude that the prosecutor\u2019s argument was not so grossly improper that the court abused its discretion in failing to intervene ex mero motu. It was not improper for the prosecutor to comment on defendant\u2019s prior conviction of involuntary manslaughter, because that conviction was in evidence. Further, the prosecutor\u2019s question, \u201cIs three not enough?\u201d did not require ex mero motu intervention by the court. See State v. Holden, 321 N.C. 125, 156, 362 S.E. 2d 513, 532 (1987), cert. denied, --- U.S. ---, 100 L.Ed. 2d 935 (1988) (prosecutor\u2019s question \u201cHow many more women are we going to have to see this man rape before we say enough is enough?\u201d not so grossly improper as to require ex mero motu intervention). Finally, the prosecutor\u2019s address to the women on the jury was not so grossly improper as to require ex mero motu intervention. We held in Holden that the trial court properly sustained the State\u2019s objection to a part of the defense counsel\u2019s jury argument asking each juror individually to save the defendant\u2019s life. Id. at 163, 362 S.E. 2d at 537. However, here the prosecutor did not make a personal plea to each female juror; rather, he called them by name, then spoke to them collectively.\nSecond, defendant argues that the prosecutor improperly appealed to community sentiment in suggesting that only a death sentence would prevent this type of crime. The prosecutor said:\nYou are the moral conscience of this community. . . .\n. . . Today I\u2019m asking you to be a part of enforcement of our law. Police officers can\u2019t do it by themselves. . . .\n. . . Your verdict as the jury in this case is a message to your community, to your state and to your world. The question is: What will your message be? The eyes of your community are upon you. There\u2019s no getting around it. I suggest to you that you do all have the ability to stand confidently before this Court and be satisfied to a moral certainty beyond a reasonable doubt with respect to the law and the evidence that the just and proper verdict in this case, in these two cases is that the defendant be sentenced to death. I suggest to you that under the law and under the facts there\u2019s no other reasonable alternative.\nI tell you again the eyes of your community are upon you. What message will you speak from your verdict? Only you can tell me that.\nWe have upheld arguments by prosecutors suggesting to juries that they are the \u201cvoice and conscience of the community\u201d and that they have an obligation to do something about serious crime. State v. Brown, 320 N.C. 179, 203-04, 358 S.E. 2d 1, 18, cert. denied, --- U.S. ---, 98 L.Ed. 2d 406 (1987); State v. Miller, 315 N.C. 773, 780-81, 340 S.E. 2d 290, 294-95 (1986). Defendant argues, however, that State v. Scott, 314 N.C. 309, 333 S.E. 2d 296 (1985), controls this issue. In Scott, the defendant was charged with driving under the influence and two other counts, all arising out of a fatal traffic accident. The prosecutor argued that \u201cthere\u2019s a lot of public sentiment at this point against driving and drinking, causing accidents on the highway.\u201d We held that this argument was improper because it went outside the record and appealed to the jury to convict the defendant because impaired drivers had caused other accidents. Id. at 312, 333 S.E. 2d at 298. The State was improperly \u201casking the jury to lend an ear to the community rather than a voice.\u201d Id. (quoting Prado v. State, 626 S.W. 2d 775, 776 (Tex. Crim. 1982)).\nIn the case now before us, the prosecutor asked the jury what message it would send to the community, not to \u201clend an ear to the community.\u201d Moreover, the prosecutor did not go outside the record and appeal to the jury to convict defendant because other murderers had killed other victims, nor did he encourage the jury to base its determination on public sentiment. See State v. Robbins, 319 N.C. 465, 524, 356 S.E. 2d 279, 313, cert. denied, --- U.S. ---, 98 L.Ed. 2d 226 (1987). Rather, he reminded the jurors that they must decide the case on the evidence and the law. Therefore, his argument did not require ex mero motu intervention by the court.\nThird, defendant claims that the following argument by the prosecutor was grossly improper because it asked the jurors to set a standard for their community regarding the imposition of the death penalty:\nI think you can say from this evidence that we have reached a point with Leroy McNeil which the only sentence appropriate under the law is death. If you tell me we have not yet reached that point, then please tell me how many bodies it takes. Is there some magic number? Is three not enough? If you tell me you don\u2019t agree, then you tell me what greater violation of the human being and acts of degradation on a victim you would require beyond that which Faye Stallings suffered. I suggest to you that your mind may not allow you to find much greater degradation, much greater violation of the spirit, much greater destruction of human dignity prior to death.\nThe prosecutor stated further:\nDr. Rose testified that he has appeared before, testified in cases, names like Barfield, Hutchins, Kirkley, McDougall, names [that will] forever remain in infamy in North Carolina, names that are synonymous with death. Leroy McNeil has joined that group of people.\nDefendant argues that asking the jury to consider other cases in which death sentences have been imposed violates defendant\u2019s right to individualized sentencing in a capital case. Finally, defendant argues that the prosecutor tried to absolve the jurors of their responsibility for putting someone to death by telling them that if they returned a recommendation of the death sentence, defendant, not the jury, would be responsible for his execution. These arguments were not so grossly improper as to require the trial court to intervene ex mero motu.\nDefendant next contends that the trial court erred in instructing the jury as follows:\n[T]he first aggravating circumstance, if it applies at all, would under the evidence in this case apply in both cases. It reads as follows:\n[H]as [defendant] been previously convicted of a felony involving the use of violence to the person? Now voluntary manslaughter is by definition a felony involving the use of violence to the person. . . .\nThe court also instructed the jurors that if they did not find the existence of this aggravating circumstance, then they should answer the circumstance \u201cno\u201d for both murders.\nDefendant argues that the court\u2019s instruction was an improper expression of opinion and that the jury would have understood the instruction to mean that the State had established this aggravating circumstance. He argues that the instruction set up an irrebuttable presumption, lessening the State\u2019s burden of proving this circumstance beyond a reasonable doubt.\nBecause defendant did not object to this instruction at trial, he must show that the court committed plain error in giving the instruction. State v. Zuniga, 320 N.C. 233, 263, 357 S.E. 2d 898, 917, cert. denied, --- U.S. ---, 98 L.Ed. 2d 384 (1987). The test is whether the alleged error had a probable impact on the verdict. Id.\nIn State v. McDougall, 308 N.C. 1, 301 S.E. 2d 308, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 173 (1983), we held that where a prior crime committed by the defendant has the use or threat of violence as an element, introduction of the record of the prior conviction can support a peremptory instruction on this aggravating circumstance. Id. at 22, 301 S.E. 2d at 321. Here, the State introduced the record of defendant\u2019s prior conviction of the voluntary manslaughter of his former wife, Cynthia Latham McNeil. Defendant did not offer evidence that the killing of his former wife did not involve the use of violence to the person. Voluntary manslaughter is the unlawful killing of another without malice and without premeditation and deliberation. State v. Barts, 316 N.C. 666, 692, 343 S.E. 2d 828, 845 (1986). \u201cGenerally, voluntary manslaughter occurs when one kills intentionally but does so in the heat of passion suddenly aroused by adequate provocation or in the exercise of self-defense where excessive force is utilized or the defendant is the aggressor.\u201d Id. Voluntary manslaughter usually \u2014 probably always \u2014 involves violence to the person within the meaning and intent of N.C.G.S. \u00a7 15A-2000(e)(3). In light of this, and of defendant\u2019s failure to offer evidence that the killing of his former wife did not involve violence to the person, we cannot conclude that the court\u2019s instruction that voluntary manslaughter is a crime involving the use of violence to the person amounted to plain error.\nDefendant also argues that the trial court erred by instructing the jury on this aggravating circumstance that \u201cthe first aggravating circumstance, if it applies at all, would under the evidence in this case apply in both cases.\u201d Defendant claims that this language prohibited the jury from considering this aggravating circumstance separately as to each murder, citing State v. Parrish, 275 N.C. 69, 165 S.E. 2d 230 (1969). In Parrish we held that the trial court must instruct the jury to give separate consideration to cases of two codefendants being tried jointly for the same crime. This case, however, involves one defendant on trial for two murders. The evidence supporting the aggravating circumstance that defendant had been convicted previously of a felony involving the use of violence to the person was identical in both cases. We find no plain error.\nDefendant next contends that the trial court erred by submitting the aggravating circumstance that the murder of Ms. Stallings was especially heinous, atrocious, or cruel. N.C.G.S. \u00a7 15A-2000(e)(9) (1988). This aggravating circumstance exists where \u201cthe level of brutality involved exceeds that normally present in first-degree murder, or when the first-degree murder in question was conscienceless, pitiless, or unnecessarily torturous to the victim.\u201d State v. Brown, 315 N.C. 40, 65, 337 S.E. 2d 808, 826-27 (1985), cert. denied, 476 U.S. 1165, 90 L.Ed. 2d 733 (1986), overruled on other grounds, State v. Vandiver, 321 N.C. 570, 364 S.E. 2d 373 (1988) (citations omitted). \u201c[T]his factor is [also] appropriate when the killing demonstrates an unusual depravity of mind on the part of the defendant beyond that normally present in first-degree murder.\u201d Id. at 65, 337 S.E. 2d at 827.\nMs. McNeil testified that defendant grabbed Ms. Stallings around the neck, pulled out a knife, and forced her into the bedroom. He demanded her food stamps, then choked her until she lost consciousness. Finally, he told Ms. McNeil to get his rifle from next door, and when she did, he shot Ms. Stallings. The evidence tends to show that defendant not only choked and shot the victim, but that he beat her, stabbed her, and hit her in the face with a wooden frame which had nails sticking out of it. There was also evidence tending to show that defendant pushed feces into her vagina. This evidence is sufficient to show that the murder was excessively brutal and unnecessarily torturous to the victim. The trial court, therefore, did not err in submitting as an aggravating circumstance that the murder was especially heinous, atrocious, or cruel.\nDefendant next contends that the trial court erred by submitting as an aggravating circumstance that each murder was committed while defendant was engaged in the commission of a robbery. N.C.G.S. \u00a7 15A-2000(e)(5) (1988). Where the jury convicts a defendant of first degree murder based solely on the felony murder rule, it is improper for the court to submit the underlying felony as one of the aggravating circumstances defined by N.C.G.S. \u00a7 15A-2000(e)(5). State v. Silhan, 302 N.C. 223, 262, 275 S.E. 2d 450, 478 (1981). However, when a defendant is convicted of first degree murder based on both premeditation and deliberation and the felony murder rule, and both theories are supported by the evidence, the underlying felony may be submitted as an aggravating circumstance. Id.\nDefendant argues that there was insufficient evidence of premeditation and deliberation to warrant submission of first degree murder on that theory to the jury. We have held that the evidence was sufficient to support the elements of premeditation and deliberation in the murder of Deborah Fore. We also hold that the evidence is sufficient to support the elements of premeditation and deliberation in the murder of Elizabeth Stallings. Because defendant was convicted of both first degree murders on a premeditation and deliberation theory, as well as on a felony murder theory, the court did not err in submitting, for each murder, the aggravating circumstance that the murder was committed while defendant was engaged in the commission of a robbery.\nDefendant raises the following \u201cpreservation\u201d issues:\n(1) He contends that the trial court erroneously excluded prospective jurors for cause because of their feelings about capital punishment. Both the United States Supreme Court and this Court have held that \u201cdeath qualification\u201d of a jury is not unconstitutional. Lockhart v. McCree, 476 U.S. 162, 90 L.Ed. 2d 137 (1986); State v. Evangelista, 319 N.C. 152, 166, 353 S.E. 2d 375, 385 (1987).\n(2) He contends that the trial court erred in instructing the jury that a rifle and a pistol are deadly weapons as a matter of law. This was not error. State v. Torain, 316 N.C. 111, 120, 340 S.E. 2d 465, 470, cert. denied, 479 U.S. 836, 93 L.Ed. 2d 77 (1986).\n(3) He contends that N.C.G.S. \u00a7 15A-2000(e)(9), which allows the jury to find as an aggravating circumstance that the murder was \u201cespecially heinous, atrocious, or cruel,\u201d has been applied unconstitutionally. This argument is without merit. State v. Fullwood, 323 N.C. 371, 399-400, 373 S.E. 2d 518, 535 (1988).\n(4) He contends that N.C.G.S. \u00a7 15A-2000 is unconstitutionally vague and overbroad, both facially and as applied. This argument is without merit. State v. Brown, 315 N.C. 40, 60-61, 337 S.E. 2d 808, 823-24 (1985), cert. denied, 476 U.S. 1165, 90 L.Ed. 2d 733 (1986), overruled on other grounds, State v. Vandiver, 321 N.C. 570, 364 S.E. 2d 373 (1988).\n(5) He contends that the trial court erred in instructing the jury that it had a duty to return a recommendation of death if it found that the mitigating circumstances were insufficient to outweigh the aggravating circumstances and that the aggravating circumstances were sufficiently substantial to call for the imposition of the death penalty. This argument is without merit. State v. Robbins, 319 N.C. 465, 515, 356 S.E. 2d 279, 308-09, cert. denied, --- U.S. ---,98 L.Ed. 2d 226 (1987).\n(6) He contends that the trial court erred in failing to instruct the jury that the State had the burden of proving the nonexistence of each mitigating circumstance beyond a reasonable doubt and in placing the burden on defendant to prove each mitigating circumstance by a preponderance of the evidence. This argument is without merit. State v. Gladden, 315 N.C. 398, 439, 340 S.E. 2d 673, 698, cert. denied, 479 U.S. 481, 93 L.Ed. 2d 166 (1986).\n(7) Finally, he contends that the trial court erred in instructing the jurors that they must be unanimous before they could find the existence of a mitigating circumstance. Defendant bases this argument on Mills v. Maryland, 486 U.S. ---, 100 L.Ed. 2d 384 (1988). For the reasons expressed in State v. McKoy, 323 N.C. 1, 372 S.E. 2d 12 (1988), we reject this argument.\nWe conclude that the sentencing phase of defendant\u2019s trial was fair and free of prejudicial error.\nProportionality Review\nBecause we have found no error in the guilt and sentencing phases, we are required to review the record and determine: (1) whether the record supports the jury\u2019s findings of the aggravating circumstances upon which the sentencing court based its sentences of death; (2) whether the sentences were imposed under the influence of passion, prejudice, or any other arbitrary factor; and (3) whether the sentences of death are excessive or disproportionate to the penalty imposed in similar cases, considering both the crimes and the defendant. N.C.G.S. \u00a7 15A-2000(d)(2) (1988); State v. Robbins, 319 N.C. 465, 526, 356 S.E. 2d 279, 315 (1987), cert. denied, --- U.S. ---, 98 L.Ed. 2d 226 (1988).\nThe jury found three aggravating circumstances in the murder of Elizabeth Stallings: (1) defendant had been convicted previously of a felony involving the use of violence to the person, (2) the murder took place during the commission of robbery with a firearm, and (3) the murder was especially heinous, atrocious, or cruel. N.C.G.S. \u00a7 15A-2000(e)(3), (5), (9) (1988). The jury found two aggravating circumstances in the murder of Deborah Fore: (1) defendant had been convicted previously of a felony involving the use of violence to the person, and (2) the murder took place during the commission of robbery with a firearm. N.C.G.S. \u00a7 15A-2000(e)(3), (5) (1988). The record fully supports the jury\u2019s findings of these aggravating circumstances.\nWe find nothing in the record which suggests that the sentences of death were imposed under the influence of passion, prejudice, or any other arbitrary factor. We thus turn to our final statutory duty of proportionality review.\nIn conducting proportionality review, we \u201cdetermine whether the death sentence in this case is excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant.\u201d State v. Brown, 315 N.C. 40, 70, 337 S.E. 2d 808, 829 (1985), cert. denied, 476 U.S. 1165, 90 L.Ed. 2d 733 (1986), overruled on other grounds, State v. Vandiver, 321 N.C. 570, 364 S.E. 2d 373 (1988). We use the \u201cpool\u201d of similar cases announced in State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 177, reh\u2019g denied, 464 U.S. 1004, 78 L.Ed. 2d 704 (1983). Id. However, \u201c[w]e do not find it necessary to extrapolate or analyze in our opinions all, or any particular number, of the cases in our proportionality pool.\u201d State v. Robbins, 319 N.C. at 529, 356 S.E. 2d at 316 (emphasis in original).\nThis Court has found the death sentence disproportionate in seven cases. State v. Benson, 323 N.C. 318, 372 S.E. 2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E. 2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E. 2d 713 (1986), overruled on other grounds, State v. Vandiver, 321 N.C. 570, 364 S.E. 2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E. 2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E. 2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E. 2d 170 (1983); and State v. Jackson, 309 N.C. 26, 305 S.E. 2d 703 (1983). In none of these cases was the defendant convicted of more than one murder.\nIn the case now before us, defendant was convicted of two first degree murders. We stated in Robbins, that \u201c[a] heavy factor against Robbins is that he is a multiple killer.\u201d Robbins, 319 N.C. at 529, 356 S.E. 2d at 316. We have affirmed the death penalty in numerous cases in which the defendant killed or seriously injured more than one person. See, e.g., State v. Noland, 312 N.C. 1, 25, 320 S.E. 2d 642, 656 (1984), cert. denied, 469 U.S. 1230, 84 L.Ed. 2d 369, reh\u2019g denied, 471 U.S. 1050, 85 L.Ed. 2d 342 (1985) (citing other cases).\nDefendant argues that State v. King, 316 N.C. 78, 340 S.E. 2d 71 (1986); State v. Whisenant, 308 N.C. 791, 303 S.E. 2d 784 (1983); and State v. Crews & Turpin, 296 N.C. 607, 252 S.E. 2d 745 (1979), where juries returned life sentences, are the cases in the pool most comparable to this case. We disagree.\nThe murders in King, Whisenant, and Crews & Turpin, although cruel and senseless, did not rise to the same level of brutality as the murders here. In King, the defendant shot into a house where his former girlfriend was hiding from him, killing her mother and sister. King, 316 N.C. at 79, 340 S.E. 2d at 72. The jury convicted the defendant on a felony murder theory rather than on a premeditation and deliberation theory. See id. at 80, 340 S.E. 2d at 72-73. In Whisenant, the defendant was convicted of killing an elderly man and his housekeeper. Whisenant, 308 N.C. at 792, 303 S.E. 2d at 785. However, that jury convicted the defendant of only one count of first degree murder; the other conviction was for second degree murder. See id. at 792, 303 S.E. 2d at 784. In Crews & Turpin, the defendants lured two men to their campsite on the pretense that someone had car trouble. Defendant Crews shot one of the men and took his wallet. When the other man tried to run away, defendant Turpin shot him. Crews & Turpin, 296 N.C. at 610, 252 S.E. 2d at 748. Although Crews & Turpin is somewhat similar to the present case, there are two important distinctions: first, although each defendant was convicted of two counts of first degree murder, each defendant actually shot only one man; second, there was no physical torture involved in either murder, as there was in the murder of Elizabeth Stallings here. See id.\nThe facts of this case are more similar to the facts in Robbins. There, the jury convicted the defendant of two counts of first degree murder and returned a recommendation of the death sentence for each murder. Although we remanded one of the murder counts to the trial court for a new sentencing hearing, we examined the other murder and determined the death penalty not to be disproportionate. Robbins, 319 N.C. at 530, 356 S.E. 2d at 316. Robbins killed his two victims in three days. Id. at 528, 356 S.E. 2d at 317. He took them both to isolated areas, then shot them. Id. at 528, 356 S.E. 2d at 316. The same aggravating circumstances found by the jury in Robbins \u2014 that the defendant previously had been convicted of a felony involving the use or threat of violence to the person, and that the murder was committed while the defendant was engaged in the commission of robbery with a firearm, id. at 526, 356 S.E. 2d at 315\u2014were found by the jury as to both murders here, and here the jury also found as an aggravating circumstance in the murder of Elizabeth Stallings that the murder was especially heinous, atrocious, or cruel. We concluded in Robbins that under the circumstances the death sentence was not disproportionate or excessive, considering both the crime and the defendant. Id. at 529, 356 S.E. 2d at 317.\nThis case, like Robbins, involves two premeditated and deliberated first degree murders. The evidence shows that defendant killed Elizabeth Stallings to get money after spending his money on alcohol. He persuaded her to get in his car, planned to rob her, and drove her to an isolated area. He then robbed and brutally murdered her. After the murder, defendant continued to reside next door to the building where her body lay. Two days later, after another drinking spree, he planned to rob Deborah Fore. He called her and invited her to go out with him. After she got into his car, he drove to an isolated area and shot her. He then stole several things from her apartment.\nFurther, the jury found that defendant had been convicted previously of a felony involving the use of violence to the person \u2014the voluntary manslaughter of his wife. The evidence at trial showed, therefore, that defendant had killed three people.\nUnder these circumstances, considering both the crimes and the defendant, we cannot say that the death penalty recommendations here were excessive or disproportionate to the penalty imposed in similar cases.\nWe hold that the defendant received a fair trial and sentencing hearing, free of prejudicial error. In comparing this case to similar cases in which the death penalty was imposed, and in considering both the crimes and the defendant, we cannot hold as a matter of law that the death sentences were disproportionate or excessive. State v. Robbins, 319 N.C. at 529, 356 S.E. 2d at 317.\nNo error.\n. In this appeal, both parties have referred to Ms. McNeil as defendant\u2019s wife. However, upon hearing a motion in limine, the trial court found that defendant\u2019s marriage to Linda Faye Harrington had not been legally dissolved when defendant purported to marry Penny Faye Pharr (McNeil) in Dillon, South Carolina in December 1982. The court concluded that defendant was not legally married to Ms. McNeil.", "type": "majority", "author": "WHICHARD, Justice." }, { "text": "Chief Justice Exum\nconcurring.\nI concur with the majority\u2019s treatment of all issues in the guilt and sentencing phases of this trial.\nIf in the sentencing phase the Court were addressing for the first time the mitigating circumstance unanimity instruction issue, I would agree with defendant\u2019s position that these instructions violate the Eighth Amendment to the federal constitution as that amendment was interpreted in Mills v. Maryland, 486 U.S. ---, 100 L.Ed. 2d 384 (1988), for the reasons stated in my dissenting opinions in State v. McKoy, 323 N.C. 1, 372 S.E. 2d 12 (1988), and State v. Allen, 323 N.C. 208, 372 S.E. 2d 855 (1988). The majority\u2019s position on this issue is, as a result of the Court\u2019s decisions in McKoy and Allen, the law of this state to which I am now bound. For this reason I concur with the majority\u2019s treatment of this issue.", "type": "concurrence", "author": "Chief Justice Exum" }, { "text": "Justice Frye\ndissenting as to sentence.\nFor the reasons expressed in the Chief Justice\u2019s dissenting opinions in State v. McKoy, 323 N.C. 1, 372 S.E. 2d 12 (1988), and in State v. Allen, 323 N.C. 208, 372 S.E. 2d 855 (1988), I believe the United States Supreme Court\u2019s decision in Mills v. Maryland, 486 U.S. ---, 100 L.Ed. 2d 384 (1988), requires that defendant be given a new sentencing hearing. Accordingly, I dissent from that portion of the Court\u2019s opinion which rejects defendant\u2019s argument based upon the holding of Mills. I concur in the result reached by the majority on the guilt phase issues.", "type": "dissent", "author": "Justice Frye" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Ellen B. Scouten, Assistant Attorney General, for the State (original brief and argument); Lacy H. Thornburg, Attorney General, James J. Coman, Senior Deputy Attorney General, William N. Farrell, Jr., Special Deputy Attorney General, Joan H. Byers, Special Deputy Attorney General, Barry S. McNeill, Assistant Attorney General, and Ellen B. Scouten, Assistant Attorney General, for the State (supplemental brief and argument).", "Malcolm Ray Hunter, Jr., Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, for defendant-appel lant (original brief and argument); Malcolm Ray Hunter, Jr., Appellate Defender, Louis D. Bilionis, Assistant Appellate Defender, and Gordon Widenhouse, Assistant Appellate Defender, for defendant-appellant (supplemental brief and argument).", "E. Ann Christian and Robert E. Zaytoun for North Carolina Academy of Trial Lawyers, amicus curiae.", "John A. Dusenbury, Jr. for North Carolina Association of Black Lawyers, amicus curiae." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LEROY McNEIL\nNo. 37A87\n(Filed 9 February 1989)\n1. Criminal Law \u00a7 92.4\u2014 murder \u2014 two charges against same defendant \u2014 joinder proper\nThe trial court did not err by allowing two murder charges to be joined for trial where there was sufficient evidence of a transactional connection to support joinder of the offenses in that defendant\u2019s need for money was a common thread which motivated him to begin his search for victims and led to the eventual robberies and murders of both victims. N.C.G.S. \u00a7 15A-926(a).\n2. Homicide \u00a7 18.1\u2014 premeditation and deliberation \u2014 evidence sufficient\nThere was sufficient evidence of premeditation and deliberation to deny defendant\u2019s motion to dismiss a charge of first degree murder where the State\u2019s evidence tended to show that defendant needed money to pay rent and other bills; decided that his victim might have some money; called her and persuaded her to go out with him and Ms. McNeil; went to her house and picked her up; had a pistol under the seat which he put in his belt before he got out of the car; shot his victim in the head when she got out of the car; took her keys and money; and left her body by the side of the road.\n3. Jury \u00a7 6.3\u2014 understanding of parole \u2014 defendant not allowed to question potential jurors \u2014 no error\nThere was no error in a prosecution for two first degree murders in denying defendant\u2019s request to question potential jurors as to their understanding of the length of time a person would serve if sentenced to life imprisonment for first degree murder because parole procedures are irrelevant to a sentencing determination.\n4. Jury \u00a7 7.11\u2014 murder \u2014 jurors excused for cause \u2014 no opportunity for rehabilitation\nThere was no error in a prosecution for two first degree murders in excusing three prospective jurors for cause due to their feelings about the death penalty without inquiry as to their ability to follow the law and without giving defendant the opportunity to question those prospective jurors where it was evident that those jurors\u2019 views on capital punishment would impair their ability to perform their duties as jurors and nothing in the record indicated that any of the prospective jurors would have been rehabilitated by defendant.\n5. Jury \u00a7 7.7\u2014 murder \u2014 denial of challenges for cause \u2014 peremptory challenges not exhausted\nDefendant did not preserve his right to appeal the denial of his challenges for cause of three prospective jurors in a murder prosecution where he used peremptory challenges to excuse two of the jurors and the record reveals he had one remaining peremptory challenge which he could have used. N.C.G.S. \u00a7 15A-1214(h) and (i).\n6. Criminal Law \u00a7 102.6\u2014 murder \u2014 prosecutor\u2019s closing argument \u2014 failure to intervene ex mero motu\nThe trial court did not err in a prosecution for two first degree murders by failing to intervene ex mero motu in the prosecutor\u2019s closing argument where the prosecutor argued that he represented the victims, but did not mention any of the personal characteristics of the victims, nor did he discuss the impact of their deaths on their families; there was a reasonable inference from the evidence that, before defendant killed one victim, he removed her clothes and she begged for her life; and the prosecutor\u2019s argument concerning what the victim must have thought as she died, which was based on facts in evidence and on reasonable inferences from those facts, was not so grossly improper as to require the court to intervene.\n7. Criminal Law \u00a7 135.9\u2014 murder \u2014nonstatutory mitigating circumstance of remorse-refusal to submit to jury \u2014 no error\nThe trial court did not err in two murder prosecutions by refusing to submit the nonstatutory mitigating circumstance of remorse based on defendant\u2019s confession shortly after the murders took place where the Supreme Court could find no expression of remorse in the statement and defendant\u2019s statement to the jury was made in allocution while he was not under oath or subject to cross-examination.\n8. Criminal Law \u00a7 102.6\u2014 murder \u2014sentencing\u2014failure to intervene ex mero motu in prosecutor\u2019s argument \u2014 no error\nThe trial court did not err in the sentencing portion of a prosecution for two first degree murders by failing to intervene ex mero motu in the prosecutor\u2019s closing argument because it was not improper for the prosecutor to refer to defendant\u2019s prior conviction for involuntary manslaughter, which was in evidence; the prosecutor\u2019s question, \u201cIs three not enough?\u201d did not require intervention; the prosecutor\u2019s address to the women of the jury did not require intervention because the prosecutor did not make a personal plea to each female juror, rather, he called them by name and then spoke to them collectively; although the prosecutor asked the jury what message it would send to the community, he did not go outside the record and appeal to the jury to convict defendant because other murderers had killed other victims, nor did he encourage the jury to base its determination on sentiment; asking the jury to consider other cases in which death sentences were imposed was not so grossly improper as to require intervention ea: mero motiv, and telling the jury that defendant, not the jury, would be responsible for his execution was also not so grossly improper as to require intervention ex mero motil.\n9.Criminal Law 8 135.8\u2014 murder \u2014 instruction on previous felony involving violence\nThere was no plain error in a prosecution for two first degree murders in the court\u2019s instruction that the aggravating factor of a previous felony conviction involving the use of violence to the person would apply to both murders, if it applied at all, and that voluntary manslaughter is a crime involving the use of violence to the person where the State introduced evidence of defendant\u2019s prior conviction for the voluntary manslaughter of his former wife and defendant did not offer evidence that the killing of his former wife did not involve violence. This case involves one defendant on trial for two murders in which the evidence supporting the aggravating circumstance was identical in both cases.\n10. Criminal Law 8 135.8\u2014 murder \u2014 especially heinous, atrocious or cruel\nThere was no error in a prosecution for two first degree murders by submitting the aggravating circumstance that the murder of one victim was especially heinous, atrocious or cruel where the evidence tended to show that the defendant not only choked and shot the victim, but that he beat her, stabbed her, hit her in the face with a wooden frame which had nails sticking out of it, and pushed feces into her vagina.\n11. Criminal Law 8 135.8\u2014 murder \u2014 aggravating circumstance \u2014 committed while defendant engaged in commission of robbery\nThere was no error in the prosecution of defendant for two first degree murders by submitting as an aggravating circumstance that each murder was committed while defendant was engaged in the commission of a robbery because defendant was convicted of both first degree murders based on premeditation and deliberation as well as on felony murder.\n12. Constitutional Law 8 80\u2014 death penalty issues \u2014 not unconstitutional\nDeath qualification of a jury is not unconstitutional; N.C.G.S. \u00a7 15A-2000 is not unconstitutionally vague and overbroad, either facially or as applied; and N.C.G.S. \u00a7 15A-2000(e)(9), the heinous, atrocious, or cruel aggravating circumstance, has not been applied unconstitutionally.\n13. Criminal Law 8 135\u2014 death penalty \u2014 sentencing issues \u2014 no error\nThere was no error in the sentencing portion of a first degree murder prosecution in instructing the jury that it had a duty to return a recommendation of death if it found that the mitigating circumstances were insufficient to outweigh the aggravating circumstances and that the aggravating circumstances were sufficiently substantial to call for the death penalty; there was no error in failing to instruct the jury that the State had the burden of proving the nonexistence of each mitigating circumstance beyond a reasonable doubt and in placing the burden on defendant to prove each mitigating circumstance by a preponderance of the evidence; and there was no error in instructing the jurors that they must be unanimous before they could find the existence of a mitigating circumstance.\n14. Weapons and Firearms \u00a7 1\u2014 murder \u2014 instruction that rifle and pistol are deadly weapons \u2014 no error\nThe trial court did not err in a murder prosecution by instructing the jury that a rifle and a pistol are deadly weapons as a matter of law.\n15. Criminal Law \u00a7 135.10\u2014 death penalty \u2014 not disproportionate\nDeath penalty recommendations were not excessive or disproportionate to the penalty in similar cases where the case involved two premeditated and deliberated first degree murders; the evidence showed that defendant killed one victim to get money after spending his money on alcohol; defendant persuaded the victim to get into his car, planned to rob her, drove her to an isolated area, then robbed and brutally murdered her; defendant continued to reside next door to the building where her body lay after the murder; he planned to rob his next victim two days later, after another drinking spree; defendant called her and invited her to go out with him; and he then drove her to an isolated area, shot her, and stole several things from her apartment. Furthermore, the jury found that defendant had previously been convicted of a felony involving the use of violence to the person.\nChief Justice Exum concurring.\nJustice Frye dissenting as to sentence.\nAPPEAL by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from judgments imposing death sentences entered by Brewer, Jr., J., at the 30 April 1984 Criminal Session of Superior Court, WAKE County. Heard in the Supreme Court 9 May 1988; additional arguments heard 22 August 1988.\nLacy H. Thornburg, Attorney General, by Ellen B. Scouten, Assistant Attorney General, for the State (original brief and argument); Lacy H. Thornburg, Attorney General, James J. Coman, Senior Deputy Attorney General, William N. Farrell, Jr., Special Deputy Attorney General, Joan H. Byers, Special Deputy Attorney General, Barry S. McNeill, Assistant Attorney General, and Ellen B. Scouten, Assistant Attorney General, for the State (supplemental brief and argument).\nMalcolm Ray Hunter, Jr., Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, for defendant-appel lant (original brief and argument); Malcolm Ray Hunter, Jr., Appellate Defender, Louis D. Bilionis, Assistant Appellate Defender, and Gordon Widenhouse, Assistant Appellate Defender, for defendant-appellant (supplemental brief and argument).\nE. Ann Christian and Robert E. Zaytoun for North Carolina Academy of Trial Lawyers, amicus curiae.\nJohn A. Dusenbury, Jr. for North Carolina Association of Black Lawyers, amicus curiae." }, "file_name": "0033-01", "first_page_order": 71, "last_page_order": 101 }