{ "id": 793213, "name": "STATE OF NORTH CAROLINA v. ELTON OZELL McLAUGHLIN", "name_abbreviation": "State v. 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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": "93 L. Ed. 2d 166", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "479 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "year": 1986, "opinion_index": 0 }, { "cite": "340 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "685" } ], "opinion_index": 0 }, { "cite": "315 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720550 ], "year": 1986, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0398-01" ] }, { "cite": "375 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "918", "parenthetical": "quoting State v. Gladden, 315 N.C. 398, 417, 340 S.E.2d 673, 685, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986)" } ], "opinion_index": 0 }, { "cite": "324 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486627 ], "year": 1989, "pin_cites": [ { "page": "48", "parenthetical": "quoting State v. Gladden, 315 N.C. 398, 417, 340 S.E.2d 673, 685, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0033-01" ] }, { "cite": "130 L. Ed 2d 547", "category": "reporters:federal", "reporter": "L. 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Ed. 2d 1031", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "459 U.S. 1189", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6541568, 6541613, 6541774, 6541520 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/us/459/1189-02", "/us/459/1189-03", "/us/459/1189-04", "/us/459/1189-01" ] }, { "cite": "74 L. Ed. 2d 622", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1056", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6487664, 6487779 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1056-01", "/us/459/1056-02" ] }, { "cite": "292 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573030 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0656-01" ] }, { "cite": "282 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "447" }, { "page": "446-47" } ], "opinion_index": 0 }, { "cite": "304 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565336 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "104" }, { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0093-01" ] }, { "cite": "254 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568074, 8568044, 8568013, 8567990, 8567963 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0179-05", "/nc/297/0179-04", "/nc/297/0179-03", "/nc/297/0179-02", "/nc/297/0179-01" ] }, { "cite": "250 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "39 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553020 ], "weight": 2, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0470-01" ] }, { "cite": "337 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "stipulation concerning the competence of a witness" } ], "opinion_index": 0 }, { "cite": "315 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716382 ], "year": 1985, "pin_cites": [ { "parenthetical": "stipulation concerning the competence of a witness" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0167-01" ] }, { "cite": "422 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "705" }, { "page": "705" } ], "opinion_index": 0 }, { "cite": "332 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504164 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0487-01" ] }, { "cite": "420 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "425" } ], "opinion_index": 0 }, { "cite": "332 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506667 ], "year": 1992, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0372-01" ] }, { "cite": "330 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "458" } ], "opinion_index": 0 }, { "cite": "313 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719603 ], "year": 1985, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0516-01" ] }, { "cite": "110 L. Ed. 2d 268", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "386 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "426" } ], "opinion_index": 0 }, { "cite": "325 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487602 ], "year": 1989, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0607-01" ] }, { "cite": "430 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "908", "parenthetical": "quoting State v. Davis, 325 N.C. 607, 624, 386 S.E.2d 418, 426 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990)" } ], "opinion_index": 0 }, { "cite": "334 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531831 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "43", "parenthetical": "quoting State v. Davis, 325 N.C. 607, 624, 386 S.E.2d 418, 426 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0039-01" ] }, { "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": "420", "parenthetical": "quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)" }, { "page": "849", "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": "408 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512500 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0066-01" ] }, { "cite": "108 L. Ed. 2d 601", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4944, 5169, 5111, 5052, 5183 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1021-01", "/us/494/1021-04", "/us/494/1021-02", "/us/494/1021-03", "/us/494/1021-05" ] }, { "cite": "494 U.S. 433", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4898 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/0433-01" ] }, { "cite": "372 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564716 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0068-01" ] }, { "cite": "399 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168934 ], "weight": 4, "pin_cites": [ { "page": "165" }, { "page": "501" }, { "page": "167-68" }, { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/us/399/0149-01" ] }, { "cite": "347 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "768" } ], "opinion_index": 1 }, { "cite": "318 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739612 ], "year": 1986, "pin_cites": [ { "page": "162" } ], "opinion_index": 1, "case_paths": [ "/nc/318/0141-01" ] }, { "cite": "356 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "326" } ], "opinion_index": 1 }, { "cite": "319 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739096 ], "year": 1987, "pin_cites": [ { "page": "574" } ], "opinion_index": 1, "case_paths": [ "/nc/319/0562-01" ] }, { "cite": "462 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "43" } ], "opinion_index": 1 }, { "cite": "341 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793083 ], "year": 1995, "pin_cites": [ { "page": "396" } ], "opinion_index": 1, "case_paths": [ "/nc/341/0364-01" ] } ], "analysis": { "cardinality": 2219, "char_count": 104019, "ocr_confidence": 0.745, "pagerank": { "raw": 1.9424177543431207e-07, "percentile": 0.7356735856028672 }, "sha256": "3d97a33b059480421356f8c4a62b4379dd14a240639a5961fc28a6b2d740d4ee", "simhash": "1:cb6bc322364a9fc2", "word_count": 16444 }, "last_updated": "2023-07-14T22:14:42.837437+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.", "Justice WHICHARD joins in this dissenting opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. ELTON OZELL McLAUGHLIN" ], "opinions": [ { "text": "MITCHELL, Chief Justice.\nDefendant Elton Ozell McLaughlin was convicted in 1984 of the first-degree murders of James Elwell Worley, Shelia Denise Worley, and Psoma Wine Baggett. He was sentenced to life imprisonment for the murders of Shelia Denise Worley and Psoma Wine Baggett and sentenced to death for the murder of James Worley. This Court found no error in the convictions and affirmed the sentences entered by the trial court. State v. McLaughlin, 323 N.C. 68, 372 S.E.2d 49 (1988). Subsequently, the Supreme Court of the United States vacated defendant\u2019s sentence of death for the murder of James Worley and remanded the case to this Court for further consideration in light of McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990). McLaughlin v. North Carolina, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990). On remand, this Court determined that McKoy error had occurred and was not harmless beyond a reasonable doubt and remanded the case for a new capital sentencing proceeding. State v. McLaughlin, 330 N.C. 66, 408 S.E.2d 732 (1991). A new capital sentencing proceeding was conducted at the 8 February 1993 Criminal Session of Superior Court, Bladen County, and defendant was again sentenced to death.\nA detailed review of the evidence introduced during defendant\u2019s original trial is set forth in the prior opinion of this Court, finding no error in that trial. McLaughlin, 323 N.C. 68, 372 S.E.2d 49. Further discussion of the evidence introduced during that trial is unnecessary here.\nDuring the new capital sentencing proceeding, the State produced evidence that Shelia Denise Worley solicited defendant McLaughlin to kill her husband, James Elwell Worley. After some initial hesitation, defendant agreed to kill Mr. Worley for $3,000. Defendant asked Eddie Carson Robinson to assist him in killing Mr. Worley. On the night of 25 March 1984, defendant and Robinson, aided by Ms. Worley, entered the house of Mr. Worley and killed him as he slept in his bed. In order to dispose of the body, the two men placed Mr. Worley in his car, drove it to a remote location, and set it on fire. After failing to receive payment for their services and after learning that Ms. Worley had talked to police concerning her husband\u2019s death, Robinson and defendant decided to kill Ms. Worley.\nOn 29 April 1984, while Ms. Worley and her two children were visiting defendant at his mobile home, defendant lured Ms. Worley to a hallway where Robinson struck her with a pipe. The two men dragged her to the bathroom and immersed her in a tub of water. The two men then placed Ms. Worley\u2019s body in the trunk of her car. They went back into defendant\u2019s mobile home for Ms. Worley\u2019s two sleeping children, four-year-old Psoma Wine Baggett and eighteen-month-old Alecia Baggett.\nThe evidence conflicted as to who suggested that four-year-old Psoma Baggett could identify them and should be killed. After the child asked for her mother, defendant struck her with the pipe. Robinson also struck Psoma with the pipe, while Alecia remained asleep in the car. Robinson drove Ms. Worley\u2019s car, containing the bodies of Ms. Worley and Psoma, to a bridge over White Creek. Upon arrival, defendant and Robinson put the car in drive and rolled it into the creek. Then they went down to the creek and put the bodies of Ms. Worley and Psoma in the water, leaving Alecia asleep in Ms. Worley\u2019s car. As the two men left to go home, they heard a child crying.\nThe State also produced evidence that defendant had been previously convicted of manslaughter. In that case, defendant\u2019s car was being chased by a car driven by Fred McNeil. After both cars crashed into a ditch, defendant emerged from his car and started shooting at McNeil. He shot McNeil, who fell and said, \u201cMan, you got me.\u201d A witness to the incident testified that defendant then started shooting McNeil again, killing him. The State also presented evidence that defendant had two major infractions while incarcerated at Central Prison.\nDefendant presented a number of experts- who testified that he had a drug and alcohol problem, low intelligence, limited insight, and poor judgment. Defendant also presented witnesses who testified as to his helpful and supportive nature, his honesty, and his job performance. Witnesses also testified about defendant\u2019s study of the Bible in prison. Defendant presented evidence that he was employed as a cook in the prison kitchen and had taken a cooking course sponsored by Wake Technical Community College. Finally, a fellow inmate testified that defendant had helped him adjust to prison life.\nThe jury found the existence of two aggravating circumstances and eight mitigating circumstances. As aggravating circumstances, the jury found that defendant had previously been convicted of a felony involving the use of violence to a person and that defendant committed the murder of James Worley for pecuniary gain. As a statutory mitigating circumstance, the jury found that defendant had aided in the apprehension of another capital felon. As nonstatutory mitigating circumstances, the jury found that (1) defendant had cooperated with law enforcement officers at an early stage of their investigation, (2) defendant was of good character and reputation in the community in which he lived and worked, (3) defendant had made substantial efforts to improve himself by participation in religious studies and voluntary training relative to his work in prison, (4) defendant had achieved a desirable position as a cook in prison, (5) defendant had made significant efforts to be of assistance to other inmates, (6) defendant had a desirable prison record of only two infractions, and (7) defendant consistently supported his child financially. The jury recommended a sentence of death, and the trial court sentenced defendant accordingly. Defendant appealed to this Court as a matter of right.\nDefendant first assigns as error the trial court\u2019s excusal of two prospective jurors. He contends that the trial court did not give him an adequate opportunity to rehabilitate them during the jury selection process. Prospective juror Otto Lovette stated that although he did not have any moral or religious objections to the death penalty, his religious views would make it hard for him to consider the issue of punishment in this case. Struggling to explain his religious \u201cteachings,\u201d Lovette expressed doubt as to whether he could set aside his beliefs and follow the law. He indicated upon questioning by the prosecutor that his beliefs would interfere with his ability to decide whether defendant should live or die. During extensive questioning by defendant, Lovette reiterated his doubt as to his ability to surrender his \u201cteachings.\u201d\nDefendant argues that prospective juror Lovette\u2019s statements merely demonstrated his seriousness in approaching the issue of punishment in this case. Further, defendant contends the trial court prematurely excused Lovette for cause without allowing defendant an opportunity to rehabilitate. We disagree.\nIn Wainwright v. Witt, the Supreme Court held that a juror may properly be excused for his views on capital punishment if \u201c \u2018those views would prevent 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, 420, 83 L. Ed. 2d 841, 849 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)). Problems frequently arise because jurors are not privy to the semantics and nuances of this test; therefore, they often fail to state clearly their ability or inability to set aside their beliefs which would prevent or substantially impair the performance of their duties. This Court has stated that \u201ca prospective juror\u2019s bias may not always be \u2018provable with unmistakable clarity [and,] [i]n such cases, reviewing courts must defer to the trial court\u2019s judgment concerning whether the prospective juror would be able to follow the law impartially.\u201d State v. Brogden, 334 N.C. 39, 43, 430 S.E.2d 905, 908 (1993) (quoting State v. Davis, 325 N.C. 607, 624, 386 S.E.2d 418, 426 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990)). The ruling of the trial court in such situations will not be disturbed absent an abuse of discretion. Id. (citing State v. Wilson, 313 N.C. 516, 526, 330 S.E.2d 450, 458 (1985)). Nothing in the transcript of the present case tends to indicate that further questioning would have shown that prospective juror Lovette could have set aside his strong religious beliefs in order to apply the law according to the trial court\u2019s instructions. Consequently, we must conclude that the trial court did not abuse its discretion in excusing prospective juror Lovette.\nDefendant also asserts that the excusal of prospective juror Rebecca Dixon was error. Defendant argues that although Dixon initially indicated a general opposition to capital punishment, the trial court prematurely terminated defendant\u2019s attempt to rehabilitate her. He contends that this violated the rule established in Brogden that a trial court errs if it prohibits a defendant from any questioning intended to rehabilitate prospective jurors challenged for cause by the prosecution. We do not agree.\nHere, prospective juror Dixon clearly and unequivocally stated that she could not temporarily set aside her religious beliefs against the death penalty in deference to the rule of law. Moreover, defendant\u2019s attempts to rehabilitate her as a juror had already been fruitless and time-consuming.\nIn Brogden, we held that a trial court may not prohibit, in a blanket manner, all attempts at rehabilitation by defendant when a potential juror is challenged for cause. Brogden, 334 N.C. 39, 430 S.E.2d 905. However, it is within the discretion of the trial court to determine when such rehabilitation attempts have proven futile. State v. Taylor, 332 N.C. 372, 390, 420 S.E.2d 414, 425 (1992). In this case, defendant\u2019s additional questions did nothing to rehabilitate Dixon. Instead, she grew more steadfast in her view that she could not \u201cgo against [her] religious belief.\u201d Therefore, she was properly excused under Witt, and the trial court did not err in terminating defendant\u2019s questioning.\nIn another assignment of error, defendant argues that the trial court erred by allowing the State to introduce evidence concerning the circumstances surrounding the murders of Shelia Denise Worley and the child, Psoma Baggett. Over objection, the trial court admitted this evidence as evidence tending to show the aggravating circumstance that the murder of James Worley was part of a course of conduct by defendant which included other crimes of violence against another person or persons. N.C.G.S. \u00a7 15A-2000(e)(ll) (Supp. 1994). The jury rejected this aggravating circumstance.\nIn State v. Cummings, 332 N.C. 487, 422 S.E.2d 692 (1992), we held that a defendant\u2019s killing of two sisters, one of whom was his wife, over a period of twenty-six months was sufficiently linked to allow the trial court to submit evidence of those murders as tending to show a course of conduct by defendant. In order to submit the course of conduct aggravator, a trial court must consider the circumstances surrounding the acts of violence and discern evidence tending to show some connection, common scheme, or pattern that ties them together. Id. at 510, 422 S.E.2d at 705. In Cummings, we said, \u201cIt stands to reason that if multiple victims are from the same family,. . . it is much more likely that there exists some connection between their murders than if the victims were not so associated.\u201d Id. at 511, 422 S.E.2d at 705.\nIn the case sub judice, the facts surrounding the subsequent murders of James Worley\u2019s wife and her daughter were sufficiently connected to his murder to be submitted to the jury for their determination if they were, indeed, parts of the same course of conduct. Not only were the victims related, but Shelia Denise Worley solicited defendant to commit the murder of James Worley. The contract murder of Mr. Worley, entered into by defendant and Ms. Worley, set into motion the chain of events that led to the murders of Ms. Worley and her daughter Psoma Baggett. Therefore, the evidence was sufficient to show that all of the murders were sufficiently connected to be parts of one course of conduct by defendant. The trial court did not err in admitting the evidence in question as evidence tending to establish the course of conduct aggravating circumstance, and the fact that the jury did not find this aggravating circumstance is irrelevant to the outcome of this issue.\nIn another assignment of error, defendant argues that the trial court committed prejudicial error by allowing into evidence defendant\u2019s stipulation that he had been previously convicted of a felony involving the use of violence. On 12 June 1992, defendant filed a motion to limit testimony concerning his 1975 conviction for involuntary manslaughter. At the beginning of the new capital sentencing proceeding, defendant sought permission from the court to withdraw the 12 June 1992 motion and the stipulation contained therein. Without objection from the prosecution, the court allowed the withdrawal. However, during the sentencing hearing, the State sought to reintroduce the stipulation from the original trial. In defendant\u2019s original trial, defendant stipulated that he had been convicted of involuntary manslaughter, that the act involved the use of violence, and that he intentionally shot and killed the victim. Over objection by defendant, the trial court allowed the prosecutor to read the stipulation from the original trial into the record after the State had presented eyewitness testimony regarding the circumstances surrounding defendant\u2019s prior manslaughter conviction. The stipulation stated:\nThe defendant hereby stipulates and agrees that on April 22,1975, the defendant was convicted of involuntary manslaughter and that the act involved the use of violence in that Elton McLaughlin intentionally shot and killed Fred McNeil, Jr.\nThis evidence supported the State\u2019s submission of the aggravating circumstance 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).\nDefendant argues that the prior stipulation from his original trial should not have been admitted into evidence. Defendant contends that parties cannot stipulate that various legal tests have been satisfied. See State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985) (stipulation concerning the competence of a witness); State v. Prevette, 39 N.C. App. 470, 250 S.E.2d 682 (stipulation concerning a party\u2019s standing to challenge a search), disc. rev. denied & appeal dismissed, 297 N.C. 179, 254 S.E.2d 38 (1979). Generally, stipulations as to matters of law are not binding upon courts. See Prevette, 39 N.C. App. at 472, 250 S.E.2d at 683 (citing 73 Am. Jur. 2d Stipulations \u00a7 5 (1974)). However, we do not find this to be a stipulation as to a matter of law. Although the stipulation used the language \u201cinvolved the use of violence,\u201d this language addressed the factual circumstances supporting the prior conviction rather than a legal standard. This assignment of error is without merit.\nIn the next assignment, defendant argues that the trial court erred in not allowing him to present evidence to establish a nonstatutory mitigating circumstance that Robinson had received only life imprisonment for the murder of Mr. Worley. Defendant concedes that under prior ruling of this Court, \u201cevidence of the plea bargain and sentencing agreement between the State and a codefendant was irrelevant and properly excluded from the jury\u2019s consideration.\u201d State v. Irwin, 304 N.C. 93, 104, 282 S.E.2d 439, 447 (1981). \u201cSuch evidence has no bearing upon defendant\u2019s character, record or the nature of his participation in the offense.\u201d Id.) see also State v. Williams, 305 N.C. 656, 292 S.E.2d 243, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), reh\u2019g denied, 459 U.S. 1189, 74 L. Ed. 2d 1031 (1983). However, defendant contends that a recent United States Supreme Court case, Parker v. Dugger, 498 U.S. 308, 112 L. Ed. 2d 812, reh\u2019g denied, 449 U.S. 932, 113 L. Ed: 2d 271 (1991), compels a different result.\nIn Parker, the Supreme Court considered whether a trial court improperly failed to consider relevant nonstatutory mitigating circumstances in the course of deciding to reject a jury recommendation of a sentence of life imprisonment. In reconstructing the weight the trial court gave to the nonstatutory mitigating circumstances, the Supreme Court considered all the evidence presented during the sentencing hearing, among which was evidence of sentences given to codefendants. Defendant in the present case argued at trial, as well as here, that Parker establishes that in' a capital sentencing proceeding, a trial court must consider a codefendant\u2019s life sentence as relevant nonstatutory mitigating evidence. The trial court rejected defendant\u2019s attempt to extend the holding of Parker to this case, and we concur.\nWe do not accept the view that Parker creates a federal mandate for considering a codefendant\u2019s sentence as evidence supporting a nonstatutory mitigating circumstance. Instead, the Supreme Court was simply reconstructing the weighing process conducted in the Florida trial court in absence of clear findings of fact by the trial court. When referencing the sentences of Parker\u2019s accomplices, the Court was simply considering whether the state court properly conducted the weighing of all the evidence that had been introduced. The issue of admissibility of a codefendant\u2019s sentence was not an issue in Parker. Consequently, the Supreme Court\u2019s decision there has no bearing on this case. We have consistently held that such evidence is inadmissible under North Carolina law. This assignment is without merit.\nIn another assignment of error, defendant contends that the trial court committed prejudicial error by failing to intervene ex mero motu to preclude the prosecutor from making improper arguments. We have stated that \u201c[tjrial counsel are allowed wide latitude in jury arguments. Counsel are permitted to argue the facts based on evidence which has been presented as well as reasonable inferences which can be drawn therefrom. Control of closing arguments is in the discretion of the trial court.\u201d State v. Green, 336 N.C. 142, 186, 443 S.E.2d 14, 39-40, cert. denied, -- U.S. -, 130 L. Ed 2d 547 (1994). Moreover, \u201c[bjecause defendant did not object to the portions of the argument to which he now assigns error, \u2018review is limited to an examination of whether the argument was so grossly improper that the trial [court] abused [its] discretion in failing to intervene ex mero motu.\u2019 \u201d State v. McNeil, 324 N.C. 33, 48, 375 S.E.2d 909, 918 (1989) (quoting State v. Gladden, 315 N.C. 398, 417, 340 S.E.2d 673, 685, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986)) (alternation in original), sentence vacated, 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). Regarding appellate review of prosecutorial comments, we have said:\n\u201c[P]rosecutorial statements are not placed in an isolated vacuum on appeal. Fair consideration must be given to the context in which the remarks were made and to the overall factual circumstances to which they referred. Moreover, it must be remembered that the prosecutor of a capital case has a duty to pursue ardently the goal of persuading the jury that the facts in evidence warrant the imposition of the ultimate penalty.\u201d\nState v. Gibbs, 335 N.C. 1, 64, 436 S.E.2d 321, 357-58, (quoting State v. Pinch, 306 N.C. 1, 24, 292 S.E.2d 203, 221-22, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), reh\u2019g denied, 459 U.S. 1189, 74 L. Ed. 2d 1031 (1983)), cert. denied, - U.S. -, 129 L. Ed. 2d 321 (1993).\nFirst, defendant argues that by emphasizing defendant\u2019s responsibility for his own predicament and minimizing the importance of the jury\u2019s role, the prosecutor\u2019s comments violated defendant\u2019s constitutional rights. During his closing argument, the prosecutor repeatedly emphasized that defendant started the chain of events that resulted in the jury being called to hear this case. Defendant contends that such an argument unconstitutionally diminished the jury\u2019s sense of responsibility for its sentencing decision.\nWe have previously held that such an argument does not violate defendant\u2019s constitutional rights. In State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated, 494 U.S. 1023, 108 L. Ed. 2d 604, on remand, 329 N.C. 679, 406 S.E.2d 827 (1991), we said:\nViewed in context, it is plain these words were calculated not to relieve the jury of its responsibility, . . . but to indicate to the [jurors] the fact that it was defendant, not they, who chose to take the life of another, and that it was defendant, not they, who was master of his fate.\nId. at 328-29, 384 S.E.2d at 499 (citation omitted). Nothing in this case compels us to veer from this line of reasoning.\nSecond, defendant argues that the trial court should have intervened ex mero motu because the prosecutor repeatedly misstated capital sentencing law. The prosecutor told the jurors that mitigating circumstances are \u201cthings which [defendant] says make his crime less deserving of the death penalty\u201d and that \u201c[y]ou don\u2019t have to find [a mitigating circumstance] if you don\u2019t want to.\u201d Defendant contends this statement implies that the jury can ignore credible mitigating evidence in violation of the state and federal Constitutions.\nA definition of mitigating circumstance approved by this court is a fact or group of facts which do not constitute any justification or excuse for killing or reduce to a lesser degree of the crime of first-degree murder, but which may be considered as extenuating, or reducing the moral culpability of the killing, or making it less deserving of the extreme punishment than other first-degree murders.\nState v. Irwin, 304 N.C. 93, 104, 282 S.E.2d 439, 446-47. The prosecutor\u2019s definition did not deviate from that we set out in Irwin.\nDefendant also contends in support of this assignment that the prosecutor misstated the manner in which the jury should evaluate the mitigating and aggravating evidence. We disagree. The transcript shows that the prosecutor, while placing a negative interpretation upon defendant\u2019s evidence, was properly addressing the process of weighing aggravating and mitigating circumstances. The prosecutor accurately related the proper standard used in the weighing process. The prosecutor argued:\nNow, after you consider first the aggravating circumstances, whether they exist, whether any of you find the mitigating circumstance, you do a weighing process. Do you find that the\u2014 beyond a reasonable doubt that the mitigating circumstance or circumstances found is or are insufficient to outweigh the aggravating circumstance or circumstances?\nThis argument follows our death penalty statute, which states that the jury must consider whether \u201cthe mitigating circumstance or circumstances are insufficient to outweigh the aggravating circumstance or circumstances found.\u201d N.C.G.S. \u00a7 15A-2000(c)(3). We find no error in the prosecutor\u2019s comments.\nDefendant further argues in support of this assignment of error that the prosecutor improperly advanced numerous arguments which would support the death penalty in every case of first-degree murder. The prosecutor made comparisons between defendant\u2019s life and the life that his victims would never have. The prosecutor referred to defendant\u2019s ability to watch television, exercise in a gymnasium, and work in the kitchen. Then the prosecutor listed all the things the four-year-old victim would never be able to do, such as go to school, get in fights with her sister, and worry her mother. In addition, the prosecutor argued that because of defendant\u2019s conduct, Alecia never knew her sister or mother. At the very end of his argument, the prosecutor turned his attention to the murder of Mr. Worley:\nJames Worley I\u2019m sure had dreams. He had aspirations. And he had things he wanted to do in his life. Elton McLaughlin took that away from James Worley. He took that away from James Worley for three thousand dollars.\nAlthough defendant concedes that the United States Supreme Court overruled Booth v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440 (holding that use of a victim impact statement during sentencing violated the Eighth Amendment), reh\u2019g denied, 483 U.S. 1056, 97 L. Ed. 2d 820 (1987), defendant argues that N.C.G.S. \u00a7 15A-2000 still renders victim impact considerations irrelevant in capital sentencing proceedings. We disagree. We find nothing in the prosecutor\u2019s argument that would compel a trial court to intercede ex mero motu.\nDefendant next argues in support of this assignment of error that the prosecutor made arguments without adequate evidentiary support, requiring the trial court to intervene. The prosecutor argued: \u201cSome folks get hired for yard work. Some folks get hired to paint houses. Elton McLaughlin gets hired to kill people.\u201d Defendant contends that there is no evidence to support the argument that defendant was a contract killer. Furthermore, defendant objects to the prosecutor\u2019s references to the legal rights of defendant. The prosecutor argued:\nBut Denise Worley isn\u2019t getting the benefits of Elton McLaughlin. She didn\u2019t get a trial. He sentenced her to death before coming to a jury. He sentenced her to death before he ever thought of having her come into a courtroom. He sentenced her to death because his life was more important.\nThe prosecutor also referred to defendant as a \u201cmass murderer.\u201d According to defendant, such prosecutorial statements are grossly improper and required the trial court to intervene ex mero motu. We again disagree. We find nothing so \u201cgrossly improper\u201d in this case as to require the trial court to intervene ex mero motu.\nIn his next assignment of error, defendant maintains that the trial court committed prejudicial error by failing to submit the requested nonstatutory mitigating circumstances that defendant \u201cwas of low intelligence with poor judgment and limited insight,\u201d that defendant \u201cwas under a pattern of substance abuse at the time of the commission of the crime,\u201d and that defendant\u2019s \u201climited mental capacity at the time of the trial significantly reduced his culpability for the offense.\u201d\nThe trial court ruled that these proposed nonstatutory mitigating circumstances were subsumed in the mitigating circumstances set out in N.C.G.S. \u00a7 15A-2000(f)(2) and (f)(6). See N.C.G.S. \u00a7 15A-2000(f)(2) (\u201cThe capital felony was committed while defendant was under the influence of mental or emotional disturbance.\u201d); N.C.G.S. \u00a7 15A-2000(f)(6) (\u201cThe capacity of defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.\u201d).\nDefendant introduced substantial and uncontroverted evidence from numerous experts and lay witnesses to support his contention that he had these difficulties. According to defendant\u2019s expert witness, Dr. Patricio F. Lara, a psychiatrist at Dorothea Dix Hospital, defendant\u2019s \u201cintellectual functions appeared to be at a borderline intellectual deficit range.\u201d Moreover, Dr. Lara testified that defendant suffered poor judgment and limited insight. In support of his finding, Dr. Lara presented the results of an IQ test that showed defendant\u2019s IQ to be 72. Dr. Lara also testified that defendant was \u201cmaladapted\u201d and suffered from a personality disorder. Dr. John F. Warren, a psychologist practicing in Winston-Salem, tested defendant and found him to have a full-scale IQ of 76. Dr. Warren testified that people with borderline intellectual function are more prone to misinterpret things and do not function normally. In addition to the expert testimony, relatives of defendant testified that defendant had a drinking problem. Defendant\u2019s evidence also tended to show that he had abused drugs and alcohol.\nThis Court and the United States Supreme Court have held that evidence such as that introduced by defendant has potential mitigating value. Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256 (1989); State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979). However, the trial court refused to submit defendant\u2019s requested nonstatutory mitigating circumstances, finding that they were subsumed in the mitigating circumstances provided for by N.C.G.S. \u00a7 15A-2000(f)(2) and (f)(6). In explaining these two statutory mitigating circumstances, the judge instructed the jury:\nFirst, consider whether this murder was committed while defendant was under the influence of mental or emotional disturbance. A defendant is under such influence if he is in any way affected or influenced by a mental or emotional disturbance at the time he kills.\nYou would find this mitigating circumstance if you find that defendant suffered from a mixed personality disorder and that, as a result, defendant was under the influence of mental or emotional disturbance when he killed the victim. . . .\nSecond, consider whether the capacity of defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired.\nYou would find this mitigating circumstance if you find that defendant was impaired by borderline intellectual functioning with an I.Q. of 72 and a history of drug and alcohol abuse, and that this impaired his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.\nThe trial court ruled that the two statutory mitigating circumstances coupled with these instructions properly subsumed defendant\u2019s three proposed nonstatutory mitigating circumstances. We conclude that the trial court was correct.\nWe have said that \u201cwhere a defendant makes a timely written request for a listing in writing on the form of possible nonstatutory mitigating circumstances that are supported by the evidence and which the jury could reasonably deem to have mitigating value, the trial court must put such circumstances in writing on the form.\u201d State v. Cummings, 326 N.C. 298, 324, 389 S.E.2d 66, 80 (1990). In this case, defendant properly submitted his proposed nonstatutory mitigating circumstances, and those circumstances were supported by evidence. We have also held that it is not prejuducial error for the trial court to refuse to submit nonstatutory mitigating circumstances if it properly concludes that such nonstatutory mitigating circumstances are subsumed in the statutory mitigating circumstances given to the jury. State v. Skipper, 337 N.C. 1, 55, 446 S.E.2d 252, 282 (1994) (no error where trial court fails to submit a nonstatutory mitigating circumstance that was subsumed into a statutory mitigating circumstance), cert. denied, - U.S. -, 130 L. Ed. 2d 895 (1995); State v. Green, 336 N.C. 142, 182-83, 443 S.E.2d 14, 37-38 (error to fail to submit a non-statutory mitigating circumstance supported by evidence, but such error harmless beyond a reasonable doubt where that nonstatutory mitigating circumstance was subsumed into another nonstatutory mitigating circumstance); State v. Benson, 323 N.C. 318, 326-27, 372 S.E.2d 517, 522 (1988) (no error when trial court fails to submit a non-statutory mitigating circumstance that was subsumed into another mitigating circumstance). However, the question presented by this assignment of error turns on whether the proposed nonstatutory mitigating circumstances were subsumed in the mitigating circumstances given. We conclude that defendant\u2019s proposed nonstatutory mitigating circumstances were subsumed in the (f)(2) and (f)(6) statutory mitigating circumstances submitted to the jury by the trial court. Therefore, the trial court did not commit reversible error by failing to submit those nonstatutory mitigating circumstances for the jury\u2019s consideration.\nFurthermore, the jury could have given this evidence mitigating value under the catchall mitigating circumstance, N.C.G.S. \u00a7 15A-2000(f)(9) (\u201cAny other circumstance or circumstances arising from the evidence which one or more of you deems to have mitigating value.\u201d). This assignment of error is without merit.\nIn another assignment of error, defendant argues that the trial court committed prejudicial error by failing to peremptorily instruct the jury with respect to certain nonstatutory mitigating circumstances concerning defendant\u2019s employment record and adjustment to incarceration. During the jury instruction conference, defendant argued that the jury should be given peremptory instructions as to the following nonstatutory mitigating circumstances that were submitted, inter alia, to the jury:\n(4) That the Defendant cooperated with law enforcement officers at an early stage of their investigation in this case.\n(5) That the Defendant was regularly employed for over 12 years at Cape Craftsman and was a productive member of society.\n(7)That since the Defendant\u2019s incarceration he has made substantial efforts to improve himself by participation in both religious studies and voluntary training courses relative to his work in prison.\n(8)That since the Defendant\u2019s incarceration he has achieved a desirable and competitive position within the prison, working as a cook within the kitchen.\n(9)That since the Defendant\u2019s incarceration he has made significant efforts to be of assistance to other inmates in the prison to help them to adjust to prison life.\n(10) That since the Defendant\u2019s incarceration in 1984, he has achieved a desirable prison record of only Two (2) infractions and has had no infraction since August 31, 1987.\nThe State countered that peremptory instructions as to submitted nonstatutory mitigating circumstances numbers (7), (8), (9), and (10) would not be appropriate because it would' imply to the jury that those proposed mitigating circumstances had mitigating value. However, the State conceded that the trial court should give the jury a peremptory instruction as to number (4) \u2014 defendant\u2019s assistance in the investigation.\nWe have held that a trial court should, if requested, give a peremptory instruction for any mitigating circumstance, whether statutory or nonstatutory, if it ,is supported by uncontroverted and manifestly credible evidence. State v. Green, 336 N.C. 142, 172-74, 443 S.E.2d 14, 32-33; State v. Gay, 334 N.C. 467, 493, 434 S.E.2d 840, 855 (1993). Thus, this issue turns on whether the evidence in support of the nonstatutory mitigating circumstances at issue was \u201cuncontroverted.\u201d If the evidence is controverted or the evidence supporting the circumstance is not manifestly credible, the trial court should not give peremptory instructions. Green, 336 N.C. at 172-74, 443 S.E.2d at 32-33.\nAs to defendant\u2019s employment at Cape Craftsman and his productivity as a member of society, defendant presented a number of witnesses who testified to his good work ethic and his reputation for honesty. However, while the State concedes that it presented no contrary evidence as to his employment at Cape Craftsman, the State maintains that ample evidence contradicted defendant\u2019s contention that he was a \u201cproductive member of society.\u201d The State points to evidence tending to show that defendant was responsible for four deaths in the community and was a confessed drug and alcohol abuser. We agree with the State that defendant\u2019s status as a productive member of society was anything but uncontroverted. Therefore, a peremptory instruction as to that nonstatutory mitigating circumstance would not have been proper under Green. Id. (explaining, inter alia, the distinctions in peremptory instructions for statutory and nonstatutory mitigators).\nDefendant also contends that the jury should have been peremptorily instructed as to his self-improvement while incarcerated. Several witnesses testified as to defendant\u2019s rehabilitation during his incarceration. Defendant\u2019s witnesses testified that he had taken Bible and culinary courses and had worked in the prison kitchen. However, the State produced evidence that defendant also had committed two major infractions while incarcerated. First, he was punished for concealing a weapon; second, he was punished for attempting to take flammable material from the kitchen for the purpose of causing other inmates bodily harm. In addition, he had been involved in a fistfight with another inmate. Therefore, the evidence as to this nonstatutory mitigating circumstance was controverted, and defendant was not entitled to a peremptory instruction.\nDefendant also sought a peremptory instruction as to his \u201cdesirable prison record.\u201d The evidence as to this nonstatutory mitigating circumstance was again anything but uncontroverted. Possession of a weapon (a single-edged razor) and an attempt to remove a flammable material from the prison kitchen with intent to use it to cause bodily harm are not slight prison infractions. In addition, defendant had been involved in one fistfight with another inmate. For these offenses, he had served forty-five days in disciplinary segregation. Even though defendant has presented evidence as to his favorable prison job and interests in chess, biographies, and the Bible, evidence of his infractions made his evidence of having a \u201cdesirable prison record\u201d controverted. Thus, the trial court did not err in failing to give a peremptory instruction on this nonstatutory mitigating circumstance.\nDefendant also sought a peremptory instruction as to the submitted nonstatutory mitigating circumstance that he had \u201cmade significant efforts to be of assistance to other inmates in the prison to help them to adjust to prison life.\u201d Defendant presented evidence tending to show that he had been of assistance to only one inmate. Although this evidence was not directly controverted by evidence produced by the State, it was not manifestly credible. Therefore, defendant was not entitled to a peremptory instruction on this non-statutory mitigating circumstance.\nFinally, defendant contends that the trial court erred in failing to give a peremptory instruction to the jury with regard to the submitted mitigating circumstance that he had achieved a position as a cook in the prison kitchen. Evidence as to this mitigating circumstance was both uncontroverted and manifestly credible. Therefore, the trial court erred in failing to give a peremptory instruction as to this non-statutory mitigating circumstance. Id.\nFor purposes of this opinion, we assume arguendo that the trial court\u2019s failure to give this peremptory instruction rose to the level of a federal constitutional violation. Cf. State v. Benson, 323 N.C. 318, 325-26, 372 S.E.2d 517, 521 (1988) (failure to submit nonstatutory mitigating circumstance \u201craises federal constitutional issues\u201d). Therefore, we will deem this violation prejudicial unless we conclude it was harmless beyond a reasonable doubt. Id.\nFirst, we note that the form returned by the jury clearly states that one or more members of the jury found this nonstatutory mitigating circumstance to exist and to have mitigating value. Nevertheless, we are unable to say that all jurors found this mitigator to exist and to have value or that more jurors would not have done so had a peremptory instruction been given. However, overwhelming evidence supported the jury\u2019s findings of the aggravating circumstances that defendant had been convicted of a prior violent felony and that the murder here was committed for pecuniary gain. When we consider the two aggravating circumstances found by the jury in light of'the eight mitigating circumstances found by the jury, we are compelled to conclude that the trial court\u2019s failure to give a peremptory instruction, which may have caused one or more jurors to fail to find as a mitigating circumstance that defendant worked as a cook in the prison, was harmless error beyond a reasonable doubt. This assignment of error is without merit.\nDefendant contends in another assignment of error that the trial court committed plain error by failing to instruct the jury it could find the statutory mitigating circumstance set forth in N.C.G.S. \u00a7 15A-2000(f)(2) on the basis of evidence of defendant\u2019s poor judgment and limited insight. He also argues that the trial court erred by failing to instruct the jury it could find the statutory mitigating circumstance provided for in N.C.G.S. \u00a7 15A-2000(f)(6) on the basis of evidence of his poor judgment, limited insight, and consumption of intoxicating substances. Defendant contends that once the trial court undertook to instruct the jury about specific conditions that would permit a finding that the two statutory mitigating circumstances existed, it was required to state all possible conditions that tended to support a finding of either circumstance. Defendant argues that the trial court erred by failing to refer specifically to evidence of defendant\u2019s poor judgment, limited insight, and consumption of intoxicants in connection with the two statutory mitigating circumstances. Defendant\u2019s counsel neither requested further instructions nor objected during trial. However, defendant now argues that the trial court\u2019s mistake amounted to plain error.\nDuring the instructions to the jury, the trial court stated with regard to the N.C.G.S. \u00a7 15A-2000(f)(2) mitigator:\nYou would find this mitigating circumstance if you find that defendant suffered from a mixed personality disorder and that, as a result, defendant was under the influence of a mental or emotional disturbance when he killed the victim.\nInstructing the jury on the N.C.G.S. \u00a7 15A-2000(f)(6) mitigator, the trial court said:\nYou would find this mitigating circumstance if you find that defendant was impaired by borderline intellectual functioning with an I.Q. of 72 and a history of drug and alcohol abuse, and that this impaired his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.\nDefendant failed to make any objection to the instructions during trial. Our review is limited to plain error analysis. \u201cIn deciding whether a defect in the jury instruction constitutes \u2018plain error,\u2019 the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\u201d State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983). In Odom, we also stated that plain error is \u201c \u2018fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.\u2019 \u201d Id. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). Although a trial court must adequately instruct the jury concerning the appropriate scope of the (f)(2) and (f)(6) statutory mitigating circumstances, we find nothing in the instructions given to warrant reversal based on plain error. Defendant was not prohibited from presenting evidence regarding his mental capacity. Given that the jury was presented with the evidence and defendant outlined all of the circumstances he contended supported finding these mitigating circumstances during his closing argument, we find no plain error.\nDefendant next assigns error to the trial court\u2019s definition of \u201cmitigating circumstance\u201d in response to a jury question. He contends that the definition given unduly restricted the jury\u2019s consideration of relevant evidence.\nAfter deliberating for a short period of time, the jury presented the following question to the trial court:\nThere is a question of how mitigating circumstances are to be deemed of value. (By law)\nDo we just use common sense, or do you have specific instructions.\nDoes the mitigating evidence (personal character (only) change since crime committed) have bearing on decision of life or death sentence?\nThe trial court conferred with counsel and decided to instruct the jury:\nA mitigating circumstance is a fact or a group of facts which do not constitute a justification or excuse for a killing, or reduce it to a lesser degree of crime than first degree murder, but which may be considered as extenuating or reducing the moral culpability of the killing or making it less deserving of extreme punishment than other first degree murders.\nA juror may find that any mitigating circumstance exists by a preponderance of the evidence, whether or not that circumstance is found to exist by all of the jurors.\nAnd then finally, members of the jury, we are going to instruct you that you are to consider all aspects of the defendant\u2019s character as presented by the evidence, including the evidence relating to the defendant\u2019s character since the murder of the victim.\nDefendant argues that the trial court erred by failing to reinstruct the jury to consider \u201cany other circumstances arising from the evidence which you deem to have mitigating value.\u201d Defendant asserts that the trial court must use this language in its instructions as mandated under Skipper v. South Carolina, 476 U.S. 1, 4, 90 L. Ed. 2d 1, 6-7 (1986), which provides that any evidence may be mitigating so long as \u201cthe jury could have drawn ... inferences favorable to defendant\u201d regardless of the relation of that evidence \u201cto [defendant\u2019s] culpability for the crime he committed.\u201d\nIt is important to point out that this assignment of error concerns a reinstruction of the jury. The jurors posed their question presumably to clarify any confusion they had concerning the meaning of mitigating circumstances. The jury already had been instructed to consider any other evidence having mitigating value before the jury began its deliberations. Further, the written form given the jury directed it to consider and weigh \u201cany other circumstance or circumstances arising from the evidence which . . . [has] mitigating value.\u201d When reviewed in their entirety, the original instructions and the additional instructions did not restrict the jury from considering all evidence which may have mitigating value. This assignment of error is without merit.\nIn his next assignment of error, defendant argues that the trial court erred by denying defendant\u2019s request to question prospective jurors concerning their possible misconceptions regarding parole eligibility. Defendant also contends under this assignment that the trial court\u2019s ruling sustaining the State\u2019s objection to his attempt to introduce evidence regarding his parole eligibility was error.\nDuring deliberations, the jury asked the trial court whether \u201cthree consecutive life terms means that defendant will never be eligible for parole.\u201d The trial court instructed the jury: \u201cThe question of eligibility for parole is not a proper matter for you to consider in recommending a punishment. ... In considering whether to recommend death or life imprisonment, you should determine the question as though life imprisonment means exactly what the [s]tatute says, imprisonment for life in the State\u2019s prison.\u201d\nDefendant argues that the instruction given was contrary to the opinion of the Supreme Court of the United States in Simmons v. South Carolina, 512 U.S. -, 129 L. Ed. 2d 133 (1994). We have recently rejected this very argument. In State v. Price, 337 N.C. 756, 448 S.E.2d 827 (1994), cert. denied, \u2014 U.S. -, 131 L. Ed. 2d 224, reh\u2019g denied, -U.S. -, 131 L. Ed. 2d 879 (1995), we stated that\nthe United States Supreme Court\u2019s decision in Simmons is limited to those situations where the alternative to a sentence of death is life imprisonment without possibility of parole. The language and rationale of the main opinion and the concurring opinions are expressly confined to situations in which a defendant sentenced to life imprisonment will not be eligible for parole.\nId. at 763, 448 S.E.2d at 831 (emphasis added). Here, the alternative to death was not life imprisonment without parole. Therefore, the trial court properly excluded all references to parole eligibility during voir dire, the trial, and jury instructions. Id.\nAs the eleventh issue in his brief, defendant states:\nThe trial court committed prejudicial error by instructing the jury concerning their failure to agree upon an appropriate answer to the fourth issue in such a manner as to improperly coerce unanimity.\nDefendant contends in his brief that, \u201c[tjaken in context, the trial court\u2019s actual instructions strongly implied that the sentencing jury must reach a unanimous result and would be compelled to continue deliberating until they did so. As a result, the trial court\u2019s instructions concerning the effect of non-unanimity contravened G.S. [\u00a7] 15A-2000 and improperly coerced a verdict. . . .\u201d\nAlthough the defendant has made no argument specifically addressing the issue of whether the instruction requiring jury unanimity for any answer to Issue Four is an improper statement of the law, we will address that issue here. As noted in our case of State v. McCarver, 341 N.C. 364, 389-94, 462 S.E.2d 25, 39-42 (1995), a trial court correctly states the law when it instructs the jury that it must be unanimous in order to answer Issues One, Three and Four on the \u201cIssues and Recommendation as to Punishment\u201d form, either \u201cyes\u201d or \u201cno.\u201d A jury must be unanimous in deciding any sentence determinative issue, and Issue Four is a sentence determinative issue. Id. \u201cIf the jury cannot, within a reasonable time, unanimously agree to its sentence recommendation, the judge shall impose a sentence of life imprisonment. . . .\u201d N.C.G.S. \u00a7 15A-2000(b) (Supp. 1994). Therefore, the trial court in the present case properly instructed the jury that it must be unanimous before it could answer Issue Four \u201cyes\u201d or \u201cno.\u201d\nGiven that the instruction requiring jury unanimity before giving either a \u201cyes\u201d or \u201cno\u201d answer to Issue Four was proper, we now turn to address the argument the defendant actually makes. In support of the eleventh issue set forth in his brief, defendant actually argues that the trial court committed prejudicial error by instructing the jury in a manner which improperly coerced unanimity by implying that they must render a decision on Issue Four and would be compelled to continue deliberating until they did so.\nOn two different occasions during the second day of jury deliberations, the trial court ascertained that the jury had not reached a recommendation as to sentence and instructed the jury to resume its deliberations. The jury sent a note to the trial court indicating that it was divided eleven to one as to its recommendation. Thereafter, the trial court gave the following instructions:\nAs to Issue Number Four, I instruct you that your answer to Issue Number Four \u2014 that your answer to Issue Number Four, whether you answer \u201cyes\u201d or \u201cno\u201d must be unanimous.\nMembers of the jury, I am going to ask that you resume your deliberations in an attempt to return a recommendation. I have already instructed you that your recommendation must be unanimous. That is, each of you must agree on the recommendation. I shall give you these additional instructions.\nFirst, it is your duty to consult with one another and deliberate with a view towards reaching a recommendation, if it can be done without violence to individual judgment.\nAnd second, each of you must decide the case for yourself, and your recommendation for yourself, but only after an impartial consideration of the evidence with your fellow jurors.\nThird, in the course of your deliberations you should not hesitate to reexamine your own views, and to change your opinion, if you become convinced it is erroneous. On the other hand, you should not hesitate to hold to your views and opinions if you remain convinced that they are correct.\nFourth, no juror should surrender his or her honest conviction as to the weight or the effect of the evidence solely because of the opinion of their fellow jurors, or for the mere purpose of reaching a recommendation.\nFifth, your inability to reach a unanimous recommendation as to punishment should not be your concern, but should simply be reported to the Court.\nPlease be mindful that I am in no way trying to coerce you to reach a recommendation. I recognize the fact that there are some-, times reasons why jurors cannot agree. Through these additional instructions I have just given you, I merely want to emphasize the fact that it is your duty to do whatever you can ... to reason the matter together as reasonable people, to reconcile your differences, if you can without the surrender of honest convictions to reach a recommendation.\nAlthough the trial court did instruct the jurors that their \u201cinability to reach a unanimous recommendation as to punishment should not be [their] concern, but should simply be reported to the Court,\u201d defendant argues that this instruction was coupled with language which is objectionable under State v. Smith, 320 N.C. 404, 422, 358 S.E.2d 329, 339 (1987). Defendant contends that taken in the context, the trial court\u2019s actual instructions strongly imply that the sentencing jurors must reach a unanimous result and would be compelled to continue deliberating until they did so. We disagree.\nIn determining whether an instruction coerced the jury to render a judgment, \u201can appellate court must consider the circumstances under which the instructions were made and the probable impact of the instructions on the jury.\u201d State v. Alston, 294 N.C. 577, 593, 243 S.E.2d 354, 364-65 (1978). In considering the instruction at issue here, we conclude that the trial court properly instructed the jury. First, the jurors merely stated that they were not unanimous; they did not specifically inquire as to the consequence of inability to reach unanimity as in Smith. Second, the trial court explicitly instructed the jurors that their \u201cinability to reach a unanimous recommendation as to punishment should not be [their] concern, but should simply be reported to the Court.\u201d This language fully complies with our holding in Smith. \u201cThe lesson in Smith is that, in telling a jury that its recommendation as to punishment must be unanimous, the trial court must be vigilant to inform the jurors that whatever recommendation they do make must be unanimous and not to imply that a recommendation must be reached.\u201d State v. Price, 326 N.C. 56, 92, 388 S.E.2d 84, 105 (1990). That is exactly what the trial court did in this situation. Third, we find nothing coercive in the instructions when they are reviewed in context and in their entirety. Therefore, we find no error, and this assignment of error is without merit.\nOn 11 October 1994, this Court allowed defendant to bring forth an additional issue concerning a codefendant\u2019s assertion of his Fifth Amendment privilege and the resulting admission of his prior testimony. Defendant argues that the trial court committed prejudicial error by allowing the admission of a transcript of a codefendant\u2019s testimony from defendant\u2019s first trial into evidence after finding that the codefendant was \u201cunavailable\u201d on grounds of privilege. Specifically, defendant contends that the trial court did not adequately determine that the codefendant was, in fact, entitled to assert the privilege against self-incrimination in this proceeding.\nDuring the new capital sentencing proceeding, the State called codefendant Robinson to testify. After stating his name, Robinson, through his attorney, asserted his privilege against self-incrimination. Over defendant\u2019s objection, the trial court ruled that Robinson was \u201cunavailable\u201d as that term is defined in N.C.G.S. \u00a7 8C-1, Rule 804(b)(1) and allowed Robinson\u2019s recorded testimony from defendant\u2019s prior trial to be read into evidence. Defendant contends that the admission of this recorded prior testimony was improperly admitted and so unfairly prejudiced him as to require a new capital sentencing proceeding. We do not agree.\nOur capital sentencing laws provide:\nIn the [capital sentencing] proceeding there shall not be any requirement to resubmit evidence presented during the guilt determination phase of the case, unless a new jury is impanelled, but all such evidence is competent for the jury\u2019s consideration in passing on punishment.\nN.C.G.S. \u00a7 15A-2000(a)(3) (emphasis added). Defendant in this case was not awarded a new trial but was awarded a new capital sentencing proceeding based on McKoy error; therefore, a new jury was impanelled solely to recommend punishment. Under N.C.G.S. \u00a7 15A-2000(a)(3), the State was required to resubmit the evidence presented in the original trial in order to have it considered, but such evidence was competent as a matter of law. Whether the evidence at issue here was admissible under N.C.G.S. \u00a7 8C-1, Rule 804 is not controlling in the case at hand. Instead, N.C.G.S. \u00a7 15A-2000(a)(3) expressly provides that evidence presented during the guilt determination phase of a capital case is competent and admissible as a matter of law during a capital sentencing proceeding in the same case. Therefore, the evidence was properly admitted.\nAlthough the evidence at issue here was admissible as a matter of law under the statute, we must also address whether the admission of that recorded prior testimony violated defendant\u2019s confrontation rights under the federal and state constitutions. The Supreme Court of the United States has held that the Confrontation Clause is not violated by the admission of a witness\u2019 recorded prior testimony where the witness\nwas under oath[;] [defendant] was represented by counsel \u2014 the same counsel in fact who later represented him at trial[;] [defendant] had every opportunity to cross-examine [the witness] as to his statement^] and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings.\nCalifornia v. Green, 399 U.S. 149, 165, 26 L. Ed. 2d 489, 501 (1970); see also State v. Prince, 270 N.C. 769, 154 S.E.2d 897 (1967) (constitutional right of confrontation not denied by introduction of prior testimony where witness has since died, become insane, left the state, become incapacitated, or absented himself by procurement of or connivance with the accused). In Green, the Supreme Court went on to say that even when the witness whose prior testimony had been recorded took the stand and testified, claimed a loss of memory, claimed his privilege against compulsory self-incrimination, or simply refused to answer, nothing in the Confrontation Clause prohibited the State from relying on his recorded prior testimony to prove its case. Green, 399 U.S. at 167-68, 26 L. Ed. 2d at 502.\nIn the case at hand, defendant was represented by counsel at his original trial and had ample opportunity to cross-examine Robinson on the stand at that time. Defendant did in fact extensively cross-examine Robinson during the original trial. His motivation to cross-examine Robinson then was the same as his motivation at the new capital sentencing proceeding leading to this appeal. Furthermore, without addressing the propriety or impropriety of Robinson\u2019s claim of privilege against self-incrimination, as in Green, Robinson simply refused to answer any questions. In light of the holding of Green and our holding in Prince, we conclude that defendant\u2019s confrontation rights were not violated under either the state or federal constitutions. This assignment of error is overruled.\nDefendant has also brought forward numerous assignments of error presenting \u201cpreservation issues.\u201d As to each of these issues, defendant acknowledges with commendable candor that prior decisions of this Court require a ruling contrary to his contentions. He raises these issues for the purpose of permitting this Court to reexamine its prior holdings and also \u201cfor the purpose of preserving these issues for any necessary federal habeas corpus review.\u201d Having carefully examined each of those assignments of error, we conclude that they are without merit.\nHaving concluded that defendant\u2019s capital sentencing proceeding was free from prejudicial error, we turn to the duties reserved by N.C.G.S. \u00a7 15A-2000(d)(2) exclusively for this Court in capital cases. We have thoroughly examined the record, transcripts, and briefs in the present case and concluded that the record fully supports the aggravating circumstances found by the jury. Further, we find no indication that the sentence of death in this case was imposed under the influence of passion, prejudice, or any other arbitrary consideration. We must turn then to our final statutory duty of proportionality review.\nIn conducting proportionality review, we must determine \u201cwhether the sentence of death in the present case is excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant.\u201d State v. Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 354, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177, reh\u2019g denied, 464 U.S. 1004, 78 L. Ed. 2d 704 (1983).\nIn essence, our task on proportionality review is to compare the case at bar with other cases in the pool which are roughly similar with regard to the crime and the defendant, such as, for example, the manner in which the crime was committed and defendant\u2019s character, background, and physical and mental condition.\nState v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985). The pool of available cases from which those roughly similar with regard to the crime and defendant may be drawn for comparison puiposes has been defined as\nall cases 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.\nWilliams, 308 N.C. at 79, 301 S.E.2d at 355. \u201cThe pool, however, includes only those cases which this Court has found to be free of error in both phases of the trial.\u201d State v. Stokes, 319 N.C. 1, 19-20, 352 S.E.2d 653, 663 (1987). We have recently clarified the composition of the proportionality pool, noting:\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 the 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.\nState v. Bacon, 337 N.C. 66, 107, 446 S.E.2d at 542, 564 (1994), cert. denied, \u2014 U.S. \u2014 , 130 L. Ed. 2d 1083 (1995). Simply, the pool includes only cases found to be free of error in both the guilt-innocence and penalty phases.\nIn the present case, defendant had previously been convicted of three counts of first-degree murder for which he received one death sentence for the murder of James Worley and two life sentences for the murders of Shelia Denise Worley and Psoma Wine Baggett. During the new capital sentencing proceeding, which is the subject of this appeal, the jury considered the sentencing of defendant solely for the murder of James Worley. As to this murder, the jury found: (1) 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 (2) that the murder was committed for pecuniary gain, N.C.G.S. \u00a7 15A-2000(e)(6). The jury also found as mitigating circumstances that: (1) defendant aided in the apprehension of another capital felon; (2) defendant cooperated with law enforcement officers at an early stage of their investigation in this case; (3) defendant was of good character and reputation in the community in which he lived and worked; (4) since defendant\u2019s incarceration, he has made substantial efforts to improve himself by participation in both religious studies and voluntary training courses relative to his work within the prison; (5) since defendant\u2019s incarceration, he has achieved a desirable and competitive position within the prison, working as a cook within the kitchen; (6) since defendant\u2019s incarceration, he has made significant efforts to be of assistance to other inmates in the prison to help them to adjust to prison life; (7) since defendant\u2019s incarceration in 1984, he has achieved a desirable prison record of only two infractions and has had no infraction since 31 August 1987; and (8) defendant has consistently supported his child financially.\nIn our proportionality review, we must compare the. present case with other cases in which this Court has concluded that the death penalty was disproportionate. State v. McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162, (1993). We find this case is not substantially similar to any case in which this Court has found the death penalty disproportionate and entered a sentence of life imprisonment. Each of those cases is distinguishable from the present case.\nIn State v. Benson, 323 N.C. 318, 372 S.E.2d 517, the evidence tended to show that defendant hid in the bushes at a bank and waited for the victim to make a night deposit. When the victim arrived, defendant demanded the money bag. When the victim hesitated, defendant fired a shotgun, striking the victim in both legs. The victim later died of cardiac arrest caused by the loss of blood from the shotgun wounds. The jury found only the aggravating circumstance of murder for pecuniary gain. Benson is easily distinguishable from the present case. Here, in addition to the pecuniary gain aggravating circumstance, the jury also found the aggravating circumstance that defendant had previously been convicted of a felony involving the use or threatened use of violence to the person. Further, defendant in the present case committed three murders rather than a single murder such as that committed by defendant in Benson.\nIn State v. Stokes, 319 N.C. 1, 352 S.E.2d 653, defendant and several others planned to rob the victim\u2019s place of business. During the robbery, one of the assailants beat the victim, killing him. Stokes is also easily distinguishable from the present case because the jury in Stokes found only one aggravating circumstance, that the murder was especially heinous, atrocious, or cruel. In the present case, the jury found two aggravating circumstances. More importantly, defendant in the present case, unlike the defendant in Stokes, killed three victims rather than one.\nInState v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988), the only aggravating circumstance found by the jury was that the murder for which defendant was convicted was part of a course of conduct which included the commission of other crimes of violence against another person or persons. In the present case, the jury found two aggravating circumstances. Also, defendant in the present case murdered three victims, while defendant in Rogers killed only one.\nIn State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985), defendant and two companions went to the victim\u2019s home intending to rob and murder him. After gaining entry into the victim\u2019s home, the men killed him and stole his money. The jury found as aggravating circumstances that the murder was 'committed during the commission of a robbery or burglary and that it was committed for pecuniary gain. In concluding that the death penalty was disproportionate in Young, this Court focused on the failure of the jury in Young to find either the aggravating circumstance that the murder was especially heinous, atrocious, or cruel or the aggravating circumstance that the murder was committed as part of a course of conduct which included the commission of violence against another person or persons. The present case is easily distinguishable from Young because, among other things, the jury found as an aggravating circumstance that defendant had previously been convicted of a felony involving the use or threatened use of violence to the person. Additionally, it bears repeating that defendant in this case murdered three victims, unlike defendant in Young.\nIn State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984), the single aggravating circumstance found by the jury was that the murder was committed against a law enforcement officer engaged in the performance of his official duties. In the present case, the jury found two entirely different aggravating circumstances. Hill is easily distinguishable from this case in which defendant contracted to kill Mr. Worley for money and later killed Ms. Worley and her young child when Ms. Worley failed to pay him.\nIn State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983), defendant was on foot and waved down the victim as the victim passed in his truck. Shortly thereafter, the victim\u2019s body was discovered in the truck. He had been shot twice in the head, and his wallet was gone. The single aggravating circumstance found was that the murder was committed for pecuniary gain. Jackson is easily distinguishable from the present case in which the jury found the additional aggravating circumstance that defendant had previously been convicted of a felony involving the use or threatened use of violence to the person. Moreover, defendant here murdered three victims, rather than one.\nIn State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983), the evidence tended to show that defendant and a group of friends were riding in a car when defendant taunted the victim by telling him that he would shoot him and by questioning whether the victim believed that defendant would shoot him. Defendant shot the victim but then immediately directed the driver to proceed to the emergency room of the local hospital. In concluding that the death penalty was disproportionate there, we focused on defendant\u2019s immediate attempt to obtain medical assistance for the victim and the lack of any apparent motive for the killing. In contrast, the evidence in the present case tended to show that defendant made no efforts to assist any of his victims. To the contrary, he placed the body of Mr. Worley in a car and set it afire. The bodies of Ms. Worley and her child were left floating in a creek, either dead or dying.\nIn sum, we have never found that the death penalty is disproportionate for a convicted murderer of multiple victims. We have said that \u201c[a] heavy factor ... is that he is a multiple killer.\u201d State v. Robbins, 319 N.C. 465, 529, 356 S.E.2d 279, 316, cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226 (1987). Moreover, none of the above-cited cases involved a contract killing. For the foregoing reasons, we conclude that each of the cases in which we have found the death penalty to be disproportionate is distinguishable from the present case. In fact, the present case bears little or no similarity to any of those cases.\nIn performing our statutory duty of proportionality review, it is also appropriate for us to compare the case before us to other cases in the pool used for proportionality review. Lawson, 310 N.C. at 648, 314 S.E.2d at 503.\nIf, after making such comparison, we find that juries have consistently returned death sentences in factually similar cases, we will have a strong basis for concluding that the death sentence under review is not excessive or disproportionate. If juries have consistently returned life sentences in factually similar cases, however, we will have a strong basis for concluding that the death sentence in the case under review is disproportionate.\nMcCollum, 334 N.C. at 242, 433 S.E.2d at 163. However, the factors to be considered and their relevance during proportionality review in a given capital case \u201cwill be as numerous and as varied as the cases coming before us on appeal.\u201d Williams, 308 N.C. at 80, 301 S.E.2d at 355. Therefore, the fact that in one or more cases factually similar to this case, a jury or juries have recommended life imprisonment is not determinative, standing alone, on the issue of whether the death penalty is disproportionate in the case under review. Early in the process of developing our methods for proportionality review, we indicated that similarity of cases, no matter how many factors are compared, will not be allowed to \u201cbecome the last word on the subject of proportionality rather than serving as an initial point of inquiry.\u201d Id. at 80-81, 301 S.E.2d at 356. Instead, we stated plainly that the constitutional requirement of \u201cindividualized consideration\u201d as to proportionality could only be served if the issue of whether the death penalty was disproportionate in a particular case ultimately rested upon the \u201cexperienced judgments\u201d of the members of this Court, rather than upon mere numerical comparisons of aggravators, mitigators, and other circumstances. Further, the fact that one, two, or several juries have returned recommendations of life imprisonment in cases similar to the one under review does not automatically establish that juries have \u201cconsistently\u201d returned life sentences in factually similar cases.\nDefendant here has cited a number of cases involving multiple killings where defendant or defendants received life sentences. None of these cases involved a defendant who committed a \u201ccontract killing.\u201d It suffices to say that we have examined all of the numerous cases cited by defendant and conclude that each of them is distinguishable from the present case.\nIt is also proper for this Court to \u201ccompare this case with the cases in which we have found the death penalty to be proportionate.\u201d McCollum, 334 N.C. at 244, 433 S.E.2d at 164. Although we review all of the cases in the pool when engaging in our statutorily mandated duty of proportionality review, we reemphasize here \u201cthat we will not undertake to discuss or cite all of those cases each time we carry out that duty.\u201d Id. \u201cThe Bar may safely assume that we are aware of our own opinions filed in capital cases arising since the effective date of our capital punishment statute, 1 June 1977.\u201d Williams, 308 N.C. at 81-82, 301 S.E.2d at 356. Here, it suffices to say that we conclude that the present case is more similar to certain cases in which we have found the sentence of death proportionate than to those in which we have found the sentence disproportionate or those in which juries have consistently returned recommendations of life imprisonment.\nWe have consistently stated that \u201cthis Court has never found dis-proportionality in a case in which defendant was found guilty for the death of more than one victim.\u201d State v. Price, 326 N.C. 56, 388 S.E.2d 84, sentence vacated on other grounds, 498 U.S. 802, 112 L. Ed. 2d 7 (1990), on remand, 331 N.C. 620, 418 S.E.2d 169 (1992), sentence vacated on other grounds, \u2014U.S. \u2014, 122 L. Ed. 2d 113, on remand, 334 N.C. 615, 433 S.E.2d 746 (1993), sentence vacated on other grounds, - U.S. -, 129 L. Ed. 2d 888, on remand, 337 N.C. 756, 448 S.E.2d 827 (1994), cert. denied, - U.S. -, 131 L. Ed. 2d 224 (1995), reh\u2019g denied, \u2014 U.S. -, 131 L. Ed. 2d 879 (1995).\nAfter comparing this case carefully with all others in the pool used for proportionality review, we conclude that it falls within the class of first-degree murders in which we have previously upheld the death penalty. For the foregoing reasons, we conclude that the sentence of death entered in the present case is not disproportionate.\nHaving considered and rejected all of defendant\u2019s assignments of errors, we hold that defendant\u2019s capital sentencing proceeding was free of prejudicial error and that the resulting sentence of death was not disproportionate. Therefore, the sentence of death entered against defendant must be and is left undisturbed.\nNO ERROR.\nJustices LAKE and ORR did not participate in the consideration or decision of this case.\n. In Ms motion to amend Ms brief, defendant also asserted five additional preservation issues. We have grouped these additional preservation issues with the ones asserted in the original brief. The preservation issues are discussed below.", "type": "majority", "author": "MITCHELL, Chief Justice." }, { "text": "Justice Fkye\ndissenting.\nI disagree with the majority\u2019s holding in this case and in State v. McCarver, 341 N.C. 364, 396, 462 S.E.2d 25, 43 (1995), that a trial court correctly states the law in a capital sentencing proceeding when it instructs the jury that it must be unanimous in order to answer \u201cno\u201d to Issues One, Three and Four on the \u201cIssues and Recommendation as to Punishment\u201d form. I especially disagree with the majority\u2019s apparent holding that the instruction is somehow mandated by the North Carolina Constitution. Accordingly, for the reasons stated in my dissent in McCarver, and for the additional reasons stated here, I dissent.\nDefendant\u2019s eleventh assignment of error in this capital sentencing case is as follows:\nDid the trial court commit prejudicial error by instructing the JURY CONCERNING THEIR FAILURE TO AGREE UPON AN APPROPRIATE ANSWER TO THE FOURTH ISSUE IN SUCH A MANNER AS TO IMPROPERLY COERCE UNANIMITY?\nThe trial court instructed the jury immediately after the lunch recess on 16 March 1993 as follows:\n[I]t is not enough for the State to prove from the evidence beyond a reasonable doubt the existence of one or more aggravating circumstances. It must also prove beyond a reasonable doubt that such aggravating circumstances are sufficiently substantial to call for the death penalty, and before you may answer Issue Number Four, \u201cYes,\u201d you must agree unanimously that they are.\nIf you answer Issue Number Four, \u201cNo,\u201d you must recommend that the defendant be sentenced to life imprisonment. If you answer Issue Number Four, \u201cYes,\u201d it would be your duty to recommend that the defendant be sentenced to death.\nThe jury deliberated concerning defendant\u2019s sentence until 4:55 p.m. on the afternoon of 16 March 1993. The jury then recessed until the next day.\nOn two different occasions during the morning of 17 March 1993, the trial court ascertained that the jury had not reached a unanimous verdict and requested that the jury resume its deliberations. After many hours of deliberation, the jurors were obviously confused as to what they should do. Shortly before noon, they indicated in written communication to the court that their vote was eleven to one and .that their answer to Issue Four was \u201cNo.\u201d More specifically, the note stated, in pertinent part: \u201cIssue 4 contradicts recommendation as to punishment (eg.) Issue 4 is No yet Recommendation states we the jury \u2018unanimously\u2019 Recommend [ \u2014 ] we are not unanimous (11 to 1).\u201d\nThe trial court and defendant\u2019s counsel engaged in a lengthy discussion concerning the appropriate response to the jury\u2019s statement. At the suggestion of the State, the trial court gave the jury a supplemental instruction as follows:\nFirst question is, \u201cIssue Number Four contradicts recommendation as to punishment. Example: Issue Number Four is no, and recommendation states, we, the jury, unanimously recommend.\u201d And you go on to say, \u201cWe, are not unanimous,\u201d and that \u201cWe are eleven to one.\u201d\nAnd, members of the jury, I\u2019m going to give you these additional instructions, and will ask you to pay careful attention.\nAs to Issue Number Four, I instruct you that your answer to Issue Number Four \u2014 that your answer to Issue Number Four, whether you answer \u201cyes\u201d or \u201cno\u201d must be unanimous.\nAnd, members of the jury, I want to make it clear that as you answer Issue Number Four \u201cyes\u201d or \u201cno\u201d unanimously, then that will of consequence determine your answer to the recommendation. So please understand if you answer Issue Number Four \u201cyes,\u201d your recommendation will be the death penalty. And if you answer Issue Number Four \u201cno,\u201d your recommendation will be life imprisonment.\nI conclude that the trial court committed reversible error in responding to the question from the sentencing jury, because the court\u2019s supplemental instruction incorrectly informed the jury that it could not answer \u201cno\u201d to Issue Four on the written Issues and Recommendation As To Punishment form unless all twelve jurors concurred in the negative answer. I further conclude that this error entitles defendant to a new sentencing proceeding.\nIn this case, the jury was given a form entitled: Issues and Recommendation as to Punishment. The first part of the form is labeled: Issues. There are four issues on the form. Issue Two relates to the finding of mitigating circumstances, and contains no reference to unanimity. Issues One, Three and Four, on the other hand, begin as follows: \u201cDo you unanimously find.\u201d It seems clear to me that if the jurors vote eleven to one on issue One, Three or Four, their answer to that issue has to be \u201cno.\u201d The second part of the form is labeled: Recommendation As To Punishment. There is one recommendation on the form. It is: \u201cWe, the jury unanimously recommend that the Defendant Elton Ozell . McLaughlin, be sentenced to\nIn the instant case, the jury\u2019s note indicated that it had answered issue Four \u201cno\u201d because its vote was eleven to one. Issue Four on the Issues and Recommendation form read as follows:\nDo you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances you found is, or are, sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstance or circumstances found by one or more of you?\nANSWER:_\nThe judge should have instructed the jurors that they should continue to try to reach unanimity as to Issue Four, but if they could not unanimously answer \u201cyes\u201d to Issue Four, the foreman should write \u201cno\u201d in the space provided for the answer to that issue. Instead, the trial judge, as the majority does here, failed to distinguish between the issues the jury must answer in reaching a recommendation as to life or death and the recommendation itself. The jury can recommend death only if it unanimously answers yes to Issues One, Three and Four. If the jury does not unanimously answer yes to Issues One, Three and Four, it cannot recommend death as punishment for defendant\u2019s crime. See N.C.G.S. \u00a7 15A-2000(b), (c) (Supp. 1994). If the jury cannot unanimously agree to its sentencing recommendation, the judge will impose a sentence of life imprisonment. N.C.G.S. \u00a7 15A-2000(b) (Supp. 1994).\nIn this case, the jury was given two alternative instructions upon which to determine its sentencing recommendations: (1) the law as stated in the court\u2019s initial instructions and on the Issues and Recommendation As To Punishment form, and (2) the law as stated in the supplemental instruction. Where a jury is given two alternate theories upon which to base its decision, one of which is improper, the matter must be remanded for a new proceeding. State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987). This result is required because the appellate court is unable to determine upon which instructions the jury relied in reaching its decision and, therefore, must' assume that the jury relied on the erroneous, improper instructions. Id. This Court is \u201cnot at liberty\u201d to assume upon which instructions defendant\u2019s sentencing jury relied. State v. Belton, 318 N.C. 141, 162, 347 S.E.2d 755, 768 (1986). We \u201ccannot assume the jury adopted a theory favorable to the state; instead, [we must] construe [] the ambiguity in favor of defendant.\u201d Id.\nFurthermore, I conclude that the supplementary instruction had a probable impact on the jury\u2019s recommendation of defendant\u2019s death sentence. As noted earlier, the jury informed the judge that its vote at the time on Issue Four was eleven to one. Had the jury been properly instructed, it may have answered \u201cno\u201d to Issue Four, thus resulting in a sentence of life imprisonment. Accordingly, defendant\u2019s death sentence should be vacated and the case remanded for a new capital sentencing proceeding in accord with N.C.G.S. \u00a7 15A-2000.\nJustice WHICHARD joins in this dissenting opinion.", "type": "dissent", "author": "Justice Fkye" } ], "attorneys": [ "Michael F. Easley, Attorney General, by Valerie B. Spalding, Assistant Attorney General, for the State.", "Sam J. Ervin, IV, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ELTON OZELL McLAUGHLIN\nNo. 637A84(3)\n(Filed 8 September 1995)\n1. Jury \u00a7 226 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 rehabilitation denied\nThere was no error in a first-degree murder prosecution where defendant contended that the court did not give him an adequate opportunity to rehabilitate two prospective jurors. The first prospective juror stated that although he did not have any moral or religious objections to the death penalty, his religious views would make it hard for him to consider the issue of punishment, and nothing in the transcript tends to indicate that further questioning would have shown that he could have set aside his strong religious beliefs in order to apply the law according to the trial court\u2019s instructions. The second prospective juror clearly and unequivocally stated that she could not temporarily set aside her religious'beliefs against the death penalty and defendant\u2019s attempts to rehabilitate her as a juror had already been fruitless and time-consuming.\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.\n2. Criminal Law \u00a7 1347 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 course of conduct \u2014 evidence of other murders\nThe trial court did not err during a first-degree murder sentencing hearing by allowing the State to introduce evidence of other murders as evidence tending to show the aggravating circumstance that the murder was part of a course of conduct which included other crimes of violence against another person or persons. Defendant was sentenced to death for the murder of James Worley; the facts surrounding the subsequent murders of James Worley\u2019s wife and her daughter were sufficiently connected to his murder to be submitted to the jury for determination of whether they were, indeed, parts of the same course of conduct.\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.\nSufficiency of evidence, for death penalty purposes, to establish statutory aggravating circumstance that murder was committed in course of committing, attempting, or fleeing from other offense, and the like \u2014 post-Gregg cases. 67 ALR4th 887.\n3. Criminal Law \u00a7 1337 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 previous conviction involving violence\nThe trial court did not err during a first-degree murder resentencing hearing by allowing into evidence defendant\u2019s stipulation that he had previously been convicted of a felony involving the use of violence. Defendant had stipulated in his original trial in 1984 that he had been convicted of involuntary manslaughter, that the act involved the use of violence, and that he intentionally shot and killed the victim; defendant filed a motion on 12 June 1992 to limit testimony concerning a 1975 conviction for involuntary manslaughter; that motion contained a stipulation; defendant sought at the beginning of his capital resentencing hearing to withdraw the motion and the stipulation; the court allowed the withdrawal; and the State sought to introduce the stipulation from the original trial during the resentencing hearing. This was not a stipulation as to a matter of law. Although the stipulation used the language \u201cinvolved the use of violence,\u201d this language addressed the factual circumstances supporting the prior conviction rather than a legal standard.\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.\n4. Criminal Law \u00a7 1363 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 nonstatutory mitigating circumstances \u2014 sentence of accomplice\nThe trial court did not err in a first-degree murder resentencing hearing by not admitting evidence to establish the nonstatutory mitigating circumstance that an accomplice had received only life imprisonment. Such evidence has consistently been held inadmissible under North Carolina law. The question of admissibility of a codefendant\u2019s sentence was not an issue in Parker v. Dugger, 498 U.S. 932, and that decision has no bearing on this case.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n5. Criminal Law \u00a7 442 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 prosecutor\u2019s argument \u2014 jury\u2019s responsibility\nThere was no error in a first-degree murder resentencing hearing where the prosecutor repeatedly emphasized during his closing argument that defendant started the chain of events that resulted in the jury being called to hear the case. Although defendant contended that the argument unconstitutionally diminished the jury\u2019s sense of responsibility for its sentencing decision, it has previously been held that such an argument does not violate defendant\u2019s constitutional rights.\nAm Jur 2d, Trial \u00a7\u00a7 567-576.\n6. Criminal Law \u00a7 452 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 prosecutor\u2019s argument \u2014 definition of mitigating circumstances\nThere was no error in a first-degree murder resentencing hearing where the prosecutor told the jurors that mitigating circumstances are \u201cthings which [defendant] says make his crime less deserving of the death penalty\u201d and that \u201c[y]ou don\u2019t have to find [a mitigating circumstance] if you don\u2019t want to.\u201d\nAm Jur 2d, Trial \u00a7\u00a7 554 et seq.\n7. Criminal Law \u00a7 452 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 prosecutor\u2019s argument \u2014 weighing of aggravating and mitigating circumstances\nThere was no error in a first-degree murder resentencing hearing where defendant contended that the prosecutor misstated the manner in which the jury should evaluate the mitigating and aggravating evidence but the prosecutor, while placing a negative interpretation upon defendant\u2019s evidence, was properly addressing the process of weighing aggravating and mitigating circumstances.\nAm Jur 2d, Trial \u00a7\u00a7 554 et seq.\n8. Criminal Law \u00a7 447 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 prosecutor\u2019s argument \u2014 impact on victims\nThere was no error in a first-degree murder resentencing hearing where the prosecutor made comparisons between defendant\u2019s life and the life that his victims would never have. Although defendant argued that N.C.G.S. \u00a7 15A-2000 renders victim impact statements irrelevant in capital sentencing proceedings, there was nothing in the prosecutor\u2019s argument that would compel a trial court to intercede ex mero mo tu.\nAm Jur 2d, Trial \u00a7\u00a7 648 et seq., 664 et seq.\nPropriety and prejudicial effect of prosecutor\u2019s remarks as to victim\u2019s age, family circumstances, or the like. 50 ALR3d 8.\n9. Criminal Law \u00a7 463 (NCI4th) \u2014 first-degree murder \u2014 sentencing \u2014 prosecutor\u2019s argument \u2014 defendant as contract killer\nThere was no error requiring intervention ex mero mo tu in a first-degree murder resentencing hearing where defendant contended that the prosecutor argued without adequate evidentiary support that defendant was a contract killer, referred to defendant\u2019s legal rights, and referred to defendant as a mass murderer.\nAm Jur 2d, Trial \u00a7\u00a7 609 et seq.\n10.Criminal Law \u00a7 1363 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 nonstatutory mitigating circumstances \u2014 subsumed in statutory circumstances\nThere was no error in a first-degree murder resentencing hearing where the trial court did not submit the requested non-statutory mitigating circumstances that defendant was of low intelligence with poor judgment and limited insight, that defendant was under a pattern of substance abuse at the time of the commission of the crime, and that defendant\u2019s limited mental capacity at the time of the trial significantly reduced his culpability for the offense. The trial court properly ruled that these proposed nonstatutory mitigating circumstances were subsumed in the mitigating circumstances set out in N.C.G.S. \u00a7 15A-2000(f)(2) and (f)(6), mental and emotional disturbance, and impaired capacity.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n11. Criminal Law \u00a7 680 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 nonstatutory mitigating circumstances \u2014 peremptory instructions \u2014 defendant\u2019s employment record\nThe trial court did not err in a first-degree murder resentencing hearing by failing to peremptorily instruct the jury with respect to a nonstatutory mitigating circumstance concerning defendant\u2019s employment record and that he was a productive member of society. If the evidence is controverted or not manifestly credible, the trial court should not give peremptory instructions. Here, the State pointed to evidence tending to show that defendant was responsible for four deaths in the community and was a confessed drug and alcohol abuser. Defendant\u2019s status as a productive member of society was anything but uncontroverted.\nAm Jur 2d, Trial \u00a7\u00a7 1441-1447.\n12. Criminal Law \u00a7 680 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 nonstatutory mitigating circumstances \u2014 peremptory instructions \u2014 defendant\u2019s self-improvement and good record while incarcerated\nThe trial court did not err in a first-degree murder resentencing hearing by failing to peremptorily instruct the jury with respect to a nonstatutory mitigating circumstance concerning defendant\u2019s self-improvement while incarcerated. The State produced evidence that defendant had committed two major infractions while incarcerated and the defendant\u2019s evidence for the circumstance was therefore controverted. Defendant\u2019s evidence for the desirable nonstatutory mitigating circumstance concerning his \u201cdesirable prison record\u201d was also controverted by evidence of possession of a weapon, an attempt to remove a flammable material from the prison kitchen with intent to use it to cause bodily harm, and a fistfight with another inmate.\nAm Jur 2d, Trial \u00a7\u00a7 1441-1447.\n13. Criminal Law \u00a7 680 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 nonstatutory mitigating circumstances \u2014 peremptory instructions \u2014 assistance to other inmates\nThe trial court did not err in a first-degree murder resentencing hearing by not giving a peremptory instruction on the nonstatutory mitigating circumstance that defendant made significant efforts to be of assistance to other inmates in the prison to help them adjust to prison life where the evidence showed that he had been of assistance to only one inmate. While not controverted, the evidence was not manifestly credible.\nAm Jur 2d, Trial \u00a7\u00a7 1441-1447.\n14. Criminal Law \u00a7 680 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 nonstatutory mitigating circumstances \u2014 peremptory instructions \u2014 defendant becoming cook in prison\nThere was no prejudicial error in a first-degree murder resentencing hearing where the trial court failed to give a peremptory instruction regarding the mitigating circumstance that defendant had achieved a position as a cook in the prison kitchen. Evidence as to this mitigating circumstance was both uncontroverted and manifestly credible and failing to give the peremptory instruction was therefore error. Assuming that the error rose to the level of a federal constitutional violation, overwhelming evidence supported the jury\u2019s findings of aggravating circumstances and the failure to give the peremptory instruction, which may have caused one or more jurors to fail to find as a mitigating circumstance that defendant worked as a cook in prison, was harmless beyond a reasonable doubt.\nAm Jur 2d, Trial \u00a7\u00a7 1441-1447.\n15. Criminal Law \u00a7\u00a7 1357, 1360 (NCI4th)\u2014 first-degree murder \u2014 sentencing\u2014mitigating circumstances \u2014 impaired capacity and emotional disturbance \u2014 poor judgment, limited insight, intoxicating substances\nThere was no plain error in a first-degree murder resentencing hearing where defendant contended that the trial court erred by failing to instruct the jury that it could find the statutory mitigating circumstances of emotional disturbance and impaired capacity based on defendant\u2019s poor judgment, limited insight, and consumption of intoxicating substances. Although defendant contends that the trial court was required to state all possible conditions that tended to support a finding of either circumstance once it undertook to instruct the jury about specific conditions that would permit a finding that the two statutory mitigating circumstances existed, the jury was presented with all of the evidence and defendant outlined all of the circumstances he contended supported finding these mitigating circumstances during his closing argument. There was nothing in the instructions given to warrant reversal based on plain error.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\nComment Note. \u2014 Mental or emotional condition as diminishing responsibility for crime. 22 ALR3d 1228.\n16. Criminal Law \u00a7 1348 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 definition of mitigating circumstances\nThere was no error in a first-degree murder resentencing hearing where the jury returned after beginning deliberations, asked how mitigating circumstances were to be deemed of value, and defendant contended that the definition given unduly restricted the jury\u2019s consideration of relevant evidence by not reinstructing the jury to consider any other circumstances arising from the evidence which the jury deemed to have mitigating value. This was a reinstruction of the jury; reviewed in their entirety, the original instructions did not restrict the jury from considering all evidence which might have mitigating value.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\n17. Jury \u00a7 141 (NCI4th); Criminal Law \u00a7 1322 (NCI4th)\u2014 first-degree murder \u2014 sentencing\u2014jurors\u2019 misconceptions concerning parole\n\u25a0 The trial court did not err in a first-degree murder resentencing by excluding all references to parole eligibility during voir dire, the trial, and jury instructions.\nAm Jur 2d, Trial \u00a7\u00a7 1441-1447.\n18. Criminal Law \u00a7 1321 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 unanimity\nThe trial court did not err in a first-degree murder resentencing hearing where, upon determining that the jury was divided eleven to one, the court gave an instruction which included the statement that the answer to Issue Number Four must be unanimous. A jury must be unanimous in deciding any sentence determinative issue, and Issue Four is a sentence determinative issue. There was nothing coercive in the instructions when reviewed in context and in their entirety because the jurors merely stated that they were not unanimous and did not specifically inquire as to the consequence of inability to reach unanimity, and the trial court explicitly instructed the jurors that their inability to reach a unanimous recommendation should not be their concern, but should simply be reported to the court.\nAm Jur 2d, Trial \u00a7\u00a7 1437, 1445-1447.\n19. Evidence and Witnesses \u00a7 1406 (NCI4th); Criminal Law \u00a7 1309 (NCI4th)\u2014 first-degree murder \u2014 sentencing hearing \u2014 codefendant taking Fifth \u2014 use of prior testimony\nThe trial court did not err in a first-degree murder resentencing hearing by allowing a codefendant\u2019s testimony from a prior trial to be read into evidence where the codefendant had asserted his privilege against self-incrimination. Whether this evidence was admissible under N.C.G.S. \u00a7 8C-1, Rule 804 is not controlling; defendant was not awarded a new trial but a new capital sentencing hearing. N.C.G.S. \u00a7 15A-2000(a)(3) expressly provides that evidence presented during the guilt determination phase of a capital case is competent and admissible as a matter of law during a capital sentencing proceeding.\nAm Jur 2d, Evidence \u00a7\u00a7 890-893, 896, 901-905, 920, 921.\nWitness\u2019 refusal to testify on ground of self-incrimination as justifying reception of evidence of prior statements or admissions. 43 ALR3d 1413.\n20. Constitutional Law \u00a7 340 (NCI4th)\u2014 first-degree murder\u2014 resentencing \u2014 use of codefendant\u2019s prior testimony \u2014 no violation of right to confrontation\nThere was no violation of defendant\u2019s constitutional right.to confrontation in a first-degree murder resentencing hearing where a codefendant refused to testify and his testimony from the prior trial was admitted. Defendant was represented by counsel at his original trial and had ample opportunity to cross-examine the codefendant on the stand at that time; defendant did in fact extensively cross-examine the codefendant during the original trial; his motivation to cross-examine the codefendant then was the same as his motivation at the new capital sentencing proceeding leading to this appeal; and the codefendant simply refused to answer any questions, as in California v. Green, 399 U.S. 149.\nAm Jur 2d, Criminal Law \u00a7\u00a7 720 et seq., 956 et seq.\n21. Criminal Law \u00a7 1373 (NCI4th)\u2014 first-degree murder\u2014 death penalty \u2014 not disproportionate\nA death penalty in a first-degree murder resentencing hearing was not disproportionate where the record fully supports the aggravating circumstances found by the jury, and there is no indication that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary consideration. Defendant had previously been convicted of three counts of first-degree murder for which he received one death sentence and two life sentences; during the resentencing, the jury considered the sentencing of defendant solely for the murder for which he had received the death penalty; the jury on resentencing found that defendant had been previously convicted of a felony involving the use of violence to the person and that the murder was committed for pecuniary gain; and the jury found as mitigating circumstances that defendant aided in the apprehension of another capital felon, defendant cooperated with law enforcement officers at an early stage, defendant has made substantial efforts to improve himself by participating in both religious studies and voluntary training courses, defendant has achieved a desirable and competitive position within the prison, defendant has made a significant effort to be of assistance to other inmates, defendant had achieved a desirable prison record, and defendant has consistently supported his child financially. The North Carolina Supreme Court has never found disproportionality in a case in which defendant was found guilty for the death of more than one victim. N.C.G.S. \u00a7 15A-2000(d)(2).\nAm Jur 2d, Criminal Law \u00a7\u00a7 609 et seq., 625 et seq.\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.\nJustices Lake and Orr did not participate in the consideration or decision of this case.\nJustice Frye dissenting.\nJustice Whichard joins in this dissenting opinion.\nAppeal by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment sentencing him to death entered by Brooks, J., at the 8 February 1993 Criminal Session of Superior Court, Bladen County. Heard in the Supreme Court on 11 October 1994.\nMichael F. Easley, Attorney General, by Valerie B. Spalding, Assistant Attorney General, for the State.\nSam J. Ervin, IV, for defendant-appellant." }, "file_name": "0426-01", "first_page_order": 460, "last_page_order": 504 }