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Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "464 U.S. 908", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6423946, 6424206, 6424048, 6424123, 6423839 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/464/0908-02", "/us/464/0908-05", "/us/464/0908-03", "/us/464/0908-04", "/us/464/0908-01" ] }, { "cite": "302 S.E.2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "749" } ], "opinion_index": 0 }, { "cite": "308 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4709347 ], "year": 1983, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0446-01" ] }, { "cite": "367 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518702 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0243-01" ] }, { "cite": "302 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "160" } ], "opinion_index": 0 }, { "cite": "308 N.C. 196", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708380 ], "year": 1983, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0196-01" ] }, { "cite": "304 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "196", "parenthetical": "defendant engaged in five incidents of theft and possessed, used, and sold marijuana" } ], "opinion_index": 0 }, { "cite": "308 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705739 ], "year": 1983, "pin_cites": [ { "page": "653-54", "parenthetical": "defendant engaged in five incidents of theft and possessed, used, and sold marijuana" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0634-01" ] }, { "cite": "443 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "56-57", "parenthetical": "defendant used illegal drugs, broke into a convenience store six or seven times, and broke into a pawn shop and stole guns" } ], "opinion_index": 0 }, { "cite": "336 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535184 ], "year": 1994, "pin_cites": [ { "page": "247", "parenthetical": "defendant used illegal drugs, broke into a convenience store six or seven times, and broke into a pawn shop and stole guns" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0229-01" ] }, { "cite": "433 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "Exum, C.J., concurring in part and dissenting in part" } ], "opinion_index": 1 }, { "cite": "334 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530367 ], "year": 1993, "pin_cites": [ { "parenthetical": "Exum, C.J., concurring in part and dissenting in part" } ], "opinion_index": 1, "case_paths": [ "/nc/334/0208-01" ] }, { "cite": "492 U.S. 302", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6214810 ], "weight": 2, "year": 1989, "opinion_index": 1, "case_paths": [ "/us/492/0302-01" ] } ], "analysis": { "cardinality": 2840, "char_count": 155900, "ocr_confidence": 0.727, "pagerank": { "raw": 3.966791697534471e-07, "percentile": 0.9044953972220002 }, "sha256": "552632dd9bed5437cd255e5b1d1e404aae165bb6e78be84f78c39b6020caf186", "simhash": "1:8b6bd822260e9cfe", "word_count": 25403 }, "last_updated": "2023-07-14T21:06:06.194618+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. SHERMAN ELWOOD SKIPPER" ], "opinions": [ { "text": "MEYER, Justice.\nOn 25 August 1990, Ailene Pittman and her grandson Nelson Fipps, Jr., were shot and killed while standing in Ms. Pittman\u2019s front yard. The evidence showed that on 25 August 1990, defendant, Sherman Skipper, and Mark Smith drove to Ms. Pittman\u2019s home. They both had been drinking. Defendant had been dating Ms. Pittman and wanted to talk to her. Mr. Smith was driving defendant\u2019s truck. Defendant and Ms. Pittman talked for fifteen to twenty minutes, standing by the front door to Ms. Pittman\u2019s home. Defendant then went back to the truck, got in, and told Mr. Smith to drive away. Ms. Pittman approached the truck and told Mr. Smith not to bring defendant back to her home. When Mr. Smith began backing the truck out of the driveway, defendant reached under the seat of the truck and pulled out a semiautomatic rifle containing fragmentation bullets. He then proceeded to shoot Ms. Pittman, stopped shooting, said \u201cyou too,\u201d and then shot Nelson Fipps, who was standing in the driveway. The two men then drove away from the home and spent a week on the run. Mr. Smith finally turned himself in to the police and told them where defendant could be found.\nDefendant was found guilty of first-degree murder of both Ms. Pittman and Mr. Fipps and was sentenced to death for each murder. The jury found that defendant had previously been convicted of three assaults with a deadly weapon inflicting serious injury and that he had murdered each of his current victims during a course of conduct involving violence to the other. They also found that he was mentally and emotionally disturbed when the murders were committed and that his ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired.\nDefendant sets forth thirty-one assignments of error in a 244-page brief. Additional facts will be addressed as necessary for the disposition of these issues.\nJury Selection Issues\nDefendant begins by arguing that the trial court committed reversible error in excusing Juror Shirley Clark for cause, based on that juror\u2019s feelings about the death penalty. Defendant argues that the trial court erred by not allowing defendant to question the juror. He also argues that the trial court failed to adequately question the juror before determining that the juror should be excused for cause. Defendant argues that, because of this, he was denied his rights to a fair and impartial jury, due process of law, and freedom from cruel and unusual punishment.\nThe standard for determining whether a prospective juror may be properly excused for cause for his views on capital punishment is whether those views would \u201cprevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.\u201d State v. Syriani, 333 N.C. 350, 369, 428 S.E.2d 118, 128, cert. denied, -U.S. -, 126 L. Ed. 2d 341 (1993), reh\u2019g denied, U.S. -, 126 L. Ed. 2d 707 (1994); accord State v. Davis, 325 N.C. 607, 621-22, 386 S.E.2d 418, 425 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990).\nDefendant argues that it did not clearly appear that juror Clark was biased and that some of the juror\u2019s answers were equivocal; thus, the prosecutor\u2019s challenge for cause should have been denied. This Court has noted that a prospective juror\u2019s bias may not always be \u201c \u2018provable with unmistakable clarity [and,] [i]n such cases, reviewing courts must defer to the trial court\u2019s judgment concerning whether the prospective juror would be able to follow the law impartially.\u2019 \u201d Syriani, 333 N.C. at 370, 428 S.E.2d at 128 (quoting State v. Davis, 325 N.C. at 624, 386 S.E.2d at 426) (alteration in original).\nThe United States Supreme Court has also noted that it is sometimes difficult to establish total bias against the death penalty with \u201cunmistakable clarity.\u201d\n[M]any veniremen simply cannot be asked enough questions to reach the point where their bias has been made \u201cunmistakably clear\u201d; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where a trial judge is left with a definite impression that a prospective juror would be unable to faithfully and impartially apply the law.\nWainwright v. Witt, 469 U.S. 412, 425-26, 83 L. Ed. 2d 841, 852 (1985) (footnote omitted).\nThe transcript reveals that juror Clark stated that while she thought the death penalty may be necessary in today\u2019s society, she had personal convictions and scruples against the death penalty because she was a Christian. The prosecutor asked Ms. Clark many questions, trying to determine if the juror could impose the death penalty in some situations. The prosecutor explained in great detail the procedure that must be followed before a jury could impose the death penalty. After hearing how the law worked in regard to finding aggravating and mitigating circumstances and balancing the circumstances, the juror still stated that she was not sure whether she could impose the death penalty. The juror stated that she would try her best to be fair, but she also told the prosecutor two times that her scruples and Christian beliefs would substantially impair her ability to consider the death penalty. The prosecutor then challenged this juror for cause.\nBefore dismissing the juror for cause, the trial judge questioned her extensively. Juror Clark stated that she could impose the death penalty under some circumstances but then said that her scruples were such that she would be prevented or substantially impaired in the performance of her duty as a juror in accordance with her oath and the instruction of the Court. Here, as in Syriani, the juror seemed to give conflicting answers; nevertheless, her responses revealed that her thoughts and views on the death penalty would substantially impair her ability to follow the instructions of the court as they related to her duty as a juror. While the juror\u2019s view on whether she could consider the death penalty as required by the law was not \u201cunmistakably clear,\u201d the juror\u2019s responses to the questions were such that the trial judge could determine that the challenge for cause should be permitted. The juror could not affirmatively state that she could follow the instructions given by the court and do her duty as a juror. The trial court did not err in excusing juror Clark for cause.\nDefendant also argues that he should have been given the chance to rehabilitate this juror under State v. Brogden, 334 N.C. 39, 430 S.E.2d 905 (1993). In Brogden, this Court held that when a judge denies a defendant the opportunity to rehabilitate under the mistaken impression that defendant is not permitted to rehabilitate a juror, then the decision of the trial court is reviewable and is not considered under an abuse of discretion standard. Id. at 46, 430 S.E.2d at 909. In Brogden, we held that further questioning should have been allowed because the juror may have answered the crucial question about whether his views would substantially prevent or impair his duties as a juror differently if rehabilitation had been allowed. In Brogden, unlike here, the juror never affirmatively stated that his feelings would substantially impair his ability to do his duty and follow instructions. In this case, the prosecution explained in detail the procedure that must be followed in determining a sentence of death. After this explanation, the juror affirmatively responded three times that she would be substantially impaired in following the law because of her beliefs.\nWe have noted that while defendants can be given the opportunity to rehabilitate a juror, this is not an entitlement; judges are not required to allow a defendant to attempt to rehabilitate jurors challenged for cause. A trial court in its sound discretion may refuse a defendant\u2019s request to attempt to rehabilitate certain jurors challenged for cause by the State. See Brogden, 334 N.C. at 44, 430 S.E.2d at 908; State v. Taylor, 332 N.C. 372, 391, 420 S.E.2d 414, 425 (1992).\nWe conclude that while juror Clark\u2019s answers were not entirely unequivocal, they were sufficiently equivocal to justify her being excused for cause in the discretion of the trial judge, who heard the questions asked of, and the answers given by, the juror. In addition, we do not believe that defendant was incorrectly denied his right to rehabilitate. The sentencing process had'been fully explained to the juror and she had responded in answer to the prosecutor\u2019s question that, based on her beliefs, she would be impaired in following this procedure. The judge did not deny the right to rehabilitate based on a misunderstanding that no such right exists, and there was no indication that the questioning of the juror would have done anything but make the situation more confusing.\nIn defendant\u2019s second and fourth assignments of error, he argues that his right to a fair and impartial jury was violated because the trial court sustained the prosecutor\u2019s objections to certain questions. In his second assignment of error, defendant argues that he should have been allowed to ask questions regarding how jurors would be affected by evidence of mental impairment, age, and other mitigating circumstances. In his fourth assignment of error, defendant argues that it was error not to allow him to ask two jurors who sat on the jury if they would always sentence a person to death if he had a criminal record and had just been found guilty of first-degree murder.\nDefendant argues that under Morgan v. Illinois, - U.S. -, 119 L. Ed. 2d 492 (1992), a defendant must be able to specifically inquire of each prospective juror whether that individual juror would be predisposed not to consider relevant mitigating evidence in determining the appropriate sentence.\nThe State argues that defendant\u2019s questions were a blatant attempt to stake out jurors. The State also notes that when defendant asked the jurors questions about certain characteristics without questioning them as to what kind of verdict they would render in a situation involving those certain characteristics, the questions were allowed and defendant was able to elicit the desired information.\nFirst, we note that defendant was permitted to ask jurors if they could, in general, consider mitigating circumstances in deciding whether to vote for life imprisonment or the death penalty. Defendant was also allowed to ask jurors if they would automatically sentence a person to death and not consider life imprisonment as an option in every case where a person has been convicted of first-degree murder. It is these two particular propositions that are addressed in Morgan v. Illinois.\nA review of the voir dire illustrates that the judge sustained the prosecutor\u2019s objection to defendant\u2019s asking if a juror would \u201cconsider\u201d age, mental impairment, mental retardation, and family and employment background in reaching a decision. However, the record also reveals that defendant was allowed to ask, \u201cIf the Court instructs you that you should consider whether or not a person is suffering from a mental or emotional disturbance in deciding whether or not to give someone the death penalty, do you feel like you could follow that instruction?\u201d Additionally, defendant was permitted to inquire generally into a juror\u2019s feeling about such issues as mental illness.\nOn numerous occasions, the court indicated that it would allow the question defendant was trying to ask if it was \u201crephrased\u201d or if an \u201cappropriate predicate\u201d was set. On one occasion, the judge even told defendant, \u201c[Y]ou may ask the juror if he will accept and follow the law as given to the jury by this Court as it relates to mitigating circumstances.\u201d It is clear that the judge would allow defendant to ask if a juror could follow the law but would not allow defendant to ask a hypothetical question regarding if a juror would consider a circumstance, not known to exist at that time, in reaching a decision.\nA defendant should not be able\nto elicit in advance what the juror\u2019s decision will be under a certain state of the evidence or upon a given state of facts.... [S]uch questions tend to \u201cstake out\u201d the juror and cause him to pledge himself to a future course of action. This the law neither contemplates nor permits. The court should not permit counsel to question prospective jurors as to the kind of verdict they would render, or how they would be inclined to vote, under a given state of facts.\nState v. Vinson, 287 N.C. 326, 336, 215 S.E.2d 60, 68 (1975), sentence vacated, 428 U.S. 902, 49 L. Ed. 2d 1206 (1976). In State v. Hill, 331 N.C. 387, 417 S.E.2d 765 (1992), cert. denied, - U.S. \u2014, 122 L. Ed. 2d 684, reh\u2019g denied, - U.S. -, 123 L. Ed. 2d 503 (1993), we noted that we would not allow questions that were intended to \u201cstake out\u201d jurors. Id. at 404, 417 S.E.2d at 772 (quoting State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980)).\nIn State v. Davis, 325 N.C. 607, 386 S.E.2d 418, we held that the question, \u201cWould the fact that the defendant had no significant history of any criminal record, would that be something that you would consider important in determining whether or not to impose the death penalty?\u201d was impermissible. Id. at 621, 386 S.E.2d at 425. We noted that \u201c[n]o evidence of defendant\u2019s criminal history had been introduced\u201d during voir dire; thus, the question was \u201chypothetical and the trial court properly could view it as an impermissible attempt to indoctrinate a prospective juror regarding the existence of a mitigating circumstance.\u201d Id. In State v. Yelverton, 334 N.C. 532, 434 S.E.2d 183 (1993), the Court held that it was not error to refuse to allow defendant to ask jurors if they would find it impossible to vote for life imprisonment if torture or rape had also taken place during the murder. Id. at 541, 434 S.E.2d at 188. The Court noted that defendant was allowed to ask if jurors would automatically vote for death. The Court held that \u201c \u2018[j]urors should not be asked what kind of verdict they would render under certain named circumstances.\u2019 \u201d Id. at 542, 434 S.E.2d at 188 (quoting State v. Phillips, 300 N.C. at 682, 268 S.E.2d at 455).\nWe recognize that the Supreme Court has held that some specific areas of bias may be explored in depth. In Ham v. South Carolina, 409 U.S. 524, 35 L. Ed. 2d 46 (1973), the Court held that a defendant must be able to inquire as to any racial bias a juror may have. However, the Court noted in Ham that not all factors for prejudice should be granted such absolute constitutional protection. The question of racial bias was necessary because it derived from a protection inherent in long-standing case law and the Fourteenth Amendment. However, it was not an abuse of the trial court\u2019s discretion to refuse to allow inquiry into other areas of bias, such as bias against people with beards. The Court noted its \u201cinability to constitutionally distinguish possible prejudice against beards from a host of other similar prejudices.\u201d Id. at 528, 35 L. Ed. 2d at 51. In Mu\u2019Min v. Virginia, 500 U.S. 415, 114 L. Ed. 2d 493 (1991), the Court again noted that a trial court has significant discretion in allowing inquiry into areas that might tend to show juror bias. Id. at 427, 114 L. Ed. 2d at 507. In Mu\u2019Min, the Court noted that in order for a question to be constitutionally compelled, the inability to ask the question must render the defendant\u2019s trial fundamentally unfair. Id. at 425-26, 114 L. Ed. 2d at 506.\nWe conclude that, in permitting defendant to inquire generally into jurors\u2019 feelings about mental illness and retardation and other mitigating circumstances, he was given an adequate opportunity to discover any bias on the part of the juror. The only restriction enforced by the court was whether a juror could \u201cconsider\u201d a specific mitigating circumstance in reaching a decision. This restriction was neither fundamentally unfair nor an abuse of the trial court\u2019s discretion. In addition, defendant was allowed to ask jurors if they would automatically vote for the death penalty in a first-degree murder case and if they could consider mitigating circumstances when determining defendant\u2019s sentence. We believe this satisfies the constitutional requirements of Morgan and does not violate the concerns set forth in Ham.\nWe conclude that there was no error in sustaining the prosecutor\u2019s objections to the questions at issue, as the manner in which they were phrased was erroneous and attempted to stake out jurors.\nDefendant also argues that the trial court erred when it refused to allow defendant to ask two jurors if they would always sentence a person to death if he has a previous criminal record and has been convicted of first-degree murder. We note first that defendant was prohibited from asking this question of only one juror who sat on the case. While, initially, an objection to the question was' sustained in regard to juror Munroe, defendant rephrased the question after laying a foundation, and the question was permitted.\nDuring the questioning of juror Howell, the following colloquy took place:\nMr. Grady [Defense Counsel]: Do you feel like everyone who has a previous criminal record and who\u2019s been convicted of first-degree murder should automatically be put to death?\nMr. Hicks [Prosecuting Attorney]: Objection.\nCourt: Sustained.\nRephrase, please.\nMr. Grady: Do you feel .that a person should always be given the death penalty if he has a previous criminal record and has been convicted of first-degree murder?\nMr. Hicks: Objection.\nCourt: Sustained.\nRephrase.\nMr. Grady: Do you feel like a person \u2014 Do you feel like you would convict a person \u2014 Strike that question.\nDo you feel like you would convict a person solely because of their past lifestyle?\nJuror: No.\nDefendant now argues that the trial court committed reversible error and abused its discretion by preventing him from asking the specific question concerning a defendant with a prior criminal record. Defendant again begins his argument by stating that this is error under Morgan v. Illinois, - U.S. -, 119 L. Ed. 2d 492. Defendant argues that the question needed to be asked in order to determine if the juror would automatically vote for the death penalty and if she would consider mitigating evidence. This particular juror had already stated that she could consider mitigating circumstances in deciding whether to vote for life imprisonment or the death penalty and had also stated in response to a question that she did not feel that \u201cin every case where somebody\u2019s been convicted of first-degree murder, that [she] would automatically sentence that person to death and not consider life imprisonment as an option.\u201d This is the extent of what is required by Morgan. Thus, the trial court did not err in sustaining the State\u2019s objection to the question as phrased.\nDefendant also argues that the trial court\u2019s decision to sustain the objection to this question was arbitrary and an abuse of discretion. We conclude that the question as phrased was not proper; thus, it was not an abuse of discretion to sustain the objection to the question. As noted above, defendant was not barred from asking the question in any form, but instead was asked to \u201crephrase\u201d the question, indicating that if properly put, it would be permissible. This was further illustrated by the voir dire of juror Munroe, who was questioned immediately after juror Howell. An objection to the same question, posed to juror Munroe, was sustained, and defendant was asked to rephrase the question. Defendant then asked the juror if he would consider mitigating circumstances in reaching his decision. The juror said \u201cyes,\u201d and defendant next asked, \u201cSo even if a person\u2019s been convicted of first-degree murder and has a past criminal record, you could still consider mitigating circumstances in deciding whether to vote for life imprisonment or the death penalty; is that correct?\u201d There was no objection, and juror Munroe answered the question.\nIt seems clear that had defendant proceeded in this manner with juror Howell, he would have been allowed to ask the particular question at issue. However, the manner in which the question was asked here: \u201cDo you feel that a person should always be given the death penalty if he has a previous criminal record and has been convicted of first-degree murder?\u201d was nothing more than an attempt to determine what kind of verdict a juror would render under certain named circumstances not yet in evidence. See State v. Yelverton, 334 N.C. 532, 542, 434 S.E.2d 183, 188; State v. Hill, 331 N.C. 387, 404, 417 S.E.2d 765, 772. We conclude that there was no reversible error or abuse of discretion in not allowing defendant to ask juror Howell this one particular question in the manner attempted by defendant.\nIn his third assignment of error, defendant argues that the trial judge should have allowed him to question jurors about their views on the meaning of life imprisonment and the possibility of parole. Defendant notes that he made a motion to be allowed to question jurors concerning parole eligibility.\nDefendant concedes that the issue concerning questions and instructions on parole eligibility and the meaning of life imprisonment has repeatedly been decided against him by this Court. See State v. Green, 336 N.C. 142, 157, 443 S.E.2d 14, 23 (1994); State v. Lee, 335 N.C. 244, 268, 439 S.E.2d 547, 558 (1994); State v. Syriani, 333 N.C. 350, 399, 428 S.E.2d 118, 145; State v. Robbins, 319 N.C. 465, 521, 356 S.E.2d 279, 312, cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226 (1987). Defendant has failed to assert any convincing reason why this Court should depart from its prior decisions on the issue concerning the questioning of, or informing jurors about, the possible parole eligibility of defendant.\nDefendant next argues that the trial court led jurors who were opposed to the death penalty to say that they would be impaired in the performance of their duty and not be able to follow the law so that they could be challenged for cause, and persuaded jurors who favored the death penalty to say that they would not be impaired in the performance of their duties and could follow the law so that these jurors could not be challenged for cause. Defendant argues that this disparate treatment violated his right to an impartial and fair jury and was an abuse of discretion.\nDefendant stresses once again that juror Clark should not have been excused for cause because her answers were equivocal as to whether she could impose the death penalty. Defendant argues that the trial judge questioned juror Clark in a way that elicited answers that would allow her to be challenged for cause. Defendant argues that the trial judge used leading questions that suggested a desired answer and tainted the reliability of this and other jurors\u2019 responses. Defendant also argues that the trial judge acted unfairly when he intervened during defendant\u2019s q\u00faestioning of jurors who were strongly in favor of the death penalty. Defendant specifically complains of three occasions where the trial court in effect asked jurors being questioned by the defendant if they could follow the law as given to them. Defendant argues that the trial court\u2019s intervention in defendant\u2019s questioning defeated his ability to challenge these jurors for cause and thus represented an unevenhanded treatment of defendant.\nIn state v. Quick, 329 N.C. 1, 405 S.E.2d 179 (1991), the defendant argued that the trial court acted unfairly during jury selection by allowing the State\u2019s challenges for cause without further questioning, while denying defendant\u2019s challenges for cause on two occasions after inquiring whether the juror could follow the law as he was instructed. This Court, after determining that the trial court was merely clarifying and explaining the law to confused jurors and noting that the trial court allowed the defendant to continue questioning the juror after the court had intervened, held that such conduct on the. trial judge\u2019s part was not error. Id. at 15, 405 S.E.2d at 188.\nIn the case at bar, the trial judge intervened on two occasions after the jurors indicated some confusion in understanding the question posed by defense counsel. On the third occasion brought into question by defendant, the trial court did not intervene during defendant\u2019s questioning but, after the juror had been challenged by the defendant for cause, asked him if he \u201cwould not consider life imprisonment under those circumstances, regardless of the instructions of the Court.\u201d The trial court was simply determining if the juror should be stricken for cause. His question to this juror was just as appropriate as those he asked of the jurors who were challenged for cause by the prosecutor. We conclude that in determining challenges for cause, the trial judge treated the prosecution and defense in the same manner and evidenced no partiality for one side or the other.\nOur review of the record shows no \u201cgross imbalance in the trial court\u2019s responses to defendant\u2019s inquiries.\u201d State v. Artis, 325 N.C. 278, 296, 384 S.E.2d 470, 480 (1989), sentence vacated, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990), on remand, 329 N.C. 679, 406 S.E.2d 827 (1991). The trial court treated jurors challenged by the State and the defense in the same manner, asking the jurors questions to determine if they would in fact be substantially impaired by their views for or against the death penalty and if they could follow the law. The trial court also intervened on occasion to clarify and explain the law when jurors were confused. We have carefully reviewed the entire record of jury selection for evidence of bias or unfair treatment and hold that there was none and that there was no abuse of discretion on the part of the trial court.\nGuilt-Innocence Phase Issues\nNext, defendant argues that the trial court erred in not giving an instruction on second-degree murder because the evidence of premeditation and deliberation was equivocal. He argues that Beck v. Alabama, 447 U.S. 625, 65 L. Ed. 2d 392 (1980), and Schad v. Arizona, 501 U.S. 624, 115 L. Ed. 2d 555 (1991), stand for the proposition that a lesser included instruction was required in this case.\nDefendant argues that evidence of intoxication, lack of evidence of a bad relationship between the parties, and the fact that he was mildly retarded and had an organic brain disorder establish the necessary elements to support a finding of second-degree murder. We disagree.\nThe test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State\u2019s evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements.\nState v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322, cert. denied, 498 U.S. 871, 112 L. Ed. 2d 155 (1990). A trial court may not \u201cpremise a second-degree murder instruction on the possibility that the jury will accept some of the State\u2019s evidence while rejecting other portions of the State\u2019s case.\u201d Id. at 379, 390 S.E.2d at 322. Neither Beck v. Alabama nor Schad v. Arizona stands for the proposition that the lesser included offense should be more freely given in capital cases. In fact, they support the proposition that the lesser instruction should not be given indiscriminately. See State v. Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654 (1983) (language of United States Supreme Court in Beck supports the position that lesser offense instructions should not be given indiscriminately or automatically, but only when warranted by the evidence), modified on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986).\nFirst-degree murder is \u201cthe unlawful killing of a human being with malice and with premeditation and deliberation. \u201d State v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991). \u201cPremeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation:\" State v. Conner, 335 N.C. 618, 635, 440 S.E.2d 826, 835-36 (1994). \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. at 635, 440 S.E.2d at 836.\nA careful review of the transcript shows that each and every element of first-degree murder is supported by the evidence and that the evidence would not support a finding of second-degree murder. The evidence showed that defendant and the victim Pittman did not get along. There was evidence that defendant had recently struck Pittman and that she told Mark Smith never to bring defendant back to her house. This indicates that defendant and Pittman were not on friendly terms and had not just had a normal, peaceful conversation at Pittman\u2019s home prior to the shooting. In addition, neither victim did anything to legally provoke defendant, yet defendant pulled a semiautomatic weapon from under the seat and killed the victims with fragmentation bullets known for their destructive power. Defendant shot one victim, paused momentarily, stated \u201cyou too,\u201d and shot the second victim. Both victims were wounded multiple times. Pittman\u2019s body had thirty-four wounds, and Fipps\u2019 body had two. As defendant and Mark Smith left the crime scene, defendant asked Smith, \u201cdid I get them\u201d both. Defendant proceeded to dispose of the evidence of the crime (the gun and ammunition) and then left town. Thus, there was sufficient evidence to show premeditation and deliberation.\nAdditionally, the evidence would not support an instruction for second-degree murder. First, we note that the evidence that defendant was mildly retarded and suffered from organic brain disorder was not presented to the jury until the sentencing phase, so it was not a factor that could support a second-degree murder instruction. In addition, the evidence did not indicate a lack of a bad relationship between Pittman and defendant. The evidence showed that Pittman and defendant may have had an earlier argument and that Pittman did not want defendant to come to her home again. Finally, the evidence that the defendant was so intoxicated that he could not premeditate or deliberate was based solely on the fact that defendant chose not to drive a vehicle and had had something to drink that day. There was no evidence as to how much he had had to drink that day, nor over what period of time. The evidence did establish that defendant was not visibly intoxicated. This evidence would not support an instruction for second-degree murder.\nWe conclude that the trial court did not err by not instructing the jury on the lesser included offense of second-degree murder.\nDefendant next argues that the trial court erred in denying defendant\u2019s request for a mistrial after the prosecutor made a grossly improper argument referring to defendant\u2019s failure to testify.\nDuring the prosecutor\u2019s closing argument to the jury, he stated:\nYou [the jury] have to decide if you believe [Mark Smith], He turned himself in. Did Sherman Skipper [defendant] turn himself in? He talked about how he was there. Did Sherman Skipper do that? He talked about the way Ailene Pittman slumped down\u2014\nDefendant immediately objected to this argument, and the statement was withdrawn and stricken. Defendant then asked for a mistrial. The trial court denied this request. The trial court then reiterated that defendant\u2019s objection was sustained and instructed the jury to \u201cdisregard the last argument\u201d of the prosecutor.\nDefendant now argues that the trial court erred because, when the court sustained defendant\u2019s objection, it did not specifically instruct the jury that defendant has a right not to testify and that defendant\u2019s failure to testify cannot be held against him in any way. It is well established that a prosecutor may not refer to defendant\u2019s failure to testify because this \u201c \u2018violates an accused\u2019s constitutional right to remain silent.\u2019 \u201d State v. Reid, 334 N.C. 551, 554, 434 S.E.2d 193, 196 (1991) (quoting State v. Randolph, 312 N.C. 198, 205-06, 321 S.E.2d 864, 869 (1984)).\nWhen the State comments on a defendant\u2019s failure to testify, the improper comment is \u201ccured by a withdrawal of the remark or by a statement from the court that it was improper, followed by an instruction to the jury not to consider the failure of the accused to offer himself as a witness.\u201d State v. McCall, 286 N.C. 472, 487, 212 S.E.2d 132, 141 (1975). In McCall, the Court noted that an instruction to the jury before it began deliberating \u2014 that defendants had no burden and were not required to produce evidence, testimony, or witnesses \u2014 was insufficiently curative because it was an incomplete statement of the pertinent rule of law in that it neglected to advise the jury that a defendant\u2019s failure to testify created no presumption against him. Id.\nIn State v. Williams, 305 N.C. 656, 675, 292 S.E.2d 243, 255, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), reh\u2019g denied, 459 U.S. 1189, 74 L. Ed. 2d 1031 (1983), this Court concluded that a court\u2019s instructions cured any error in a prosecutor\u2019s comments about a defendant\u2019s failure to testify. In Williams, the court immediately sustained the defendant\u2019s objection to the prosecutor\u2019s comment and instructed the jury not to consider any reference to this proposition. \u201cThe court later instructed the jury that defendant\u2019s decision not to testify created no presumption against him and was not to influence [its] decision in any way.\u201d Id.\nIn the case at bar, the trial court sustained defendant\u2019s objection, and the comments were both withdrawn and stricken from the record. The trial court then instructed the jury to \u201cdisregard the last argument\u201d of the prosecutor. In addition, unlike McCall, during jury instructions, the trial court here also charged that \u201cthe defendant in this case has not testified. The law of North Carolina gives him this privilege. This same law also assures him that his decision not to testify creates no presumption against him. Therefore, his silence is not to influence your decision in any way.\u201d\nWe conclude that the prosecutor\u2019s withdrawal and striking of his statement and the trial court\u2019s further instruction cured any possible error created by the prosecutor\u2019s statement. See State v. Williams, 305 N.C. at 675, 292 S.E.2d at 255; see also State v. Monk, 286 N.C. 509, 516, 212 S.E.2d 125, 131 (1975) (improper comment on defendant\u2019s failure to testify may be cured by an instruction from the court that the argument is improper, \u201cfollowed by prompt and explicit instructions to the jury to disregard it\u201d); State v. Lindsay, 278 N.C. 293, 295, 179 S.E.2d 364, 365 (1971) (any error caused by prosecutor\u2019s remarks regarding defendant\u2019s failure to testify was removed by the trial court\u2019s \u201cprompt and explicit instructions to the jury to disregard the reference\u201d).\nAssuming arguendo, however, that the trial judge\u2019s instructions immediately after he sustained the objection and during the jury instruction were insufficient to cure the error, we conclude that the evidence of guilt in this case was so overwhelming that the error was harmless beyond a reasonable doubt. Defendant attempts to argue that such an error may never be harmless beyond a reasonable doubt. In State v. Barber, 317 N.C. 502, 511, 346 S.E.2d 441, 447 (1986), we concluded that even if arguments by a prosecutor regarding a defendant\u2019s failure to testify were improper, the trial court\u2019s decision to overrule the objection was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant\u2019s guilt. We conclude that the uncontradicted evidence that defendant shot the two victims, disposed of the evidence, and then fled from the state makes the statement of the prosecutor harmless beyond a reasonable doubt.\nDefendant next argues that the trial judge erred when he sustained the prosecutor\u2019s objections to defendant\u2019s cross-examination of a witness regarding the date of the witness\u2019 prior criminal conviction, punishment received for the conviction, and whether he had violated the terms of his probationary sentence. A review of the record indicates that the only question defendant asked for which he did not receive an answer at some time in the cross-examination was the date the actual common law forgery occurred.\nRule of Evidence 609(a) allows a party to attack the credibility of a witness with \u201cevidence that he has been convicted of a crime punishable by more than 60 days confinement.\u201d N.C.G.S. \u00a7 8C-1, Rule 609(a) (1992). However, \u201c[t]he permissible scope of inquiry into prior convictions for impeachment purposes is restricted ... to the name of the crime, the time and place of the conviction, and the punishment imposed.\u201d State v. Lynch, 334 N.C. 402, 409, 432 S.E.2d 349, 352 (1993). Defendant here attempted to ask on what date the crime occurred.\nStrong policy reasons support the principle that ordinarily one may not go into the details of the crime by which the witness is being impeached. Such details unduly distract the jury from the issues properly before it, harass the witness and inject confusion into the trial of the case.\nState v. Finch, 293 N.C. 132, 141, 235 S.E.2d 819, 824 (1977) (determined to apply to post-Rules cases in State v. Garner, 330 N.C. 273, 288-89, 410 S.E.2d 861, 870 (1991)).\nA close review of the record indicates that the witness told defense counsel, without objection, that he had been convicted of violating probation and common law forgery. The witness also told defense counsel that he had received five years\u2019 probation for the common law forgery crime, which involved four counts of common law forgery. Defendant argues that he sought to elicit the nature of the witness\u2019 prior criminal offenses, the dates they were committed, the punishment he received for them, and the witness\u2019 compliance with the terms of his probation. However, the record indicates that the only question defendant asked that the witness never gave an answer to was whether he had committed one particular act of common law forgery on a particular date. Defendant did not ask any specific questions about the nature of the witness\u2019 prior criminal offenses, beyond the name of the crimes. Nor did defendant ask the punishment that the witness had received for his probation violation. Also, defendant never asked the terms of the witness\u2019 probation.\nWe conclude that the trial court did not err in sustaining the prosecutor\u2019s objection to the question of when a particular act for which the witness was later convicted was committed.\nAssuming arguendo, however, that defendant should have been allowed to ask the witness the date on which he committed a specific crime, we conclude that the error was harmless beyond a reasonable doubt. The jury knew when the witness was tried for his crime, the date he was convicted, and the name of the crime that he had been convicted of; the jury also knew that the witness had received five years\u2019 probation for this crime. We fail to see how the actual date on which one count of the crime occurred could add any impeachment value to the information about the prior conviction. Thus, we conclude that the failure to allow this question was harmless beyond a reasonable doubt.\nDefendant next argues that the court erred by coercing him into introducing a piece of evidence, the result of which was that he lost his right to open and close the final argument. We conclude that this argument is without merit.\nRule 10 of the General Rules of Practice for the Superior and District Courts states that \u201cif no evidence is introduced by the defendant, the right to open and close the argument to the jury shall belong to him.\u201d In State v. Hall, 57 N.C. App. 561, 291 S.E.2d 812 (1982), Judge (now Justice) Webb noted:\n[W]e believe the proper test as to whether an object has been put in evidence is whether a party has offered it as substantive evidence or so that the jury may examine it and determine whether it illustrates, corroborates, or impeaches the testimony of the witness.\nId. at 564, 291 S.E.2d at 814.\nDefendant attempted to offer a photograph of the crime scene into evidence to help \u201cillustrate\u201d the witness\u2019 testimony during cross-examination. The prosecutor objected to the use of this photograph before the jury unless introduced into evidence. The court sustained the objection, and defendant immediately asked to introduce the photograph into evidence. The trial court asked defendant if he understood that he was now offering evidence. Defendant responded that he understood, and only then did the court allow the photograph to be received into evidence. A review of the transcript reveals that the trial court in no way coerced defendant to introduce the photograph.\nAdditionally, it is clear that the photograph was actually introduced into evidence. As noted above, defendant offered the photograph into evidence because the witness said it would help him illustrate his testimony. The photograph was then shown to the jury while the witness answered questions posed by defendant. In addition, defendant used the photograph to impeach the witness. We conclude that the photograph was actually offered into evidence; thus, defendant lost his right to open and close jury argument. See State v. Reeb, 331 N.C. 159, 180, 415 S.E.2d 362, 374 (1992); State v. Hinson, 310 N.C. 245, 257, 311 S.E.2d 256, 264, cert. denied, 469 U.S. 839, 83 L. Ed. 2d 78 (1984); State v. Knight, 261 N.C. 17, 30, 134 S.E.2d 101, 109 (1964).\nFinally, we note that even if the photograph had not been introduced into evidence, defendant would still have lost his right to open and close jury argument because he introduced three other pieces of evidence during the trial: two depositions and a diagram of the crime scene.\nWe conclude that defendant\u2019s assignment of error is totally without merit.\nIn defendant\u2019s next assignment of error, he argues that the trial court erred in instructing the jury that it could infer premeditation and deliberation from circumstances such as \u201clack of provocation of the victim.\u201d Defendant argues that this instruction misled the jury because it did not explain the difference between legal and ordinary provocation, it constituted an impermissible expression of judicial opinion on the evidence, and it tended to impermissibly shift the burden of proof to defendant on an element of an offense. We note that defendant did not object to the instruction at trial; thus, this issue will be analyzed under a \u201cplain error analysis.\u201d See State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).\nIn State v. Handy, 331 N.C. 515, 527, 419 S.E.2d 545, 551 (1992), this Court addressed the same issues presented by the defendant here. In Handy, we concluded that defendant\u2019s assignment of error was without merit; we reach the same conclusion in this case.\nFirst, we note that the trial court in this case properly instructed the jury that the State had the burden of proving beyond a reasonable doubt each and every element of first-degree murder, including the elements of premeditation and deliberation. The trial court never instructed that premeditation should be presumed and never expressed any opinion as to whether the State had proven lack of provocation. See State v. Fowler, 285 N.C. 90, 96, 203 S.E.2d 803, 807 (statement that jury may consider evidence of the absence of provocation in determining whether there was premeditation and deliberation does not amount to a judicial expression of opinion that there was no evidence of provocation), sentence vacated, 428 U.S. 904, 49 L. Ed. 2d 1212 (1976).\nIn this case, the trial court instructed the jury with regard to premeditation pursuant to the Pattern Jury Instructions, stating:\nNeither premeditation nor deliberation are usually susceptible of direct proof. They may be proved by circumstances from which they may be inferred, such as the lack of provocation by the victim; the conduct of the defendant before, during, and after the killing; threats and declarations of the defendant; the brutal or vicious circumstances of the killing; and the manner in which or the means by which the killing is done.\nIn addition, the trial court instructed the jury that defendant did not act with deliberation if his intent to kill was formed \u201cunder the influence of some suddenly aroused violent passion.\u201d\nWe conclude that the instructions set forth by the trial court correctly placed the burden of proving premeditation and deliberation on the State. We also conclude that the instruction, that lack of provocation can be considered, could not have confused the jury. The jury could not have been confused about the difference between \u201cadequate\u201d or \u201clegal\u201d provocation and ordinary provocation because defendant was charged only with first-degree murder. No instruction was given as to second-degree murder or voluntary manslaughter; thus, specific definitions for provocation were not before the jury. Contrary to defendant\u2019s assertions, the jury could not have mistakenly concluded that defendant acted with premeditation and deliberation simply because the evidence showed that defendant did not act in a heat of passion following adequate or legal provocation. The jury was specifically instructed that it could not find defendant guilty of premeditated and deliberated murder if he formed his intent to kill under the influence of some suddenly aroused violent passion. See State v. Reid, 335 N.C. 647, 669, 440 S.E.2d 776, 788 (1994); State v. Handy, 331 N.C. at 527, 419 S.E.2d at 551.\nDefendant also argues under this assignment of error that the premeditation and deliberation instruction should not have included the statement that \u201cthreats\u201d of the defendant may be inferred to indicate premeditation and deliberation, as there was no evidence that defendant ever threatened the victims. We note again that this issue will be analyzed under plain error analysis because no objection was made to the instruction at trial. Thus, \u201cdefendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different verdict.\u201d State v. Thomas, 332 N.C. 544, 563, 423 S.E.2d 75, 86 (1992).\nIn State v. Lampkins, 283 N.C. 520, 196 S.E.2d 697 (1973), this Court determined that \u201c[a] trial judge should never give instructions to a jury which are not based upon a state of facts presented by some reasonable view of the evidence.\u201d Id. at 523, 196 S.E.2d at 699. We note that while the evidence here may not have supported the instruction regarding consideration of \u201cthreats\u201d of defendant, this was one word in the middle of eleven pages of detailed jury instructions. The evidence here supported a finding of premeditation and deliberation based on the fact that defendant asked Smith to take him to the victims\u2019 home, talked to one of the victims, then got in his truck, pulled a semiautomatic rifle loaded with fragmentation bullets from under the seat, killed one victim, stated \u201cyou too,\u201d and killed the second victim. He then asked Smith, \u201cdid I get them,\u201d and proceeded to get rid of the evidence.\nDefendant has not demonstrated that, absent the word \u201cthreats\u201d in the instruction, the jury probably would have reached a different verdict. We hold that defendant has not met his burden under the plain error rule. See State v. Faison, 330 N.C. 347, 363, 411 S.E.2d 143, 152 (1991).\nIn conclusion, we hold that the inclusion of the phrase \u201clack of provocation\u201d in the instruction on premeditation and deliberation did not confuse the jury, reflect an opinion of the trial court, or impermissibly shift the burden of proof to defendant. Additionally, we con-elude that if it was error to instruct the jury that \u201cthreats\u201d of the defendant may be considered an inference of premeditation and deliberation, it was not plain error.\nDefendant next argues that the trial court erred in admitting seven autopsy photographs into evidence over defendant\u2019s objection. Defendant argues that the photographs had no probative value as the fact that the victims were killed by multiple gunshots wounds from a semiautomatic rifle and that defendant was involved in the shooting was not controverted. In the alternative, defendant argues that any probative value of the photos is outweighed by the prejudicial effect. We conclude that neither of these arguments is valid.\n\u201cPhotographs of a homicide victim may be introduced even if they are gory, gruesome, horrible or revolting, so long as they are used for illustrative purposes and so long as their excessive or repetitious use is not aimed solely at arousing the passions of the jury.\u201d State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988). Generally, photographs taken during an autopsy are admissible. State v. Barnes, 333 N.C. 666, 678, 430 S.E.2d 223, 230, cert. denied, - U.S. -, 126 L. Ed. 2d 336 (1993). In a first-degree murder case, autopsy photographs are relevant even when such factors as the identity of the victim or the cause of death are not disputed. See State v. Kyle, 333 N.C. 687, 701, 430 S.E.2d 412, 420 (1993); State v. Barnes, 333 N.C. at 678, 430 S.E.2d at 229; State v. Bearthes, 329 N.C. 149, 161, 405 S.E.2d 170, 177 (1991).\n\u201cA plea of not guilty places at issue all of the facts alleged in the indictment.\u201d State v. Wall, 304 N.C. 609, 621, 286 S.E.2d 68, 75 (1982). In this case, the State was attempting to prove first-degree murder by premeditation and deliberation. \u201cPremeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence.\u201d State v. Gladden, 315 N.C. 398, 430, 340 S.E.2d 673, 693, cert. denied, 479 U.S. 870, 93 L. Ed. 2d 166 (1986). The nature and number of the wounds and evidence that the murders were done in a brutal manner are circumstances from which premeditation and deliberation can be inferred. Id. at 431, 340 S.E.2d at 693.\nThe State introduced into evidence seven autopsy photographs showing different areas of the bodies where the victims had been struck by bullets. Two of the photographs showed wounds suffered by Ailene Pittman, and five of the photographs showed the wounds of Nelson Fipps. The State introduced the photographs during the testimony of the pathologist who performed the autopsy, to help illustrate his testimony. Upon being admitted, the photographs were in fact used to illustrate and describe the numerous wounds and to show the tracks of the wounds. We conclude that the photographs were relevant and had substantial probative value.\nConcluding that the photographs were relevant and probative, we turn to defendant\u2019s second argument, that the prejudicial effect of the photographs outweighed the probative value.\nWhether the use of photographic evidence is more probative than prejudicial and what constitutes an excessive number of photographs in the light of the illustrative value of each . . . lies within the discretion of the trial court. Abuse of discretion results where the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\nState v. Hennis, 323 N.C. at 285, 372 S.E.2d at 527 (citation omitted).\nWe have reviewed the photographs and conclude that they were relevant, probative, and not excessive, that they helped to illustrate the pathologist\u2019s testimony, and that they could contribute evidence for finding premeditation and deliberation. We conclude that there was no abuse of discretion in the trial court\u2019s admitting these photographs. This assignment of error is without merit.\nDefendant next argues that the trial court should have instructed the jury regarding voluntary intoxication. Defendant argues that this instruction should be given because there was evidence that defendant had consumed alcohol on the day of the murders.\nIt is \u201cwell established that an instruction on voluntary intoxication is not required in every case in which a defendant claims that he killed a person after consuming intoxicating beverages or controlled substances.\u201d State v. Baldwin, 330 N.C. 446, 462, 412 S.E.2d 31, 41 (1992). This Court has repeatedly held that in order to be entitled to an instruction on voluntary intoxication, the defendant must produce evidence that would support a conclusion by a judge that defendant was so intoxicated that he could not form a deliberated and premeditated intent to kill. State v. Mash, 323 N.C. 339, 346, 372 S.E.2d 532, 536 (1988); see also State v. Shoemaker, 334 N.C. 252, 272, 432 S.E.2d 314, 324 (1993); State v. Vaughn, 324 N.C. 301, 308, 377 S.E.2d 738, 741 (1989). \u201cThe evidence must show that at the time of the killing the defendant\u2019s mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill.\u201d State v. Medley, 295 N.C. 75, 79, 243 S.E.2d 374, 377 (1978) (citations omitted); see also State v. McQueen, 324 N.C. 118, 141, 377 S.E.2d 38, 51 (1989); State v. Strickland, 321 N.C. 31, 41, 361 S.E.2d 882, 888 (1987). Evidence of mere intoxication is not enough to justify the instruction. State v. Mash, 323 N.C. at 346, 372 S.E.2d at 536.\nDefendant argues that requiring him to meet this burden violates his due process rights because it keeps the jury from considering some evidence that may affect its determination of defendant\u2019s ability to premeditate and deliberate. Defendant\u2019s argument is without merit. While defendant must satisfy a high burden in order to be given the benefit of the defense of voluntary intoxication, the jurors are not restricted from considering the evidence of intoxication in determining if the State satisfied them beyond a reasonable doubt as to all elements of first-degree murder, including premeditation and deliberation and intent to kill.\nDefendant cites Martin v. Ohio, 480 U.S. 228, 94 L. Ed. 2d 267 (1987), to support his argument. However, we conclude that Martin actually supports the conclusion that there is no due process violation present here. In Martin, the Court considered whether it was error to require a defendant to prove self-defense by a preponderance of the evidence. The Court held that it was not error but noted that\n[i]t would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State\u2019s case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such instruction would relieve the State of its burden and plainly run afoul of Winship\u2019s mandate.\nMartin v. Ohio, 480 U.S. at 233-34, 94 L. Ed. 2d at 274 (citing In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375 (1970)).\nIn the case at hand, the jury was not instructed that evidence of intoxication could not be considered in determining whether there was reasonable doubt about the State\u2019s case. The jury was not told that the intoxication evidence must be set aside for all purposes unless the defendant satisfied the burden of production necessary to instruct on voluntary intoxication. We conclude that the State\u2019s burden in proving first-degree murder beyond a reasonable doubt is in no way reduced by the burden of production defendant must satisfy in order to receive a voluntary intoxication instruction. Thus, there is no due process violation.\nAs an alternative argument, defendant states that the evidence here justified an instruction on voluntary intoxication as the evidence unquestionably showed that defendant\u2019s capacity to think and plan was impaired due to voluntary intoxication. In determining if the instruction should have been given, we review the evidence in the light most favorable to defendant. State v. Vaughn, 324 N.C. at 309, 377 S.E.2d at 742. The evidence in this case shows that defendant had been drinking for some time during the day of the murder and that he did not want to drive because he had been drinking. That is the extent of the evidence of intoxication presented in the guilt-innocence phase. There was no evidence that defendant looked drunk or that he was having difficulty speaking or walking. See id. (evidence that defendant was intoxicated and had trouble walking, but no evidence that he behaved inappropriately or that his statements were irrational or incoherent or that he was unaware of what was going on around him; evidence insufficient to require instruction on voluntary intoxication). There was also no evidence in this case as to how much defendant had actually drunk.\nWe conclude that the evidence in this case was not sufficient to require an instruction on voluntary intoxication. See State v. Baldwin, 330 N.C. 446, 463, 412 S.E.2d 31, 41 (1992) (evidence that defendant drank five or six beers and consumed marijuana not sufficient to require instruction).\nDetermining that the standard of production required of defendant before allowing an instruction on voluntary intoxication does not violate due process and determining that the facts of this case did not require an instruction on voluntary intoxication, we conclude that defendant\u2019s assignment of error is without merit.\nSentencing Phase Issues\nDefendant argues that the trial court erred when it sustained the prosecutor\u2019s objection to two of defendant\u2019s questions during the redirect examination of defendant\u2019s brother, Kenneth Skipper. Kenneth Skipper had been shot in the back by the defendant at an earlier date. Evidence of this assault had been introduced by the State earlier in the sentencing proceeding. Kenneth Skipper testified for defendant that he felt at fault for the shooting because he had attacked his brother and that he had forgiven defendant for shooting him. On cross-examination, the prosecutor asked Kenneth Skipper if he had contacted another witness, defendant\u2019s ex-wife (who had also been attacked by defendant) and told her to testify that it was her fault that defendant attacked her. Kenneth Skipper denied making this statement to defendant\u2019s ex-wife, and no evidence was ever presented that such a statement was in fact made. On redirect examination, defendant attempted to ask the witness (1) if he was telling the truth, and (2) for what church he was a minister.\nDefendant argues that he should have been allowed to ask these questions to bolster the witness\u2019 credibility, which had been undermined by the State\u2019s questions. Defendant argues that by precluding him from asking these questions, the trial court prevented him from offering competent evidence that would have bolstered the mitigating effect of the witness\u2019 other testimony. We conclude that defendant\u2019s argument is without merit.\nThe trial correctly sustained the prosecutor\u2019s objection to the question, \u201cAre you telling this jury the truth?\u201d because the credibility of a witness is for a jury to decide, State v. Ford, 323 N.C. 466, 469, 373 S.E.2d 420, 421 (1988). Thus, whether this witness, who was affirmed to tell the truth, was actually telling the truth was something the jury was to decide, not the witness.\nIn regard to the second question concerning the witness being a minister to a particular church, we note that redirect examination is limited to information elicited in cross-examination. Questions asked on redirect should not go beyond matters discussed during cross-examination. See State v. Felton, 330 N.C. 619, 633, 412 S.E.2d 344, 353 (1992); State v. Jolly, 332 N.C. 351, 366, 420 S.E.2d 661, 670 (1992). In this case, the second question at issue went far beyond the scope of cross-examination, which made no mention whatsoever of the witness\u2019 profession. Thus, the trial court correctly sustained the prosecutor\u2019s objection.\nIn any case, there was no error with regard to the second question because the witness actually answered the defendant\u2019s question despite the prosecutor\u2019s objection and the trial court\u2019s sustaining of the objection. The prosecutor did not move to strike the answer, and the trial court did not admonish the jury to disregard the answer. \u201cThus, defendant effectively received the benefit of the evidence sought. . . , and he has no . . . cause for complaint on appeal.\u201d State v. Pinch, 306 N.C. 1, 14, 292 S.E.2d 203, 216, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), reh\u2019g denied, 459 U.S. 1189, 74 L. Ed. 2d 1031 (1983), overruled on other grounds by State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988), and by State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994).\nDefendant also argues that even if these questions were impermissible under traditional evidentiary standards, they should have been permitted under the relaxed evidentiary standard of the penalty phase of a capital proceeding in order to avoid any violation of defendant\u2019s due process rights. We conclude that there is no due process concern here as there was in State v. Barts, 321 N.C. 170, 362 S.E.2d 235 (1987), Green v. Georgia, 442 U.S. 95, 60 L. Ed. 2d 738 (1979), and Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297 (1973). In those cases, the evidence at issue was written and oral hearsay statements that did not fit under traditional hearsay exceptions but which contained some evidence indicating they were credible statements. More importantly for due process consideration, the evidence at issue in these cases all directly reflected on defendant\u2019s guilt or involvement in the crime for which he had been convicted. See Barts, 321 N.C. at 179, 362 S.E.2d at 240 (confession of other person that he actually killed the person defendant was convicted of killing was at issue); Green, 442 U.S. at 96, 60 L. Ed. 2d at 740 (statement of witness that he was told that another person shot and killed the victim after telling defendant to run an errand was at issue); Chambers, 410 U.S. at 289, 35 L. Ed. 2d at 305 (evidence at issue was that someone else had made a sworn written confession to crime and told three people he had committed crime for which defendant was convicted). The evidence that defendant addresses in this assignment of error is not of the same degree of importance as the evidence the defendants attempted to present in Barts, Green, and Chambers. We conclude that defendant\u2019s due process rights were not violated when the trial court sustained the prosecutor\u2019s objections to the particular questions at issue.\nFinally, even if the trial court erred by sustaining the objection to these two questions, the error was harmless beyond a reasonable doubt. On redirect, defendant was allowed to elicit the fact that the witness was a minister. The witness had already affirmed that he would tell the truth; thus, the question, \u201cAre you telling this jury the truth?\u201d was redundant. We also conclude that determining the name of the church that the witness worked for does not bolster the witness\u2019 credibility. Thus, any error made by the trial court was harmless beyond a reasonable doubt.\nDefendant next argues that the trial court erred when it did not give peremptory instructions on all the mitigating circumstances for which the factual predicate was uncontradicted. Defendant notes that he made a written request that peremptory jury instructions be given as to each mitigating circumstance he submitted to the court. Defendant argues that he should have received peremptory instructions as to all uncontroverted mitigating circumstances, both statutory and non-statutory.\nWhile we agree that a defendant is entitled to peremptory instructions for uncontradicted mitigating circumstances, whether statutory or nonstatutory, we conclude that defendant requested that peremptory instructions be given only for the mitigating circumstances dealing with mental and emotional impairment and defendant\u2019s capacity to appreciate the criminality of his conduct and to conform his conduct to the law. As defendant did not request that peremptory instructions be given for any other circumstances, the trial court did not err in not giving such instructions. See State v. Green, 336 N.C. 142, 174, 443 S.E.2d 14, 33; State v. Gay, 334 N.C. 467, 493, 434 S.E.2d 840, 854 (1993). The trial judge should not \u201cbe required to determine on his own which mitigating circumstance is deserving of a peremptory instruction in defendant\u2019s favor. In order to be entitled to such an instruction defendant must timely request it.\u201d State v. Johnson, 298 N.C. 47, 77, 257 S.E.2d 597, 618-19 (1979).\nAs noted above, defendant made a general request that peremptory instructions be given as to each mitigating circumstance. However, when the trial court questioned him as to the meaning of this request, defendant responded:\nWe are requesting peremptory instructions, especially as to those mitigating factors, the two statutory... mitigating factors dealing with mental and emotional impairment and also dealing with the defendant\u2019s capacity to appreciate the criminality of his conduct and to conform his conduct to law.\nThere was then a discussion about the evidence for and against these particular circumstances. At the conclusion of this discussion, the following colloquy occurred between defense counsel and the trial court:\nCourt: Let me ask you this. Do I understand you correctly that you\u2019re asking for a peremptory instruction on the first two mitigating circumstances?\n[Defense Counsel]: Yes, sir.\nCourt: You are not asking for a peremptory instruction on the remainder?\n[Defense Counsel]: No, sir. We recognize we\u2019re probably not entitled to it on the other.\nCourt: All right. So you\u2019re only asking for peremptory instructions on the first two?\n[Defense Counsel]: Yes, sir.\nDefendant did not ask that peremptory instructions be given as to the last statutory mitigating circumstance, regarding defendant\u2019s age, nor did he ask that peremptory instructions be given for any of the nonstatutory circumstances. Now, however, defendant argues that peremptory instructions should have been given as to the third statutory mitigating circumstance and for at least eight of the thirteen non-statutory mitigating circumstances.\nWe conclude that defendant did not request that peremptory instructions be given for any circumstances except the circumstances that defendant was under the influence of a mental or emotional impairment when he committed the murder and that defendant was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. We will not require the trial judge \u201cto determine on his own which mitigating circumstance is deserving of a peremptory instruction in defendant\u2019s favor.\u201d Johnson, 298 N.C. at 77, 257 S.E.2d at 618-19. Therefore, we hold that the trial judge did not err when he gave peremptory instructions pursuant only to defendant\u2019s specific request.\nDefendant next argues that the trial court erred by not instructing the jury that defendant would not be eligible for parole for twenty years if given a life sentence and that defendant could serve two life sentences consecutively, and thus not be eligible for parole for forty years. Defendant notes that he made a written request during the charge conference that such an instruction be given during the jury instructions. Defendant also argues that such an instruction definitely should have been given when the jury sent a note to the judge asking how long defendant would serve before he would be eligible for parole if given life and whether he would serve two life sentences concurrently.\nTo begin, the trial court correctly denied defendant\u2019s request to include in the jury charge the instruction that life means that defendant may be eligible for parole in twenty years and that the court has the discretion to determine that defendant\u2019s sentences be served consecutively. This Court has held that a jury may be instructed about the question of parole and meaning of life imprisonment, if such question arises during jury deliberation. State v. Robinson, 336 N.C. 78, 123, 443 S.E.2d 306, 329 (1994). However, we have not held that a jury should be instructed upon these issues absent such an inquiry. Such an instruction to the jury \u201cwould unnecessarily present the issue of parole to the jury, absent any indication that the jury was considering that possibility.\u201d Id. at 124, 443 S.E.2d at 329.\nIn this case, the jury sent out a question asking about parole eligibility and concurrent sentences. The trial court specifically instructed the jury pursuant to State v. Conner, 241 N.C. 468, 85 S.E.2d 584 (1955), and State v. Robbins, 319 N.C. 465, 518, 356 S.E.2d 279, 310, telling the jury that eligibility for parole is not a proper matter for the jury and that in considering life imprisonment, \u201cyou should determine the question as though life imprisonment means exactly what the statute says: imprisonment for life in the state\u2019s prison.\u201d The trial court also correctly instructed that concurrence of sentences is not a proper matter for the jury to consider.\nWe conclude that defendant has failed to assert a convincing basis for this Court to abandon its prior decisions stating that instructions about parole eligibility should not be given. See State v. Green, 336 N.C. at 157, 443 S.E.2d at 23. It is true that the General Assembly has recently amended N.C.G.S. \u00a7 15A-2002 to require the trial court to instruct the jury during a capital sentencing proceeding concerning the parole eligibility of a defendant sentenced to life. N.C.G.S. \u00a7 15A-2002 (Act of 23 March 1994, ch. 21, sec. 5, 1994 N.C. Extra Sess. Serv. 71). This statute is to become effective 1 October 1994. Act of 26 March 1994, ch. 24, sec. 14(b), 1994 N.C. Extra Sess. Serv. 106. However, the General Assembly has decided that the legislation is to be applied prospectively; thus, it does not apply in this case. See N.C.G.S. \u00a7 15A-2002 official commentary.\nWe are aware of the recent United States Supreme Court decision in Simmons v. South Carolina, - U.S. -, 129 L. Ed. 2d 133, (1994), which held that it was error to refuse to give a proposed jury instruction that under state law, defendant was ineligible for parole. We do not consider that case apposite because defendant in this case, if given a life sentence, would eventually have been eligible for parole under North Carolina law. See N.C.G.S. \u00a7 15A-1371(al) (1988).\nDefendant also argues that in light of the prosecutor\u2019s argument stressing defendant\u2019s potential for future dangerousness, the instruction on parole eligibility was especially necessary as mitigating evidence. We note that \u201cparole eligibility is not mitigating since it does not reflect on \u2018any aspect of a defendant\u2019s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.\u2019 \u201d State v. Green, 336 N.C. at 158, 443 S.E.2d at 23 (quoting Skipper v. South Carolina, 476 U.S. 1, 4, 90 L. Ed. 2d 1, 6 (1986)).\nWe conclude that defendant\u2019s assignment of error is without merit.\nDefendant next argues that the trial court erred in not submitting the mitigating circumstance that defendant had no significant history of prior criminal activity. Defendant requested on three occasions that the instruction not be given. The State presented evidence that defendant had been convicted of assault with a deadly weapon inflicting serious bodily injury in 1978, 1982, and 1984.\nA \u201ctrial court is required to determine whether a rational jury could conclude that defendant had no significant history of prior criminal activity.\u201d State v. Wilson, 322 N.C. 117, 143, 367 S.E.2d 589, 604 (1988). The trial court has no discretion as to whether to submit statutory mitigating circumstances when evidence is presented in a capital case which may support a statutory circumstance. State v. Lloyd, 321 N.C. 301, 311, 364 S.E.2d 316, 323, sentence vacated on other grounds, 488 U.S. 807, 102 L. Ed. 2d 18, on remand, 323 N.C. 622, 374 S.E.2d 277 (1988), sentence vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990), on remand, 329 N.C. 662, 407 S.E.2d 218 (1991). However, the trial court is not required to instruct on a mitigating circumstance unless substantial evidence supports the circumstance. State v. Laws, 325 N.C. 81, 110, 381 S.E.2d 609, 626 (1989), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990), on remand, 328 N.C. 550, 402 S.E.2d 573, cert. denied, 502 U.S. 876, 116 L. Ed. 2d 174, reh\u2019g denied, 502 U.S. 1001, 116 L. Ed. 2d 648 (1991).\nWe conclude that defendant\u2019s record of three violent felonies, similar in nature to the crime for which he was being sentenced, in the twelve years preceding this particular crime illustrated that defendant did have a significant record. We note that \u201cit is not merely the number of prior criminal activities, but the nature and age of such acts that the trial court considers in determining whether by such evidence a rational juror could conclude that this mitigating circumstance exists.\u201d State v. Artis, 325 N.C. 278, 314, 384 S.E.2d 490, 470.\nIn many cases, we have held that the trial court did not err in failing to submit this circumstance ex mero mo tu. See State v. Jones, 336 N.C. 229, 247, 443 S.E.2d 48, 56-57 (1994) (defendant used illegal drugs, broke into a convenience store six or seven times, and broke into a pawn shop and stole guns); State v. Robinson, 336 N.C. 78, 119, 443 S.E.2d 306, 326 (defendant used and dealt drugs, had pled guilty to a robbery, carried a pistol, and used another man\u2019s driver\u2019s license as identification); State v. Stokes, 308 N.C. 634, 653-54, 304 S.E.2d 184, 196 (1983) (defendant engaged in five incidents of theft and possessed, used, and sold marijuana).\n\u201cWe do not find it necessary to engage in any further comparison between this case and those cases in which we have determined the propriety of the submission or refusal to submit the circumstance at issue.\u201d State v. Robinson, 336 N.C. at 119, 443 S.E.2d at 326. We hold that based on the evidence of defendant\u2019s continuous involvement in violent criminal activities, similar to that for which he was sentenced in this case, no rational juror could have found that defendant had \u201cno significant history of prior criminal activity.\u201d The jury in fact specifically found, as an aggravating circumstance, that defendant had been previously convicted of a felony involving the use or threat of violence to a person. We fail to see how a rational juror could have then found that this criminal history was also a mitigating circumstance. The trial court did not err in failing to submit this circumstance for the jury\u2019s consideration.\nNext, defendant argues that the trial court erred when giving its instructions regarding the statutory mitigating circumstance of age. The trial court instructed the jury:\n(3) Consider whether the age of the defendant at the time of this murder is a mitigating factor.\nThe mitigating effect of the age of the defendant is for you to determine from all the evidence and circumstances which you find from the evidence.\nIf one or more of you finds by a preponderance of the evidence that the circumstance exists, you would so indicate by having your foreman write, \u201cYes,\u201d in the space provided after this mitigating circumstance on the issues and recommendation form.\nIf none of you finds this circumstance to exist, you would so indicate by having your foreman write, \u201cNo,\u201d in that space.\nThese instructions are pursuant to the North Carolina Pattern Jury Instructions. N.C.P.I. \u2014 Crim. 150.10 (1993). Defendant, however, argues that these instructions allowed the jury to give the statutory mitigating circumstance no weight in violation of Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1 (1982). Defendant bases his argument on the language that \u201cthe mitigating effect of the age of the defendant is for you to determine.\u201d We conclude that defendant\u2019s argument is without merit.\nWe begin by noting that in regard to statutory mitigating circumstances, jurors are instructed that if they find a statutory mitigating circumstance to exist, then they must consider the circumstance in their balancing of aggravators and mitigators. However, jurors are instructed to indicate a finding of a particular circumstance only if the preponderance of the evidence persuades a juror that the circumstance exists. See State v. Kirkley, 308 N.C. 196, 224, 302 S.E.2d 144, 160 (1983), overruled on other grounds by State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988); N.C.P.I. \u2014 Crim. 150.10. Additionally, the actual weight that a juror chooses to give to such a circumstance is up to the particular juror. State v. Craig, 308 N.C. 446, 460, 302 S.E.2d 740, 749, cert. denied, 464 U.S. 908, 78 L. Ed. 2d 247 (1983). The only requirement is that the jury may not \u201crefuse to consider, as a matter of law, any relevant mitigating evidence.\u201d Eddings v. Oklahoma, 455 U.S. at 114, 71 L. Ed. 2d at 11. The jurors \u201cmay determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.\u201d Id. at 114-15, 71 L. Ed. 2d at 11.\nWe conclude that, in this case, the language \u201cmitigating effect\u201d did not allow the jury to \u201crefuse to consider, as a matter of law,\u201d the evidence about age as a mitigating circumstance. The instruction clearly states that age should be considered. However, the weight to be given such circumstance is for the jury to decide based on its consideration of all the facts and circumstances found from the evidence.\nDefendant argues that it is clear that the jury interpreted this instruction to mean that it could have \u201crefuse [d] to consider\u201d this circumstance because the evidence in support of the circumstance was so strong, yet the jury did not find that the circumstance existed. We conclude that this analysis is erroneous.\nDefendant\u2019s chronological age was forty-eight. Chronological age standing alone is usually not determinative of the existence of this circumstance. State v. Hill, 331 N.C. 387, 414, 417 S.E.2d 765, 778 (chronological age of fifty-four standing alone does not entitle defendant to have this (age) mitigating circumstance submitted). In this case, evidence was presented that defendant had a mental age of a six-year-old. However, there was also evidence that defendant had been married, ran his own business, and supported himself and his children. We conclude that based on these facts, the jury was not required to find that this circumstance existed. See State v. Turner, 330 N.C. 249, 268, 410 S.E.2d 847, 858 (1991) (jury not required to accept circumstance where defendant was twenty-two years old; evidence of very bad childhood affecting his development; and evidence that defendant married, maintained employment, and had a prior criminal history indicating maturity). We also note that defendant acknowledged that the evidence as to this circumstance was controverted. Defendant\u2019s counsel told the trial court that he did not believe a peremptory instruction would be appropriate for this circumstance.\nHolding that the instruction given to the jury was correct and that the evidence was contradictory as to this mitigating circumstance, we conclude that defendant\u2019s assignment of error is without merit.\nNext, defendant argues that the trial court erred when instructing as to nonstatutory mitigating circumstances because its instructions let the jury decide if the nonstatutory circumstance had mitigating value. Defendant argues that the nonstatutory mitigating circumstances that he presented to the jury had inherent mitigating value, as evidenced by the fact that the trial court decided to submit them in the first place. Thus, defendant argues that the jury has to consider the circumstances under Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, and Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973 (1978).\nThe trial court instructed the jury that\n[i]f one or more of you finds by a preponderance of the evidence that this [nonstatutory] circumstance exists and also is deemed mitigating, you would so indicate by having your foreman write, \u201cYes,\u201d in the space provided.\nThis Court has repeatedly determined that nonstatutory mitigating circumstances do not necessarily have mitigating value. See State v. Green, 336 N.C. 142, 173, 443 S.E.2d 14, 32; State v. Robinson, 336 N.C. 78, 117, 443 S.E.2d 306, 325; State v. Gay, 334 N.C. 467, 492, 434 S.E.2d 840, 854; State v. Fullwood, 323 N.C. 371, 397, 373 S.E.2d 518, 533 (1988), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 602 (1990), on remand, 329 N.C. 233, 404 S.E.2d 842 (1991). In State v. Fullwood, the Court held that it is \u201cfor the jury to determine whether submitted nonstatutory mitigating circumstances have mitigating value.\u201d 323 N.C. at 396, 373 S.E.2d at 533. \u201c[B]efore the jury \u2018finds\u2019 a nonstatutory mitigating circumstance, it must make two preliminary determinations: (1) that the evidence supports the existence of the circumstance and (2) that the circumstance has mitigating value.\u201d State v. Huff, 325 N.C. 1, 59, 381 S.E.2d 635, 669 (1989), sentence vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990), on remand, 328 N.C. 532, 402 S.E.2d 577 (1991). This proposition has recently been reiterated in State v. Green, 336 N.C. at 173, 443 S.E.2d at 32 (jurors may reject nonstatutory mitigating circumstances if they do not deem them to have mitigating value).\nIn addition:\nThe language of the instructions clearly permits and instructs the jury to consider any evidence of the nonstatutory mitigating circumstances, as required by Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, and Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1 (1982). As this Court noted in State v. Fullwood, however, \u201cneither Lockett nor Eddings requires that the sentencer must determine that the submitted mitigating circumstance has mitigating value.\u201d Fullwood, 323 N.C. at 396, 373 S.E.2d at 533.\nState v. Robinson, 336 N.C. at 117, 443 S.E.2d at 325. As recently noted by the United States Supreme Court,\n\u201cLockett and its progeny stand only for the proposition that a State may not cut off in an absolute manner the presentation of mitigating evidence, either by statute or judicial instruction, or by limiting the inquiries to which it is relevant so severely that the evidence could never be part of the sentencing decision at all.\u201d\nJohnson v. Texas, - U.S. -, -, 125 L. Ed. 2d 290, 302 (1993) (quoting McKoy v. North Carolina, 494 U.S. 433, 456, 108 L. Ed. 2d 369, 389 (1990) (Kennedy, J., concurring in judgment)). The instruction at issue here allows the jury to consider all the evidence in mitigation, and it allows the jury to consider whether nonstatutory mitigating circumstances in fact have mitigating value. The instruction does not allow the jury to ignore the evidence.\nWe find no reason to alter our previous decisions and conclude that the trial court did not err in its instructions on nonstatutory mitigating circumstances in this case.\nNext, defendant argues that the trial court\u2019s instructions to the jury were erroneous because they did not allow all the jurors to consider any issue of mitigation when weighing the aggravators and mitigators in determining the death sentence. Defendant argues that such instructions violate McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369.\nThe trial court instructed the jury:\nIf you find from the evidence one or more mitigating circumstances, you must weigh the aggravating circumstances against the mitigating circumstances.\nWhen deciding this issue, each juror may consider any mitigating circumstance or circumstances that the juror determined to exist by a preponderance of the evidence in Issue Two.\nIssue Four is, Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances you found is, or are, sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstance or circumstances found by one or more of you?\nIn deciding this issue, you are not to consider the aggravating circumstances standing alone. You must consider them in connection with any mitigating circumstances found by one or more of you. When making this comparison, each juror may consider any mitigating circumstance or circumstances that the juror determined to exist by a preponderance of the evidence.\nDefendant argues that these instructions were erroneous because they precluded those jurors who had not earlier found a mitigating circumstance to exist from considering that mitigating circumstance, even if it was found by another juror, when determining defendant\u2019s sentence. Defendant seems to believe that the jury should be instructed that once one juror finds a mitigating circumstance to exist and have value, all twelve jurors must consider that circumstance when reaching their decision, even if a juror did not believe that the mitigating circumstance existed.\nWe conclude that defendant\u2019s desired instruction is inconsistent with the procedure dictated by the North Carolina capital sentencing scheme and is not what was required or contemplated by the United States Supreme Court in McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369, or Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d 384 (1988), upon which McKoy relied. \u201cWere we to adopt this reading of McKoy and its progenitors, we would create an anomalous situation where jurors are required to consider mitigating circumstances which are only found to exist by a single holdout juror.\u201d State v. Lee, 335 N.C. 244, 287, 439 S.E.2d 547, 570.\nThe purpose of Mills and McKoy was to allow individualized determination of mitigating circumstances.\nMills requires that each juror be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death. This requirement means that, in North Carolina\u2019s system, each juror must be allowed to consider all mitigating evidence ....\nMcKoy v. North Carolina, 494 U.S. at 442-43, 108 L. Ed. 2d at 381. Justice Blackmun noted in McKoy that\nit is understood that different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie their verdict.\nId. at 449, 108 L. Ed. 2d at 384-85 (Blackmun, J., concurring) (footnotes omitted). McKoy does not invalidate \u201ca jury instruction that does not require unanimity with respect to mitigating circumstances but requires a juror to consider a mitigating circumstance only if he or she is convinced of its existence by a preponderance of the evidence.\u201d Id. at 444, 108 L. Ed. 2d at 382 (White, J., concurring).\nWe conclude that there is no constitutional requirement that a juror must consider a mitigating circumstance found by another juror to exist. What is constitutionally required is that jurors be individually given the opportunity to consider and give weight to whatever mitigating evidence they deem to be valid. The instructions given by the trial court in this case gave each juror this individualized opportunity. Thus, the instructions of the trial court are valid. Defendant\u2019s assignment of error is without merit.\nIn a related issue, defendant argues that the trial court erred by instructing the jury that each juror \u201cmay\u201d consider mitigating circumstances that juror found to exist when weighing the aggravating and mitigating circumstances. Specifically, the trial judge instructed the jury:\nIf you find from the evidence one or more mitigating circumstances, you must weigh the aggravating circumstances against the mitigating circumstances.\nWhen deciding this issue, each juror may consider any mitigating circumstance or circumstances that the juror determined to exist by a preponderance of the evidence in Issue Two.\nIn deciding this issue, you are not to consider the aggravating circumstances standing alone. You must consider them in connection with any mitigating circumstances found by one or more of you. When making this comparison, each juror may consider any mitigating circumstance or circumstances that the juror determined to exist by a preponderance of the evidence.\n(Emphasis added); see N.C.P.I. \u2014 Crim. 150.10.\nDefendant contends that this instruction violated the Eighth and Fourteenth Amendments to the United States Constitution and principles set forth in Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 11. Defendant argues that the use of the word \u201cmay\u201d allowed some jurors to disregard relevant mitigating evidence they had earlier found to exist.\nWe have recently addressed this issue, reviewing the exact instruction challenged here and finding it to be without error. State v. Lee, 335 N.C. at 286-87, 439 S.E.2d at 569. Specifically, we held in Lee that \u201c[f]ar from precluding a juror\u2019s consideration of mitigating circumstances he or she may have found, the instant instruction expressly instructs that the evidence in mitigation must be weighed against the evidence in aggravation.\u201d Id. at 287, 439 S.E.2d at 570. We continue to believe that the Pattern Jury Instructions as given here are correct. See State v. Green, 336 N.C. at 175, 443 S.E.2d at 33-34; State v. Robinson, 336 N.C. at 121, 443 S.E.2d at 327. Thus, this assignment of error is without merit and is overruled.\nNext, defendant argues that the trial court erred in its instruction on mitigating circumstances because the instruction was too narrow and created an unacceptable risk that the jury failed to consider relevant mitigating information.\nThe trial court instructed the jury:\nMembers of the jury, a mitigating circumstance is a fact or group of facts which do not constitute a justification or excuse for a killing or reduce it to a lesser degree of crime than first-degree murder, but which may be considered as extenuating or reducing the moral culpability of the killing or making it less deserving of extreme punishment than other first-degree murders.\nThis Court has approved this definition in numerous cases. See State v. Hill, 331 N.C. 387, 420, 417 S.E.2d 765, 782; State v. Boyd, 311 N.C. 408, 421, 319 S.E.2d 189, 198 (1984), cert. denied, 471 U.S. 1030, 85 L. Ed. 2d 324 (1985); State v. Moose, 310 N.C. 482, 499, 313 S.E.2d 507, 518 (1984); State v. Irwin, 304 N.C. 93, 104, 282 S.E.2d 439, 446-47 (1981); see also N.C.P.I.-Crim. 150.10.\nIn addition, the trial court instructed the jury that\nin considering Issue Two it would be your duty to consider as a mitigating circumstance any aspect of the defendant\u2019s character and any of the circumstances of this murder that the defendant contends is a basis for a sentence less than death and any other circumstances arising from the evidence which you deem to have mitigating value.\nThis instruction is consistent with language from Eddings v. Oklahoma, 455 U.S. 104, 110, 71 L. Ed. 2d 1, 8, and Lockett v. Ohio, 438 U.S. 586, 605, 57 L. Ed. 2d 973, 990, discussing what evidence a sentencer must be able to consider when determining a sentence of life versus death. See State v. Irwin, 304 N.C. at 104, 282 S.E.2d at 447; see also N.C.P.I.-Crim. 150.10.\nReviewing the instructions given to the jury in their entirety, we conclude that the jury was not restricted from considering any evidence that may have lessened defendant\u2019s sentence, whether it be evidence that was directly based on defendant\u2019s character or evidence that related to the actual murders. The trial court gave a valid instruction consistent with our case law, the North Carolina Pattern Jury Instructions, and United States Supreme Court case law. We conclude that defendant\u2019s assignment of error is without merit.\nNext, defendant argues that the trial court erred in submitting the aggravating circumstance that the murders were part of a course of conduct in which defendant engaged and which course of conduct included the commission by the defendant of crimes of violence against another person or persons. N.C.G.S. \u00a7 15A-2000(e)(ll) (1988).\nDefendant acknowledges that the trial court instructed the jurors consistent with the Pattern Jury Instructions:\nA murder is part of such a course of conduct if it and the other crimes of violence are part of a pattern of the same or similar acts which establish that there existed in the mind of the defendant a plan, scheme, system, or design involving both the murder and those other crimes of violence.\nDefendant argues that this circumstance should not have been submitted because it was not supported beyond a reasonable doubt by the evidence. We note:\nIn determining the sufficiency of the evidence to submit an aggravating circumstance to the jury, the trial court must consider the evidence in the light most favorable to the State, with the State entitled to every reasonable inference to be drawn therefrom, and discrepancies and contradictions resolved in favor of the State.\nState v. Syriani, 333 N.C. 350, 392, 428 S.E.2d 118, 140 (emphasis added). \u201c \u2018If there is substantial evidence of each element of the [aggravating] issue under consideration, the issue must be submitted to the jury for its determination.\u2019 \u201d State v. Moose, 310 N.C. at 494, 313 S.E.2d at 516 (quoting State v. Stanley, 310 N.C. 332, 347, 312 S.E.2d 393, 401 (1984) (Martin, J., dissenting)).\nWhen determining if there is evidence to prove the existence of the course of conduct circumstance, the sufficiency of the evidence \u201cdepends upon a number of factors, among them the temporal proximity of the events to one another, a recurrent modus operandi, and motivation by the same reasons.\u201d State v. Price, 326 N.C. 56, 81, 388 S.E.2d 84, 98, sentence vacated on other grounds, 498 U.S. 802, 112 L. Ed. 2d 7 (1990), on remand, 331 N.C. 620, 418 S.E.2d 169 (1992), sentence vacated on other grounds,-U.S.-, 122 L. Ed. 2d 113, on remand, 334 N.C. 615, 433 S.E.2d 746 (1993), sentence vacated on other grounds, -U.S.-, 129 L. Ed. 2d 888, on remand, 337 N.C. 756, 448 S.E.2d 827 (1994), pet. for cert. filed (U.S. 17 Jan. 1995) (No. 94-7672). \u201c[T]he closer the incidents of violence are connected in time, the more likely that the acts are part of a plan, scheme, system, design or course of action.\u201d State v. Cummings, 332 N.C. 487, 510, 422 S.E.2d 692, 705 (1992). \u201c[I]n order to find course of conduct, a court must consider the circumstances surrounding the acts of violence and discern some connection, common scheme, or some pattern or psychological thread that ties them together.\u201d Id.\nIn this case, there was substantial evidence to support the submission of this circumstance. As noted previously, the evidence established that defendant pulled a semiautomatic rifle from under the seat of his truck and fired multiple shots at Ailene Pittman, inflicting thirty-four wounds. He then said \u201cyou too\u201d and shot Nelson Fipps. As the truck pulled away from the scene of the crime, defendant asked the driver, \u201cdid I get them\u201d both. There was no evidence that the victims had provoked defendant.\nDetermining that the crimes occurred within moments of each other at the same location and that the same modus operandi was used in each killing, we hold that the facts clearly establish that the two crimes were committed as a part of a course of conduct in which defendant engaged and which included the commission by defendant of a crime of violence against another person. We conclude that the trial court did not err when it submitted this circumstance to the jury. Defendant\u2019s assignment of error is without merit.\nNext, defendant argues that the trial court erred when it refused to independently submit specific nonstatutory mitigating circumstances requested by defendant in writing. Defendant argues that the instructions given by the trial court kept the jury from considering relevant mitigating evidence and diluted and diminished the written instructions that were given in place of the requested instructions.\nAll the circumstances requested by defendant were put on the written recommendation form; however, some of the written instructions were combined. The instruction that defendant cannot read and the instruction that defendant cannot write were combined to read that defendant was functionally illiterate and cannot read or write. The instruction that defendant pled guilty to criminal charges in 1984, the instruction that defendant pled guilty to criminal charges in 1981, and the instruction that defendant pled guilty to criminal charges in 1977 were combined to read that the defendant pled guilty to criminal charges in 1984, 1981, and 1977. The instruction that defendant was under the influence of alcohol at the time of the offense was changed to read that defendant had consumed alcohol at the time of the offense. Finally, the instruction that defendant loves and respects his mother and the instruction that defendant loves and respects his father were combined to read that defendant loves and respects his parents.\nIn State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990), this Court held that\nwhere a defendant makes a timely written request for a listing in writing on the form of possible nonstatutory mitigating circumstances that are supported by the evidence and which the jury could reasonably deem to have mitigating value, the trial court must put such circumstances in writing on the form.\nId. at 324, 389 S.E.2d at 80. We concluded that such a practice was necessary because \u201ccommon sense teaches us that jurors, as well as all people, are apt to treat written documents more seriously than items verbally related to them. [If] . . . the circumstances [were] written on the form, the trial judge and the jury would ... [be] required to directly address each of them.\u201d Id. at 325, 389 S.E.2d at 81.\nWe conclude that in this case the instructions requested by defendant were given to the jury in written form. While the language was not exactly that requested by defendant, the jury was required to directly address every point brought forward by defendant in his written request. For example, the jury was instructed to consider whether defendant loves and respects his parents. In addressing this issue, the jury must consider both whether defendant loves and respects his mother and whether defendant loves and respects his father. In essence, the requested instructions were subsumed into the given instruction. See State v. Benson, 323 N.C. 318, 327, 372 S.E.2d 517, 522 (1988) (no error when trial court fails to submit a mitigating circumstance that was subsumed into another mitigating circumstance).\nThe refusal of a trial judge to submit proposed circumstances separately and independently is not error. State v. Greene, 324 N.C. 1, 21, 376 S.E.2d 430, 443 (1989) (court may incorporate requested circumstances within given instructions and the catchall circumstance), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990), on remand, 329 N.C. 771, 408 S.E.2d 185 (1991); State v. Fullwood, 323 N.C. 371, 393, 373 S.E.2d 518, 531 (court did not err in refusing to submit nonstatutory mitigating circumstance that had been incorporated into statutory mitigating circumstance that was submitted to jury); State v. Lloyd, 321 N.C. 301, 313-14, 364 S.E.2d 316, 324-25 (court did not err in refusing to submit two nonstatutory mitigating circumstances regarding defendant\u2019s criminal record where a submitted statutory mitigating circumstance allowed jury to consider defendant\u2019s criminal record as a whole).\nAssuming arguendo that the trial court erred by not giving the exact instructions requested by defendant, we conclude that such error was harmless beyond a reasonable doubt. A trial court\u2019s error in failing to submit a nonstatutory mitigating circumstance is harmless \u201cwhere it is clear that the jury was not prevented from considering any potential mitigating evidence.\u201d State v. Green, 336 N.C. 142, 183, 443 S.E.2d 14, 38; see State v. Hill, 331 N.C. 387, 417, 417 S.E.2d 765, 780.\nWe conclude that the trial court correctly brought to the jury\u2019s attention all of defendant\u2019s requested instructions that were supported by the evidence. Assuming arguendo, however, that the trial court did err, such error was harmless beyond a reasonable doubt.\nNext, defendant argues that imposition of the death penalty here is unconstitutional because defendant has suffered lifelong organic brain damage and is mentally retarded. To begin, we note that defendant did not object to the imposition of the death penalty on these grounds at trial. Nor did defendant make this an assignment of error in the record. Accordingly, the issue is deemed waived by defendant. State v. Upchurch, 332 N.C. 439, 456, 421 S.E.2d 577, 587 (1992). Nevertheless, we have considered defendant\u2019s argument.\nWe first note that the United States Supreme Court has held that the Eighth Amendment does not categorically prohibit the infliction of the death penalty on a person who is mentally retarded. Penry v. Lynaugh, 492 U.S. 302, 340, 106 L. Ed. 2d 256, 292 (1989). In addition, this Court has affirmed the death penalty in cases where defendants\u2019 IQ test scores were similar to or lower than this defendant\u2019s IQ test score of 69. State v. McCollum, 334 N.C. 208, 248, 433 S.E.2d 144, 166 (1993) (Exum, C.J., concurring in part and dissenting in part) (IQ tests scores of 61 and 69), cert. denied, - U.S. -, 129 L. Ed. 2d 895 (1994); State v. Artis, 325 N.C. 278, 311, 384 S.E.2d 470, 489 (IQ test score of 67); State v. Hunt, 323 N.C. 407, 435, 373 S.E.2d 400, 418 (1988) (codefendant Barnes\u2019 IQ test score of 68), sentence vacated on other grounds sub nom. Barnes v. North Carolina, 499 U.S. 1022, 108 L. Ed. 2d 602, on remand, 330 N.C. 104, 408 S.E.2d 843 (1991); State v. Pinch, 306 N.C. 1, 57, 292 S.E.2d 203, 240 (1982) (Exum, J., dissenting) (IQ test score of 66).\nThe imposition of the death penalty on this defendant is not unconstitutional, and defendant\u2019s .assignment of error has no merit.\nPreservation Issues\nDefendant brings forward six issues for preservation purposes. First, defendant contends that it is unconstitutional to permit the prosecutor to peremptorily challenge jurors who express any reservation about the death penalty. We have previously decided this issue against defendant. State v. Allen, 323 N.C. 208, 222, 372 S.E.2d 855,-863 (1988), sentence vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990), on remand, 331 N.C. 746, 417 S.E.2d 227 (1992), cert. denied, - U.S. -, 122 L. Ed. 2d 775, reh\u2019g denied, - U.S. -, 123 L. Ed. 2d 503 (1993).\nSecond, defendant contends that the Pattern Jury Instruction imposing a duty upon the jury to return death if the mitigating circumstances are insufficient to outweigh the aggravating circumstances is unconstitutional. This Court has previously decided this issue adversely to defendant. State v. McDougall, 308 N.C. 1, 26, 301 S.E.2d 308, 324, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 173 (1983); State v. Pinch, 306 N.C. 1, 33-34, 292 S.E.2d 203, 227.\nThird, defendant contends that the trial court erred in denying his request for individual voir dire and sequestration of prospective jurors. This Court has consistently denied other defendants relief on this basis. State v. Reese, 319 N.C. 110, 119, 353 S.E.2d 352, 357 (1987); State v. Wilson, 313 N.C. 516, 524, 330 S.E.2d 450, 457 (1985); State v. Johnson, 298 N.C. 355, 362, 259 S.E.2d 752, 757 (1979). \u201cThe decision whether to grant sequestration and individual voir dire of prospective jurors rests in the sound discretion of the trial court and its ruling will not be disturbed absent a showing of abuse of discretion.\u201d State v. Wilson, 313 N.C. at 524, 330 S.E.2d at 457. A review of the transcript and record shows no such abuse of discretion in this case.\nFourth, defendant contends that the trial court erred by denying defendant\u2019s request that the trial court give specific instructions, written by defendant, about the procedures involved in a capital punishment proceeding prior to the beginning of jury selection. The trial court did give preliminary jury instructions pursuant to the Pattern Jury Instructions. This Court has previously considered such a contention and decided it adversely to defendant. State v. Artis, 325 N.C. 278, 294-96, 384 S.E.2d 470, 478-79.\nFifth, defendant argues that the North Carolina death penalty statute is unconstitutional. This Court has repeatedly held that the North Carolina death penalty statute is not unconstitutional. State v. Roper, 328 N.C. 337, 370, 402 S.E.2d 600, 619, cert. denied, 502 U.S. 902, 116 L. Ed. 2d 232 (1991); State v. McLaughlin, 323 N.C. 68, 102, 372 S.E.2d 49, 71 (1988), sentence vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990), on remand, 330 N.C. 66, 408 S.E.2d 732 (1991); State v. Barfield, 298 N.C. 306, 353-54, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137, reh\u2019g denied, 448 U.S. 918, 65 L. Ed. 2d 1181 (1980).\nSixth, defendant argues that the trial court erred by instructing the jury that defendant had the burden of prov ing the mitigating circumstances by a preponderance of the evidence. We have previously considered this contention and have decided it adversely to defendant. State v. Roper, 328 N.C. at 368, 402 S.E.2d at 618; State v. Barfield, 298 N.C. at 353, 259 S.E.2d at 543; State v. Johnson, 298 N.C. 47, 75-76, 257 S.E.2d 597, 617-18.\nIn summary, all of defendant\u2019s contentions as to the preservation issues have been decided contrary to defendant in the past. Upon our review of the issues, we find no reason to alter our previous decisions and determine that all of these assignments of error are without merit.\nProportionality Review\nFinding no error in either the guilt-innocence phase or the capital sentencing proceeding, it is now the duty of this Court to review the record and determine (1) whether the record supports the jury\u2019s finding of the aggravating circumstances upon which the sentencing court based its sentence of death; (2) whether the sentence was imposed under the influence of passion, prejudice, or any other 'arbitrary factor; and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. N.C.G.S. \u00a7 15A-2000(d)(2) (1988).\nThe following aggravating circumstances were submitted to the jury:\n(1) Had the defendant been previously convicted of a felony involving the use of violence to the person? [N.C.G.S. \u00a7 15A-2000(e)(3) (1988).]\n(2) Was this murder part of a course of conduct in which the . defendant engaged and did that course of conduct include the commission by the defendant of other crimes of violence against other persons? [N.C.G.S. \u00a7 15A-2000(e)(ll).]\nThe jury responded \u201cyes\u201d to each of these inquiries, thus finding these aggravating circumstances to exist.\nAs noted earlier, we have already concluded that the aggravating circumstance that the murder was part of a course of conduct that included other crimes of violence was supported by the evidence. We also conclude that the jury\u2019s finding of the other aggravating circumstance was clearly supported by the evidence. During the sentencing phase, the State presented evidence that defendant had pled guilty on three separate occasions to assault with a deadly weapon inflicting serious injury.\nAfter conducting a thorough review of the transcript, record on appeal, and briefs and oral arguments of counsel, we further conclude that the jury did not sentence defendant to death while under the influence of passion, prejudice, or any other arbitrary factor.\nOur final duty is to determine whether the punishment of death in this case is excessive or disproportionate to the penalty imposed in similar cases considering the crime and the defendant. N.C.G.S. \u00a7 15A-2000(d)(2).\nAs this Court has frequently noted, the purpose of proportionality review is to \u201celiminate the possibility that a person will be sentenced to die by the action of an aberrant jury.\u201d State v. Holden, 321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). Proportionality review is necessary to serve \u201c[a]s a check against the capricious or random imposition of the death penalty.\u201d State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979). In 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), over ruled, on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988).\nWe begin our analysis by comparing the instant case with those seven cases in which this Court has determined that the sentence of death was disproportionate: State v. Benson, 323 N.C. 318, 372 S.E.2d 517; State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373; State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).\nIn State v. Benson, the defendant was convicted of first-degree murder based solely upon the theory of felony murder; the victim died of a cardiac arrest after being robbed and shot in the legs by the defendant. The only aggravating circumstance found by the jury was that the crime was committed for pecuniary gain. This Court determined that the death sentence was disproportionate based in part on the fact that it appeared defendant was simply attempting to rob the victim, 323 N.C. at 329, 372 S.E.2d at 523, and defendant \u201cpleaded guilty during the trial and acknowledged his wrongdoing before the jury.\u201d Id. at 328, 372 S.E.2d at 523.\nIn State v. Stokes, the defendant was one of four individuals who was involved in the beating death of a robbery victim. Defendant was found guilty of first-degree murder under the theory of felony murder, and only one aggravating circumstance was found, that the crime was especially heinous, atrocious, or cruel. This Court, in finding that the death sentence was disproportionate, noted that none of the defendant\u2019s accomplices were sentenced to death, although they \u201ccommitted the same crime in the same manner.\u201d 319 N.C. at 27, 352 S.E.2d at 667.\nIn State v. Rogers, the defendant was convicted of first-degree murder based on a shooting of the victim in a parking lot during an argument. Only one aggravating circumstance was found, that \u201c[t]he 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 316 N.C. at 234, 341 S.E.2d at 731.\nIn State v. Young, the defendant stabbed and robbed a man. The Court noted that in armed robbery cases where death is imposed, the jury has found the aggravating circumstance that the defendant was engaged in a course of conduct that included the commission of violence against another person and/or that the crime was especially heinous, atrocious, or cruel. 312 N.C. at 691, 325 S.E.2d at 194. Neither of these circumstances was found by the jury in Young.\nIn State v. Hill, the defendant shot a police officer while engaged in a struggle near defendant\u2019s automobile. This Court found the death sentence disproportionate:\nGiven the somewhat speculative nature of the evidence surrounding the murder here, the apparent lack of motive, the apparent absence of any simultaneous offenses, and the incredibly short amount of time involved, together with the jury\u2019s finding of three mitigating circumstances tending to show defendant\u2019s lack of past criminal activity and his being gainfully employed, and the unqualified cooperation of defendant during the investigation ....\n311 N.C. at 479, 319 S.E.2d at 172.\nIn State v. Bondurant, the defendant shot his victim after defendant had spent the night drinking; there was no motive for the killing, and immediately after the victim was shot, defendant made sure the victim was taken to the hospital. 309 N.C. at 694, 309 S.E.2d at 182-83.\nIn State v. Jackson, the victim had been shot twice in the head. The defendant had earlier flagged down the victim\u2019s car, telling his companions that he intended to rob the victim. This Court found the death sentence disproportionate because there was \u201cno evidence of what occurred after defendant left with McAulay [the victim].\u201d 309 N.C. at 46, 305 S.E.2d at 717.\nWe conclude that this case is not similar to any of the above cases, where death was found to be a disproportionate sentence. Most notably, in all of the cases where the death sentence has been determined to be disproportionate, only one person has been murdered by the defendant. In this case, two people were murdered by defendant, in front of an eyewitness who could relate exactly what happened. Defendant here, without provocation, shot Ailene Pittman and Nelson Fipps numerous times with a semiautomatic rifle containing fragmentation bullets. He left his two victims dying on the front lawn and never attempted to get them any help. Defendant had already been convicted on three other occasions of inflicting serious injury with a deadly weapon, on three different victims.\nIn reviewing the proportionality of a sentence, it is also appropriate for us to compare the case before us to other cases in the pool used for proportionality review. State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985). However, we \u201cwill not undertake to discuss or cite all of those cases\u201d we have reviewed. State v. McCollum, 334 N.C. 208, 244, 433 S.E.2d 144, 164. In examining the pool, we review cases with similar facts and with similar aggravators and mitigators.\nHere, defendant was convicted of two first-degree murders on the theory of premeditation and deliberation. In addition, the jury found the existence of the two aggravating circumstances submitted in this case: defendant had previously been convicted of a felony involving the use of violence to the person, N.C.G.S. \u00a7 15A-2000(e)(3); and the murders were part of a course of conduct that included crimes of violence to others, N.C.G.S. \u00a7 15A-2000(e)(ll). The jury also found five of the sixteen submitted mitigating circumstances to exist. The mitigating circumstances found were: the murder was committed while the defendant was under the influence of mental or emotional disturbance, N.C.G.S. \u00a7 15A-2000(f)(2) (1988); the capacity of defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, N.C.G.S. \u00a7 15A-2000(f)(6) (1988); at the time of the offense defendant had consumed alcohol; defendant was an alcohol abuser; and any other circumstance or circumstances arising from the evidence which one or more of the jurors deems to have mitigating value, N.C.G.S. \u00a7 15A-2000(f)(9) (1988). The following circumstances were submitted to the jury but not found: the age of defendant at the time of the murder, N.C.G.S. \u00a7 15A-2000(f)(7) (1988); defendant was a hard worker and had a good employment record; defendant\u2019s IQ is in the mental retardation range; defendant pled guilty to the earlier criminal charges with which he was charged, occurring on 31 May 1984, 15 December 1981, and 6 December 1977; defendant suffered the death of two children during the last five years within a six-week period of each other; defendant loves and respects his parents; defendant provided love, financial assistance, and care for his children; defendant only completed the eighth grade in school; defendant was cooperative with law enforcement at the time of his arrest; defendant is functionally illiterate and cannot read or write; defendant was a kind, friendly, and compassionate person who developed strong emotional ties to his close friends.\nDefendant argues that the prime reasons that his sentence is disproportionate are his low IQ and the fact that the jury found him to be mentally or emotionally disturbed when the crime was committed, and that defendant\u2019s capacity to appreciate the criminality of his conduct was impaired. This Court has affirmed death sentences even when the jury has found the two noted statutory mitigators. See State v. McDougall, 308 N.C. 1, 301 S.E.2d 308; State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), cert. denied, 455 U.S. 1038, 72 L. Ed. 2d 155 (1982). As noted earlier in this decision, this Court has also affirmed the death sentences in cases where defendants have made similar scores on IQ tests.\nWe have reviewed cases involving the two statutory aggravators found in this case and have noted that in many of these cases, the defendant received death. See State v. Vereen, 312 N.C. 499, 324 S.E.2d 250, cert. denied, 471 U.S. 1094, 85 L. Ed. 2d 526 (1985); State v. McDougall, 308 N.C. 1, 301 S.E.2d 308. We have also reviewed cases where there have been other crimes of violence committed during a premeditated and deliberated murder. We have noted that while many of these defendants received life sentences, most of these cases involved only a single killing. But see State v. Austin, 320 N.C. 276, 357 S.E.2d 641 (three victims), cert. denied, 484 U.S. 916, 98 L. Ed. 2d 224 (1987).\nDefendant argues that the fact that this case involved a multiple killing does not automatically make it proportionate and sets forth cases where defendants have received life sentences for multiple murders. We note that \u201cour responsibility in proportionality review is to evaluate each case independently, considering \u2018the individual defendant and the nature of the crime or crimes which he has committed.\u2019 \u201d State v. Quesinberry, 325 N.C. 125, 145, 381 S.E.2d 681, 693 (1989) (quoting State v. Pinch, 306 N.C. 1, 36, 292 S.E.2d 203, 229), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990), on remand, 328 N.C. 288, 401 S.E.2d 632 (1991). \u201cEarly in the process of developing our methods for proportionality review, we indicated that similarity of cases, no matter how many factors are compared ... [is not] \u2018. . . the last word on the subject of proportionality\u2019 \u201d but merely serves as an initial point of inquiry. State v. Green, 336 N.C. 142, 198, 443 S.E.2d 14, 46-47 (quoting State v. Williams, 308 N.C. 47, 80-81, 301 S.E.2d 335, 356). The issue of whether the death penalty is proportionate in a particular case must rest in part on the experienced judgment of the members of this Court, not simply on a mere numerical comparison of aggravators, mitigators, and other circumstances. Id. In addition, \u201cthe decision of the jury [is given] great deference in determining whether a death sentence is disproportionate.\u201d State v. Quesinberry, 325 N.C. at 145, 381 S.E.2d at 694.\nThis case involves a man who had previously assaulted and seriously injured three other people, by shooting one in the back, severing the hand of another with a knife, and shooting another in the chest. He had pled guilty and been convicted of all three of these previous assaults. However, defendant continued to inflict injuries on other people, ultimately killing two people in a single incident with a semiautomatic rifle. Therefore, based upon our review of the cases in the pool and the experienced judgment of members of this Court, we hold that the sentence of death in this case is not disproportionate and decline to set aside the death penalty imposed.\nIn summary, we have carefully reviewed the transcript of the trial and sentencing proceeding as well as the record and briefs and oral arguments of counsel. We have addressed all of defendant\u2019s assignments of error and conclude that defendant received a fair trial and a fair sentencing proceeding free of prejudicial error before an impartial judge and jury. The conviction and the aggravating circumstances are fully supported by the evidence. The sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor and is not disproportionate.\nNO ERROR.\n. One juror was asked if he could \u201caccept and follow the law as given to you by the Court in this case\u201d and if he was saying \u201cthat you would not consider life imprisonment under those circumstances, regardless of the instructions of the Court.\u201d Another juror was asked, \u201cif the Court instructs you that you\u2019re to consider all of the evidence, would you follow those instructions?\u201d\n. In his argument to the Court, defendant states that evidence of defendant\u2019s long history of alcohol abuse and his unsuccessful institutionalized treatment for addiction support an instruction on voluntary intoxication. However, a close review of the transcript shows that this evidence was not presented to the jury until the sentencing phase, so it cannot be considered here.\n. Two issues and recommendation sheets were given to the jury, one for Ailene Pittman and one for Nelson Fipps. The sheets contained the same aggravators and mitigators, and the jury found the same aggravators and mitigators to exist in both cases.", "type": "majority", "author": "MEYER, Justice." }, { "text": "Chief Justice Exum\nconcurring in the result.\nI concur in the result reached by the majority on both the guilt-innocence proceeding and the capital sentencing proceeding. I write separately to address defendant\u2019s contention that to impose the death penalty upon him is violative of the State constitution because he is mentally retarded. Had the evidence that defendant was mentally retarded been uncontradicted and manifestly credible, then I believe a strong argument could have been made that to execute defendant would violate our State\u2019s constitutional prohibition against cruel or unusual punishment. State v. McCollum, 334 N.C. 208, 433 S.E.2d 144 (1993) (Exum, C.J., concurring in part and dissenting in part) cert. denied, - U.S. -, - L. Ed. 2d - (1994).\nHere, however, the evidence that defendant is mentally retarded is not uncontradicted, and the jury rejected defendant\u2019s nonstatutory mitigating circumstance based on his being mentally retarded.\nThe generally accepted definition of mental retardation is that it afflicts the person in question with (1) a significant subaverage intellectual functioning (2) which exists concurrently with deficits in adaptive behavior and (3) which disability has manifested itself during the person\u2019s developmental period. American Association on Mental Deficiency [now Retardation], Classification in Mental Retardation 1 (H. Grossman ed. 1983). General intellectual functioning is measured by IQ (intelligent quotient) tests. These tests vary; however, to be classified as mentally retarded, a person generally must score below 70, which would place the person among only three percent of the population. Amici Curiae Brief in Support of Petitioner at.5 n.2, Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256 (1989).\nEvidence presented at trial tended to show that defendant had a significantly subaverage general intellectual functioning. He dropped out of school during the eighth grade because he was unable to learn and was having difficulty staying awake during a large portion of the school day. Dr. Antonio Puente, a neuropsychologist retained by defendant, tested defendant by means of the Academic Wide-Range Achievement Test and determined defendant\u2019s mathematical skills were in a fourth-grade level and that his reading and writing skills were at a level between first and second grade. Defendant\u2019s IQ tested at 69.\nDr. Puente found defendant functionally unable to read or write and placed defendant\u2019s mental age at six-and-one-half years. Dr. Puente further found defendant to be suffering from \u201csomewhere between a moderate and severe\u201d organic brain syndrome, a defective condition of the brain causing behavioral problems. The cause of this condition was believed to be severe head injuries suffered as a child, including a skull fracture after being dropped on his head as an infant, and hypertension, which caused him to have a facial stroke. In Dr. Puente\u2019s opinion, defendant\u2019s intellectual deficits left him with a poor ability to learn or remember and a limited ability to plan, carry out or reflect upon the serious issues in his life.\nNotwithstanding Dr. Puente\u2019s testimony, there was evidence before the jury indicating, among other things, that defendant was well able to function acceptably in society. For example, the evidence indicated that defendant was married and was the father of four children, two of whom were still living. Additionally, defendant helped his father by keeping his father\u2019s cattle and repairing his father\u2019s vehicles. Defendant\u2019s brother testified defendant was always employed and that he fully provided for his children. Other testimony revealed that defendant successfully operated a junkyard, one of the larger businesses in the community.\nAlthough evidence that defendant\u2019s IQ tested at 69 was uncontroverted, there was positive evidence before the jury that defendant\u2019s IQ did not result in a significant deficit in his adaptive behavior. This evidence, if believed, was sufficient to preclude defendant from being classified as mentally retarded and was enough to support the jury\u2019s rejection of mental retardation as a nonstatutory mitigating circumstance. Because the evidence on the issue of defendant\u2019s mental retardation is in conflict and because the jury rejected mental retardation as a nonstatutory mitigating circumstance, I concur with the majority\u2019s conclusion that to execute this defendant does not violate our State\u2019s constitutional prohibition against cruel or unusual punishment on the ground that he is mentally retarded.", "type": "concurrence", "author": "Chief Justice Exum" } ], "attorneys": [ "Michael F. Easley, Attorney General, by Valerie B. Spalding, Assistant Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SHERMAN ELWOOD SKIPPER\nNo. 122A92\n(Filed 29 July 1994)\n1. Jury \u00a7\u00a7 226, 227 (NCI4th)\u2014 capital case \u2014 death penalty views \u2014 equivocal answers \u2014 excusal for cause \u2014 rehabilitation not allowed\nWhile a juror\u2019s answers on voir dire in a capital case were not entirely unequivocal and her views on whether she could consider the death penalty as required by law were not unmistakably clear, the trial court did not err by excusing the juror for cause where her responses revealed that her thoughts and views on the death penalty would substantially impair her ability to follow the instructions of the court as they related to her duty as a juror. Furthermore, the trial court did not err by refusing to permit defendant to attempt to rehabilitate the juror where the prosecution explained in detail the procedure that must be followed in determining a sentence of death; after this explanation, the juror affirmatively responded three times that she would be substantially impaired in following the law because of her beliefs; and there was no indication that further questioning of the juror would have done anything but make the situation more confusing.\nAm Jur 2d, Jury \u00a7\u00a7 289, 290.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post-Witherspoon cases. 39 ALR3d 550.\n2. Jury \u00a7 123 (NCI4th)\u2014 capital case \u2014 voir dire questions\u2014 consideration of age, mental impairment, etc. \u2014 attempt to stake out jurors\nThe trial court did not err by refusing to permit defendant to ask prospective jurors in a capital case whether they could \u201cconsider\u201d age, mental impairment or retardation, and other specific mitigating circumstances in reaching a decision, since the questions were an impermissible attempt to stake out the jurors. Defendant was given an adequate opportunity to discover any bias on the part of a juror where he was permitted to inquire generally into jurors\u2019 feelings about mental illness and retardation and other mitigating circumstances, to ask jurors if they would automatically vote for the death penalty in a first-degree murder case, and to ask jurors if they would consider mitigating circumstances when determining defendant\u2019s sentence.\nAm Jur 2d, Jury \u00a7 197.\nPropriety and effect of asking prospective jurors hypothetical questions, on voir dire, as to how they would decide issues of case. 99 ALR2d 7.\n3. Jury \u00a7 123 (NCI4th)\u2014 capital case \u2014 jury voir dire \u2014 previous criminal record \u2014 automatic vote for death penalty\u2014 question properly excluded\nDefendant\u2019s question to a prospective juror as to whether she felt \u201cthat a person should always be given the death penalty if he has a previous criminal record and has been convicted of first-degree murder\u201d was an attempt to determine what kind of verdict the juror would render under certain circumstances not yet in evidence, and the trial court did not abuse its discretion in sustaining the State\u2019s objection to this question as phrased where the juror had already stated that she could consider mitigating circumstances in deciding whether to vote for life imprisonment or the death penalty and that she would not automatically vote for the death penalty for someone convicted of first-degree murder.\nAm Jur 2d, Jury \u00a7 197.\nPropriety and effect of asking prospective jurors hypothetical questions, on voir dire, as to how they would decide issues of case. 99 ALR2d 7.\nPropriety, on voir dire in criminal case, of inquiries as to juror\u2019s possible prejudice if informed of defendant\u2019s prior convictions. 43 ALR3d 1081.\n4. Jury \u00a7 141 (NCI4th)\u2014 capital case \u2014 jury voir dire \u2014 meaning of life imprisonment \u2014 possibility of parole \u2014 questions properly excluded\nThe trial court did not err in refusing to permit defendant to question prospective jurors in a capital trial about their views on the meaning of life imprisonment and the possibility of parole.\nAm Jur 2d, Jury \u00a7 197.\nPropriety and effect of asking prospective jurors hypothetical questions, on voir dire, as to how they would decide issues of case. 99 ALR2d 7.\n5. Criminal Law \u00a7 395 (NCI4th); Jury \u00a7 194 (NCI4th)\u2014 capital punishment views \u2014 questions by trial judge \u2014 no impartiality in favor of State\nThe trial judge did not act impartially in favor of the State in determining challenges for cause of prospective jurors in a capital trial based on their capital punishment beliefs by the manner in which he questioned a juror who gave equivocal answers about her beliefs or by asking jurors being questioned by defendant if they could follow the law as given to them where the record shows that the trial judge treated jurors challenged by the State and the defense in the same manner by asking the jurors questions to determine if they would in fact be substantially impaired by their views for or against the death penalty and if they could follow the law, and that the trial judge also intervened on occasion to clarify and explain the law when jurors were confused.\nAm Jur 2d, Jury \u00a7\u00a7 265 et seq.; Trial \u00a7 117.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post-Witherspoon cases. 39 ALR3d 550.\n6. Homicide \u00a7 552 (NCI4th)\u2014 first-degree murder \u2014 premeditation and deliberation \u2014 brain disorder \u2014 intoxication\u2014 lack of bad relationship \u2014 instruction on second-degree murder not required\nThe evidence of premeditation and deliberation was not equivocal in a prosecution of defendant for two first-degree murders so as to require the trial court to instruct the jury on second-degree murder where it tended to show that the female victim and defendant did not get along; they had an argument at the female victim\u2019s home and she did not want defendant to come to her home again; neither victim did anything to legally provoke defendant, but defendant pulled a semiautomatic rifle from under a car seat and killed the victims with fragmentation bullets known for their destructive power; defendant shot one victim, paused momentarily, stated \u201cyou too,\u201d and shot the second victim; both victims were wounded multiple times; as defendant left the crime scene, he asked his companion, \u201cdid I get them\u201d both; and defendant proceeded to dispose of the gun and ammunition and then left town. Evidence that defendant was mildly retarded and suffered from organic brain disorder was not presented to the jury until the sentencing phase and was thus not a factor that could support a second-degree murder instruction. Furthermore, the evidence did not indicate the lack of a bad relationship between the female victim and defendant which would support an instruction on second-degree murder, and evidence of defendant\u2019s intoxication was insufficient to support an instruction on second-degree murder where it established that he was not visibly intoxicated, that defendant chose not to drive a vehicle, and that he had had something to drink that day, but there was no evidence as to how much he had had to drink or over what period of time he had been drinking.\nAm Jur 2d, Homicide \u00a7\u00a7 525 et seq.\n7. Criminal Law \u00a7 429 (NCI4th)\u2014 capital case \u2014 jury argument \u2014 defendant\u2019s failure to testify \u2014 error cured by court\u2019s actions\nAny possible error created by the prosecutor\u2019s jury argument references to defendant\u2019s failure to testify in a capital trial was cured when the trial court sustained defendant\u2019s objection, the comments were both withdrawn and stricken from the record, the trial court then instructed the jury to \u201cdisregard the last argument of the prosecutor,\u201d and the trial court charged during its instructions that defendant had a right not to testify and that his silence was not to influence the jury\u2019s decision in any way. Assuming arguendo that the trial court\u2019s actions were insufficient to cure the error, the evidence of defendant\u2019s guilt was so overwhelming that the error was harmless beyond a reasonable doubt.\nAm Jur 2d, TMal \u00a7\u00a7 237-243.\nViolation of federal constitutional rule (Griffin v. Cali- , fornia) prohibiting adverse comment by prosecutor or court upon accused\u2019s failure to testify, as constituting reversible or harmless error. 24 ALR3d 1093.\n8. Evidence and Witnesses \u00a7 3015 (NCI4th)\u2014 cross-examination \u2014 prior conviction \u2014 date of crime \u2014 question properly excluded\nIn a capital trial in which a witness admitted oh cross-examination by defense counsel that he had been convicted of four counts of common law forgery, the date he was convicted, that he had received five years\u2019 probation, and that he had violated his probation, the trial court did not err by excluding defendant\u2019s question as to the date on which the witness had committed a particular act of forgery. Assuming arguendo that defendant should have been allowed to ask the witness the date on which he committed a specific crime, the error was harmless because the date could not add any impeachment value to the information the jury already had about the prior conviction. N.C.G.S. \u00a7 8C-1, Rule 609(a).\nAm Jur 2d, Witnesses \u00a7\u00a7 581 et seq.\nComment Note. \u2014 Impeachment of witness by evidence or inquiry as to arrest, accusation, or prosecution. 20 ALR2d 1421.\n9. Criminal Law \u00a7 414 (NCI4th)\u2014 defendant\u2019s introduction of evidence \u2014 loss of right to open and close arguments \u2014 no coercion by trial court\nThe trial court did not coerce defendant into introducing evidence so that he lost his right to open and close the final argument where the prosecutor objected to defendant\u2019s use of a photograph to help illustrate a witness\u2019s testimony during cross-examination unless it was introduced into evidence; the court sustained the objection and defendant immediately asked to introduce the photograph into evidence; the trial court asked defendant if he understood that he was now offering evidence and defendant responded that he understood; the court allowed the photograph into evidence; the photograph was shown to the jury while the witness answered questions posed by defendant; and defendant used the photograph to impeach the witness. Even if the photograph had not been admitted into evidence, defendant would still have lost his right to open and close jury argument because he also introduced two depositions and a diagram of the crime scene. Rule 10, General Rules of Practice for the Superior and District Courts.\nAm Jur 2d, Trial \u00a7 213.\n10. Homicide \u00a7 489 (NCI4th)\u2014 premeditation and deliberation \u2014 instructions\u2014lack of provocation\nThe trial court\u2019s instruction that the jury could infer premeditation and deliberation from circumstances such as \u201clack of provocation\u201d could not have confused the jury because it did not explain the difference between legal and ordinary provocation, did not constitute an impermissible expression of judicial opinion on the evidence, and did not impermissibly shift the burden of proof to defendant.\nAm Jur 2d, Homicide \u00a7 501.\n11. Homicide \u00a7 489 (NCI4th)\u2014 premeditation and deliberation \u2014 instructions\u2014inference from threats \u2014 no plain error\nThe trial court\u2019s instruction that \u201cthreats\u201d of the defendant may support an inference of premeditation and deliberation, if erroneous because not supported by the evidence, was not plain error where the evidence supported a finding of premeditation and deliberation, and defendant failed to meet his burden of showing that, absent the word \u201cthreats\u201d in the instruction on premeditation and deliberation, the jury would probably have reached a different verdict.\nAun Jur 2d, Homicide \u00a7 501.\n12. Evidence and Witnesses \u00a7 1694 (NCI4th)\u2014 autopsy photographs \u2014 relevancy to show premeditation and deliberation\nSeven autopsy photographs of the two victims were properly admitted in this first-degree murder prosecution, although it was uncontradicted that the victims were killed by multiple gunshot wounds from a semiautomatic rifle and that defendant was involved in the shooting, since they were not excessive, they helped illustrate a pathologist\u2019s testimony, and they were relevant and probative to show premeditation and deliberation. Furthermore, the trial court did not err by finding that the prejudicial effect of the photographs did not outweigh their probative value.\nAm Jur 2d, Homicide \u00a7\u00a7 417 et seq.\nAdmissibility of photograph of corpse in prosecution for homicide or civil action for causing death. 73 ALR2d 769.\n13. Homicide \u00a7 659 (NCI4th)\u2014 instruction on voluntary intoxication \u2014 defendant\u2019s burden of production \u2014 no due process violation\nDefendant\u2019s due process rights were not violated by his burden of producing evidence that he was so intoxicated that he could not form a premeditated and deliberated intent to kill in order to be entitled to an instruction on the defense of voluntary intoxication since the jurors were not restricted from considering evidence of intoxication in determining whether the State satisfied them beyond a reasonable doubt as to all elements of first-degree murder, including premeditation and deliberation and intent to kill, if defendant failed to satisfy the burden of production necessary for an instruction on voluntary intoxication, and the State\u2019s burden of proving first-degree murder beyond a reasonable doubt was in no way reduced by the burden of production defendant must satisfy in order to receive a voluntary intoxication instruction.\nAm Jur 2d, Homicide \u00a7 517.\n14. Homicide \u00a7 669 (NCI4th)\u2014 voluntary intoxication instruction \u2014 insufficient evidence\nThe evidence in a capital trial was insufficient to require an instruction on voluntary intoxication where it showed only that defendant had been drinking for some time during the day of the murder and that he did not want to drive because he had been drinking, but there was no evidence that defendant looked drunk or that he was having difficulty speaking or walking, and no evidence as to how much defendant had actually drunk.\nAm Jur 2d, Homicide \u00a7 517.\n15. Evidence and Witnesses \u00a7 2791 (NCI4th)\u2014 question about telling truth \u2014 properly excluded\nThe trial court did not err by refusing to permit defendant to ask a witness on redirect examination in a capital sentencing proceeding whether he was \u201ctelling this jury the truth\u201d because the credibility of a witness is for the jury to decide. Even if the trial court erred by sustaining the objection to this question, the error was harmless because the witness had already affirmed that he would tell the truth, and the question was redundant.\nAm Jur 2d, Witnesses \u00a7\u00a7 426 et seq.\n16. Evidence and Witnesses \u00a7 2906 (NCI4th)\u2014 redirect examination \u2014 exceeding scope of cross-examination \u2014 objection sustained \u2014 answer not stricken \u2014 harmless error\nThe trial court in a capital sentencing proceeding did not err by sustaining the State\u2019s objection to a question defendant asked a witness on redirect as to the name of the church for which he was the minister where this question went beyond the scope of cross-examination, which made no mention of the witness\u2019s profession. In any case, there was no error because the witness answered the question, there was no motion to strike or admonishment of the jury to disregard the answer, and defendant thus received the benefit of the evidence sought. Furthermore, any error in sustaining the objection to this question was harmless error because determining the name of the church the witness worked for did not bolster his credibility.\nAm Jur 2d, Witnesses \u00a7 425.\n17. Criminal Law \u00a7 1068 (NCI4th)\u2014 capital sentencing proceeding \u2014 exclusion of testimony \u2014 no due process violation\nDefendant\u2019s due process rights were not violated when the trial court in a capital sentencing proceeding refused to permit defendant to ask a witness on redirect (1) if he was telling the truth, and (2) for what church he was a minister. The questions were incompetent under traditional evidentiary standards, and defendant\u2019s due process rights were not implicated because the testimony sought did not directly reflect on defendant\u2019s guilt or involvement in the crime for which he had been convicted.\nAm Jur 2d, Criminal Law \u00a7 598.\n18. Criminal Law \u00a7 680 (NCI4th)\u2014 mitigating circumstances\u2014 peremptory instructions \u2014 necessity for request\nWhere defendant requested that peremptory instructions be given only for the mitigating circumstances dealing with mental and emotional impairment and defendant\u2019s capacity to appreciate the criminality of his conduct and to conform his conduct to the law, the trial court did not err in failing to give peremptory instructions as to other uncontroverted statutory and nonstatutory mitigating circumstances.\nAm Jur 2d, Criminal Law \u00a7 628.\n19. Criminal Law \u00a7\u00a7 860, 1322 (NCI4th)\u2014 capital sentencing proceeding \u2014 refusal to instruct on parole eligibility and concurrent sentences \u2014 jury question during deliberations \u2014 proper instruction\nThe trial court correctly denied defendant\u2019s request to include in the jury charge in a capital sentencing proceeding for two murders an instruction that a life sentence means that defendant may be eligible for parole in twenty years and that defendant could be sentenced to consecutive life sentences so that he would not be eligible for parole for forty years. Furthermore, when the jury sent out a question asking about parole eligibility and concurrent sentences, the trial court properly instructed the jury that eligibility for parole is not a proper matter for the jury and that in considering life imprisonment, \u201cyou should determine the question as though life- imprisonment means exactly what the statute says: imprisonment for life in the state\u2019s prison.\u201d N.C.G.S. \u00a7 15A-2002, which will require the trial court to instruct the jury in a capital sentencing proceeding concerning parole eligibility of a defendant sentenced to life, applies prospectively after its effective date, 1 October 1994, and thus does not apply in this case.\nAm Jur 2d, Trial \u00a7\u00a7 100, 890.\nProcedure to be followed where jury requests information as to possibility of pardon or parole from sentence imposed. 35 ALR2d 769.\nPrejudicial effect of statement or instruction of court as to possibility of parole or pardon. 12 ALR3d 832.\nJury\u2019s discussion of parole law as ground for reversal or new trial. 21 ALR4th 420.\n20. Criminal Law \u00a7 1322 (NCI4th)\u2014 capital sentencing proceeding \u2014 parole eligibility not mitigating \u2014 instruction not required\nAn instruction on parole eligibility was not necessary as mitigating evidence in light of the prosecutor\u2019s argument stressing defendant\u2019s potential for future dangerousness because parole eligibility is not mitigating since it does not reflect on any aspect of a defendant\u2019s character or record and any circumstances of the offense that the defendant proffers as a basis for a sentence less than death.\nAm Jur 2d, Trial \u00a7\u00a7 888 et seq.\n21. Criminal Law \u00a7 1355 (NCI4t\u00f1)\u2014 capital sentencing \u2014 mitigating circumstance \u2014 no significant criminal history\u2014 instruction not required\nThe trial court did not err by failing to submit the mitigating circumstance that defendant had no significant history of prior criminal activity where the State presented evidence that defendant had been convicted of assault with a deadly weapon inflicting serious bodily injury in 1978, 1982, and 1984; the jury found as an aggravating circumstance that defendant had been previously convicted of a felony involving the use or threat of violence to a person; and no rational juror could have found that defendant had no significant history of prior criminal activity.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n22. Criminal Law \u00a7\u00a7 1323, 1362 (NCI4th)\u2014 statutory mitigating circumstances \u2014 instructions\u2014determination of mitigating effect\nThe statement in the trial court\u2019s instructions on the statutory mitigating circumstance of age that \u201cthe mitigating effect of the age of the defendant is for you to determine\u201d did not allow the jury to \u201crefuse to consider, as a matter of law,\u201d the evidence about age as a mitigating circumstance in violation of Eddings v. Oklahoma, 455 U.S. 104, and was not improper. Moreover, the evidence was contradictory as to this mitigating circumstance and the jury\u2019s failure to find that this circumstance existed did not show that the jury interpreted this instruction to mean that it could \u201crefuse to consider\u201d this circumstance where there was evidence that defendant, whose chronological age was forty-eight, had the mental age of a six-year-old child, but there was also evidence that defendant had been married, ran his own business, and supported himself and his children.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Trial \u00a7\u00a7 888 et seq.\n23. Criminal Law \u00a7 1323 (NCI4th)\u2014 nonstatutory mitigating circumstances \u2014 instructions\u2014determination of mitigating value\nThe trial .court\u2019s instructions which permitted the jury to consider whether nonstatutory mitigating circumstances in fact had mitigating value were not erroneous where the instructions allowed the jury to consider all of the evidence in mitigation.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Trial \u00a7\u00a7 888 et seq.\n24. Criminal Law \u00a7 1323 (NCI4th)\u2014 mitigating circumstances \u2014 consideration of circumstances found by other jurors \u2014 instruction not constitutionally required\nThere is no constitutional requirement that a juror must consider a mitigating circumstance found by another juror to exist. What is constitutionally required is that jurors be individually given the opportunity to consider and give weight to whatever mitigating evidence they deem to be valid. Therefore, the trial court did not err by failing to instruct the jury that once one juror finds a mitigating circumstance to exist, all jurors must consider that circumstance when reaching their sentencing decision, even if a juror did not believe that mitigating circumstance existed.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Trial \u00a7\u00a7 888 et seq.\n25. Criminal Law \u00a7 1323 (NCI4th)\u2014 consideration of mitigating circumstances \u2014 instructions\u2014use of \u201cmay\u201d\nThe trial court\u2019s instruction that each juror \u201cmay\u201d consider mitigating circumstances that juror found to exist when weighing the aggravating and mitigating circumstances did not allow some jurors to disregard relevant mitigating evidence they had earlier found to exist and fully comported with McKoy v. North Carolina, 494 U.S. 433, where the court also instructed that the evidence in mitigation must be weighed against the evidence in aggravation.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Trial \u00a7\u00a7 888 et seq.\n26. Criminal Law \u00a7 1348 (NCI4th)\u2014 capital sentencing\u2014 instructions defining mitigating circumstance \u2014 jury not improperly restricted\nThe jury in a capital sentencing proceeding was not restricted from considering any evidence that may have lessened defendant\u2019s sentence, whether it be evidence that was directly based on defendant\u2019s character or evidence that related to the actual murders, where the trial court defined a mitigating circumstance as facts \u201cwhich do not constitute a justification or excuse for a killing or reduce it to a lesser degree of crime than first-degree murder, but which may be considered as extenuating or reducing the moral culpability of the killing or making it less deserving of extreme punishment than other first-degree murders,\u201d and the trial court also instructed that the jury had a duty \u201cto consider as a mitigating circumstance any aspect of the defendant\u2019s character and any of the circumstances of this murder that the defendant contends is a basis for a sentence less than death and any other circumstances arising from the evidence which you deem to have mitigating value.\u201d\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Trial , \u00a7\u00a7 888 et seq.\n27. Criminal Law \u00a7 1347 (NCI4th)\u2014 capital sentencing\u2014 course of conduct aggravating circumstance \u2014 sufficiency of evidence\nThe trial court properly submitted the course of conduct aggravating circumstance to the jury in a capital sentencing proceeding for two murders where the evidence tended to show that defendant pulled a semiautomatic rifle from under the seat of his truck and fired multiple shots at the female victim; he then said \u201cyou too\u201d and shot the male victim; as the truck pulled away, defendant asked the driver if he got them both; and the crimes thus occurred within moments of each other at the same location and by use of the same modus operandi.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Trial \u00a7\u00a7 888 et seq.\n28. Criminal Law \u00a7 1363 (NCI4th)\u2014 capital sentencing\u2014 requested nonstatutory mitigating circumstances \u2014 combining of circumstances\nThe trial court did not err by failing to submit separately and independently each nonstatutory mitigating circumstance requested in writing by defendant where some of the requested circumstances were combined by the trial court on the written recommendation form; all of the requested circumstances were subsumed by the circumstances submitted; and the jury was required to address every point brought forward in defendant\u2019s written request. Assuming arguendo that the trial court erred by not giving the exact instructions requested by defendant, such error was harmless beyond a reasonable doubt where it is clear that the jury was not prevented from considering any potential mitigating evidence.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Trial \u00a7\u00a7 888 et seq.\n29. Constitutional Law \u00a7 370 (NCI4th)\u2014 mentally retarded defendant \u2014 death penalty not unconstitutional\nImposition of the death penalty on defendant was not unconstitutional because he has suffered lifelong organic brain damage and is mentally retarded since the U.S. Supreme Court has held that the Eighth Amendment does not categorically prohibit the infliction of the death penalty on a person who is mentally retarded, and the N.C. Supreme Court has affirmed the death penalty in cases where defendants\u2019 IQ test scores were similar to or lower than defendant\u2019s IQ test score of 69.\nAm Jur 2d, Criminal Law \u00a7 628.\nPropriety of imposing capital punishment on mentally retarded individuals. 20 ALR5th 177.\n30. Jury \u00a7 261 (NCI4th)\u2014 peremptory challenges \u2014 death penalty views \u2014 constitutionality\nIt was not unconstitutional to permit the prosecutor in a capital case to peremptorily challenge jurors who expressed reservations about the death penalty.\nAm Jur 2d, Jury \u00a7\u00a7 233 et seq.\n31. Criminal Law \u00a7 1327 (NCI4th)\u2014 capital sentencing\u2014 instruction on duty to recommend death penalty\nThe Pattern Jury Instruction imposing a duty upon the jury to return death if the mitigating circumstances are insufficient to outweigh the aggravating circumstances is not unconstitutional.\nAm Jur 2d, Trial \u00a7\u00a7 888 et seq.\nSupreme Court\u2019s views on constitutionality of death penalty and procedures under which it is imposed or carried ont. 90 L. Ed. 2d 1001.\n32. Jury \u00a7 103 (NCI4th)\u2014 capital trial \u2014 denial of individual voir dire and sequestration\nThe trial court did not abuse its discretion in denying defendant\u2019s request for individual voir dire and sequestration of prospective jurors in this capital trial.\nAm Jur 2d, Jury \u00a7 197.\n33. Criminal Law \u00a7 1318 (NCI4th)\u2014 capital trial \u2014 preliminary instructions\nThe trial court did not err by denying defendant\u2019s request that the court give specific instructions, written by defendant, about the procedures involved in a capital punishment proceeding prior to the beginning of jury selection where the trial court gave preliminary jury instructions pursuant to the Pattern Jury Instructions.\nAm Jur 2d, Trial \u00a7\u00a7 888 et seq.\n34. Criminal Law \u00a7 1298 (NCI4th)\u2014 constitutionality of death penalty statute\nThe North Carolina death penalty statute is not unconstitutional.\nAm Jur 2d, Criminal Law \u00a7 628.\nSupreme Court\u2019s views on constitutionality of death penalty and procedures under which it is imposed or carried out. 90 L. Ed. 2d 1001.\n35. Criminal Law \u00a7 1326 (NCI4th)\u2014 mitigating circumstances \u2014 burden of proof\nThe trial court did not err by instructing the jury in a capital sentencing proceeding that defendant had the burden of proving the mitigating circumstances by a preponderance of the evidence.\nAm Jur 2d, Trial \u00a7\u00a7 888 et seq.\n36. Criminal Law \u00a7 1373 (NCI4th)\u2014 first-degree murders\u2014 death sentences not disproportionate\nSentences of death imposed upon defendant for two first-degree murders are not excessive or disproportionate to the penalty imposed in similar cases considering both the crimes and the defendant where defendant was convicted of both murders on the theory of premeditation and deliberation; the jury found as aggravating circumstances that defendant had previously been convicted of a felony involving the use of violence to the person and that the murders were part of a course of conduct that included crimes of violence to others; defendant had been convicted on three previous occasions of inflicting serious injury with a deadly weapon by shooting one person in the back, severing the hand of another with a knife, and shooting another in the chest; and the evidence showed that defendant, without provocation, shot the two victims numerous times with a semiautomatic rifle containing fragmentation bullets, left them lying on the ground, and never attempted to get them any help. Defendant\u2019s sentences were not disproportionate because defendant has a low IQ and the jury found that defendant was mentally or emotionally disturbed when the crimes were committed and that his capacity to appreciate the criminality of his conduct was impaired.\nAm Jur 2d, Criminal Law \u00a7 628.\nChief Justice Exum concurring in the result.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from judgments imposing two sentences of death entered by Britt, J., at the 4 February 1991 Special Criminal Session of Superior Court, Bladen County. Heard in the Supreme Court 1 February 1994.\nMichael F. Easley, Attorney General, by Valerie B. Spalding, Assistant Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0001-01", "first_page_order": 29, "last_page_order": 94 }