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Ed. 2d 642", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1080", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6495875 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1080-01" ] }, { "cite": "293 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "306 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567859 ], "year": 1982, "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0151-01" ] }, { "cite": "120 L. Ed. 2d 913", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "411 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "812" } ], "opinion_index": 0 }, { "cite": "330 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509298 ], "year": 1992, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0501-01" ] }, { "cite": "428 U.S. 280", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177464 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "304" }, { "page": "961" } ], "opinion_index": 0, "case_paths": [ "/us/428/0280-01" ] }, { "cite": "292 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "262", "parenthetical": "trial court did not err when it refused to submit the (f)(6) circumstance where \"[t]here was no expert psychiatric or other evidence introduced to show that [the defendant's] capacity to appreciate the criminality of his conduct was impaired\"" } ], "opinion_index": 0 }, { "cite": "305 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573030 ], "year": 1982, "pin_cites": [ { "page": "687", "parenthetical": "trial court did not err when it refused to submit the (f)(6) circumstance where \"[t]here was no expert psychiatric or other evidence introduced to show that [the defendant's] capacity to appreciate the criminality of his conduct was impaired\"" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0656-01" ] }, { "cite": "77 L. Ed. 2d 1456", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "463 U.S. 1249", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6267545 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/463/1249-01" ] }, { "cite": "77 L. Ed. 2d 1398", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "463 U.S. 1213", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6237890, 6236868, 6238726, 6237546, 6236523, 6238317, 6235632, 6237202, 6236246, 6235963, 6235325 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/463/1213-09", "/us/463/1213-06", "/us/463/1213-11", "/us/463/1213-08", "/us/463/1213-05", "/us/463/1213-10", "/us/463/1213-02", "/us/463/1213-07", "/us/463/1213-04", "/us/463/1213-03", "/us/463/1213-01" ] }, { "cite": "283 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "786", "parenthetical": "one definition of diminished capacity is whether a defendant \"was for any reason less able than a normal person to do what the law requires or to refrain from what the law forbids\"" } ], "opinion_index": 0 }, { "cite": "304 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567447 ], "year": 1981, "pin_cites": [ { "page": "290", "parenthetical": "one definition of diminished capacity is whether a defendant \"was for any reason less able than a normal person to do what the law requires or to refrain from what the law forbids\"" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0249-01" ] }, { "cite": "408 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "186" }, { "page": "188" } ], "opinion_index": 0 }, { "cite": "329 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555881 ], "year": 1991, "pin_cites": [ { "page": "775" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0771-01" ] }, { "cite": "282 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "447-48" }, { "page": "446-47" } ], "opinion_index": 0 }, { "cite": "304 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565336 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "105-06" }, { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0093-01" ] }, { "cite": "407 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554214 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0662-01" ] }, { "cite": "108 L. 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Ed. 2d 268", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 } ], "analysis": { "cardinality": 1984, "char_count": 77379, "ocr_confidence": 0.744, "pagerank": { "raw": 3.1406791401383386e-07, "percentile": 0.8620297940150179 }, "sha256": "92d058176a3ddafccb9516bc5be98989074e7a8312db26eadf95c89d77c9fe0b", "simhash": "1:0f6bc022366e9d52", "word_count": 12351 }, "last_updated": "2023-07-14T18:14:35.214532+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. GENERAL SAM MILLER" ], "opinions": [ { "text": "WHICHARD, Justice.\nIn 1986 defendant was convicted of the first-degree murder of Earl Allen, the owner and operator of City Jewelers in Robeson County, and sentenced to death. On defendant\u2019s first appeal, we ordered a new trial. See State v. Hucks & Miller, 323 N.C. 574, 374 S.E.2d 240 (1988). At his second trial in 1993, defendant again was convicted of the first-degree murder of Earl Allen and sentenced to death. He appeals from this second conviction and sentence. We find no prejudicial error in the guilt/innocence and sentencing phases, and we conclude that the sentence of death is not disproportionate.\nThe State\u2019s evidence tended to show that defendant arrived in Fayetteville, North Carolina, on 29 September 1985 in a stolen car. He ran out of money and on 4 October began looking for a place to rob, armed with a .32-caliber pistol and accompanied by Kenneth Hucks, his codefendant at the first trial. On 5 October defendant spotted Allen\u2019s jewelry store in St. Pauls and stated, \u201cthere is our easy money.\u201d At approximately 3:45 p.m. defendant and Hucks parked the car and entered the store. Defendant demanded the money from Allen\u2019s cash register. When Allen refused, defendant raised his pistol and fired one shot into Allen\u2019s forehead. Defendant later told an investigator that he shot Allen for trying \u201cto stop him from getting the money.\u201d After Allen fell to the floor, defendant removed money, a wallet, and a set of keys from Allen\u2019s pockets. Hucks stole some watches as defendant took money from the cash register. On their way out, defendant pointed a gun at, but did not shoot, a person entering the store. Allen died six days later, without regaining consciousness, as a result of the gunshot wound to his head.\nDefendant and Hucks divided the proceeds of the robbery on their way back to Fayetteville. Defendant used his share \u2014 $800.00\u2014 to buy drugs. Police officers apprehended defendant, after a high-speed chase which ended in a multiple-car accident, early in the morning on 6 October. They recovered a gun and some watches from the stolen car driven by defendant. A ballistics expert from the State Bureau of Investigation testified that the bullet removed from Allen\u2019s brain matched the gun found in the car.\nDefendant was transported by ambulance from the scene of the accident to Southeastern General Hospital, accompanied by then-Assistant Chief of Police Tommy Hagens. Chief of Police James Sanderson, SBI Agent Lee Sampson, and Hagans interrogated defendant in the hospital and continued the questioning in the Robeson County Sheriffs Office after defendant was released from the hospital. At the Sheriffs Office, defendant waived his Miranda rights and then confessed that he shot Allen; Agent Sampson recounted defendant\u2019s confession at trial. After giving his statement, defendant helped the police locate Hucks and provided information used to obtain a search warrant. Police recovered much of the property stolen from City Jewelers as a result of defendant\u2019s assistance.\nDefendant introduced no evidence during the guilt/innocence phase. The jury returned a verdict of guilty under the theory of premeditation and deliberation as well as the felony murder rule.\nDuring the sentencing phase, the State introduced evidence that defendant, armed with a pistol, had robbed the Quality Inn in Fayetteville on 3 October 1985 and Martin\u2019s Quick Service in Fayetteville on 5 October 1985. The State also introduced evidence that defendant had been convicted of third-degree robbery in Connecticut in July 1982.\nDefendant offered evidence at sentencing tending to show that while in the emergency room at Southeastern General he admitted to drug abuse and that a hospital nurse observed needle tracks on both of defendant\u2019s arms. Additionally, defendant\u2019s hospital record shows that on the afternoon of 6 October he requested medicine to treat what he called drug withdrawal.\nDefendant\u2019s social worker, Beth McAllister, testified about her work with defendant. She stated that defendant remained close to his family in Connecticut despite his incarceration and that he nurtured and supported his siblings. Defendant began smoking marijuana at age twelve or thirteen and began to use harder drugs at age fourteen after his father died. Defendant had developed a routine in jail which included reading the newspaper and the Bible, educating himself, and praying.\nDefendant\u2019s sister, June Lewis, testified that defendant was devastated by their father\u2019s death and that he did whatever he could to help her. For example, he talked to her sons about their behavior, drove her to work when necessary, and took care of her family when she was in the hospital for back surgery. Defendant\u2019s nephew, Walter Miller, Jr., testified that he talked to defendant about many things, including getting good grades and staying in school.\nElder Thomas Dockery, defendant\u2019s minister since 1986, testified that defendant had embraced Christianity and made an effort to turn his life around. He testified about defendant\u2019s good relationship with officers at Central Prison and about improvements in his speech and personal grooming.\nFinally, Dr. George Cliette, a psychologist, testified that he performed several tests on defendant. The results revealed that defendant\u2019s intelligence is below average. He reads at a twelfth grade level but has deficient math and spelling skills. Personality tests showed that defendant acts impulsively, has difficulty processing information, and has a moderately high addictive personality.\nThe jury found all three aggravating circumstances submitted: (1) that defendant had previously been convicted of a felony involving the use or threat of violence; (2) that the murder was committed for pecuniary gain; and (3) that the murder was part of a course of conduct including the commission of other crimes of violence against other persons. The trial court submitted one statutory and thirteen nonstatutory mitigating circumstances. The jury found the statutory circumstance that defendant aided in the apprehension of another capital felon and ten of the nonstatutory circumstances. The jury then recommended a sentence of death, and the court sentenced defendant accordingly.\nPretrial Phase\nDefendant first assigns as error the trial court\u2019s denial of his motion to quash his murder indictment on the basis of racial discrimination in the selection of the grand jury foreman. Such discrimination denies a black defendant the protections of Article I, Sections 19 and 26 of the North Carolina Constitution. State v. Pigott, 331 N.C. 199, 415 S.E.2d 555 (1992); State v. Robinson, 327 N.C. 346, 361, 395 S.E.2d 402, 411 (1990); State v. Cofield, 320 N.C. 297, 357 S.E.2d 622 (1987). The trial court denied the motion, which was filed on the first day of trial, on the grounds that it was time-barred and that defendant presented no valid reason to waive the time bar.\nIn Robinson, we implicitly assumed that motions like defendant\u2019s, known as Cofield motions, are motions to dismiss an indictment based on a challenge to the array under N.C.G.S. \u00a7 15A-955(1) because they in effect challenge the grand jury which indicted the defendant. Robinson, 327 N.C. at 361, 395 S.E.2d at 411. We now expressly adopt that position. N.C.G.S. \u00a7 15A-952 provides in pertinent part that motions to dismiss under N.C.G.S. \u00a7 15A-955 \u201cmust be made within the time limitations stated in subsection (c) unless the court permits filing at a later time.\u201d N.C.G.S. \u00a7 15A-952(b)(4) (Supp. 1994). Subsection (c) of that statute provides:\nUnless otherwise provided, the motions listed in subsection (b) must be made at or before the time of arraignment if arraignment is held prior to the session of court for which the trial is calendared. If arraignment is to be held at the session for which trial is calendared, the motions must be filed on [sic] or before five o\u2019clock P.M. on the Wednesday prior to the session when trial of the case begins.\nDefendant was arraigned for the second time on 17 January 1989, well before the session of court for which his trial was calendared. Thus a motion to quash his indictment should have been filed on or before 17 January 1989. Unless defendant presented the trial court good reason to grant relief from the statutory time limitation, he waived his Cofield rights. N.C.G.S. \u00a7 15A-952(e). Defendant contends his motion should not have been time-barred because his current counsel did not represent him at the time of his arraignment and should not be bound by waivers by prior counsel. He also argues he had no notice that Cofield motions constituted challenges to an array under N.C.G.S. \u00a7 15A-955 until this Court decided Robinson. Therefore, he contends, his inaction should not constitute a waiver. We disagree.\nThe trial court did not bind new defense counsel by previous counsel\u2019s waiver. The court\u2019s ruling was based on counsel\u2019s failure to file the motion until the first day of trial. Defendant\u2019s new counsel began to represent him on 3 July 1989, seven months after his second arraignment. Counsel could have filed a Cofield motion at that time and argued then for relief from the time bar on the grounds that he should not be bound by an error of prior counsel. Defense counsel also could have filed the motion on 8 October 1992 when he argued a motion for change of venue. Finally, he could have filed the motion as soon as Robinson was published, as that case provided clear notice that N.C.G.S. \u00a7 15A-952(c) applied to Cofield motions. Instead, he waited until the first day of trial \u2014 almost four years after defendant\u2019s arraignment and more than two years after publication of the opinion in Robinson. Defendant presented no grounds for relief from the time bar other than his counsel\u2019s belief that no action was necessary until the day of trial. The trial court could reasonably have determined that this belief did not warrant relief from the time limitation. We cannot conclude that the court\u2019s ruling constitutes an abuse of discretion. This assignment of error is overruled.\nDefendant also assigns as error the trial court\u2019s denial of his motion to permit questioning of potential jurors regarding their beliefs about parole eligibility. We have consistently \u201cheld that evidence about parole eligibility is not relevant in a capital sentencing proceeding because it does not reveal anything about defendant\u2019s character or record or about any circumstances of the offense.\u201d State v. Payne, 337 N.C. 505, 516, 448 S.E.2d 93, 99 (1994); see also State v. Green, 336 N.C. 142, 157-58, 443 S.E.2d 14, 23 (1994). As we explained in Payne, the recent decision in Simmons v. South Carolina, \u2014 U.S. \u2014, 129 L. Ed. 2d 133 (1994), does not affect our position on this issue when, as here, the defendant remains eligible for parole if given a life sentence. Payne, 337 N.C. at 516-17, 448 S.E.2d at 99-100. This assignment of error is overruled.\nJury Selection\nDefendant presents numerous assignments of error regarding jury selection. First, he contends that the trial court erred by failing to inform the venire that defendant planned to present expert testimony relating to a mental disease or defect affecting his mental state at the time of the crime. He argues this omission violated the statute that requires a trial court to make a statement informing potential jurors about the case prior to jury selection. N.C.G.S. \u00a7 15A-1213 (1988). In this statement the court must identify the parties and counsel for each side and briefly state the charge against defendant, the date of the alleged offense, the victim\u2019s name, the defendant\u2019s plea, \u201cand any affirmative defense of which the defendant has given pretrial notice.\u201d Id. The trial court here made the required statement but did not mention defendant\u2019s intent to introduce expert, testimony about his mental status. Defendant concedes that such evidence did not constitute an affirmative defense but contends we should recognize it as such for purposes of section 15A-1213.\nN.C.G.S. \u00a7 15A-1213 does not require a trial court to divulge a defendant\u2019s theory of the case to the venire. Evidence regarding defendant\u2019s mental state at the time of the crime might be found to rebut the State\u2019s proof of premeditation and deliberation, but it is not an affirmative defense for which defendant bears the burden of proof. Thus the trial court had no statutory duty to inform the jury about the anticipated expert testimony. The court properly fulfilled its duty under section 1213 to orient the venire to the case. This assignment of error is overruled.\nNext defendant contends the trial court improperly allowed the prosecutor to encourage potential jurors to state their views clearly and without ambiguity. He argues such encouragement prevented potential jurors who actually held ambivalent views from speaking truthfully during voir dire. This contention has no merit. Lawyers face a difficult task when attempting to ascertain whether potential jurors hold biases for or against the death penalty that would impair the performance of their duties. See Wainwright v. Witt, 469 U.S. 412, 424-25, 83 L. Ed. 2d 841, 852 (1985). Clear answers to their questions ease this difficulty. The record does not reveal that the prosecutor\u2019s request for clarity impaired potential jurors\u2019 ability to answer voir dire questions truthfully. It simply urged them to enunciate their views in an understandable manner. The trial court, which is charged with supervising the examination of potential jurors, has \u201cbroad discretion in controlling the extent and manner of\u2019 voir dire. State v. Brown, 315 N.C. 40, 55, 337 S.E.2d 808, 820 (1985), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988). Based on the record, we cannot say the court here abused its discretion when it overruled defendant\u2019s objections to the State\u2019s requests for clarity from potential jurors.\nDefendant next argues the trial court improperly treated the prosecution and defendant differently in ruling on challenges for cause based on prospective jurors\u2019 beliefs regarding the death penalty. He contends the trial court allowed the prosecution to rehabilitate potential jurors \u2014 despite a decision early in voir dire not to allow rehabilitation \u2014 but did not grant defendant the same privilege. This created, according to defendant, a jury with a large number of death-qualified jurors and few life-qualified jurors.\nThe trial court stated that it would allow rehabilitation if a juror\u2019s answers were equivocal or if it determined that a juror did not understand the question posed. The trial court can best determine a juror\u2019s confusion or lack of understanding. The record reveals the court\u2019s perception that potential jurors did not understand questions posed by the defense: \u201cIf I\u2019m convinced that a juror fully understands what you\u2019re talking about.. . then that\u2019s one thing. .But I\u2019m . . . sitting there . . . watching. Not only listening, but watching the particular juror, and the confusion on their face when the questions are being asked of them [by the defense] \u2014 they do not understand.\u201d We conclude that any disparity in the amount of rehabilitation the court allowed stemmed from a disparity in the complexity of the questions asked by each side. We cannot conclude based on this record that the court abused its discretion when it permitted or precluded rehabilitation. Even assuming an abuse of discretion, \u201cto establish reversible error [relating to voir dire], a defendant must show prejudice in addition to a clear abuse of discretion on the part of the trial court.\u201d State v. Parks, 324 N.C. 420, 423, 378 S.E.2d 785, 787 (1989). Defendant expressed satisfaction with each juror impanelled and did not exhaust his peremptory challenges. He thus cannot show prejudice from the court\u2019s rulings on rehabilitation. This assignment of error is overruled.\nIn his next assignment of error, defendant contends the trial court erred by excusing two qualified potential jurors for cause during voir dire. He argues that the potential jurors unequivocally stated they could set aside their personal beliefs concerning the death penalty and follow the court\u2019s instructions. Defendant argues that they were therefore qualified to sit on the jury and that he is entitled to a new trial because the trial court erred by excluding them.\nProspective juror Hailey stated twice on voir dire that she could not vote for the death penalty under any circumstances. During defendant\u2019s attempted rehabilitation, however, Hailey indicated she could set aside her personal views and make a sentencing decision based on the law. The trial court then asked, \u201cMs. Hailey, under any circumstances could you render a verdict that meant the death penalty?\u201d Hailey answered, \u201cNo.\u201d The court allowed the prosecution\u2019s challenge for cause.\nSimilarly, prospective juror Murray told the prosecutor during voir dire that he could not vote for the death penalty under any circumstances because of his personal beliefs. The prosecution challenged Murray for cause. Defense counsel then asked, \u201cis there any situation that you can think of in which the death penalty would be the appropriate punishment \u2014 and in which you could serve on a jury and vote for it?\u201d Murray answered, \u201cYes.\u201d The prosecutor then asked Murray a few more questions, including, \u201cYou just couldn\u2019t vote for [the death penalty] for any . . . case; is that right?\u201d Murray nodded affirmatively, and the court excused him for cause.\nA trial court may excuse for cause a prospective juror whose views regarding the death penalty would prevent or substantially impair the performance of his duty as a juror. State v. Yelverton, 334 N.C. 532, 543, 434 S.E.2d 183, 189 (1993). We \u201cmust defer to the trial court\u2019s judgment concerning whether the prospective juror would be able to follow the law impartially\u201d because a prospective juror\u2019s bias for or against the death penalty cannot always be proven with unmistakable clarity. State v. Davis, 325 N.C. 607, 624, 386 S.E.2d 418, 426 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990). la State v. Oliver, 302 N.C. 28, 39, 274 S.E.2d 183, 191 (1981), we recognized that excusal for cause is proper when a juror expresses a \u201cspecific inability to impose the death penalty under any circumstances.\u201d We noted in Yelverton that a potential juror\u2019s equivocation on the subject of the death penalty may stem from a \u201cconscientious desire to do his duty as a juror and to follow the court\u2019s instructions in the face of recognizing his personal inability to impose the death penalty.\u201d Yelverton, 334 N.C. at 544, 434 S.E.2d at 190. Here both Hailey and Murray clearly expressed several times that they could not vote for the death penalty under any circumstances. The trial court properly could have concluded that subsequent equivocation arose out of their desire to perform their duties as jurors according to the dictates of the law. This assignment of error is overruled.\nIn his next assignment of error, defendant argues that the trial court improperly precluded him from determining whether potential jurors could follow the law. Defendant filed a motion seeking to ask two questions of potential jurors:\nIf the defendant is convicted of first-degree murder and we proceed to the sentencing phase of the trial and sufficient evidence is presented to convince you that, because of drug abuse, at the time of the offense the defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired, could you, following the instructions of the Court, consider this as a mitigating factor? By contrast, do you consider drug use such an evil that you could not, under any circumstances, consider the defendant\u2019s impaired capacity on the basis of drug use as a mitigating circumstance?\nThe trial court denied the motion. Defendant also sought permission to ask potential jurors whether they thought people could change their lives for the better. The court refused to allow this question, and sustained objections when it was asked. Defendant contends these rulings improperly prevented him from ascertaining potential jurors\u2019 ability to follow the law.\nWe have consistently held that a defendant may not use voir dire to stake out potential jurors by asking whether they could consider specific mitigating circumstances during the sentencing phase. See, e.g., State v. Skipper, 337 N.C. 1, 19-24, 446 S.E.2d 252, 261-64 (1994), cert. denied, \u2014 U.S. \u2014, \u2014 L. Ed. 2d \u2014, 63 U.S.L.W. 3563 (1995); State v. Hill, 331 N.C. 387, 404, 417 S.E.2d 765, 772 (1992), cert. denied, \u2014 U.S. \u2014, 122 L. Ed. 2d 684 (1993), reh\u2019g denied, \u2014 U.S. \u2014, 123 L. Ed. 2d 503 (1993); Davis, 325 N.C. at 621, 386 S.E.2d at 425. General questions, such as whether a potential juror could follow instructions regarding the consideration of mitigating circumstances, are permissible. See Skipper, 337 N.C. at 20, 446 S.E.2d at 261-62. The questions defendant sought to ask here, however, constituted improper attempts to stake out jurors, not means of determining whether they could follow the law. We thus conclude that the trial court did not abuse its discretion by denying defendant\u2019s motion or by refusing to allow defendant to ask potential jurors whether they could consider particular mitigating circumstances.\nDefendant also argues in this assignment of error that the trial court improperly prevented him from asking questions intended to unveil potential jurors\u2019 latent biases in favor of the death penalty. For example, the court sustained the prosecution\u2019s objections to the following questions: \u201cDo you believe that if a person takes a life unlawfully that he should pay for it with his own-life?\u201d \u201cDo you think the defendant should have to prove to you why he should receive a life sentence or do you think the State should have to prove to you as to why he should receive the death sentence?\u201d \u201cDo you believe that some murders are worse than others and more deserving of the death penalty?\u201d Defendant contends these questions properly attempted to determine whether potential jurors could follow the law.\nIn State v. Conner, 335 N.C. 618, 644-45, 440 S.E.2d 826, 840-41 (1994), we held that overly broad questions or those calling for policy decisions are impermissible. We agreed with the trial court there that the question \u201c[d]o you feel that the death penalty is the appropriate penalty for someone convicted of first-degree murder?\u201d was impermissible. The first of defendant\u2019s questions listed above is substantially similar to the Conner question and thus was properly disallowed. Defendant\u2019s query as to whether the burden of proof was fair \u201chas no reasonable expectation of revealing pertinent information bearing upon the potential juror\u2019s qualifications to serve as an impartial juror.\u201d Id. at 632, 440 S.E.2d at 834. Finally, the third question was also improper under Conner because it asked for a policy decision. We therefore conclude that the trial court properly sustained the State\u2019s objections to all three questions.\nIn his final argument under this assignment of error, defendant contends the trial court erred by sustaining the State\u2019s objection to the question, \u201cwould you automatically believe or feel that the person who is convicted of first degree murder in the course of a robbery as in this . . . case should automatically be put to death?\u201d He argues that precluding two potential jurors from answering this question violated his rights under Morgan v. Illinois, \u2014 U.S. \u2014, \u2014, 119 L. Ed. 2d 492, 503-06 (1992), where the United States Supreme Court held that a defendant must be allowed to ask a potential juror whether he would automatically or always vote for the death penalty following a defendant\u2019s conviction of a capital offense.\nAssuming arguendo that a Morgan error occurred, we conclude it was harmless beyond a reasonable doubt. First, defendant was allowed to ask both potential jurors whether they could, under any circumstances, vote for a life sentence where a person had been convicted of first-degree murder during a robbery. Defendant thus acquired the information that Morgan questions are designed to elicit. Second, defendant exercised peremptory challenges to excuse both potential jurors; he did not exhaust Iris peremptory challenges and thus was not forced to accept an undesirable juror as a result of excluding these two potential jurors. This assignment of error is overruled.\nGuilt/Innocence Phase\nIn defendant\u2019s next assignment of error, he argues that the trial court erred by submitting to the jury the charge of first-degree murder on the theory of premeditation and deliberation. Defendant contends the evidence of premeditation and deliberation was insufficient to support its submission.\nTo determine whether a defendant committed his crime with premeditation and deliberation, evidence must exist that he \u201cthought about the act for some length of time, however short, before the actual killing; no particular amount of time is necessary to illustrate that there was premeditation.\u201d State v. Sierra, 335 N.C. 753, 758, 440 S.E.2d 791, 794 (1994). In making this determination, we must view the evidence in a light most favorable to the State. Id. at 757, 440 S.E.2d at 794.\nThe State usually proves premeditation and deliberation by circumstantial evidence. Id. at 758, 440 S.E.2d at 794; State v. Ginyard, 334 N.C. 155, 158, 431 S.E.2d 11, 13 (1993). This Court has often \u201cenumerated some of the circumstances which tend to support a proper inference of premeditation and deliberation.\u201d Ginyard, 334 N.C. at 158, 431 S.E.2d at 13; see, e.g., Sierra, 335 N.C. at 758, 440 S.E.2d at 794; State v. Olson, 330 N.C. 557, 565, 411 S.E.2d 592, 596 (1992). Defendant contends that application of such factors to this case reveals that the State failed to present evidence sufficient to support an inference of premeditation and deliberation. We disagree.\nTwo of the frequently enumerated circumstances apply in this case:\nFirst, a lack of provocation by the victim supports an inference of premeditation and deliberation. Olson, 330 N.C. at 565, 411 S.E.2d at 596. The record reveals substantial evidence that defendant here was not provoked by the victim. In defendant\u2019s statement to the police, he admitted that he shot the victim for refusing to hand over the money from the cash register. Defendant gave no other reason for the murder, though he now argues that he was provoked into shooting when the victim called him a \u201cblack son-of-a-bitch.\u201d He presented no evidence beyond pure speculation to show that the victim\u2019s statement provoked him or to contradict his earlier statement.\nSecond, a defendant\u2019s conduct before and after the killing supports an inference of premeditation and deliberation. Id. Evidence tending to show that a defendant carried a deadly weapon prior to committing a murder with it supports an inference that \u201che had anticipated a possible confrontation and given some forethought to how he would deal with a confrontation.\u201d Ginyard, 334 N.C. at 159, 431 S.E.2d at 13; see also State v. Fields, 315 N.C. 191, 200, 337 S.E.2d 518, 524 (1985). Defendant here carried a loaded .32-caliber pistol for several days prior to the robbery and murder. He threatened two persons with this weapon during two armed robberies just days before he killed Allen with it. These facts support an inference that he had anticipated and decided how to resolve a possible confrontation with his robbery targets.\nDefendant\u2019s conduct after he shot the victim also supports an inference of premeditation and deliberation. While Allen lay bleeding on the floor, defendant removed money, a wallet, and a set of keys from Allen\u2019s pockets. He then removed the money from the cash register. This calm and deliberate conduct indicates defendant committed the murder with premeditation and deliberation.\nFinally, the facts of this case are similar to those of State v. Williams, 319 N.C. 73, 80-81, 352 S.E.2d 428, 433 (1987). There we concluded the trial court properly submitted the issue of premeditation and deliberation to the jury based on the following evidence: a convenience store was robbed; during the robbery an employee of the store was killed by a blast from a twelve-gauge shotgun; a cash register and cash were removed from the premises; parts of the register and a stolen car were found seven and one-half miles from the store; the car contained two twelve-gauge shotgun shells, one fired and one unfired; police found a sawed-off, twelve-gauge shotgun in the defendant\u2019s home; and the defendant confessed he shot the employee to avoid being identified. We held that these facts \u201cconstituted substantial evidence of. . . first-degree murder committed with premeditation and deliberation.\u201d Id. The only material difference here is the defendant\u2019s 'motive for shooting the employee \u2014 defendant shot Allen for refusing to hand over the money as requested, not to eliminate a witness. This variation does not require a different result. We conclude that, as in Williams, sufficient evidence of premeditation and deliberation existed for the trial court to submit the charge of first-degree murder to the jury on that theory.\nSentencing Phase\nDefendant next argues that the trial court erred by excluding relevant mitigating evidence during the sentencing proceeding. Beth McAllister, a psychotherapist in Raleigh, testified on defendant\u2019s behalf. She had worked with defendant for about a year beginning in October 1991, meeting or speaking with him at least once a week. McAllister testified primarily about defendant\u2019s family life and his conduct in prison. Defense counsel asked McAllister, \u201cTell the jury what you think of [defendant] as a... friend\u201d; the trial court sustained the prosecutor\u2019s objection before McAllister could answer. Counsel asked no further questions of McAllister. Defendant now contends the trial court erred when it sustained the objection because it barred important character evidence from the sentencing proceeding in violation of Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973 (1978), and its progeny.\nDefense counsel concluded his direct examination of McAllister upon the court\u2019s ruling. He made no offer of proof indicating how McAllister would have responded to the question; defendant therefore failed to preserve this issue for review. \u201c[T]o preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.\u201d State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985). Further, \u201cthe essential content or substance of the witness\u2019 testimony must be shown before we can ascertain whether prejudicial error occurred.\u201d Id.\nEven assuming arguendo that defendant properly preserved this issue for review, we conclude that any error was harmless beyond a reasonable doubt. The jury heard testimony from numerous witnesses, including defendant\u2019s sister and his minister, about defendant\u2019s good character, his quest for self-improvement while incarcerated, and his leadership role within his family. The excluded testimony thus would have been merely cumulative. This assignment of error is therefore overruled.\nIn another assignment of error, defendant contends he was denied a fair sentencing proceeding because the trial court overruled his objections to the prosecutor\u2019s inflammatory and prejudicial closing argument. Defendant argues that the prosecutor improperly asked the jurors to visualize themselves as the murder victim. He is entitled to a new sentencing proceeding, he argues, because the improper argument appealed to the jury\u2019s passions and influenced it to reject a sentence of life imprisonment. Defendant focuses on the following statements:\nYou [jurors] haven\u2019t done your job if you weren\u2019t right with [the victim] in the store on October 5, 1985 when he waited on customers [objection overruled] and he took the calls several times that day with his wife. . . . And you haven\u2019t done your job, ladies and gentlemen, if you\u2019re not right there with Mr. Earl Allen on October 5, 1985 [objection overruled] when the defendant, Sam Miller, seated right over at that table came in toting that pistol [or] when General Sam Miller raises up that pistol and points it\u2014 point blank range at Mr. Allen\u2019s head, pulls the trigger and you feel that hot ball of lead burn into his brain, ladies and gentlemen [objection overruled],... And you haven\u2019t done it if you\u2019re ... not laying there with him on the floor as the defendant [objection overruled] ... is going through his pockets, ladies and gentlemen. ... [Defendant is] going through [the victim\u2019s] pockets and as his very life blood is flowing out of his body . . . [defendant] is going through his pockets and probably rolling him over so he can get to the rest of his pockets.\nIn State v. Artis, 325 N.C. 278, 324, 384 S.E.2d 470, 496 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990), on remand, 329 N.C. 679, 406 S.E.2d 827 (1991), the murder victim died by manual strangulation. During closing argument at sentencing, the prosecutor asked the jurors to hold their breath for as long as they could during a four-minute stretch of time so they could \u201c \u2018understand . . . the dynamics of manual strangulation.\u2019 \u201d Id. The defendant objected, but the trial court allowed the argument. On appeal, we found no error, concluding that an argument \u201c[u]rging the jurors to appreciate the \u2018circumstances of the crime\u2019 \u201d is not improper during the penalty phase of a trial. Id. at 325, 384 S.E.2d at 497. Likewise, the prosecutor\u2019s argument here related to the nature of the crime, which is \u201cthe touchstone for propriety in sentencing arguments.\u201d State v. Brown, 320 N.C. 179, 202-03, 358 S.E.2d 1, 17, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987). It neither misstated nor manipulated the evidence. We therefore conclude that the argument was not improper and that the trial court did not err by overruling defendant\u2019s objections.\nDefendant also assigns as error the trial court\u2019s refusal to submit the statutory mitigating circumstance that defendant was under the influence of a mental or emotional disturbance when he committed the crime. See N.C.G.S. \u00a7 15A-2000(f)(2) (Supp. 1994). He contends the evidence showed that he suffered from cocaine and opiate withdrawal \u2014 a psychiatric disorder defined in the Diagnostic and Statistical Manual of Mental Disorders, Third Edition \u2014 Revised (1987) \u2014 at the time of the murder. He also contends this disorder made him more vulnerable to the provocation that led him to shoot the victim. Thus, he argues, the trial court should have submitted the circumstance, and its failure to do so entitles him to a new sentencing proceeding. We disagree.\nA trial court must submit to the jury any statutory mitigating circumstance supported by the evidence. N.C.G.S. \u00a7 15A-2000(b); Artis, 325 N.C. at 311, 384 S.E.2d at 489; State v. Lloyd, 321 N.C. 301, 311-12, 364 S.E.2d 316, 323 (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). Here the evidence does not support defendant\u2019s contention that he was under a mental or emotional disturbance at the time of the murder. Defendant states that he suffered from drug withdrawal, which he contends qualifies as a mental or emotional disturbance, at the time of the offense. We conclude that drug withdrawal stemming from voluntary intoxication does not qualify as a mental or emotional disturbance for purposes of N.C.G.S. \u00a7 15A-2000(f)(2).\nIn State v. Irwin, 304 N.C. 93, 105-06, 282 S.E.2d 439, 447-48 (1981), we held that voluntary intoxication by alcohol or drugs at the time of the commission of a murder does not qualify as a mental or emotional disturbance under the statute. See also State v. Greene, 329 N.C. 771, 775, 408 S.E.2d 185, 186 (1991). Defendant\u2019s alleged withdrawal from cocaine and other opiates is simply a stage of voluntary intoxication and therefore cannot support the submission of the mitigating circumstance that defendant was influenced by a mental or emotional disturbance when he committed his offense. We therefore need not reach the question of whether defendant proved he was suffering from withdrawal when he shot the victim.\nDefendant also contends that a racial slur spoken by the victim provoked him to shoot, indicating that he suffered from a mental disturbance that made him peculiarly susceptible to provocation. Although abnormal susceptibility to provocation can show a mental or emotional disturbance, id. at 777, 408 S.E.2d at 188, defendant\u2019s evidence did not show that such abnormal provocation occurred. Defendant told police in his statement that the victim called him a \u201cblack son-of-a-bitch.\u201d He did not say he shot the victim because of this alleged epithet, however; rather, he stated that he shot the victim because \u201cthe man tried to stop him from getting the money\u201d he needed for drugs. This evidence reveals that defendant committed the murder for money, not as a result of provocation to which he was abnormally susceptible; it therefore does not support submission of the (f)(2) circumstance. This assignment of error is overruled.\nDefendant also assigns as error the trial court\u2019s refusal to submit the statutory mitigating circumstance that defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. See N.C.G.S. \u00a7 15A-2000(f)(6). Defendant relies on evidence of his drug withdrawal to show impairment. He also notes that Dr. George Cliette testified that defendant is prone to addiction, lacks appropriate judgment, and has low-average intelligence. Defendant states that his withdrawal, combined with these personality traits, made him less likely to behave lawfully than a normal person. See State v. Taylor, 304 N.C. 249, 290, 283 S.E.2d 761, 786 (1981) (one definition of diminished capacity is whether a defendant \u201cwas for any reason less able than a normal person to do what the law requires or to refrain from what the law forbids\u201d), cert. denied, 463 U.S. 1213, 77 L. Ed. 2d 1398, reh\u2019g denied, 463 U.S. 1249, 77 L. Ed. 2d 1456 (1983).\nThe evidence showed that defendant ingested drugs on 30 September and immediately after the murder on 5 October. It also showed that defendant asked for medicine for withdrawal symptoms while in the hospital on 6 October. The record contains no evidence that he was impaired by drugs or withdrawal therefrom at the time of the murder, or that any symptoms of withdrawal he may have experienced at that time impaired his capacity. None of defendant\u2019s witnesses, including Dr. Cliette, testified that defendant\u2019s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was impaired. Thus the trial court properly refused to submit the mitigating circumstance. See State v. Williams, 305 N.C. 656, 687, 292 S.E.2d 243, 262 (1982) (trial court did not err when it refused to submit the (f)(6) circumstance where \u201c[t]here was no expert psychiatric or other evidence introduced to show that [the defendant\u2019s] capacity to appreciate the criminality of his conduct was impaired\u201d).\nIn another assignment of error, defendant contends the trial court erred by failing to submit to the jury the nonstatutory mitigating circumstance that defendant neither threatened nor harmed eyewitnesses to his crimes. Four persons saw him during this robbery and murder; one person was present during each robbery on 3 and 5 October. Defendant argues that he could have hurt these persons in an effort to eliminate potential witnesses but refrained from such conduct. This indicates, according to defendant, that he did not contemplate or desire the wanton destruction of human life; thus, his behavior toward the eyewitnesses should have been submitted in mitigation. The trial court indicated that the evidence supported the circumstances but refused to submit them because it determined that as a matter of law they lacked mitigating value. Defendant argues that this ruling violated Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, which requires that a sentencer be allowed to consider any \u201ccircumstances of the offense that the defendant proffers as a basis for a sentence less than death.\u201d Id. at 604, 57 L. Ed. 2d at 990; see also Woodson v. North Carolina, 428 U.S. 280, 304, 49 L. Ed. 2d 944, 961 (1976).\nWe have defined a mitigating circumstance as\na fact or group of facts which do not constitute any justification or excuse for killing or reduce it to a lesser degree of the crime of first-degree murder, but which may be considered as extenuating, or reducing the moral culpability of the killing, or making it less deserving of the extreme punishment than other first-degree murders.\nIrwin, 304 N.C. at 104, 282 S.E.2d at 446-47. The absence of an aggravating circumstance is not mitigating. State v. Hunt, 330 N.C. 501, 513, 411 S.E.2d 806, 812, cert. denied, \u2014 U.S. \u2014, 120 L. Ed. 2d 913 (1992); State v. Brown, 306 N.C. 151, 179, 293 S.E.2d 569, 587, cert. denied, 459 U.S. 1080, 74 L. Ed. 2d 642 (1982). Likewise, the absence of bad conduct that could have occurred during the commission of a crime cannot constitute a mitigating circumstance. Mitigating circumstances, statutory and nonstatutory alike, focus on positive aspects of a defendant\u2019s character or behavior. See, e.g., N.C.G.S. \u00a7 15A-2000(f); State v. Moseley, 338 N.C. 1, 62, 449 S.E.2d 412, 448-49 (1994) (positive mitigating circumstances listed), cert. denied, \u2014 U.S. \u2014, \u2014 L. Ed. 2d \u2014, 63 U.S.L.W. 3539 (1995); State v. Bacon, 337 N.C. 66, 82-83, 446 S.E.2d 542, 549 (1994) (same). The categories of positive behavior recognized as mitigating do not include a defendant\u2019s failure to harm eyewitnesses. Had defendant here threatened, assaulted, or killed any bystanders, the State could have charged him with additional criminal offenses and submitted additional aggravating circumstances at his trial, such as creating the risk of death to more than one person, N.C.G.S. \u00a7 15A-2000(e)(10), or attempting to avoid lawful arrest, N.C.G.S. \u00a7 15A-2000(e)(4). We conclude that the trial court properly declined to submit the four requested nonstatutory circumstances because they did not mitigate the robbery and murder or make defendant less culpable for the crimes.\nDefendant next assigns as error the trial court\u2019s refusal to instruct the jury regarding his potential to be paroled if given a life sentence. Defendant requested an instruction explaining that if sentenced to life imprisonment, he would not be eligible for parole for twenty years, that parole is never an inmate\u2019s right, that the Parole Commission would determine whether release of defendant would be appropriate, and that the jury should assume the Commission would perform its duties in a correct and responsible manner. He argues the court\u2019s failure to so instruct warrants a new sentencing proceeding.\nParole eligibility is not relevant \u201cduring jury selection, closing argument, or jury deliberation in a capital sentencing proceeding.\u201d Bacon, 337 N.C. at 98, 446 S.E.2d at 558. A trial court should not instruct the jury regarding the meaning of \u201clife imprisonment\u201d absent inquiry by the jury. State v. Robinson, 336 N.C. 78, 124, 443 S.E.2d 306, 329 (1994), cert. denied, \u2014 U.S. \u2014,130 L. Ed. 2d 650 (1995). Further, upon such an inquiry a trial court should instruct the jury not to consider the issue of parole eligibility, but to deliberate as though life imprisonment means imprisonment for life in the State\u2019s prison. Id. at 123-24, 443 S.E.2d at 329; State v. Conner, 241 N.C. 468, 471-72, 85 S.E.2d 584, 587 (1955). Simmons v. South Carolina, \u2014 U.S. \u2014, 129 L. Ed. 2d 133 (1994), does not require us to overrule our precedents on this issue when, as here, the defendant remains eligible for parole if given a life sentence. State v. Payne, 337 N.C. 505, 516-17, 448 S.E.2d 93, 99-100.\nAs of 1 October 1994, a sentence of life imprisonment shall be \u201ca sentence of imprisonment for life in the State\u2019s prison, without parole.\u201d N.C.G.S. \u00a7 15A-2002 (Supp. 1994). A trial court must now instruct a sentencing jury, in accord with that statute, \u201cthat a sentence of life imprisonment means a sentence of life without parole.\u201d Id. Contrary to defendant\u2019s contention, however, this new statute does not entitle him to a new sentencing proceeding. Under the law applicable at the time of defendant\u2019s trial, he is eligible for parole, and the trial court was neither required nor allowed to give an instruction on the issue of parole eligibility. This assignment of error is overruled.\nIn another assignment of error, defendant argues that the trial court erred when it refused to give peremptory instructions on allegedly uncontroverted statutory and nonstatutory mitigating circumstances. He contends first that the court should have instructed peremptorily on the statutory mitigating circumstances that he was influenced by a mental or emotional disturbance and that his capacity to appreciate the criminality of his conduct was impaired. We held above that the court did not err by refusing to submit these circumstances to the jury; it follows that the court did not err by failing to give peremptory instructions on them.\nDefendant also contends the court should have given peremptory instructions for all twenty-six of his requested nonstatutory mitigating circumstances. Defendant proposed the following peremptory instruction: \u201cIf you find that [describe mitigating circumstance] exists, and I instruct you that all of the evidence shows that this is true, you would so indicate by having your foreman write, \u2018Yes\u2019 in the space after this mitigating circumstance on the form.\u201d The trial court refused to give this instruction, deciding it did not accurately reflect North Carolina law to the extent that it required the jury to accord weight to nonstatutory circumstances. \u201c[N]onstatutory mitigating circumstances do not necessarily have mitigating value.\u201d State v. Daniels, 337 N.C. 243, 274, 446 S.E.2d 298, 317 (1994), cert. denied, \u2014 U.S. \u2014, 130 L. Ed. 2d 895, 63 U.S.L.W. 3653 (1995). Jurors who determine that a nonstatutory circumstance exists must therefore decide whether it also has mitigating value. State v. Huff, 325 N.C. 1, 58-61, 381 S.E.2d 635, 668-70 (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). A juror properly may give a nonstatutory circumstance no weight even if the juror finds the circumstance to exist. The instruction defendant proposed failed to inform jurors that they could accord no weight to proven nonstatutory circumstances. It thus was contrary to North Carolina law, and the trial court properly refused to give it.\nOur decision in State v. Green, 336 N.C. 142, 443 S.E.2d 14, rendered subsequent to defendant\u2019s trial, provides further support for the trial court\u2019s decision. There we held that the pattern jury instruction for statutory mitigating circumstances should not be given for nonstatutory circumstances. This assignment of error is overruled.\nDefendant also assigns as error the trial court\u2019s failure to instruct the jury that in weighing the mitigating circumstances against the aggravating circumstances, it must consider any mitigating circumstance found by a juror. Defendant requested the following instruction: \u201cIf you find from the evidence one or more mitigating circumstances, you must weigh the aggravating circumstances against the mitigating circumstances. When deciding this issue, each juror . . . must consider any mitigating circumstance or circumstances that . . . any juror determined to exist by a preponderance of the evidence.\u201d The court refused, instructing instead that a juror must consider only those mitigating circumstances that juror determined to exist. Defendant argues that the court\u2019s instruction violated McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990).\nWe recently rejected defendant\u2019s position in State v. Skipper, 337 N.C. 1, 446 S.E.2d 252. There we concluded, after reviewing McKoy, that \u201cthere 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.\u201d Id. at 50-51, 446 S.E.2d at 280. Here, as in Skipper, the trial court\u2019s instruction \u201cgave each juror this individualized opportunity. Thus, the instructions . . . are valid.\u201d Id. at 51, 446 S.E.2d at 280.\nDefendant argues in his next assignment of error that the trial court erred by instructing the jury that it could consider nonstatutory mitigating circumstances it found to exist and to have mitigating value when weighing aggravating and mitigating circumstances. He contends this instruction improperly allowed jurors to decide that a circumstance existed but had no mitigating value. Defendant notes that a sentencing jury must give weight to statutory mitigating circumstances it finds to exist; he then argues no constitutionally valid reason exists to treat nonstatutory mitigating circumstances differently.\nWe have decided this issue against defendant\u2019s position. Payne, 337 N.C. at 533, 448 S.E.2d at 109-10. Nonstatutory mitigating circumstances, unlike their statutory counterparts, do not have mitigating value as a matter of law. Id.; State v. Lee, 335 N.C. 244, 292, 439 S.E.2d 547, 572, cert. denied, \u2014 U.S. \u2014, 130 L. Ed. 2d 162, reh\u2019g denied, \u2014 U.S. \u2014, 130 L. Ed. 2d 532 (1994). The trial court\u2019s instruction did not violate Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, and its progeny, by precluding jurors from considering evidence offered by defendant in mitigation. We upheld a virtually identical jury instruction in Payne; defendant\u2019s arguments here do not warrant reversal of our precedent on this issue. This assignment of error is overruled.\nProportionality Review\nHaving found no error in the guilt/innocence or sentencing phases, we must\nreview the record to determine (1) whether the record supports the jury\u2019s finding of the aggravating circumstance[s] 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 \u201cexcessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\u201d\nPayne, 337 N.C. at 536, 448 S.E.2d at 111 (quoting N.C.G.S. \u00a7 15A-2000(d)(2)). Having thoroughly examined the record, transcripts, and briefs in this case, we conclude that the evidence supports all three aggravating circumstances found by the jury, namely, that the capital felony was committed for pecuniary gain, N.C.G.S. \u00a7 15A-2000(e)(6); that the felony was part of a course of conduct involving violent crimes against other persons, N.C.G.S. \u00a7 15A-2000(e)(ll); and that defendant had a prior conviction of a violent felony, N.C.G.S. \u00a7 15A-2000(e)(3). The record does not suggest that the sentence of death was imposed under passion, prejudice, or /any other arbitrary factor. We thus turn to our final statutory duty of proportionality review \u201cto compare the case at bar with other cases in the pool [as defined in State v. Williams, 308 N.C. 47, 79-80, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983), and Bacon, 337 N.C. at 106-07, 446 S.E.2d at 563-64] which are roughly similar with regard to the crime and the defendant.\u201d 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).\nProportionality review is designed 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). It also guards against \u201c \u2018the capricious or random imposition of the death penalty.\u2019 \u201d Bacon, 337 N.C. at 104, 446 S.E.2d at 562 (quoting State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980), reh\u2019g denied, 448 U.S. 918, 65 L. Ed. 2d 1181 (1981)). We cannot conclude based on the record that the imposition of the death penalty in this case is aberrant or capricious.\nThis case is distinguishable from those in which we have held the death sentence disproportionate. In three of those cases \u2014 State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); and State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983) \u2014 the jury convicted the defendant, or the defendant pled guilty, solely under the felony murder rule. Here, defendant was convicted on the basis of malice, premeditation, and deliberation as well as the felony murder rule. \u201cThe finding of premeditation and deliberation indicates a more cold-blooded and calculated crime.\u201d Artis, 325 N.C. at 341, 384 S.E.2d at 506.\nIn 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 (1988), the defendant shot the victim while trying to shoot a different person with whom he had argued. The jury there found only one aggravating circumstance, and the defendant was only nineteen years old. Here defendant shot the victim from point-blank range during an armed robbery. The jury found three aggravating circumstances, and defendant was thirty-five years old at the time of the crime.\nIn State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985), we noted that the case was unlike robbery-murder cases in which the death penalty had been imposed because the jury did not find the aggravating circumstance that the defendant was engaged in a course of conduct involving another violent crime. The jury in this case found that circumstance. It also found that defendant had been convicted of previous violent crimes, an aggravating circumstance not present in Young.\nIn State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984), the evidence did not clearly show how the murder occurred or how defendant acted when he encountered the victim. Here, no question exists about the circumstances of the murder, and the evidence clearly shows defendant\u2019s involvement in the crime.\nIn State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983), the defendant attempted to obtain medical help for his victim and had no apparent motive for the killing. Here, defendant robbed the victim, who lay bleeding on the floor, and defendant had a clear motive of pecuniary gain.\nWe recognize that juries have imposed sentences of life imprisonment in several robbery-murder cases. However, \u201cthe fact that one, two, or several juries have returned recommendations of life imprisonment in [similar] cases . . . does not automatically establish that juries have \u2018consistently\u2019 returned life sentences in factually similar cases.\u201d State v. Green, 336 N.C. at 198, 443 S.E.2d at 47. Our review of such cases reveals that they are distinguishable and do not render the sentence of death in this case disproportionate. The jury in several of them \u2014 for example, State v. Hill, 308 N.C. 382, 302 S.E.2d 202 (1983); State v. Barnette, 307 N.C. 608, 300 S.E.2d 340 (1983); and State v. Booker, 306 N.C. 302, 293 S.E.2d 78 (1982) \u2014 found that the defendant\u2019s capacity to appreciate the criminality of his conduct was impaired, or that he suffered from a mental or emotional disturbance, or both. Here, by contrast, the evidence did not justify the submission of either mitigating circumstance. Defendant was fully aware of his actions on the night of the crimes; he committed a coldly calculated murder because the victim refused to hand over money from his cash register.\nFurther, many factually similar cases do not involve the aggravating circumstances found by the jury here. For example, in State v. Howard, 334 N.C. 602, 433 S.E.2d 742 (1993), the jury found that the defendant committed the robbery-murder for pecuniary gain and had committed prior violent felonies, but not that the murder was part of a course of conduct involving other violent crimes. Additionally, the jury convicted the defendant solely under the felony murder rule, whereas here the jury convicted defendant under that rule as well as on the theory of premeditation and deliberation. In State v. Marlow, 334 N.C. 273, 432 S.E.2d 275 (1993), the jury found the murder had been committed during a burglary and for pecuniary gain, but not that the defendant had a prior history of violent felonies or that the murder was part of a violent course of conduct. The course of conduct circumstance is often present in cases where the jury imposes death instead of life imprisonment. See State v. Lawson, 310 N.C. at 648-49, 314 S.E.2d at 503-04. The defendants in State v. Reeb, 331 N.C. 159, 415 S.E.2d 362 (1992), were convicted of first-degree murder and armed robbery; as in this case, the jury found premeditation and deliberation and also applied the felony murder rule. The jury found only two aggravating circumstances: that the murder was part of a course of conduct and that it was committed while the defendant was engaged in a robbery. Unlike defendant here, neither defendant in Reeb had been convicted of previous violent felonies, and both had impaired capacity. The cases similar to this one in which life sentences were imposed thus are distinguishable from this one. Our review of the cases does not reveal that juries have consistently imposed sentences of life imprisonment in cases similar to this one.\nFurther, this case is similar to cases in which we have found the death penalty proportionate. We have upheld a sentence of death where, as in this case, the jury found the aggravating circumstances that the defendant committed the crime for pecuniary gain and during a course of conduct involving other violent crimes. See, e.g., Daniels, 337 N.C. 243, 446 S.E.2d 298; State v. Jones, 336 N.C. 229, 443 S.E.2d 48, cert. denied, \u2014 U.S. \u2014, 130 L. Ed. 2d 423 (1994), reh\u2019g denied, \u2014 U.S. \u2014, 130 L. Ed. 2d 676 (1995); Green, 336 N.C. 142, 443 S.E.2d 14; State v. Gardner, 311 N.C. 489, 319 S.E.2d 591 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 369 (1985). The jury found a third aggravating circumstance here: that defendant had been convicted of prior violent crimes. Additionally, the convictions in both Green and Gardner were based solely on the felony murder rule; here, the jury convicted both under that rule and on the theory of premeditation and deliberation. This case thus is more egregious than others involving a robbery-murder in which we have held the death penalty proportionate.\nWe hold that defendant received a fair trial and sentencing proceeding, free of prejudicial error. Comparing this case to similar cases in which the death penalty was imposed, and considering both the crime and the defendant, we cannot hold as a matter of law that the death penalty was disproportionate or excessive.\nNO ERROR.\n. The mitigating circumstances are not listed in the opinions but are in the records of the cases maintained by this Court.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by William N. Farrell, Jr., and William P. Hart, Special Deputy Attorneys General, for the State.", "Henderson Hill, Director, North Carolina Resource Center, by Marshall L. Dayan, Senior Staff Attorney, and Bruce T. Cunningham, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GENERAL SAM MILLER\nNo. 67A93\n(Filed 3 March 1995)\n1. Grand Jury \u00a7 43 (NCI4th)\u2014 foreperson \u2014 racial discrimination in selection \u2014 motion to quash indictment \u2014 timeliness\nThe trial court did not abuse its discretion in a first-degree murder prosecution by denying defendant\u2019s motion to quash the indictment based upon racial discrimination in the selection of the grand jury foreperson where the motion was filed on the first day of the trial. The motion to quash defendant\u2019s indictment should have been filed on or before his arraignment date because he was arraigned before the session of court for which his trial was calendared unless he could show good reason to grant relief from the statutory time limitation. Although defendant argued that his current counsel should not be bound by the waivers of past counsel and that he had no notice of the requirement until the N.C. Supreme Court decided State v. Robinson, 327 N.C. 346, defendant\u2019s current counsel did not file the motion until the first day of trial, almost four years after defendant\u2019s arraignment and two years after Robinson. The trial court could reasonably have determined that counsel\u2019s belief that no action was necessary until the day of trial did not warrant relief from the time limitation. N.C.G.S. \u00a7 15A-955, N.C.G.S. \u00a7 15A-952.\nAm Jur 2d, Grand Jury \u00a7\u00a7 21-25.\n2. Jury \u00a7 141 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 questions concerning parole\nThe trial court did not err in a first-degree murder sentencing hearing by denying defendant\u2019s motion to permit questioning of potential jurors regarding their beliefs about parole eligibility.\nAm Jur 2d, Jury \u00a7\u00a7 205 et seq.\n3. Jury \u00a7 70 (NCI4th)\u2014 capital murder \u2014 rjury selection\u2014 statement informing potential jurors about case \u2014 defendant\u2019s planned testimony regarding mental disease\u2014 omitted\nThe trial court did not err during jury selection in a first-degree murder prosecution by not informing the venire that defendant planned to offer expert testimony relating to a mental disease or defect. Although defendant argues that this violates N.C.G.S. \u00a7 15A-1213, which requires the trial court to inform the potential jurors about the case prior to jury selection, that statute does not require the trial court to divulge a defendant\u2019s theory of the case to the venire. Evidence regarding defendant\u2019s mental state at the time of the crime is not an affirmative defense for which defendant bears the burden of proof and the trial court had no statutory duty to inform the jury about the anticipated expert testimony.\nAm Jur 2d, Jury \u00a7\u00a7 121 et seq.\n4. Jury \u00a7 92 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 potential jurors urged to state views clearly \u2014 no error\nThe trial court did not abuse its discretion during jury selection for a first-degree murder trial by allowing the prosecutor to encourage potential jurors to state their views clearly and without ambiguity. Although defendant argued that this encouragement prevented potential jurors who held ambivalent views from speaking truthfully, the record does not reveal that the prosecutor\u2019s request for clarity impaired potential jurors\u2019 ability to answer voir dire questions truthfully.\nAm Jur 2d, Jury \u00a7\u00a7 189 et seq.\n5. Jury \u00a7 226 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 rehabilitation for equivocal answers \u2014 disparity in rehabilitation allowed prosecution and defense\nThe trial court did not abuse its discretion during jury selection in a first-degree murder prosecution where the court stated that it would allow rehabilitation if a potential juror\u2019s answers were equivocal or if it determined that a juror did not understand the question posed and the defendant contended that the court allowed the prosecution to rehabilitate potential jurors but did not grant defendant the same privilege. The record reveals the court\u2019s perception that potential jurors did not understand questions posed by the defense; any disparity in the amount of rehabilitation stemmed from a disparity in the complexity of the questions asked. Moreover, even assuming an abuse of discretion, defendant expressed satisfaction with each juror impanelled and did not exhaust his peremptory challenges.\nAm Jur 2d, Jury \u00a7 279.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post -Witherspoon cases. 39 ALR3d 550.\n6. Jury \u00a7 227 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 excusal for cause \u2014 opposition to death penalty\u2014 rehabilit\u00e1tion\nThe trial court did not err during jury selection for a first-degree murder prosecution by excusing two jurors for cause who had first unequivocally stated that they could not vote for the death penalty under any circumstances, stated during rehabilitation that they could set aside their personal beliefs and follow the court\u2019s instructions or that they could think of circumstances where they would vote for the death penalty, and then said when asked by the prosecutor or the court that they could not vote for \u2022the death penalty. Both potential jurors clearly expressed several times that they could not vote for the death penalty under any circumstances and the court properly could have concluded that subsequent equivocation arose out of their desire to perform their duties as jurors.\nAm Jur 2d, Jury \u00a7 279.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post-Witherspoon cases. 39 ALR3d 550.\n7. Jury \u00a7 123 (NCX4th)\u2014 capital murder \u2014 jury selection\u2014 questions concerning particular mitigating circumstances \u2014 not allowed\nThe trial court did not abuse its discretion during jury selection in a first-degree murder prosecution by denying defendant\u2019s motion to ask two potential jurors if they could consider impaired capacity arising from drug use as a mitigating circumstance and to ask potential jurors whether they thought people could change their lives for the better. The questions defendant sought to ask here constituted improper attempts to stake out jurors, not means of determining whether they could follow the law.\nAm Jur 2d, Jury \u00a7\u00a7 208 et seq.\n8. Jury \u00a7 154 (NCX4th)\u2014 capital murder \u2014 jury selection\u2014 questions to reveal bias for death penalty \u2014 excluded\nThe trial court did not err during jury selection in a first-degree murder prosecution by sustaining the State\u2019s objections to questions intended to reveal potential jurors\u2019 latent biases in favor of the death penalty. Overly broad questions or those calling for policy decisions are impermissible under State v. Conner, 335 N.C. 618. The first of defendant\u2019s questions here is substantially similar to the Conner question, the second has no reasonable expectation of revealing information bearing upon the potential juror\u2019s qualifications to serve as an impartial juror, and the third asked for a policy decision.\nAm Jur 2d, Jury \u00a7\u00a7 208 et seq.\n9. Jury \u00a7 154 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 whether convicted defendant should automatically suffer death \u2014 question excluded \u2014 no prejudicial error\nThere was no prejudicial error in a first-degree murder prosecution where the trial court sustained the State\u2019s objection to defendant\u2019s question as to whether a person convicted in a case such as this should automatically be put to death. Assuming error, it was harmless beyond a reasonable doubt because defendant was allowed to ask both of these jurors whether they could under any circumstances vote for a life sentence, defendant exercised peremptory challenges to excuse both of these potential jurors, and defendant did not exhaust his peremptory challenges.\nAm Jur 2d, Jury \u00a7\u00a7 208 et seq.\n10. Homicide \u00a7 244 (NCI4th)\u2014 first-degree murder \u2014 premeditation and deliberation \u2014 sufficiency of evidence\nThe trial court did not err by submitting first-degree murder to the jury where defendant contended that the evidence of premeditation and deliberation was insufficient but the record revealed substantial evidence that defendant was not provoked by the victim in that defendant admitted that he shot the victim for refusing to hand over the money from the cash register and, although he now argues that he was provoked by a racial remark, presented no evidence beyond pure speculation that the victim\u2019s racial statement provoked him; defendant\u2019s conduct before the murder supports an inference that he had anticipated and decided how to resolve a possible confrontation with his robbery targets; and defendant\u2019s calm and deliberate conduct as he robbed the victim after the murder also supports an inference of premeditation and deliberation. Finally, the facts of this case are similar to those of State v. Williams, 319 N.C. 73.\nAm Jur 2d, Homicide \u00a7\u00a7 437 et seq.\nHomicide: presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR2d 1435.\n11. Criminal Law \u00a7 1315 (NCI4th)\u2014 capital murder \u2014 sentencing hearing \u2014 mitigating evidence \u2014 defendant\u2019s character\nAny error was harmless beyond a reasonable doubt in a first-degree murder sentencing hearing where the trial court sustained the State\u2019s objection to defendant\u2019s question to defendant\u2019s psychotherapist concerning the witness\u2019s opinion of defendant as a friend and defense counsel concluded his questioning of the witness without an offer of proof. Even assuming that the issue was properly preserved for review, the jury heard testimony from numerous witnesses, including defendant\u2019s sister and his minister, about his good character, his quest for self-improvement while incarcerated, and his leadership role within his family. The excluded testimony would have been merely cumulative.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n12. Criminal Law \u00a7 447 (NCI4th) \u2014 capital murder \u2014 sentencing \u2014 prosecutor\u2019s argument \u2014 jury visualizing itself as victim\nThe trial court did not err in a first-degree murder sentencing hearing by overruling defendant\u2019s objection to the prosecutor\u2019s argument that the jurors should visualize themselves as the murder victim. The argument related to the nature of the crime and neither misstated nor manipulated the evidence.\nAm Jur 2d, Criminal Law \u00a7\u00a7 648 et seq.\n13. Criminal Law \u00a7 1357 (NCI4th)\u2014 capital murder \u2014 sentencing \u2014 mitigating circumstances \u2014 cocaine withdrawal \u2014 mental or emotional disturbance not submitted\nThe trial court did not err in a first-degree murder sentencing hearing by not submitting the statutory mitigating circumstance that defendant was under the influence of a mental or emotional disturbance when he committed the crime. Although defendant argued that he suffered from cocaine and opiate withdrawal, which is a defined psychiatric disorder, drug withdrawal stemming from voluntary intoxication does not qualify as a mental or emotional disturbance for purposes of N.C.G.S. \u00a7 15A-2000(f)(2).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nComment Note. \u2014 Mental or emotional condition as diminishing responsibility for crime. 22 ALR3d 1228.\nEffect of voluntary drug intoxication upon criminal responsibility. 73 ALR3d 98.\n14. Criminal Law \u00a7 1357 (NCI4th)\u2014 capital murder \u2014 sentencing \u2014 mitigating circumstances \u2014 mental or emotional disturbance \u2014 racial slur\nThe trial court did not err during a first-degree murder sentencing hearing by not submitting the statutory mitigating circumstance of mental or emotional disturbance where defendant contended that a racial slur provoked him to shoot, but he told police in his statement that he shot the victim because the man tried to stop him from getting money for drugs. This evidence reveals that defendant committed the murder for money, not as a result of provocation to which he was abnormally susceptible. N.C.G.S. \u00a7 15A-2000(f)(2).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nComment Note. \u2014 Mental or emotional condition as diminishing responsibility for crime. 22 ALR3d 1228.\n15. Criminal Law \u00a7 1360 (NCI4th)\u2014 capital murder \u2014 sentencing \u2014 mitigating circumstances \u2014 impaired capacity \u2014 drug withdrawal\nThe trial court did not err in a first-degree murder sentencing hearing by refusing to submit the impaired capacity mitigating circumstance where defendant relied on evidence of drug withdrawal to show impairment. The record contains no evidence that defendant was impaired by drugs or withdrawal therefrom at the time of the murder or that any symptoms of withdrawal he may have experienced at that time impaired his capacity. N.C.G.S. \u00a7 15A-2000(f)(6).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nEffect of voluntary drug intoxication upon criminal responsibility. 73 ALR3d 98.\n16. Criminal Law \u00a7 1363 (NCI4th)\u2014 capital murder \u2014 sentencing \u2014 mitigating circumstances \u2014 no harm to witnesses\nThe trial court did not err in a first-degree murder sentencing hearing by not submitting the nonstatutory mitigating circumstance that defendant neither threatened nor harmed eyewitnesses to the crime. Mitigating circumstances focus on positive aspects of a defendant\u2019s character or behavior; the absence of an aggravating circumstance or bad conduct cannot constitute a mitigating circumstance. The categories of positive behavior recognized as mitigating do not include a defendant\u2019s failure to harm eyewitnesses.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n17. Criminal Law \u00a7 1322 (NCI4th)\u2014 capital murder \u2014 sentencing \u2014 instructions\u2014parole eligibility\nThe trial court did not err during a first-degree murder sentencing hearing by refusing to instruct the jury regarding defendant\u2019s potential to be paroled if given a life sentence. Parole eligibility is not relevant during jury selection, closing argument, or jury deliberation in a capital sentencing proceeding; Simmons v. South Carolina, 129 L. Ed. 2d 133, does not require that N.C. precedents on the issue be overruled where defendant remains eligible for parole if given a life sentence, and N.C.G.S. \u00a7 15A-2002, effective 1 October 1994, which requires that a sentence of life imprisonment shall be life without parole and that the jury be so instructed, does not entitle defendant to a new sentencing hearing. Under the law applicable at the time of defendant\u2019s trial, the court was neither required nor allowed to give an instruction on the issue of parole eligibility.\nAm Jur 2d, Trial \u00a7 1441.\nPrejudicial effect of statement or instruction of court as to possibility of parole or pardon. 12 ALR3d 832.\n18. Criminal Law \u00a7 680 (NCI4th)\u2014 capital murder \u2014 sentencing \u2014 peremptory instructions\nThe trial court did not err during a first-degree murder sentencing hearing by refusing to give peremptory instructions on allegedly uncontroverted statutory and nonstatutory mitigating circumstances where it was held elsewhere that the court did not err in refusing to submit these circumstances to the jury.\nAm Jur 2d, Trial \u00a7\u00a7 1441, 1444.\n19. Criminal Law \u00a7 1348 (NCI4th)\u2014 capital murder \u2014 sentencing instructions \u2014 mitigating circumstances\nThe trial court did not err in a first-degree murder sentencing hearing by refusing to give defendant\u2019s requested peremptory instruction on the ground that it required the jury to accord weight to nonstatutory circumstances. The instruction failed to inform jurors that they could accord no weight to proven non-statutory circumstances.\nAm Jur 2d, Trial \u00a7\u00a7 1441, 1444.\n20. Criminal Law \u00a7 1323 (NCI4th)\u2014 capital murder \u2014 sentencing \u2014 instructions\u2014consideration of mitigating circumstances found by other jurors\nThe trial court did not err in a first-degree murder sentencing hearing by failing to instruct the jury that it must consider any mitigating circumstance found by a juror. 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.\nAm Jur 2d, Trial \u00a7\u00a7 1441, 1444.\n21. Criminal Law \u00a7 1363 (NCI4th)\u2014 capital murder \u2014 sentencing \u2014 instructions\u2014nonstatutory mitigating circumstances\nThe trial court did not err in a first-degree murder sentencing hearing by instructing the jury that it could consider nonstatutory mitigating circumstances it found to exist and to have mitigating value when weighing aggravating and mitigating circumstances. Although defendant contended that this instruction improperly allowed jurors to decide-that a circumstance existed but had no mitigating value, nonstatutory mitigating circumstances, unlike their statutory counterparts, do not have mitigating value as a matter of law.\nAm Jur 2d, Trial \u00a7\u00a7 1441, 1444.\n22. Criminal Law \u00a7 1373 (NCI4th)\u2014 first-degree murder\u2014 death sentence \u2014 not disproportionate\nA sentence of death for a first-degree murder was not disproportionate where the evidence supported the three aggravating factors found, the record does not suggest that the sentence was imposed under passion, prejudice, or any arbitrary factor, and, comparing this case to similar cases in which the death penalty was imposed and considering both the crime and the defendant, the death penalty was not disproportionate or excessive. This case is more egregious than others involving a robbery-murder in which the death penalty was held proportionate.\nAm Jnr 2d, Criminal Law \u00a7 628.\nValidity of death penalty, under Federal Constitution, as affected by consideration of aggravating or mitigating circumstances \u2014 Supreme Court cases. Ill L. Ed. 2d 947.\nAppeal of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Barnette, J., at the 11 January 1993 Criminal Session of Superior Court, Robeson County, on a jury verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 11 January 1995.\nMichael F. Easley, Attorney General, by William N. Farrell, Jr., and William P. Hart, Special Deputy Attorneys General, for the State.\nHenderson Hill, Director, North Carolina Resource Center, by Marshall L. Dayan, Senior Staff Attorney, and Bruce T. Cunningham, Jr., for defendant-appellant." }, "file_name": "0663-01", "first_page_order": 701, "last_page_order": 733 }