{ "id": 790138, "name": "STATE OF NORTH CAROLINA v. EDWARD EARL DAVIS, ROGER DALE HOOD", "name_abbreviation": "State v. Davis", "decision_date": "1995-04-07", "docket_number": "No. 135A92", "first_page": "1", "last_page": "32", "citations": [ { "type": "official", "cite": "340 N.C. 1" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "90 L. Ed. 2d 1001", "category": "reporters:federal", "reporter": "L. 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Ed. 2d 1206", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 902", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180680, 6180844, 6180492, 6180302, 6181071, 6180146 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0902-04", "/us/428/0902-05", "/us/428/0902-03", "/us/428/0902-02", "/us/428/0902-06", "/us/428/0902-01" ] }, { "cite": "215 S.E.2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "68-69" }, { "page": "68" } ], "opinion_index": 0 }, { "cite": "287 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562667 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "336-37" }, { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0326-01" ] }, { "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": "772" } ], "opinion_index": 0 }, { "cite": "304 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567447 ], "year": 1981, "pin_cites": [ { "page": "265-66" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0249-01" ] }, { "cite": "113 L. Ed. 2d 459", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "499 U.S. 942", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11365027, 11364868, 11365765, 11364958, 11365194, 11364716, 11364527, 11364623, 11365105, 11365267, 11364789, 11365658, 11365438, 11365343 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/us/499/0942-07", "/us/499/0942-05", "/us/499/0942-14", "/us/499/0942-06", "/us/499/0942-09", "/us/499/0942-03", "/us/499/0942-01", "/us/499/0942-02", "/us/499/0942-08", "/us/499/0942-10", "/us/499/0942-04", "/us/499/0942-13", "/us/499/0942-12", "/us/499/0942-11" ] }, { "cite": "395 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493650 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0388-01" ] }, { "cite": "108 L. Ed. 2d 756", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1050", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5473, 5290, 5004, 5103, 4917 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1050-01", "/us/494/1050-04", "/us/494/1050-05", "/us/494/1050-03", "/us/494/1050-02" ] }, { "cite": "375 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "916" }, { "page": "923" } ], "opinion_index": 0 }, { "cite": "324 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486627 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0033-01" ] }, { "cite": "448 U.S. 38", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787611 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "45" }, { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/us/448/0038-01" ] }, { "cite": "469 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11959771 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "424", "parenthetical": "quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)" }, { "page": "851-52", "parenthetical": "quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)" } ], "opinion_index": 0, "case_paths": [ "/us/469/0412-01" ] }, { "cite": "343 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "316 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694299 ], "year": 1986, "pin_cites": [ { "page": "678-79" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0666-01" ] }, { "cite": "365 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "617", "parenthetical": "quoting State v. Barts, 316 N.C. 666, 678-79, 343 S.E.2d 828, 837 (1986)" } ], "opinion_index": 0 }, { "cite": "321 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567021 ], "year": 1988, "pin_cites": [ { "page": "740", "parenthetical": "quoting State v. Barts, 316 N.C. 666, 678-79, 343 S.E.2d 828, 837 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0738-01" ] }, { "cite": "346 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "618" } ], "opinion_index": 0 }, { "cite": "317 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772976 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0343-01" ] }, { "cite": "353 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "358" } ], "opinion_index": 0 }, { "cite": "319 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4744189 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0110-01" ] }, { "cite": "400 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540746 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0099-01" ] }, { "cite": "122 L. Ed. 2d 684", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "417 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2502221 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0387-01" ] }, { "cite": "420 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506667 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0372-01" ] }, { "cite": "430 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531831 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "44-45" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0039-01" ] }, { "cite": "364 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569559 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0570-01" ] }, { "cite": "90 L. Ed. 2d 733", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "476 U.S. 1165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12444, 12982, 12847 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/1165-02", "/us/476/1165-03", "/us/476/1165-01" ] }, { "cite": "337 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "822-23", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "315 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716135 ], "year": 1985, "pin_cites": [ { "page": "58-59", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0040-01" ] }, { "cite": "400 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "416", "parenthetical": "quoting State v. Brown, 315 N.C. 40, 58-59, 337 S.E.2d 808, 822-23 (1985) (citations omitted), cert. denied, 476 U.S. 1165, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988)" } ], "opinion_index": 0 }, { "cite": "328 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542427 ], "year": 1991, "pin_cites": [ { "page": "181-82", "parenthetical": "quoting State v. Brown, 315 N.C. 40, 58-59, 337 S.E.2d 808, 822-23 (1985) (citations omitted), cert. denied, 476 U.S. 1165, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0175-01" ] }, { "cite": "391 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "155" } ], "opinion_index": 0 }, { "cite": "326 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305969 ], "year": 1990, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0489-01" ] }, { "cite": "364 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "119" } ], "opinion_index": 0 }, { "cite": "321 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569213 ], "year": 1988, "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0574-01" ] }, { "cite": "340 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "357" } ], "opinion_index": 0 }, { "cite": "315 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714140 ], "year": 1986, "pin_cites": [ { "page": "772" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0762-01" ] }, { "cite": "230 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 582", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551244 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0582-01" ] }, { "cite": "178 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "421" } ], "opinion_index": 0 }, { "cite": "277 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567296 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "678-79" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0672-01" ] }, { "cite": "352 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "423" } ], "opinion_index": 0 }, { "cite": "319 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4740119 ], "year": 1987, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0092-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "169" }, { "page": "170" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "77" }, { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0349-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "386 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "194", "parenthetical": "quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)" } ], "opinion_index": 0 }, { "cite": "325 N.C. 677", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2490196 ], "year": 1989, "pin_cites": [ { "page": "682", "parenthetical": "quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0677-01" ] }, { "cite": "407 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552935 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0363-01" ] }, { "cite": "446 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "Bryant II" } ], "opinion_index": 0 }, { "cite": "337 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550995 ], "year": 1994, "pin_cites": [ { "parenthetical": "Bryant II" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0298-01" ] }, { "cite": "128 L. Ed. 2d 42", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "127 L. Ed. 2d 583", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 1147397 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/511/0001-01" ] }, { "cite": "498 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217574 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/us/498/0039-01" ] }, { "cite": "432 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "Bryant I" } ], "opinion_index": 0 }, { "cite": "334 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530961 ], "year": 1993, "pin_cites": [ { "parenthetical": "Bryant I" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0333-01" ] }, { "cite": "406 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556038 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0679-01" ] }, { "cite": "108 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4836, 5158, 4882, 5207, 5176 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1023-04", "/us/494/1023-03", "/us/494/1023-05", "/us/494/1023-02", "/us/494/1023-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "506" } ], "opinion_index": 0 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "year": 1989, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "98 L. Ed. 2d 406", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 970", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600992, 599913, 599204, 599758 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0970-03", "/us/484/0970-02", "/us/484/0970-01", "/us/484/0970-04" ] }, { "cite": "358 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730916 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0179-01" ] }, { "cite": "448 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552845 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0700-01" ] }, { "cite": "63 U.S.L.W. 3643", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 1995, "opinion_index": 0 }, { "cite": "131 L. Ed. 2d 147", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "447 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551126 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0469-01" ] }, { "cite": "305 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763650 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0026-01" ] }, { "cite": "309 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761257 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0674-01" ] }, { "cite": "319 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686205 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0465-01" ] }, { "cite": "325 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758195 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0669-01" ] }, { "cite": "341 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694780 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0203-01" ] }, { "cite": "372 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "523" }, { "page": "523" } ], "opinion_index": 0 }, { "cite": "323 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566216 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0318-01" ] }, { "cite": "126 L. Ed. 2d 707", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "126 L. Ed. 2d 341", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "428 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "146" } ], "opinion_index": 0 }, { "cite": "333 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549203 ], "year": 1993, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0350-01" ] } ], "analysis": { "cardinality": 1973, "char_count": 69440, "ocr_confidence": 0.745, "pagerank": { "raw": 3.4673432087773687e-07, "percentile": 0.8810415201812924 }, "sha256": "f94e0be23dcce3d312e372070125dddaa709ebfa4eff7cae9e579ad6ce5fa3bf", "simhash": "1:4b2bd622367a9c7e", "word_count": 11400 }, "last_updated": "2023-07-14T17:34:40.112900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices Lake and Orr did not participate in the consideration or decision of this case.", "Justices LAKE and ORR did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. EDWARD EARL DAVIS, ROGER DALE HOOD" ], "opinions": [ { "text": "FRYE, Justice.\nDefendants were indicted on 9 September 1991 for first-degree murder and attempted robbery with a dangerous weapon. Defendant Davis was also indicted for second-degree kidnapping. They were tried capitally and jointly at the 24 February 1992 Criminal Session of Superior Court, Buncombe County, Judge James U. Downs presiding.\nDefendants were found guilty of first-degree murder on theories of both premeditation and deliberation and felony murder and attempted robbery with a dangerous weapon. Defendant Davis was also found guilty of second-degree kidnapping.\nFollowing a capital sentencing proceeding pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended death for defendant Davis and life imprisonment for defendant Hood. The judge sentenced each defendant accordingly. Davis was also sentenced to forty years\u2019 imprisonment for the robbery with a dangerous weapon conviction and thirty years\u2019 imprisonment for the kidnapping conviction. The judge sentenced Hood to forty years\u2019 imprisonment for the robbery with a dangerous weapon conviction.\nThe State\u2019s evidence introduced during the guilt phase tended to show the following narrated facts. On 16 August 1991, defendants visited the Leicester Pawn Shop in Buncombe County where Mark Lane, the murder victim, was working and his girlfriend, Kathleen Shively, the kidnapping victim, was helping. They made three visits. The first was between 12:00 and 12:30 p.m. Defendants purchased a police scanner. Davis asked whether Lane bought or pawned shotguns. When Lane told him that he did, Davis stated they would be back.\nThe next visit was at approximately 2:30 p.m. when defendants returned with a shotgun. Lane offered them $50.00. Davis rejected the offer and defendants left. During both the first and second visits, there were other customers in the store. A sign on the store stated that the store closed at 6:00 p.m.\nThe third visit occurred at 5:55 p.m. while Lane and Shively were preparing to close the store. Lane had placed $1,000 in cash from the cash register and a pistol in his back pocket. As defendants entered, Davis was carrying a shotgun and told Lane he would accept Lane\u2019s earlier offer of $50.00. Lane laid the shotgun on the counter and asked Shively to write up the ticket. Upon Shively\u2019s request, Davis handed her his driver\u2019s license. Immediately thereafter, Davis pulled a \u201ccowboy type gun\u201d from under his shirt and stated, \u201cBuddy, don\u2019t even try it. Buddy, don\u2019t even try it.\u201d Davis was pointing the gun right at Lane, who stood with both hands at his sides. Davis then shot Lane, striking him in his left wrist. Davis shot Lane a second time, and Lane twisted around and fell to the floor. Shively then heard a third and fourth shot but did not know who fired them.\nDavis, pointing his pistol at Shively, ordered her to get down on the floor \u201cyou dirty fuckin bitch, or I\u2019m going to kill you, too.\u201d Shively fell to the floor and began crawling towards the back office. Davis kept repeating, \u201cCrawl back there.\u201d Hood remained silent during all of these events. After hearing defendants leave, Shively called 911 and began performing CPR on Lane. Shively positively identified defendants.\nA pathologist testified that Lane had three distinct gunshot wounds. One passed through his left wrist and lodged in the left chest wall. A second entered the front shoulder and exited through the back of the shoulder. A third entered the right chest and passed through the body, with the bullet causing damage to both lungs, the diaphragm, liver, and aorta. Cause of death was massive hemorrhaging secondary to the gunshot wound through the chest.\nA crime scene analyst with the Buncombe County Sheriffs Department, Michael Wright, observed the victim Lane lying on the floor behind the counter in the pawn shop with a stainless steel revolver near his right hand; five unspent cartridges were found in the gun. The bullet that had been fired from the pistol was removed from the ceiling, and an exit bullet hole was found in the top of the counter top. Hand wipings from the victim indicated that the victim \u201ccould have fired a gun.\u201d\nDefendants were arrested near the Georgia-South Carolina state line, where they had wrecked their Ford Fairmont following a high-speed chase. Following waiver of their constitutional rights, both defendants gave separate, written statements which were substantially similar. According to Davis\u2019 statement, defendants went to the pawn shop, and Davis told Lane that they had two \u201chot\u201d pistols and a shotgun for sale. Lane said he would buy them. Davis said that he laid the shotgun on the counter and then reached to pull the pistol out. The victim then \u201creached back like \u2014 like this and pulled out some sort \u2014 some little automatic. I guess it was a .25 or something. I don\u2019t know, and he shot, and I shot back in self defense.\u201d\nHood\u2019s statement was similar. He said the victim reached behind him, pulled out a gun, and started firing. Davis returned fire and the victim fell. Hood did not think the victim had been hit. The victim \u201cwas firing up at me, so I reached over and shot.\u201d\nStatements by both defendants were later given to Charles E. Calloway, a Buncombe County detective with the Sheriff\u2019s Department. There were some inconsistencies in the statements of the two defendants on this occasion. The inconsistencies were as follows: Hood intimated that both he and Davis had pistols with them during their third visit to the pawn shop. Davis said that Hood\u2019s pistol was in the car and that Hood had gone to retrieve it before selling it.\nDetective Calloway also testified that his investigation did not reveal a .25 automatic anywhere near the victim\u2019s body. He testified on cross-examination that Shively made no reference to a robbery or an attempted robbery and said that Davis was carrying the shotgun \u201cnot like they were going to fire it, just carrying it like they were going to sell it.\u201d Investigation revealed that nothing was missing from the pawn shop\u2019s safe, and neither defendant was observed going into the back room or'anywhere near the safe. Both money and jewelry were removed from the victim\u2019s body prior to autopsy by investigators.\nDefendants did not testify or offer any evidence during the guilt phase of the trial.\nDuring the sentencing phase, the State offered evidence that Davis had been convicted of murder in Ohio in 1976. Defendants did not testify but offered evidence from family members and professionals regarding their family histories and personal traits.\nAdditional evidence introduced during the trial will be discussed where pertinent to the issues raised by defendants.\nIssues Raised by Defendants Davis and Hood\nI.\nFirst, both defendants assign error to the trial court\u2019s reasonable doubt instruction. On 12 August 1994, this Court allowed defendant Hood\u2019s motion to adopt defendant Davis\u2019 brief as to this issue. Defendants contend that the trial court instructed the jury on reasonable doubt using language which recent decisions of both this Court and the United States Supreme Court condemn as unconstitutionally lowering the State\u2019s burden of proof. Defendants rely on State v. Bryant, 334 N.C. 333, 432 S.E.2d 291 (1993) (Bryant I), in which we found error in the reasonable doubt instruction based on Cage v. Louisiana, 498 U.S. 39, 112 L. Ed. 2d 339 (1991). However, the Supreme Court of the United States vacated the judgment and remanded Bryant I to this Court for further consideration in light of Victor v. Nebraska, 511 U.S. -, 127 L. Ed. 2d 583 (1994). North Carolina v. Bryant, - U.S. -, 128 L. Ed. 2d 42 (1994). On remand, we held that there was no Cage error entitling defendant to a new trial. State v. Bryant, 337 N.C. 298, 446 S.E.2d 71 (1994) (Bryant II). The instruction in Bryant was essentially identical to the instruction in this case; therefore, we reject this assignment of error on the basis of our opinion in Bryant II.\nII.\nNext, defendants contend that the trial court erred when it refused to dismiss their charges of attempted armed robbery. As the basis for their contention, defendants claim that the State failed to present sufficient evidence of each of the elements of the crime charged. Specifically, defendants argue that there was insufficient evidence of intent.\nThe motion to dismiss must be allowed unless the State presents substantial evidence of each element of the crime charged. State v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991). \u201cSubstantial evidence\u201d means \u201c \u2018that the evidence must be existing and real, not just seeming or imaginary.\u2019 \u201d State v. Clark, 325 N.C. 677, 682, 386 S.E.2d 191, 194 (1989) (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)). In evaluating a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Locklear, 322 N.C. 349, 368 S.E.2d 377 (1988).\nDefendants were charged with attempted robbery with a dangerous weapon in violation of N.C.G.S. \u00a7 14-87. The two elements of attempted robbery with a dangerous weapon are: (1) an intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation but falls short of the completed offense. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). Thus, \u201c[a]n attempted robbery with a dangerous weapon occurs when a person, with the specific intent to unlawfully deprive another of personal property by endangering or threatening his life with a dangerous weapon, does some overt act calculated to bring about this result.\u201d State v. Allison, 319 N.C. 92, 96, 352 S.E.2d 420, 423 (1987).\nThe State\u2019s evidence, based on the testimony of eyewitness Kathy Shively, showed that defendants Davis and Hood were in the pawn shop three times on the day of the murder. The first two times, other customers and employees were in the store. The final time was right before closing. During this third visit, a brief discussion ensued over the sale of a shotgun. Defendants then drew their pistols, and Davis stated to the victim, Mark Lane, \u201cBuddy, don\u2019t even try it. Buddy, don\u2019t even try it.\u201d Davis then immediately shot Lane twice. Lane returned fire once after falling to the floor. Hood then shot Lane. Davis then ordered Kathy Shively into the back room at gunpoint. After that, both defendants fled the scene. No money or property was taken from the pawn shop.\nBoth defendants contend that this evidence was insufficient to show that they intended to commit robbery because they neither demanded money prior to nor took any money or valuables after shooting Lane. In State v. Smith, as in this case, defendant did not demand money, and this Court upheld the attempted armed robbery conviction. The defendant in Smith pulled a gun on the store owner and said: \u201cDon\u2019t move. . . . Don\u2019t put your hands under that counter.\u201d 300 N.C. at 77, 265 S.E.2d at 169. A passerby interrupted the defendant\u2019s act, and he fled the store. This Court, relying on State v. Powell, 277 N.C. 672, 178 S.E.2d 417 (1971), held that, even though the defendant did not demand money, his actions were substantial evidence of each essential element of attempted armed robbery. Smith, 300 N.C. at 80, 265 S.E.2d at 170.\nThe defendants here and the defendant in Smith went much further in their display and use of a firearm than the defendant in Powell. In Powell, the defendant was restrained from any action when a store clerk grabbed his wrist and seized the gun before he was able to withdraw it from a purse the defendant was carrying. At no time did the defendant in Powell point the weapon at anybody, nor did he make any verbal demands other than those incident to the act of purchasing. This Court held in Powell that the crime of attempted armed robbery was complete when the defendant placed his hand on the pistol and began to withdraw it with the intent of completing the substantive offense of armed robbery through its use. State v. Powell, 277 N.C. at 678-79, 178 S.E.2d at 421.\nDefendant Hood\u2019s reliance upon the case of State v. Jacobs, 31 N.C. App. 582, 230 S.E.2d 500 (1976), is misplaced. In Jacobs, the State\u2019s evidence tended to show that the defendant was in a hardware store near closing time with a pistol in his belt. A store employee was at the cash register counting the day\u2019s receipts. The defendant made no gesture indicating an intent to touch, withdraw, or otherwise threaten the use of the pistol. Furthermore, the defendant did not make any demand, express or implied, for money or any other property. The Court of Appeals held that this evidence was insufficient to support a conviction of attempted armed robbery. The facts in this case are distinguishable from the facts in Jacobs. Here, defendants drew their pistols, and Davis told the victim, \u201cBuddy, don\u2019t even try it.\u201d Such actions have been held to be sufficient evidence of attempted armed robbery even without a demand for money or property.\nFurthermore, the State offered and the trial court admitted evidence of a prior similar crime to show defendants\u2019 intent to commit the attempted armed robbery of the Leicester Pawn Shop. Defendants also assign error to the admissibility of this evidence. The North Carolina Rules of Evidence provide that:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nN.C.G.S. \u00a7 8C-1, Rule 404(b) (1993).\nThe State offered evidence that defendants robbed a McDonald\u2019s restaurant in Canton, North Carolina, on 9 August 1991. A victim of this robbery, the assistant manager of McDonald\u2019s, testified that defendants came into the restaurant near closing time, ordered food, ate, and continued to sit at the table while it was being cleaned up. The assistant manager, Charlene Donaldson, testified that she went to clean one of the bathrooms and came back out into the lobby. Hood was not there. When she passed Davis\u2019 table, he stood up behind her, cocked a pistol, put the pistol behind her back, and said, \u201ckeep walking.\u201d Hood then came in with a shotgun and pumped it. Davis then forced her and the manager on duty to open the safe and fill a bag with approximately $1,900. Davis told them to \u201cstay in the office and don\u2019t leave for like five minutes.\u201d Hood did not speak at all while he and Davis were in the restaurant. Hood pled guilty to the McDonald\u2019s armed robbery. Davis was tried before a jury and found guilty.\nThe State contends, and we agree, that evidence of the McDonald\u2019s robbery committed one week prior to the attempted robbery in this case was sufficiently similar to show intent. In both incidents, the defendants entered the premises armed and waited until near closing time, when no other customers were present, to commit the crime. Defendants initially carried on as though they were on the premises to conduct legitimate business. Moreover, defendant Hood did not speak during either crime.\nDefendants argue that even if the evidence of the McDonald\u2019s robbery were properly admissible, it should have been excluded under the balancing test required by Rule 403. Rule 403 allows the exclusion of otherwise admissible evidence if its \u201cprobative value is substantially outweighed by the danger of unfair prejudice.\u201d State v. DeLeonardo, 315 N.C. 762, 772, 340 S.E.2d 350, 357 (1986). \u201c[T]he ultimate test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. \u00a7 8C-1, Rule 403.\u201d State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988). We find that there was no abuse of discretion by the trial court in refusing to exclude this evidence since the McDonald\u2019s robbery was sufficiently similar and occurred only one week prior to the attempted robbery in this case. Furthermore, the trial court gave a limiting instruction that the evidence of the prior crime was being admitted solely for the purpose of showing intent.\nWe find that all of this evidence, when viewed in the light most favorable to the State, was sufficient to submit the attempted armed robbery charge to the jury.\nIII.\nFinally, defendants Davis and Hood contend that the trial court erred by submitting their first-degree murder charges to the jury. Defendants were found guilty of murder on the theories of malice, premeditation and deliberation, and felony murder. Defendants argue that there was insufficient evidence to support the commission of the underlying felony of attempted armed robbery and therefore insufficient evidence to support their convictions under the felony murder theory. For the reasons set forth in Issue II above, we find that the evidence of the underlying felony of attempted armed robbery was sufficient. This argument has no merit.\nDefendants further argue that there was insufficient evidence of malice and premeditation and deliberation necessary to support their convictions of first-degree murder. Malice may be implied from the use of a pistol, a deadly weapon. State v. Porter, 326 N.C. 489, 505, 391 S.E.2d 144, 155 (1990). Thus, the State only needed to show sufficient evidence of premeditation and deliberation. In defining premeditation and deliberation, this Court has stated:\n\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. . . . Deliberation 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\n\u201cPremeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. ... Instead, they usually must be proved by circumstantial evidence. Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner.\u201d\nState v. Small, 328 N.C. 175, 181-82, 400 S.E.2d 413, 416 (1991) (quoting State v. Brown, 315 N.C. 40, 58-59, 337 S.E.2d 808, 822-23 (1985) (citations omitted), cert. denied, 476 U.S. 1165, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988)).\nDefendant Davis contends that the evidence could have been interpreted to suggest that there was \u201ca mutual misperception by three armed men resulting] in the volley of gunshots that left Mark Lane dead\u201d; therefore, there was insufficient evidence of premeditation and deliberation. However, if there is substantial evidence to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury, and the motion to dismiss should be denied. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). The fact that Davis drew his pistol, pointed it at the victim, and then told him, \u201cDon\u2019t even try it,\u201d prior to shooting him is sufficient evidence of premeditation and deliberation to support a charge of first-degree murder. Furthermore, defendant killed the victim without just cause or legal provocation and after ordering him not to move while he was standing on his own premises.\nDefendant Hood contends that he became \u201cinvolved and embroiled in this whole ordeal when and only when Lane shot up through the counter narrowly missing [him].\u201d In response, Hood contends that he reflexively and instinctively shot back; therefore, there was insufficient evidence of premeditation and deliberation. The fact that-Hood drew his pistol and pointed it over the counter at the victim who was lying wounded on the floor, prior to shooting him, is some evidence of premeditation and deliberation. There was no evidence of provocation by the victim. The victim had been felled by the two shots fired by Davis, and Hood then shot him a third time. In addition, the question of self-defense was not even submitted to the jury, and defendant Hood does not assign this as error.\nTherefore, we find that there was sufficient evidence of premeditation and deliberation to support defendants\u2019 convictions of first-degree murder and reject their assignments of error on this ground.\nIssues Raised by Defendant Davis\nIV.\nDefendant Davis contends that the trial court abused its discretion by precluding him from rehabilitating prospective juror Elliot during voir dire on death penalty views. This issue was recently addressed in State v. Brogden, 334 N.C. 39, 430 S.E.2d 905 (1993), where we held that a judge erred when he refused rehabilitation on the ground that he had no authority to do so. We determined that such a ruling was within the trial court\u2019s discretionary power and that if a juror\u2019s responses to questions put by the State were equivocal and unclear, then the trial court should exercise its discretion in favor of rehabilitation by defendant.\nThe State properly points out that unlike Brogden, there was no blanket prohibition against rehabilitation here. Instead, the trial court acted on a juror-by-juror basis. Thus, Brogden does not control this case on its facts. We must still, however, determine whether prospective juror Elliot gave clear and unequivocal answers so that no rehabilitation was required. During the voir dire of Ms. Elliot, the following transpired:\nMr. Moore: How about you, Ms. Elliot?\nJuror: I don\u2019t think I could put anybody to death. I don\u2019t think.\nMr. Moore: Again, it\u2019s hard to hear.\nJuror: I don\u2019t think it\u2019s my right to put anybody to death.\nMr. Moore: Again, now is the only time that the lawyers get to chat with you and find out. It\u2019s very important that you be honest and candid with us, and you\u2019re the only one who knows. Again, I\u2019ll have to ask you the same question as I asked Mr. Lukowicz. Are your beliefs \u2014 again, I won\u2019t ask you what they are, but are there some philosophical, moral or religious beliefs that you have that are against the death penalty?\nJuror: Well, it\u2019s not anything with religion or anything like that.\nMr. Moore: I\u2019m not asking which one it is. I\u2019m just saying do you have some kind of internal belief, whether it\u2019s philosophical or moral?\nJuror: I just don\u2019t know if I can, you know, give somebody the death penalty.\nMr. Moore: Okay. Well, you have opinions against the death penalty personally.\nJuror: Yeah.\nMr. Moore: All right. And the issue is, would that attitude prevent you in this particular case from sitting here and listening to the witnesses and the evidence and the law as the judge gives it to you and being able to consider the death penalty as an option in this case?\nJuror: No.\nMr. Moore: You could consider the death penalty?\nJuror: Well, according to what I hear and to the case.\nMr. Moore: Okay. Well, \u2014\nJuror: But I don\u2019t believe in the death penalty, no.\nMr. Moore: Well, Okay. Maybe I\u2019m not phrasing my question right. I\u2019m not understanding. What I understand you to say is you don\u2019t believe in the death penalty.\nJuror: No.\nMr. Moore: And does that mean in this case, regardless of what you hear, you couldn\u2019t come back in here with the death penalty?\nJuror: No.\nMr. Moore: You could come back in with the death penalty?\nJuror: No, I can\u2019t.\nMr. Moore: Okay. I may not be asking my question very artfully, but so \u2014 and again, let me try again because I have to ask these questions a certain way.\nJuror: Okay.\nMr. Moore: So in the event that you were back in the jury room after having convicted one or \u2014 one or both of these defendants of first degree murder, and regardless of what evidence had been presented to you, and regardless of what the judge told you the law was, because of your personally held beliefs, again, whatever the source of those beliefs\u2014\nJuror: Uh-huh.\nMr. Moore: \u2014 Are you saying that you could not consider the death penalty as an option?\nJuror: Right.\nMr. Moore: You are saying that?\nJuror: That\u2019s what I\u2019m saying.\nMr. Moore: Okay. I\u2019d submit Ms. Elliot and Mr. Lukowicz for cause, your Honor.\nMr. Kelley: I would object and ask to voir dire at this point.\nMr. Moore: Object to them both.\nThe Court: Voir dire denied. Objection is overruled. Ms. Elliot and Mr. Lukowicz, you can step aside.\nDefendant argues that Ms. Elliot\u2019s initial responses were equivocal, and she answered that she \u201ccould not consider\u201d capital punishment as an option only after a series of leading questions by the State. Defendant further argues that the equivocal nature of Ms. Elliot\u2019s initial responses suggests a strong likelihood that additional questioning by defendant would have clarified her later responses and shown that Ms. Elliot was qualified to sit as a juror under the Witherspoon-Witt standard.\nThis Court has repeatedly found no abuse of the trial court\u2019s discretion where challenges for cause are supported by prospective jurors\u2019 answers to questions propounded by the State and the defense has failed to show that further questioning would likely have produced different answers. See Brogden, 334 N.C. at 44-45, 430 S.E.2d at 908-09 (citing State v. Taylor, 332 N.C. 372, 420 S.E.2d 414 (1992)); see also State v. Hill, 331 N.C. 387, 417 S.E.2d 765 (1992), cert. denied, - U.S. -, 122 L. Ed. 2d 684 (1993); State v. Smith, 328 N.C. 99, 400 S.E.2d 712 (1991); State v. Reese, 319 N.C. 110, 353 S.E.2d 352 (1987); State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986). Here, we believe that prospective juror Elliot\u2019s answers, which formed the basis for her excusal for cause, were clear and unequivocal. In addition, there was no indication that she would have changed her position in response to questioning by defendant. Therefore, the trial court did not abuse its discretion in denying defendant\u2019s request to rehabilitate her.\nV.\nIn his next assignment of error, defendant Davis contends that the trial court abused its discretion in denying his request for individual voir dire of potential jurors. Defendant argues that this case attracted extraordinary publicity. Furthermore, billboards were posted along a major thoroughfare in Buncombe County, and there was a hotline for case information.\nNorth Carolina statutory law provides: \u201cIn capital cases the trial judge for good cause shown may direct that jurors be selected one at a time, in which case each juror must first be passed by the State. These jurors may be sequestered before and after selection.\u201d N.C.G.S. \u00a7 15A-1214Q) (1993). \u201c \u2018The decision of 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 an abuse of discretion.\u2019 \u201d State v. Murphy, 321 N.C. 738, 740, 365 S.E.2d 615, 617 (1988) (quoting State v. Barts, 316 N.C. 666, 678-79, 343 S.E.2d 828, 837 (1986)).\nDefendant has not shown, nor can we find, any abuse of discretion by the trial court in this case. The record reflects that potential jurors were questioned as a group and individually, by both the State and defendant, regarding their knowledge of the case, whether they had read newspaper articles or seen television broadcasts regarding the trial, whether they had discussed this case in their community, and whether they had formed any opinion as to defendant\u2019s guilt or innocence. Those potential jurors living in northwestern Buncombe County near the Leicester community, where the billboards lined the Leicester Highway, were asked more specific questions and were frequently questioned regarding the billboards. Prior to the selection of alternate jurors, defendant had used thirteen of his fourteen peremptory challenges, and he was given three additional challenges, one for each of the three alternates. Thus, this assignment of error is rejected.\nVI.\nIn his next assignment of error, defendant Davis contends that the trial court erred in allowing the State to challenge prospective jurors Stroup and Thompson for cause because of their feelings about the death penalty. The standard for determining when a prospective juror may be excluded because of his views on capital punishment is whether those views would \u201c \u2018prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.\u2019 \u201d Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)).\nAfter stating that he did not know if he could vote for the death penalty, prospective juror Stroup responded to the following questions:\nQ: Well, again, only you can answer those questions. And in North Carolina the law is such that if you could not under any circumstances vote for the death penalty, then it has to be an option you could consider to be able to sit on the jury. So the issue is, could you consider voting for the death penalty in this case?\nA: No.\nQ: So you can\u2019t conceive of any circumstances or evidence you might hear that would allow you to impose the death penalty?\nA: No, I don\u2019t think so.\nSimilarly, prospective juror Thompson expressed mixed emotions about her ability to vote for the death penalty before answering the following questions:\nQ: So you can\u2019t conceive of any circumstances that would allow you to vote for death in this case?\nA: If I could sit here and tell you that I knew already\u2014\nQ: No, I understand that, ma\u2019am. I\u2019m not trying to argue with you.\nA: I\u2019m saying that according to the law, I know that I could, but I have moral convictions that tell me very strongly no.\nQ: That\u2019s fine.\nA: So I say no.\nQ: That\u2019s why I\u2019m trying to make sure we\u2019re both clear on what we\u2019re talking about. I\u2019m not trying to put words in your mouth, but I understand you to say that you have some moral\u2014\nA: Religious.\nQ: \u2014or religious beliefs that would prevent you from considering the death penalty as a punishment in this case, is that right?\nA: Right.\nAlthough somewhat uncertain initially, potential jurors Stroup and Thompson both ultimately answered unequivocally that they had feelings about the death penalty that would impair their ability to perform their duties as jurors in accordance with the trial court\u2019s instructions. Therefore, we conclude the trial court properly excused prospective jurors Stroup and Thompson for cause.\nDefendant Davis also contends that the trial court impermissibly limited his voir dire of prospective jurors on three separate occasions. First, defendant argues that he was erroneously prevented from asking the following:\nQ: Do you think, ladies and gentlemen, that life imprisonment means that a person is committed to prison for the balance of their natural life?\nMr. Moore: Objection.\nCourt: Sustained.\nDefendant argues that juror misconceptions about the possibility of early parole for a defendant sentenced to life imprisonment increase the likelihood that the jury will recommend death. Thus, this Court should allow limited inquiry into a prospective juror\u2019s views on the meaning of a life sentence. We addressed this exact issue in State v. McNeil, 324 N.C. 33, 375 S.E.2d 909 (1989), sentence vacated on other grounds, 494 U.S. 1050, 108 L. Ed. 2d 756, on remand, 327 N.C. 388, 395 S.E.2d 106 (1990), cert. denied, 499 U.S. 942, 113 L. Ed. 2d 459 (1991). In McNeil, we stated that \u201c[bjecause parole eligibility is irrelevant to the issues at trial and is not a proper matter for the jury to consider in recommending punishment, we hold that the court properly refused to allow defense counsel to question potential jurors as to their knowledge about parole eligibility.\u201d Id. at 44, 375 S.E.2d at 916. We see no reason to depart from our holding in McNeil; therefore, we reject this assignment of error.\nSecond, defendant maintains that he was impermissibly restricted from asking the following:\nQ: How do you men and women of the jury feel about the death penalty as a deterrent to crime?\nMr. Moore: Objection.\nCourt: Sustained.\n\u201cAlthough wide latitude is given counsel in voir dire examination of jurors, the form and extent of the inquiry rests within the sound discretion of the court.\u201d State v. Johnson, 317 N.C. 343, 382, 346 S.E.2d 596, 618 (1986). We have repeatedly upheld a trial court\u2019s refusal to allow the defense to ask questions that were overly broad, incomplete, hypothetical, or that attempted to \u201cstake-out\u201d a potential juror. See State v. Reese, 319 N.C. 110, 121, 353 S.E.2d 352, 358 (1987); State v. Taylor, 304 N.C. 249, 265-66, 283 S.E.2d 761, 772 (1981), cert. denied, 463 U.S. 1213, 77 L. Ed. 2d 1398, reh\u2019g denied, 463 U.S. 1249, 77 L. Ed. 2d 1456 (1983); State v. Vinson, 287 N.C. 326, 336-37, 215 S.E.2d 60, 68-69 (1975), death sentence vacated on other grounds, 428 U.S. 902, 49 L. Ed. 2d 1206 (1976). We find no abuse of the trial court\u2019s discretion here.\nFinally, defendant argues that he was impermissibly prevented from asking the following:\nQ: There\u2019s an old cliche that is referred to commonly in cases of this sort, \u201can eye for an eye, and a tooth for a tooth.\u201d Are there any one of you men or women on the jury who feel that way?\u201d\nMr. Moore: Objection.\nCourt: Sustained. I\u2019ll let you ask that question if it has more clarity to it.\nCounsel for defendant made no attempt at this time to clarify or rephrase the question. This Court has held that \u201chypothetical questions so phrased as to be ambiguous and confusing or containing incorrect or inadequate statements of the law are improper and should not be allowed.\u201d Vinson, 287 N.C. at 336, 215 S.E.2d at 68. The trial court was willing to allow the question if defendant had provided more clarity. Defendant chose instead to abandon the question. Accordingly, we find no error or abuse of discretion in the trial court\u2019s decision to sustain the prosecutor\u2019s objection.\nVII.\nDefendant Davis next contends that the trial court erred in denying his motion to dismiss the second-degree kidnapping charge. Defendant was indicted for kidnapping Kathleen Shively \u201cby unlawfully confining her and restraining her without her consent for the purpose of terrorizing her.\u201d The applicable statute provides in pertinent part:\n(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person . .. shall be guilty of kidnapping if such confinement, restraint, or removal is for the purpose of:\n(3) . . . terrorizing the person so confined, restrained or removed.....\nN.C.G.S. \u00a7 1439(a) (1993).\nDefendant claims that his motive for taking Shively into the back room was not to terrorize her. Instead, his words and conduct toward Shively were simply part of the chain of events surrounding the fatal shooting of Mark Lane and were therefore insufficient to support the offense of second-degree kidnapping. In support of his argument, defendant relies on this Court\u2019s decision in State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981). In Irwin, the defendant was charged with attempted armed robbery and second-degree kidnapping. The evidence tended to show that defendant forced the victim to the back of the store in order to force her to open the safe. The kidnapping indictment charged the defendant with removing the victim for the purpose of \u201cfacilitating the commission of any felony.\u201d We concluded in Irwin that the restraint or removal of the victim was a necessary part of the attempted armed robbery and therefore could not support a kidnapping conviction. Id. at 103, 282 S.E.2d at 446.\nIrwin is factually distinguishable from this case. Here, unlike Irwin, the defendant was not charged with kidnapping for the purpose of \u201cfacilitating the commission of any felony,\u201d and the restraint or removal of Shively was not \u201can inherent and integral part\u201d of any other felony. Id. Defendant in the instant case was charged with kidnapping for the purpose of terrorizing Shively. In determining the sufficiency of the evidence, \u201cthe test is not whether subjectively the victim was in fact terrorized, but whether the evidence supports a finding that the defendant\u2019s purpose was to terrorize\u201d the victim. State v. Moore, 315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986). We believe the evidence in this case, when viewed in the light most favorable to the State, was sufficient to support the kidnapping charge.\nTerrorizing is defined as \u201cmore than just putting another in fear. It means putting that person in some high degree of fear, a state of intense fright or apprehension.\u201d Id. In this case, the evidence showed that, after shooting Lane, defendant Davis pointed his gun at Shively and ordered her to get down on the floor \u201cyou dirty fuckin bitch, or I\u2019m going to kill you, too.\u201d Shively fell to the floor and began crawling towards the back room. She testified that defendant Davis\u2019 voice sounded as if it were right behind her, and he kept repeating the words, \u201cCrawl back there.\u201d A jury could reasonably infer from this evidence that defendant Davis intended to terrorize Shively. Therefore, we find no error in the trial court\u2019s denial of defendant\u2019s motion to dismiss the kidnapping charge.\nVIII.\nIn his next assignment of error, defendant Davis contends that the trial court erred in sustaining the State\u2019s objections to questions propounded to defendant\u2019s mental health expert, Dr. Faye Sultan. During the course of Dr. Sultan\u2019s testimony, the following exchange took place:\nQ. There was an episode, I believe, that appeared during the conduct of an interview with Jeanine King when she was up there in the jail. Do you recall that?\nA. Yes, sir, I do.\nMr. Moore: Objection. She wasn\u2019t there.\nCourt: Sustained. \u2022\nQ. Is that episode reflected in your clinical notes?\nA. That episode is reflected in Ms. King\u2019s notes to me, yes.\nQ. What did that episode \u2014 What did Ms. King tell you about that episode?\nMr. Moore: Objection.\nCourt: Sustained.\nUnder Rule 703, an expert may give his opinion based on facts not otherwise admissible in evidence, provided that the information considered by the expert is of the type reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject. N.C.G.S. \u00a7 8C-1, Rule 703 (1993); State v. Allen, 322 N.C. 176, 367 S.E.2d 626 (1988). Undisputed earlier testimony established that Ms. King was part of a medical group charged with evaluating Davis\u2019 mental health status and that Dr. Sultan relied upon Ms. King\u2019s information in formulating her final diagnosis. Therefore, we believe that this evidence should have been admitted for the purpose of showing the basis for Dr. Sultan\u2019s expert opinion testimony under Rule 703 of the North Carolina Rules of Evidence.\nNow we need to determine whether this error was prejudicial. The test is whether there is a reasonable possibility that had the error not occurred, a different result would have been reached at trial. N.C.G.S. \u00a7 15A-1443(a) (1993). Defendant argues that the trial court\u2019s ruling prevented him from fully presenting his mitigation evidence to the jury that ultimately condemned him to death. We disagree.\nDefendant failed to offer any proof as to what answer the doctor would have given. Moreover, Dr. Sultan\u2019s testimony concerning her diagnosis of Davis and the basis for that diagnosis was very comprehensive, even in the absence of the exchange in question. Dr. Sultan had conducted interviews with the defendant and administered a battery of psychological tests. She testified that Davis manifested symptoms of child abuse. She further testified to specific instances of \u201cself-mutilating behavior\u201d by defendant and stated that he exhibited a strong urge to harm himself. She described various instances where Davis\u2019 father had verbally abused him. Dr. Sultan ultimately diagnosed Davis as suffering from major depression, post-traumatic stress disorder, and a schizoid personality disorder. He suffered from serious mental illness and viewed the world as a \u201cplace of constant danger.\u201d He was also hypervigilant. The jury heard all of this testimony. We therefore conclude that the exclusion of the testimony in question was harmless error, as it is not likely that it affected the result of the trial. This assignment of error is rejected.\nIX.\nIn his final assignment of error, defendant Davis contends that the trial court erred in submitting the aggravating circumstance that the murder was committed during an attempt to commit armed robbery. N.C.G.S. \u00a7 15A-2000(e)(5) (Supp. 1994). At the sentencing phase, two aggravating circumstances were submitted to the jury:\n(1) Has the Defendant been previously convicted of a felony involving the use and/or threat of violence to the person?\n(2) Was this murder committed by the Defendant while the Defendant was engaged in an attempt to commit robbery with a dangerous weapon?\nThe jury answered in the affirmative as to both aggravating circumstances.\nDefendant first argues that because there was insufficient evidence to submit the attempted armed robbery charge at the guilt phase, its use as an aggravator at sentencing was erroneous. We have already determined that there was sufficient evidence to submit the attempted armed robbery charge; therefore, this argument has no merit.\nNext, defendant argues that the submission of both of these circumstances was impermissibly duplicitous. Defendant concedes that they would not be duplicitous if as to number one, the jury considered only the McDonald\u2019s robbery and the Ohio murder. If as to number one, however, the jury also considered the attempted armed robbery of the Leicester Pawn Shop, it would have constituted \u201cdouble counting\u201d barred by the holdings of this Court in cases such as State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979), and State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987), 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). We have carefully reviewed the trial court\u2019s instructions to the jury on these aggravating circumstances and find that they would not permit the duplicity for which defendant argues.\nFinally, defendant argues that the attempted armed robbery aggravating circumstance should not have been submitted since he was convicted under a felony murder theory. Where the jury convicts a defendant of first-degree murder based solely on the felony murder rule, it is error for the court to submit the underlying felony as one of the aggravating circumstances defined by N.C.G.S. \u00a7 15A-2000(e)(5). State v. Silhan, 302 N.C. 223, 262, 275 S.E.2d 450, 478 (1981). \u201cHowever, when a defendant is convicted of first degree murder based on both premeditation and deliberation and the felony murder rule, and both theories are supported by the evidence, the underlying felony may be submitted as an aggravating circumstance.\u201d State v. McNeil, 324 N.C. at 57, 375 S.E.2d at 923. We have held that the evidence in this case is sufficient to support defendant\u2019s first-degree murder conviction based on felony murder and premeditation and deliberation. Therefore, the court did not err in submitting the attempted armed robbery aggravating circumstance.\nPreservation Issues\nX.\nDefendant Davis raises three additional issues which he concedes have been decided against him by this Court: (1) the trial court erred in instructing the jury that it had a duty to recommend death if it answered the balancing issues favorably to the State, (2) the trial court erred in placing the burden on defendant to establish the existence of mitigating circumstances, and (3) the trial court erred in allowing the State to \u201cdeath qualify\u201d prospective jurors.\nWe have considered these issues and find no compelling reason to depart from our prior holdings. Therefore, we reject these assignments of error.\nProportionality\nXI.\nHaving found no error in the guilt and sentencing phases of defendant Davis\u2019 trial, we are required by statute to review the record and determine (i) whether the record supports the jury\u2019s finding of the aggravating circumstances upon which the court based its sentence of death; (ii) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (iii) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and defendant. N.C.G.S. \u00a7 15A-2000(d)(2); State v. Sexton, 336 N.C. 321, 376, 444 S.E.2d 879, 910, cert. denied, -U.S. -, 130 L. Ed. 2d 429 (1994); State v. Moore, 335 N.C. 567, 614, 440 S.E.2d 797, 824, cert. denied, - U.S. -, 130 L. Ed. 2d 174, reh\u2019g denied, - U.S. -, 130 L. Ed. 2d 532 (1994).\nIn this case, the jury found the following two aggravating circumstances: (i) that defendant had been previously convicted of a felony involving the use of violence to the person, N.C.G.S. \u00a7 15A-2000(e)(3); and (ii) that the murder was committed while defendant was attempting to commit robbery with a dangerous weapon, N.C.G.S. \u00a7 15A-2000(e)(5). We conclude that the evidence supports the jury\u2019s finding of each of these aggravating circumstances. After thoroughly reviewing the record, transcripts, and briefs submitted by the parties, we further conclude that there is nothing to suggest that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.\nOur final statutory duty of proportionality review is to determine whether the punishment of death in this case 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).\nThe pool of cases that this Court uses for comparative purposes consists of:\nall cases arising since the effective date of our capital punishment statute, 1 June 1977, which have been tried as capital cases and reviewed on direct appeal by this Court and in which the jury recommended death or life imprisonment or in which the trial court imposed life imprisonment after the jury\u2019s failure to agree upon a sentencing recommendation within a reasonable period of time.\nState v. Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177, reh\u2019g denied, 464 U.S. 1004, 78 L. Ed. 2d 704 (1983). The pool includes only those cases which have been affirmed by this Court. State v. Stokes, 319 N.C. 1, 19-20, 352 S.E.2d 653, 663 (1987). In State v. Bacon, 337 N.C. 66, 446 S.E.2d 542 (1994), this Court clarified the composition of the pool so that it accounts for postconviction relief awarded to death-sentenced defendants:\nBecause the \u201cproportionality pool\u201d is limited to cases involving first-degree murder convictions, a post-conviction proceeding which holds that the State may not prosecute the defendant for first-degree murder or results in a retrial at which defendant is acquitted or found guilty of a lesser included offense results in the removal of that case from the \u201cpool.\u201d When a post-conviction proceeding results in a new capital trial or sentencing proceeding, which, in turn, results in a life sentence for a \u201cdeath-eligible\u201d defendant, the case is treated as a \u201clife\u201d case for purposes of proportionality review. The case of a defendant sentenced to life imprisonment at a resentencing proceeding ordered in a post-conviction proceeding is similarly treated. Finally, the case of a defendant who is either convicted of first-degree murder and sentenced to death at a new trial or sentenced to death in a resentencing proceeding ordered in a post-conviction proceeding, which sentence is subsequently affirmed by this Court, is treated as a \u201cdeath-affirmed\u201d case.\nId. at 107, 446 S.E.2d at 564. This Court has also resolved timing issues relating to postconviction relief: \u201c[A] conviction and death sentence affirmed on direct appeal is presumed to be without error, and ... a post-conviction decision granting relief to a convicted first-degree murderer is not final until the State has exhausted all available appellate remedies.\u201d Id. at 107 n.6, 446 S.E.2d at 564 n.6.\nWhile only cases found to be free of error in both phases of the trial are included in the pool, the Court is not bound to give citation to every case in the pool of similar cases. State v. Syriani, 333 N.C. 350, 400, 428 S.E.2d 118, 146, cert. denied, - U.S. -, 126 L. Ed. 2d 341 (1993), reh\u2019g denied,- U.S. \u2014, 126 L. Ed. 2d 707 (1994).\nThis Court has held the death penalty to be disproportionate in only seven cases. State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983). Of these seven cases, three involved murders committed during armed robbery: State v. Benson, State v. Stokes, and State v. Young. However, none of these cases is similar to the present case.\nIn Benson, the defendant was convicted of first-degree murder solely on 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. Finally, 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. In this case, unlike Benson, defendant was convicted on both theories of felony murder and premeditation and deliberation. Also, the jury here found two aggravating circumstances.\nIn 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 solely on the theory of felony murder, and only one aggravating circumstance was found, that the crime was especially heinous, atrocious, or cruel. This Court took notice of the fact 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. Here, defendant was convicted on both theories of felony murder and premeditation and deliberation. Moreover, the jury in this case found two aggravating circumstances.\nIn Young, the defendant and two other men went to the victim\u2019s home, where they robbed and murdered him. The jury found as aggravating circumstances that the murder was committed for pecuniary gain and during the course of a robbery or burglary. This case is distinguishable from Young. First, the defendant in Young was only nineteen years old at the time of the crime; defendant here was thirty-four. Second, defendant here had a history of violent crimes, including another murder for which he pled guilty, unlike the defendant in Young.\nWe conclude that this case is not similar to any of the above cases, where the death penalty was found to be disproportionate. Defendant here was convicted of first-degree murder under the theories of felony murder and premeditation and deliberation. The jury found the following two aggravating circumstances: (i) that defendant had been previously convicted of a felony involving the use of violence to the person, and (ii) that the murder was committed while defendant was attempting to commit robbery with a dangerous weapon. The jury also considered twenty-two mitigating circumstances and found only four. Of these four, only one was a statutory mitigating circumstance, that the capital felony was committed while the defendant was under the influence of mental or emotional disturbance, N.C.G.S. \u00a7 15A-2000(f)(2).\nHaving reviewed all the cases in the proportionality pool, we find that no case is factually identical to the present case. This case is not a typical robbery-murder case in that defendant Davis had been previously convicted of murder in another state several years earlier and of armed robbery committed one week prior to this murder.' This Court has found that a death sentence was not disproportionate where the jury found the single aggravating circumstance that the defendant had been previously convicted of a violent felony. See, e.g., State v. Keel, 337 N.C. 469, 447 S.E.2d 748 (1994), cert. denied, - U.S. -, 131 L. Ed. 2d 147, 63 U.S.L.W. 3643 (1995); State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994); State v. Brown, 320 N.C. 179, 358 S.E.2d 1, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987). Further, the evidence of Davis\u2019 guilt was clear. Davis shot an innocent businessman in cold blood before an eyewitness, Kathy Shively. Davis then threatened Shively\u2019s life and forced her to crawl at gunpoint into the back room of the store. A conviction based on the theory of premeditation and deliberation indicates a more calculated and coldblooded crime. State v. Artis, 325 N.C. 278, 341, 384 S.E.2d 470, 506 (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). Moreover, the jury found that Davis\u2019 codefendant, Hood, who was only nineteen years old, played a lesser role in the murder and attempted robbery. The jury found that Hood committed the present offenses while under the influence of Davis, and but for Hood\u2019s union with Davis, he would not have committed the crimes.\nTherefore, considering both the crime and the defendant, we are unable to say that the death sentence for defendant Davis is excessive or disproportionate. N.C.G.S. \u00a7 15A-2000(d)(2).\nIn conclusion, having carefully reviewed the record and each of defendants\u2019 assignments of error, we hold that defendants received a fair trial, free of prejudicial error.\nNO ERROR.\nJustices LAKE and ORR did not participate in the consideration or decision of this case.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Jeffrey P. Gray, Assistant Attorney General, for the State.", "J. Clark Fischer for defendant-appellant Davis.", "Scott F. Wyatt and Thomas Courtland Manning for defendant-appellant Hood." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EDWARD EARL DAVIS, ROGER DALE HOOD\nNo. 135A92\n(Filed 7 April 1995)\n1. Criminal Law \u00a7 762 (NCI4th)\u2014 instruction on reasonable doubt\nThe trial court\u2019s instruction on reasonable doubt did not unconstitutionally lower the State\u2019s burden of proof.\nAm Jur 2d, Trial \u00a7 1385.\n2. Robbery \u00a7 84 (NCI4th)\u2014 attempted armed robbery \u2014 sufficient evidence of intent\nThe State presented sufficient evidence of intent to commit robbery to support defendants\u2019 conviction of attempted armed robbery of a pawn shop where the State\u2019s evidence tended to show that defendants were in the pawn shop three times on the day in question; other customers and employees were in the shop the first two times; the third time was right before closing, and a brief discussion ensued about the sale of a shotgun; defendants then drew their pistols, and one defendant told the victim, a pawn shop employee, \u201cBuddy, don\u2019t even try it,\u201d and then shot the victim twice; the victim returned fire once after falling to the floor; the second defendant then shot the victim; a second employee was ordered into the back room at gunpoint; both defendants fled the scene without taking any money or other property from the pawn shop; and defendants had robbed a McDonald\u2019s restaurant one week prior to the incident at the pawn shop.\nAm Jur 2d, Robbery \u00a7 89.\n3. Evidence and Witnesses \u00a7 342 (NCI4th)\u2014 attempted armed robbery \u2014 evidence of prior robbery \u2014 admissibility to show intent\nEvidence that defendants committed an armed robbery of a McDonald\u2019s restaurant one week prior to the shooting of a pawn shop employee was admissible to show intent in a prosecution for attempted armed robbery of the pawn shop where, in both incidents, defendants entered the premises armed and waited until near closing time, when no other customers were present, to commit the crime; defendants initially carried on as though they were on the premises to conduct legitimate business; and one defendant did not speak during either crime. Furthermore, the trial court did not err by refusing to exclude this evidence under the balancing test required by N.C.G.S. \u00a7 8C-1, Rule 403.\nAm Jur 2d, Robbery \u00a7 59.\nAdmissibility, in robbery prosecution, of evidence of other robberies. 42 ALR2d 854.\n4. Homicide \u00a7 257 (NCI4th)\u2014 first-degree murder \u2014 shooting of pawn shop employee \u2014 premeditation and deliberation\nThere was sufficient evidence of premeditation and deliberation to support defendants\u2019 convictions of first-degree murder of a pawn shop employee where the evidence tended to show that (1) the first defendant drew his pistol, pointed it at the victim, told the victim, \u201cDon\u2019t even try it,\u201d and twice shot the victim without just cause or legal provocation while the victim was standing on the pawn shop premises, and (2) after the victim had been felled by the first defendant\u2019s shots and fired his own pistol through the counter, the second defendant pointed his pistol over the counter at the wounded victim and shot him a third time.\nAm Jur 2d, Homicide \u00a7\u00a7 437 et seq.\nHomicide: presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR2d 1435.\n5. Jury \u00a7 226 (NCI4th)\u2014 prospective juror \u2014 death penalty views \u2014 excusal for cause \u2014 refusal to permit rehabilitation\nThe trial court did not err by excusing a prospective juror for cause during voir dire on death penalty views without giving defendant an opportunity to attempt to rehabilitate the juror where the juror\u2019s answers to questions by the State which formed the basis for her excusal for cause were clear, and unequivocal, and there was no indication that she would have changed her position in response to questioning by defendant.\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 111 (NCI4th)\u2014 capital trial \u2014 jury selection \u2014 denial of individual voir dire\nThe trial court did not abuse its discretion in denying defendant\u2019s request for individual voir dire of potential jurors in a capital first-degree murder trial because the case attracted extraordinary publicity, billboards about the case were posted along a major thoroughfare in the county, and there was a hotline for case information where the record reflects that potential jurors were questioned as a group and individually, by both the State and defendant, regarding their knowledge of the case, whether they had read newspaper articles or seen television broadcasts regarding the trial, whether they had discussed the case in their community, and whether they had formed any opinion as to defendant\u2019s guilt; those potential jurors living in the area of the billboards were asked specific questions about the billboards; and defendant had one remaining peremptory challenge at the time of selection of the alternate jurors and was given three additional challenges for the three alternates to be selected.\nAm Jur 2d, Jury \u00a7 199.\n7. Jury \u00a7 222 (NCI4th)\u2014 capital trial \u2014 jury selection \u2014 death penalty views \u2014 allowance of challenges for cause\nThe trial court did not err by allowing the State\u2019s challenges for cause of two prospective jurors in a capital trial because of their death penalty views where both jurors were somewhat uncertain initially as to whether they could vote for the death penalty, but both ultimately answered unequivocally that they had feelings about the death penalty that would impair their ability to perform their duties as jurors in accordance with the trial court\u2019s instructions.\nAm Jur 2d, Jury \u00a7 279.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post-Witherspoon I cases. 39 ALR3d 550.\n8. Jury \u00a7 141 (NCI4th)\u2014 capital trial \u2014 jury selection \u2014 life imprisonment \u2014 disallowance of questions about parole eligibility\nThe trial court properly refused to permit defense counsel to question prospective jurors in a capital trial as to their knowledge about parole eligibility for a defendant sentenced to life imprisonment.\nAm Jur 2d, Jury \u00a7\u00a7 205 et seq.\n9. Jury \u00a7 148 (NCI4th)\u2014 capital trial \u2014 jury selection \u2014 feelings about death penalty as deterrent \u2014 disallowance of questions\nThe trial court did not err by refusing to permit defense counsel to ask prospective jurors in a capital trial how they felt about the death penalty as a deterrent to crime since the trial court may refuse to allow questions that are overly broad, incomplete, hypothetical, or that attempt to \u201cstake-out\u201d a potential juror.\nAm Jur 2d, Jury \u00a7\u00a7 205 et seq.\n10.Jury \u00a7 124 (NCI4th)\u2014 jury selection \u2014 improper hypothetical question\nThe trial court properly sustained the prosecutor\u2019s objection to defendant\u2019s question to prospective jurors in a capital trial as to whether any of them agreed with the cliche \u201can eye for an eye and a tooth for a tooth\u201d since (1) a hypothetical question which is ambiguous and confusing or contains an incorrect or inadequate statement of the law is improper, and (2) the trial court was willing to allow the question if defendant provided more clarity but defendant chose instead to abandon the question.\nAm Jur 2d, Jury \u00a7\u00a7 205 et seq.\n11. Kidnapping and Felonious Restraint \u00a7 21 (NCI4th)\u2014 second-degree kidnapping \u2014 purpose of terrorizing victim\u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to support defendant\u2019s conviction of second-degree kidnapping based upon an indictment alleging that defendant unlawfully confined and restrained the victim \u201cfor the purpose of terrorizing her\u201d where the evidence tended to show that defendant shot a pawn shop employee during an attempted robbery; defendant then pointed his gun at the kidnapping victim and ordered her to get on the floor or he was going to shoot her, too; the victim fell to the floor and began crawling toward the back room; and defendant, in a voice that sounded as if it were right behind the victim, kept repeating the words, \u201cCrawl back there.\u201d The restraint or removal of the victim was not a necessary part of the attempted armed robbery and shooting, and the jury could reasonably infer from the evidence that defendant intended to terrorize the victim.\nAm Jur 2d, Abduction and Kidnapping \u00a7 32.\n12. Evidence and Witnesses \u00a7 2172 (NCI4th)\u2014 mental health expert \u2014 episode during interview with another \u2014 basis for diagnosis \u2014 exclusion as harmless error\nDefendant\u2019s mental health expert should have been permitted to testify concerning what she had been told about an episode during a jail interview of defendant by another member of the medical group charged with evaluating defendant\u2019s mental health status where earlier testimony had established that the expert relied upon information supplied by other group members in formulating her final diagnosis, since the testimony was admissible under N.C.G.S. \u00a7 8C-1, Rule 703 to show the basis for the expert\u2019s opinion. However, the exclusion of this testimony was harmless error where the jury heard testimony by the expert that she had conducted interviews with defendant and administered a battery of psychological tests to him; the expert testified that defendant manifested symptoms of child abuse, testified to instances of \u201cself-mutilating behavior\u201d by defendant, and described instances of verbal abuse of defendant by his father; and the expert told the jury that she ultimately diagnosed defendant as suffering from major depression, post-traumatic stress disorder, and a schizoid personality, and that defendant suffered from serious mental illness and viewed the world as a \u201cplace of constant danger.\u201d\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 32 et seq.\nAdmissibility of testimony of expert, as to basis of his opinion, to matters otherwise excludible as hearsay \u2014 state cases. 89 ALR4th 456.\n13. Criminal Law \u00a7 1337 (NCI4th)\u2014 first-degree murder\u2014 same evidence not used for two aggravating circumstances\nThe trial court\u2019s submission in a capital trial of the aggravating circumstances of a previous conviction of a violent felony and commission of the murder while defendant was engaged in an attempted armed robbery of a pawn shop did not constitute impermissible \u201cdouble counting\u201d where the trial court\u2019s instructions permitted the jury to consider only a prior McDonald\u2019s robbery and an Ohio murder for the previous conviction of a violent felony circumstance and did not permit the jury to consider the attempted armed robbery as evidence of this circumstance.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society, and the like \u2014 post -Gregg cases. 65 ALR4th 838.\n14. Criminal Law \u00a7 1340 (NCI4th)\u2014 first-degree murder\u2014 felony murder and premeditation and deliberation \u2014 underlying felony as aggravating circumstance\nWhere the evidence was sufficient to support defendant\u2019s conviction by the jury of first-degree murder based on both felony murder and premeditation and deliberation, the trial court did not err in submitting the underlying felony of attempted armed robbery as an aggravating circumstance.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nSufficiency of evidence, for death penalty purposes, to establish statutory aggravating circumstance that murder was committed in the course of committing, attempting, or fleeing from other offense, and the like \u2014 post-Gregg cases. 67 ALR4th 887.\n15. Criminal Law \u00a7 1373 (NCI4th)\u2014 first-degree murder\u2014 death penalty not disproportionate\nA sentence of death imposed upon defendant for first-degree murder was not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, where the jury convicted defendant under theories of felony murder and premeditation and deliberation; the jury found as aggravating circumstances (1) that defendant had previously-been convicted of a felony involving the use of violence to the person and (2) that the murder was committed while defendant was attempting to commit armed robbery; the jury found only four of twenty-two submitted mitigating circumstances, and only one of those four (mental or emotional disturbance) was a statutory circumstance; defendant was twenty-four years old and had been previously convicted of murder in another state several years earlier and of armed robbery committed one week prior to this murder; the evidence showed that defendant shot an innocent businessman in cold blood before an eyewitness and then threatened the life of the eyewitness; and the jury found that a nineteen-year-old codefendant played a lesser role in the murder and attempted robbery and would not have committed the crimes except for defendant\u2019s influence.\nAm Jur 2d, Criminal Law \u00a7 628.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society, and the like \u2014 post-Gregg cases. 65 ALR4th 838.\nSufficiency of evidence, for death penalty purposes, to establish statutory aggravating circumstance that murder was committed in the course of committing, attempting, or fleeing from other offense, and the like \u2014 post-Gregg cases. 67 ALR4th 887.\nSupreme Court\u2019s views on constitutionality of death penalty and procedures under which it is imposed or carried out. 90 L. Ed. 2d 1001.\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.\nJustices Lake and Orr did not participate in the consideration or decision of this case.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death as to defendant Davis and a judgment imposing a sentence of life as to defendant Hood entered by Downs, J., at the 24 February 1992 Criminal Session of Superior Court, Buncombe County, upon jury verdicts of guilty of first-degree murder in a case in which defendants were capitally tried. Defendant Davis\u2019 motion to bypass the Court of Appeals as to additional judgments imposed for attempted robbery with a dangerous weapon and second-degree kidnapping and defendant Hood\u2019s motion to bypass as to an additional judgment of attempted robbery with a dangerous weapon were allowed on 15 July 1993. Heard in the Supreme Court 16 March 1994.\nMichael F. Easley, Attorney General, by Jeffrey P. Gray, Assistant Attorney General, for the State.\nJ. Clark Fischer for defendant-appellant Davis.\nScott F. Wyatt and Thomas Courtland Manning for defendant-appellant Hood." }, "file_name": "0001-01", "first_page_order": 33, "last_page_order": 64 }