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RAYMOND DAYLE ROWSEY" ], "opinions": [ { "text": "PARKER, Justice.\nDefendant was tried capitally on an indictment charging him with the first-degree murder of Howard Rue Sikorski (\u201cvictim\u201d). The jury returned a verdict finding defendant guilty as charged on the bases of both premeditation and deliberation and felony murder. The jury also found defendant guilty of robbery with a firearm. Following a capital sentencing proceeding, the jury recommended that defendant be sentenced to death for the murder; and the trial court entered judgment accordingly. The trial court sentenced defendant to a consecutive term of forty years in prison for robbery with a dangerous weapon. For the reasons discussed herein, we conclude that the jury selection, guilt-innocence phase, and capital sentencing proceeding of defendant\u2019s trial were free from prejudicial error and that the death sentence is not disproportionate.\nThe State\u2019s evidence tended to show that on the evening of 23 March 1992, defendant and his half brother, Raymond Lee Steele, wrestled, played cards, and listened to the radio at Steele\u2019s house. The two men got bored, and they decided to walk to the Circle K convenience store on the comer of Chapel Hill Road and Mebane Street in Burlington, North Carolina, where the victim worked as a clerk.\nDefendant and Steele left Steele\u2019s house at 12:30 a.m. on 24 March and arrived at the Circle K approximately thirty to forty minutes later. At the store defendant and Steele obtained change and played several dollars worth of video games. Defendant and Steele then went to the back of the store to examine the store\u2019s rental movie display.\nDefendant asked Steele to give him some money so that he could buy a snack, and Steele gave defendant two dollars. Defendant selected one bag of M & M\u2019s and went to the checkout counter. Upon learning the price, defendant returned to the candy aisle and obtained a second bag of M & M\u2019s. Defendant then went back to the checkout counter and paid for the candy.\nAt this point defendant pulled a gun out of his coat pocket and pointed it at the victim. The gun clicked, but it did not fire. When the gun clicked defendant turned towards Steele and smiled. Defendant told Steele that he had scared the victim with a water gun.\nDefendant then turned back towards the victim, jerked the gun up, and shot the victim in the face. As the victim fell to the floor and turned his back to defendant, defendant leaned over the counter and shot the victim again. Defendant then ran around the counter and fired at least two more shots. As the victim lay facedown on the floor, defendant stood over him and kicked him three or four times in the back of the head.\nAfter seeing defendant kick the victim in the back of the head, Steele ran out one of the store\u2019s two doors, around the building, and into the parking lot. Moments later, defendant ran out the other door with something underneath his arm and the gun in his hand. Together, defendant and Steele ran and walked back to Steele\u2019s house. As they walked home, Steele asked defendant why he shot the victim. Defendant told Steele that he was just playing around, that he saw the victim reaching underneath the counter as if reaching for a gun, and that he thought the victim was going to shoot him so he shot the victim instead.\nAt Steele\u2019s house defendant counted $54.00 in cash and told Steele that he had taken the money from the Circle K cash register. Upon Steele\u2019s inquiry, defendant told Steele that he took the money in order to make it look like a robbery and in order to make it worth the while. Steele also saw four or five adult entertainment magazines, including Penthouse, Playboy, and Oui, in defendant\u2019s possession. Defendant offered Steele half the money, but Steele declined. Defendant then offered and Steele accepted a two-dollar bill which had been taken from the Circle K cash register.\nSteele asked defendant if the victim was alive, and defendant told Steele that he did not know whether the victim remained alive or not. Defendant told Steele that he kicked the victim in an effort to ensure the victim\u2019s death and that the victim was alive and gasping for breath when he left the scene.\nDefendant examined the murder weapon, a .25-caliber automatic handgun which defendant had taken from a locked trunk in the home of his girlfriend\u2019s mother, and indicated that it was dirty. Defendant told Steele that he did not want to return the gun in this condition, and Steele cleaned the gun for defendant. Defendant explained that the gun was loaded when he took the gun, so Steele provided defendant with .25-caliber bullets so that defendant could return the gun loaded.\nThe victim\u2019s body was discovered, lying behind the checkout counter, at approximately 2:00 a.m. on 24 March. There was a large quantity of blood on the floor running from the victim\u2019s head to his right foot. Dr. Karen Elizabeth Chancellor performed the autopsy on the victim\u2019s body; and her examination revealed six gunshot wounds: one to the face, one to the back of the neck, one to the right side of the head, and three to the back. Additionally, the victim suffered a number of blunt-force injuries to the head and neck area. One of the gunshot wounds pierced the victim\u2019s left lung and resulted in massive bleeding; this wound alone would have caused the victim\u2019s death.\nMildred Holder, who helped manage the Chapel Hill Road and Mebane Street Circle K, arrived at the store early that morning and identified the victim\u2019s body. Ms. Holder subsequently closed out the cash register and determined that $57.54 was missing. The Circle K\u2019s manager, Brenda Bowes, noticed that several magazines were missing from the adult entertainment magazine rack. Ms. Holder informed the police that the Circle K store had a two-dollar bill \u201cbait money\u201d policy pursuant to which the store kept a two-dollar bill in the cash register and a record of the bill\u2019s serial number. Ms. Holder told the police that the two-dollar bill was missing and provided the police with the bill\u2019s serial number.\nAt approximately 2:30 p.m. on 24 March, Steele and his girlfriend made a purchase at a Burlington store with the missing two-dollar bill. Steele was arrested shortly thereafter. Steele initially made several false statements in which he denied any involvement in the Circle K murder, but he subsequently admitted that he had been present at the Circle K when defendant shot and killed the victim. Defendant was arrested later that evening.\nSteele was permitted to plead guilty to second-degree murder and robbery with a dangerous weapon in exchange for his truthful testimony at trial. At trial Steele acknowledged that he was testifying pursuant to a plea bargain and that he was in fact guilty of the crimes to which he pled based upon a theory of acting in concert. Steele also indicated that he did not plan or participate in the robbery or the murder and that he was shocked when the shooting began.\nDuring defendant\u2019s cross-examination of Steele, defendant questioned Steele with respect to a four-page letter which Steele wrote to defendant while they were in prison and which concluded with the phrase, \u201ceven though you didn\u2019t do it.\u201d Steele acknowledged writing the letter, but denied writing \u201ceven though you didn\u2019t do it.\u201d\nTwo of defendant\u2019s witnesses claimed that they overheard Steele admit that he killed,the victim. Robert Eastwood, an inmate at the Alamance County jail, testified that he overheard a conversation between Steele and defendant and that during that conversation Steele acknowledged that he killed the victim. Another inmate, Gerald Wayne Flynn, II, testified that he overheard a jailhouse conversation between Steele and defendant in which Steele stated that he would take the blame for the victim\u2019s murder because he did not want defendant to take the blame for something defendant did not do.\nAt sentencing the State initially declined to present evidence. Defendant presented evidence that he came from a broken home, that he was neglected by his mother, that he was exposed to the promiscuous sexual activity of his mother and sister, that he was illegitimate and had little contact with his biological father, and that his mother had a drug- and alcohol- abuse problem.\nThe State\u2019s rebuttal evidence at sentencing showed that defendant was responsible for breaking into a church and stealing a number of items valued at approximately $900.00 just weeks prior to the Circle K murder. The State\u2019s evidence further showed that defendant had been convicted of fifteen counts of injury to personal property in 1990, one count of possession of a malt beverage by a minor in 1990, and two counts of misdemeanor larceny in 1991.\nJURY SELECTION\nDefendant contends that the trial court erred in granting the State\u2019s motion to excuse for cause prospective juror Gene Kizziah. We disagree.\nIn the instant case the record shows that prospective juror Kizziah was excused after extensive questioning by the State, defendant, and the trial court. In response to the State\u2019s questions, Mr. Kizziah stated that he opposed the death penalty in most cases and that his views would \u201cimpair\u201d his ability to impose a death sentence in a real case. After Mr. Kizziah indicated that his views would impair him \u201ca great deal,\u201d the State moved to excuse him for cause.\nThe trial court then permitted defendant to question Mr. Kizziah in order to clarify his answers, and Mr. Kizziah gave equivocal and conflicting responses. Mr. Kizziah stated that he did not know if he could follow the trial court\u2019s instructions in evaluating the evidence, that he did not know if he could follow the trial court\u2019s instructions in determining whether the aggravating circumstances were sufficiently substantial to call for the imposition of the death penalty, and that there was a strong possibility that his personal beliefs about the death penalty would so substantially impair his ability to follow the trial court\u2019s instructions that he would not be able to do so. Mr. Kizziah also gave responses indicating that he could fairly, honestly, and impartially consider whether the aggravating circumstances outweighed the mitigating circumstances; that there were some cases in which he would not be opposed to the death penalty; and that he could render a fair and impartial verdict based on the evidence.\nIn response to additional questions posed by the State, Mr. Kizziah continued to give equivocal and conflicting responses. He stated that he did not believe that his views would make him automatically vote against capital punishment and that he really did not know if his views would substantially impair his ability to follow the trial court\u2019s instructions with respect to the death penalty. In response to the trial court\u2019s questions, Mr. Kizziah indicated that he would try to find ways to vote for life imprisonment over death and that he would try to be honest about the way he voted. The trial court then granted the State\u2019s motion to excuse prospective juror Kizziah for cause.\nThe standard for determining when a potential juror may be excluded for cause because of his views on capital punishment is \u201cwhether those views would \u2018prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.\u2019 \u201d Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)); accord State v. Davis, 325 N.C. 607, 621-22, 386 S.E.2d 418, 425 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990). Prospective jurors with reservations about capital punishment must be able to \u201cstate clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.\u201d Lockhart v. McCree, 476 U.S. 162, 176, 90 L. Ed. 2d 137, 149 (1986); State v. Brogden, 334 N.C. 39, 43, 430 S.E.2d 905, 907-08 (1993). However, a prospective juror\u2019s bias or inability to follow the law does not have to be proven with unmistakable clarity. State v. Locklear, 331 N.C. [239,] 248, 415 S.E.2d [726,] 731-32 [1992]; State v. Davis, 325 N.C. at 624, 386 S.E.2d at 426. \u201c[T]here will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law .... [T]his is why deference must be paid to the trial judge who sees and hears the juror.\u201d Wainwright v. Witt, 469 U.S. at 426, 83 L. Ed. 2d at 852-53.\nState v. Conaway, 339 N.C. 487, 511-12, 453 S.E.2d 824, 839-40, cert. denied, - U.S. -, 133 L. Ed. 2d 153 (1995).\nIn this instance the record shows that prospective juror Kizziah gave equivocal and conflicting answers about whether he would be able to set aside his own beliefs with respect to the death penalty and follow the law. The equivocal and conflicting answers given by prospective juror Kizziah left the impression that he would be unable to fairly and impartially follow the law. Wainwright v. Witt, 469 U.S. at 426, 83 L. Ed. 2d at 852. Accordingly, the trial court did not err in granting the prosecutor\u2019s challenge of prospective juror Kizziah for cause. This assignment of error is overruled.\nGUILT-INNOCENCE PHASE\nDefendant made a pretrial motion in limine asking that the State be prohibited from offering the testimony of Raymond Lee Steele. Defendant\u2019s motion stated that there was no factual basis for Steele\u2019s guilty plea to second-degree murder and robbery with a dangerous weapon and that the prosecution was prohibited from using perjured testimony. The trial court denied defendant\u2019s motion and permitted Steele to testify.\nIn this assignment of error, defendant contends that the State knowingly permitted Steele to give false testimony with respect to Steele\u2019s plea bargain to second-degree murder and robbery with a dangerous weapon. Defendant contends that permitting Steele to testify that he did not plan or participate in the killing or the robbery was inconsistent with his guilty plea and that this amounted to presenting false testimony to the jury. We disagree.\nOn direct examination Steele testified that he had been charged with first-degree murder and robbery with a dangerous weapon with respect to the robbery-murder at issue in this case. Steele testified that he had entered a guilty plea to second-degree murder and robbery with a dangerous weapon and that he was, in fact, guilty of both those charges.\nSteele, in the plea transcript, which was introduced into evidence and read to the jury by Steele, stated:\nIt is understood that I, by pleading guilty, am not admitting that I actually killed the victim or took money from the Circle K cash register. I acknowledge that there is evidence from which the jury could find me guilty of murder and robbery on the theory of acting in concert.\nA letter from Steele and his counsel to the district attorney was attached to the plea bargain and was also introduced into evidence and read to the jury. In the letter Steele and his counsel stated that Steele would plead guilty to second-degree murder, that the district attorney had indicated that he would not accept an Alford plea, and that the plea transcript would affirmatively state that Steele denied that he shot the clerk or that he took any money from the register but that Steele understood that there was evidence from which a jury could find him guilty of murder and robbery with a dangerous weapon on the theory of acting in concert.\nSteele testified that he did not rob the Circle K, that he did not know that any money had been taken until he and defendant returned to his house, and that he did not plan or participate in the murder. Defendant contends that this testimony was completely inconsistent with guilt of second-degree murder and robbery with a dangerous weapon, even under a theory of acting in concert. Defendant argues that the State\u2019s use of Steele\u2019s clearly exculpatory testimony amounted to the use of false testimony. We disagree.\n\u201c[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.\u201d Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221 (1959); accord State v. McDowell, 310 N.C. 61, 310 S.E.2d 301 (1984). \u201cThe same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.\u201d Napue, 360 U.S. at 269, 3 L. Ed. 2d at 1221. Further, with regard to the knowing use of perjured testimony, the Supreme Court has established a \u201c \u2018standard of materiality\u2019 under which the knowing use of perjured testimony requires a conviction to be set aside \u2018if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.\u2019 \u201d State v. Sanders, 327 N.C. 319, 336, 395 S.E.2d 412, 424 (1990) (quoting United States v. Agurs, 427 U.S. 97, 103, 49 L. Ed. 2d 342, 349-50 (1976)), cert. denied, 498 U.S. 1051, 112 L. Ed. 2d 782 (1991). Thus, \u201c[w]hen a defendant shows that \u2018testimony was in fact false, material, and knowingly and intentionally used by the State to obtain his conviction,\u2019 he is entitled to a new trial.\u201d Id. at 336, 395 S.E.2d at 423 (quoting State v. Robbins, 319 N.C. 465, 514, 356 S.E.2d 279, 308 (1987), cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226 (1987)).\nState v. Williams, 341 N.C. 1, 16, 459 S.E.2d 208, 217 (1995).\nDefendant has failed to show that any of Steele\u2019s testimony was false or that the State knowingly and intentionally used false testimony to obtain defendant\u2019s conviction. Steele\u2019s testimony at trial was consistent with his plea transcript and with the letter to the district attorney. After initially denying any involvement in the crime, Steele consistently stated that defendant shot the victim and that he did not plan or participate in the murder and robbery.\nDefendant argues that Steele\u2019s testimony was inconsistent with guilt and inconsistent with the fact that Steele acknowledged that the district attorney would not accept an Alford plea. Steele, in his plea transcript, stated that he was in fact guilty. Thus, he did not enter an Alford plea.\nAny inconsistency in Steele\u2019s testimony with guilt or with his plea agreement is relevant to Steele\u2019s credibility as a witness. This Court has stated that the \u201ccredibility of witnesses is a matter for the jury rather than the court.\u201d State v. Keller, 297 N.C. 674, 679, 256 S.E.2d 710, 714 (1979); accord State v. Peterson, 337 N.C. 384, 396, 446 S.E.2d 43, 51 (1994). Defendant had ample opportunity to cross-examine Steele with respect to any inconsistencies between his pretrial statements, his guilty plea, and his testimony at trial. We conclude that the trial court properly denied defendant\u2019s motion to prohibit Steele from testifying. Defendant\u2019s assignment of error is overruled.\nIn a related assignment of error, defendant contends that the trial court erred by failing to prevent the prosecutor from arguing a legally spurious theory of Steele\u2019s guilt during the guilt-innocence phase closing arguments. Defendant did not make an objection during closing arguments, so \u201che must demonstrate that the prosecutor\u2019s closing arguments amounted to gross impropriety.\u201d State v. Rouse, 339 N.C. 59, 91, 451 S.E.2d 543, 560 (1994), cert. denied, - U.S. -, 133 L. Ed. 2d 60 (1995).\nDuring his closing argument the prosecutor stated that Steele was defendant\u2019s accomplice. The prosecutor noted that Steele saw defendant shoot the victim, that Steele did nothing to stop defendant, that Steele did not call 911 even though there was a phone booth near the Circle K, and that Steele cleaned the murder weapon and lied to help cover up the crime. Defendant contends that this argument had no support in North Carolina law.\nDefendant correctly states that the mere presence of a person at the scene of a crime at the time of its commission does not make him an accomplice. State v. Birchfield, 235 N.C. 410, 413, 70 S.E.2d 5, 7 (1952). However, when viewed in context, the prosecutor\u2019s argument was not that Steele\u2019s mere presence at the scene of the crime showed that he was guilty of the crimes to which he pled. Rather, this portion of the prosecutor\u2019s argument explained that the prosecutor entered into a plea bargain with Steele because defendant was more culpable than Steele and Steele\u2019s testimony was necessary to prove beyond a reasonable doubt that defendant shot the victim. The prosecutor\u2019s argument was supported by the record; and, after careful review, we conclude that it was not improper. This assignment of error is without merit.\nIn another related assignment of error, defendant contends that the trial court compounded the alleged error in permitting Steele to testify by giving the following instruction, without objection, on accomplice testimony:\nThere is evidence which tends to show that the witness, Raymond Lee Steele, was an accomplice in the commission of the crime or crimes charged in this case. An accomplice is a person who joins with another in the commission of a crime. The accomplice may actually take part in acts necessary to accomplish the crime or he may knowingly help or encourage another in the crime either before or during its commission. Am accomplice is considered by the law to have an interest in the outcome of the case. You should examine every part of the testimony of this witness with the greatest care and caution.\nDefendant argues that the instruction was not supported by the evidence; that the instruction validated the prosecutor\u2019s notion that Steele was guilty based either on actions after the fact or on a failure to act theory, neither of which is sufficient; and that the instruction constituted an expression of opinion by the trial judge. We disagree.\nThe evidence was in conflict as to which brother took the .25 caliber weapon to the Circle K and whether Steele provided ammunition for the weapon prior to the killing. Further, the evidence tended to show that Steele assisted in hiding the crime by cleaning and reloading the weapon and by cleaning defendant\u2019s shoes. Steele pled guilty to second-degree murder and robbery with a dangerous weapon; and Steele testified that he was, in fact, guilty of the crimes to which he pled guilty under the principle of acting in concert. \u201cAn accomplice testifying for the prosecution is generally regarded as an interested witness, and a defendant, upon timely request, is entitled to an instruction that the testimony of an accomplice should be carefully scrutinized.\u201d State v. Harris, 290 N.C. 681, 699, 228 S.E.2d 437, 447 (1976). Here the issue was not whether Steele was guilty, but whether his version of what occurred was credible. For this reason we conclude that the .trial court correctly instructed the jury to carefully scrutinize his testimony. This assignment of error is overruled.\nSENTENCING PROCEEDING\nDefendant contends that the trial court erred by submitting, over defendant\u2019s objection, the statutory mitigating circumstance that defendant had no significant history of prior criminal activity, N.C.G.S. \u00a7 15A-2000(f)(1). We disagree.\n\u201c[T]his Court has held that where evidence is presented in a capital sentencing proceeding that may support a statutory mitigating circumstance, N.C.G.S. \u00a7 15A-2000(b) directs that the circumstance must be submitted for the jury\u2019s consideration absent defendant\u2019s request or even over his objection.\u201d State v. Ingle, 336 N.C. 617, 642, 445 S.E.2d 880, 893 (1994), cert. denied, - U.S. -, 131 L. Ed. 2d 222 (1995).\nBefore submitting the (f)(1) circumstance, the trial court must initially \u201cdetermine whether a rational jury could conclude that defendant had no significant history of prior criminal activity.\u201d State v. Wilson, 322 N.C. 117, 143, 367 S.E.2d 589, 604 (1988). \u201cA significant history for purposes of this circumstance is one likely to influence the jury\u2019s sentence recommendation.\u201d State v. Frye, 341 N.C. 470, 503, 461 S.E.2d 664, 681 (1995), cert. denied, - U.S. -, 134 L. Ed. 2d 526 (1996); accord State v. Sexton, 336 N.C. 321, 375, 444 S.E.2d 879, 910, cert. denied, \u2014 U.S. \u2014, 130 L. Ed. 2d 429 (1994). \u201c[I]t is not merely the number of prior criminal activities, but the nature and age of such acts that the trial court considers in determining whether by such evidence a rational juror could conclude that this mitigating circumstance exists.\u201d State v. Artis, 325 N.C. 278, 314, 384 S.E.2d 470, 490 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990).\nA review of the record reveals that defendant was convicted of two counts of larceny seven months before the shooting, that defendant was convicted of fifteen counts of injury to property less than two years before the shooting, and that defendant was convicted of an alcoholic beverage violation less than two years before the shooting. Additionally, the evidence showed that defendant illegally possessed marijuana on the day of the shooting, that defendant illegally concealed the murder weapon on his person on a number of occasions prior to the shooting, and that defendant participated in a breaking and entering of a church. Other evidence, which the State did not present to the jury, showed that defendant had been charged with five counts of felony breaking and entering and felony larceny offenses at the time of trial.\nIn State v. Lloyd, 321 N.C. 301, 364 S.E.2d 316, sentence vacated on other grounds, 488 U.S. 807, 102 L. Ed. 2d 18 (1988), this Court held that the trial court correctly submitted the (f)(1) mitigating circumstance even though there was evidence defendant had been convicted of two felonies and seven alcohol-related misdemeanors. Id. at 313, 364 S.E.2d at 324. In State v. Buckner, 342 N.C. 198, 464 S.E.2d 414 (1995), this Court determined that the trial court did not err by submitting the (f)(1) mitigating circumstance over the defendant\u2019s objection where the defendant\u2019s criminal record consisted of seven breaking and entering convictions, a common-law robbery conviction, and a drug-trafficking conviction. Id. at 234, 464 S.E.2d at 434-35.\nIn this case defendant\u2019s convictions consisted primarily of property crimes, and defendant did not have any felony convictions. Unlike in Buckner, where the defendant had been convicted of common-law robbery, there was no evidence of any prior violent criminal activity on the part of defendant. Based on the evidence presented in this case, a rational juror could conclude that defendant did not have a significant history of prior criminal activity at the time of the murder. See also State v. Walker, 343 N.C. 216, 469 S.E.2d 919 (1996) (holding that absent extraordinary facts, the erroneous submission of a mitigating circumstance is harmless). Defendant\u2019s assignment of error is overruled.\nIn his next assignment of error, defendant contends that the trial court committed plain error by instructing the jury that it must be unanimous in its answer to Issue Four on the \u201cIssues and Recommendation as to Punishment\u201d form. Defendant contends that the trial court\u2019s instruction that the jury must be unanimous to answer Issue Four \u201cno\u201d was contrary to North Carolina law and violated his federal constitutional rights. We disagree.\nIssue Four on the Issues and Recommendation as to Punishment form given to the jury in this case reads 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?\nOn the second day of deliberations following the sentencing proceeding jury charge, the jury sent a written inquiry to the trial court with respect to Issue Four. The note read: \u201cWe are asking about issue four, does this have to be unanimous either way, yes, no.\u201d The trial court informed the jury that the jury verdict had to be unanimous for \u201cyes\u201d and that it had to be unanimous for \u201cno.\u201d Defendant\u2019s trial counsel did not object to this instruction.\nDefendant contends that the trial court\u2019s response to the jury\u2019s question constituted plain error. We disagree and hold that the trial court\u2019s response correctly stated the law.\nThis Court has recently considered and rejected defendant\u2019s argument. State v. McLaughlin, 341 N.C. 426, 455, 462 S.E.2d 1, 17 (1995), cert. denied, - U.S. -, 133 L. Ed. 2d 879 (1996); see also State v. McCarver, 341 N.C. 364, 462 S.E.2d 25 (1995), cert. denied, - U.S. -, 134 L. Ed. 2d 482 (1996). In McCarver the defendant contended that the trial court erred by refusing to instruct the jury that it did not need to be unanimous in order to answer \u201cno\u201d to Issue Three on the Issues and Recommendation as to Punishment form. 341 N.C. at 388, 462 S.E.2d at 38-39. We rejected the defendant\u2019s argument and concluded\nthat any issue which is outcome determinative as to the sentence a defendant in a capital trial will receive \u2014 whether death or life imprisonment \u2014 must be answered unanimously by the jury. That is, the jury should answer Issues One, Three, and Four on the standard form used in capital cases either unanimously \u201cyes\u201d or unanimously \u201cno.\u201d\nId. at 390, 462 S.E.2d at 39.\nIn McLaughlin this Court addressed the question of whether the trial court correctly instructed the jury that it must be unanimous before it could answer Issue Four \u201cyes\u201d or \u201cno.\u201d 341 N.C. at 455, 462 S.E.2d at 17. We stated that \u201c[a] jury must be unanimous in deciding any sentence determinative issue, and Issue Four is a sentence determinative issue.\u201d Id. This Court concluded that the trial court properly instructed the jury that it must be unanimous before it could answer Issue Four \u201cyes\u201d or \u201cno.\u201d Id.\nSimilarly, in the present case the trial court properly instructed the jury that it must be unanimous to answer Issue Four \u201cyes\u201d or \u201cno.\u201d This assignment of error is overruled.\nDefendant next contends that the trial court erred in denying defendant\u2019s pretrial motion in limine to prevent codefendant Raymond Lee Steele from testifying, that the prosecutor improperly argued a \u201cspurious theory of Steele\u2019s guilt\u201d to the jury during the guilt-innocence phase closing arguments, and that the trial court\u2019s instruction on accomplice testimony was plain error. Defendant argues that even if this Court finds these errors harmless with respect to the guilt-innocence phase, the error prejudiced defendant in the sentencing proceeding. For the reasons we stated in addressing these issues earlier in this opinion, the trial court did not err in denying defendant\u2019s motion in limine asking the court to prevent Steele from testifying; the trial court did not err by failing to intervene ex mero motu during the prosecutor\u2019s guilt-innocence phase closing arguments; and the trial court did not err by instructing the jury that there was evidence that Steele was an accomplice and that the testimony of an accomplice should be examined with care and caution.\nIn his next assignment of error, defendant contends that a juror\u2019s ambiguous response with respect to whether she assented to the verdict entitles him to a new trial. We disagree.\nAfter the jury foreman read the jury\u2019s sentencing recommendation, the trial court polled each juror individually with respect to his or her assent to the death verdict. The following occurred when the trial court addressed juror Leath:\nThe Court: Ms. Leath, Ms. Leath, your foreman has announced that the verdict of the jury is is [sic] that the defendant, Mr. Rowsey, be sentenced to death, was that your verdict and do you still agree to that as being your verdict in this case?\nMs. Leath: (No response).\nThe Court: Ms. Leath, I\u2019ll repeat the question. Ms. Leath, your foreman has announced that the verdict of the jury is is [sic] that the defendant, Mr. Rowsey, be sentenced to death, was that your verdict and do you still agree to that as being your verdict in this case?\nMs. Leath: (No response, becomes emotional).\nThe Court: Ms. Leath, do you have an answer to the question.\nMs. Leath: Yes (nods affirmatively).\nThe Court: And was your answer yes, ma\u2019am?\nMs. Leath: Yes.\nDefendant contends that juror Leath\u2019s response was ambiguous in that the second \u201cyes\u201d answer may have meant that she had an answer to the trial court\u2019s previous question rather than indicating that she agreed with the death verdict. Defendant argues that the record does not reveal what juror Leath meant by the second \u201cyes\u201d and that this uncertainty renders the jury poll fatally defective.\nN.C.G.S. \u00a7 15A-2000(b) states that \u201c[u]pon delivery of the sentence recommendation by the foreman of the jury, the jury shall be individually polled to establish whether each juror concurs and agrees to the sentence recommendation returned.\u201d N.C.G.S. \u00a7 15A-2000(b). The purpose of polling the jury is\nto give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned, and thus to enable the court and the parties to ascertain with certainty that a unanimous verdict has been in fact reached and that no juror has been coerced or induced to agree to a verdict to which he has not fully assented.\nDavis v. State, 273 N.C. 533, 541, 160 S.E.2d 697, 703 (1968). \u201cA jury verdict is not defective if it appears that the juror eventually freely assented to the verdict.\u201d State v. Asbury, 291 N.C. 164, 171, 229 S.E.2d 175, 178 (1976).\nIn this instance the trial court properly conducted the individual jury poll mandated by N.C.G.S. \u00a7 15A-2000(b). The trial court asked each juror whether the verdict read by the jury foreman was the juror\u2019s verdict and whether the juror still agreed with that verdict, and each juror responded \u201cyes\u201d to this question. While juror Leath twice failed to respond to the court\u2019s inquiry, she eventually indicated that she had an answer and that the answer was \u201cyes.\u201d The trial court properly presented juror Leath with the question of whether she concurred with the verdict, and there is no evidence that her response was coerced by any of the parties present.\nBefore dismissing the jury, the trial court asked counsel for both the State and defendant whether they had anything else with respect to the jury poll, and defendant did not indicate that juror Leath\u2019s answer was ambiguous at that time. After the jury was dismissed, defendant\u2019s counsel argued that juror Leath\u2019s body language and her crying indicated that she was not in agreement with the verdict. Juror Leath\u2019s emotional response and initial hesitation to answer is not sufficient to show that she did not assent to the verdict. See State v. Spruill, 320 N.C. 688, 697-98, 360 S.E.2d 667, 672 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 934 (1988).\nJuror Leath was the sixth juror polled by the trial court, and a reasonable juror in this situation would have understood that the trial court\u2019s final question was referring to the critical question of whether she assented to the jury verdict. We are confident that juror Leath did not understand the question otherwise. Defendant\u2019s assignment of error is overruled.\nDefendant next contends that the trial court committed plain error by instructing the jury in a manner which precluded its considering defendant\u2019s demeanor in the courtroom as mitigating evidence. Toward the end of the sentencing proceeding jury charge, the trial court instructed the jury as follows: \u201cNow, members of the jury, you\u2019ve heard the evidence, the evidence, of course, is what came forth from that witness stand there subject to oath and cross-examination.\u201d Defendant contends that this instruction violated the Eighth Amendment to the United States Constitution by precluding the capital sentencing jury from considering defendant\u2019s demeanor in the courtroom. We disagree.\nDefendant did not request a nonstatutory mitigating circumstance that defendant\u2019s demeanor in the courtroom demonstrated remorse for his killing. However, the trial court submitted the N.C.G.S. \u00a7 15A-2000(f)(9) mitigating circumstance, permitting the jury to consider \u201c[ajny other circumstance or circumstances arising from the evidence which one or more of you deems to have mitigating value.\u201d \u201c \u2018[Ejvidence is not only what [jurors] hear on the stand but [is also] what they witness in the courtroom.\u2019 \u201d State v. McNeil, 327 N.C. 388, 396, 395 S.E.2d 106, 111 (1990) (quoting State v. Brown, 320 N.C. 179, 199, 358 S.E.2d 1, 15, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987)) (alteration in original), cert. denied, 499 U.S. 942, 113 L. Ed. 2d 459 (1991). When the (f)(9) circumstance is submitted, the capital sentencing jury may find that a defendant\u2019s demeanor at trial showed regret or remorse or otherwise had mitigating value. See id. at 396, 395 S.E.2d at 111.\nDefendant contends that the trial court\u2019s instruction that the \u201cevidence ... is what came forth from that witness stand\u201d precluded the jury from considering evidence that defendant was crying while his mother was on the stand. \u201c \u2018[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.\u2019 \u201d Id. at 392, 395 S.E.2d at 109 (quoting Cupp v. Naughten, 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 373 (1973)). Viewed in context, it is apparent that the trial court\u2019s instruction did not preclude the jury from considering defendant\u2019s demeanor at trial. Rather, this portion of the instruction charged the jurors to rely upon their own recollection of the evidence if their recollection differed from that of counsel for either party. The trial court instructed as follows:\nNow, members of the jury, you\u2019ve heard the evidence, the evidence, of course, is what came forth from that witness stand there subject to oath and cross-examination. And you have heard the arguments of the advocates for the State and for the defendant. The Court has not summarized all of the evidence, but it is your duty to remember all of the evidence whether it had been called to your attention or not, and if your recollection of the evidence differs from that of the Court or the District Attorneys or the defense lawyers, or the defendant, you are to rely solely upon your own recollection of the evidence in your deliberations.\nViewed in context, the complained-of instruction did not improperly instruct the jury not to consider defendant\u2019s demeanor.\nEven if we assume arguendo that the trial court\u2019s instruction erroneously precluded the jury from considering defendant\u2019s demeanor in the courtroom, defendant did not object to the instruction. Therefore, defendant is barred by Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure from assigning the trial court\u2019s instruction as error, State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993); and we review defendant\u2019s assignment of error under the \u201cplain error\u201d rule. \u201c[T]he term \u2018plain error\u2019 does not simply mean obvious or apparent error.\u201d Id. at 62, 431 S.E.2d at 193; accord State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). \u201cIn order to rise to the level of plain error, the error in the trial court\u2019s instructions must be so fundamental that (i) absent the error, the jury would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.\u201d State v. White, 340 N.C. 264, 299, 457 S.E.2d 841, 862, cert. denied, - U.S. -, 133 L. Ed. 2d 436 (1995); accord Collins, 334 N.C. at 62, 431 S.E.2d at 193.\nUnder the facts of this case, the instruction did not rise to the level of \u201cplain error.\u201d The only indication in the record that defendant showed any remorse at trial is the prosecutor\u2019s statement, in his sentencing proceeding closing argument, that defendant shed tears while his mother was on the stand. Defendant\u2019s counsel did not submit defendant\u2019s demeanor at trial as a nonstatutory mitigating circumstance, and defendant\u2019s counsel did not argue that the jury should consider defendant\u2019s demeanor to be mitigating. In fact, in response to the prosecutor\u2019s argument that defendant had shown no remorse during the trial, defendant\u2019s counsel argued that\nthe way that [defendant] reacts to certain things is not evidence in this case, it\u2019s not something that you should read in and let the prosecution say to you that he doesn\u2019t have remorse because he has tried to sit there and not show his emotions only to the extent that he\u2019s been able to. He hasn\u2019t always been able to do that during this trial. I ask you to remember that.\nThe trial court instructed the jury to consider all of the arguments, contentions, and positions of counsel in addition to the evidence. We cannot say that, had the trial court not given the instruction that evidence is what comes forth from the witness stand, the jury probably would have reached a different verdict in the sentencing proceeding. This assignment of error is overruled.\nIn his next assignment of error, defendant contends that the trial court erred in overruling defendant\u2019s objection to lay opinion testimony elicited by the prosecutor on cross-examination. Defendant also contends that the trial court erred by failing to prevent similar lay opinion testimony ex mero mo tu.\nDuring the sentencing proceeding defense witness Rhonda Flack, defendant\u2019s sister, testified that her stepfather hit defendant when defendant was three or four years old, causing defendant to bleed from the mouth. On cross-examination the prosecutor asked Ms. Flack the following question: \u201cWell, does Junior hitting [defendant] seventeen years before [the victim] was murdered have anything to do with this?\u201d The trial court overruled defendant\u2019s objection; and Ms. Flack responded, \u201cI don\u2019t think so, no.\u201d Shortly thereafter the prosecutor questioned Ms. Flack with respect to her testimony that defendant was exposed to sexual activity in his mother\u2019s home when he was a child. The prosecutor asked Ms. Flack what this had to do with defendant murdering the victim; and Ms. Flack responded, \u201cI have no idea.\u201d Defendant did not object to this second question and answer, and defendant\u2019s assignment of error with respect to this question and answer is not properly preserved for review.\nOn the day following Ms. Flack\u2019s testimony, the trial court reminded the jury that, on the previous day, a witness had been \u201casked something along the lines of what did some thing have to do with this case.\u201d The trial court then charged the jury that the objection then made by defendant was sustained and instructed the jury that \u201cit is the jury and not a witness who is to determine\u201d the significance, importance, and value of the evidence. Defendant contends that Ms. Flack\u2019s opinion on the relevance of the evidence was neither relevant nor admissible and that the trial court\u2019s instruction came too late to undo any prejudice. The State contends that the trial court cured any error by withdrawing the evidence and instructing the jury to disregard it.\n\u201cWhen the trial court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured.\u201d State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991). \u201c \u2018In appraising the effect of incompetent evidence once admitted and afterwards withdrawn, the Court will look to the nature of the evidence and its probable influence upon the minds of the jury in reaching a verdict.\u2019 \u201d State v. Hunt, 287 N.C. 360, 374, 215 S.E.2d 40, 49 (1975) (quoting State v. Strickland, 229 N.C. 201, 207, 49 S.E.2d 469, 473 (1948)). \u201cWhether instructions can cure the prejudicial effect of such statements must depend in large measure upon the nature of the evidence and the particular circumstances of the individual case.\u201d Id. at 375, 215 S.E.2d at 49.\nIn this instance Ms. Flack was permitted to testify that she did not think certain mitigating evidence had anything to do with this case. The next day the trial court properly reversed its ruling and told the jurors that it is for the jury, and not a witness, to determine the significance of evidence. Given the nature of Ms. Flack\u2019s testimony and the fact that at least one juror found each of the nonstatutory mitigating circumstances related to defendant\u2019s childhood home life, the trial court\u2019s instruction was sufficient to cure any prejudice suffered by defendant. This assignment of error is overruled.\nIn a related assignment of error, defendant contends that the prosecutor engaged in unfair and inflammatory cross-examination of defendant\u2019s brother, Pete Flack. In response to a question, Mr. Flack stated that defendant had \u201ca big heart.\u201d The prosecutor then stated: \u201cI\u2019m sure [the victim\u2019s] mother appreciates that.\u201d Defendant objected to this comment, and the trial court promptly sustained this objection. Defendant contends that, by alluding to the pain of the victim\u2019s mother, the prosecutor was able to blunt the impact of the mitigating evidence; that the prosecutor\u2019s tactics interfered with a proper balancing of the aggravating and mitigating circumstances; and that the prosecutor\u2019s tactics were fundamentally unfair.\nWe conclude that the trial court\u2019s prompt action of sustaining defendant\u2019s objection was sufficient to cure any prejudice. See State v. Locke, 333 N.C. 118, 124, 423 S.E.2d 467, 470 (1992). This Court has held that when a trial court sustains an objection and issues curative instructions, these \u201cactions cure any prejudice due to a jury\u2019s exposure to incompetent evidence from a witness.\u201d Id. The same rule applies when the defendant contends that a question posed by the prosecutor was prejudicial. Id. In this instance the trial court promptly sustained defendant\u2019s objection to the prosecutor\u2019s comment, and defendant did not request any curative instructions. Under these circumstances defendant has failed to show any prejudice. This assignment of error is overruled.\nADDITIONAL ISSUES\nDefendant has designated fourteen additional issues in order to preserve them in the event of later review. Ten of these issues are properly designated as preservation issues: (i) the trial court violated defendant\u2019s due process rights by failing to give an instruction on parole eligibility after the issue was broached by a juror during jury selection and by refusing defendant\u2019s motion for sentencing proceeding jury instructions on the issue; (ii) the trial court\u2019s instruction that the jury could consider all evidence in both phases of the trial during the sentencing proceeding violated defendant\u2019s constitutional rights; (iii) the trial court committed reversible constitutional error by failing to prevent the prosecutor from commenting on defendant\u2019s demeanor and appearance in his closing argument; (iv) the trial court\u2019s instructions, defining the burden of proof applicable to mitigating circumstances violated defendant\u2019s constitutional rights in that the instructions used the terms \u201csatisfaction\u201d and \u201csatisfy\u201d to define the burden of proof; (v) the trial court\u2019s instructions violated defendant\u2019s constitutional rights in that the instructions permitted jurors to reject a mitigating circumstance on the basis that it had no mitigating value; (vi) the trial cornt erred by denying defendant\u2019s motion to quash the murder indictment based on the form; (vii) the trial court committed reversible constitutional error by submitting the especially heinous, atrocious, or cruel aggravating circumstance based upon instructions that failed to adequately limit the application of this circumstance; (viii) the trial court\u2019s use of the term \u201cmay\u201d in sentencing Issues Three and Four violated defendant\u2019s constitutional rights; (ix) the trial court erred by not submitting the nonstatutory mitigating circumstances that defendant was convicted on the testimony of an accomplice and that the codefendant received a more lenient sentence; and (x) the trial court violated defendant\u2019s right to a reliable capital sentencing proceeding and to due process of law by broaching the matter of appellate review during jury selection. We have considered defendant\u2019s arguments with regard to these issues and have found no compelling reasons to depart from our prior holdings which are dispositive. See State v. Ward, 338 N.C. 64, 122, 449 S.E.2d 709, 742 (1994), cert. denied, - U.S. -, 131 L. Ed. 2d 1013 (1995).\nDefendant presents four other additional issues in order to preserve them for later review: (i) the trial court committed reversible error by denying defendant\u2019s motions for change of venue or individual voir dire; (ii) the trial court violated defendant\u2019s constitutional rights by denying defendant the right to examine each juror challenged by the State during death qualification prior to his or her excusal and by excusing jurors defendant was not permitted to question; (iii) the trial court\u2019s failure to impose a life sentence following a reasonable period of deliberations by the jury coerced the death verdict in violation of defendant\u2019s constitutional rights; and (iv) the trial court\u2019s failure to prevent the prosecutor\u2019s inflammatory sentencing proceeding argument denied defendant due process, the right to be free of cruel and unusual punishment, and assistance of counsel.\nThese issues are not proper preservation issues, as they are not determined solely by principles of law upon which this Court has previously ruled, but require a review of the transcript and record to determine whether, based on the specific facts, questions, or answers, the assignment of error has merit. Where counsel determines that an issue of this nature has no merit, counsel should \u201comit it entirely from his or her argument on appeal.\u201d State v. Barton, 335 N.C. 696, 712, 441 S.E.2d 295, 303 (1994). Nevertheless, we have considered defendant\u2019s arguments on these issues, have reviewed the transcript and record as to these assignments, and have found no error. These assignments of error are without merit.\nPROPORTIONALITY\nHaving found defendant\u2019s trial and capital sentencing proceeding to be free of prejudicial error, we are required by N.C.G.S. \u00a7 15A-2000(d)(2) to review the record and determine (i) whether the record supports the jury\u2019s findings of the aggravating circumstances upon which the court based its death sentence; (ii) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (iii) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. State v. McCollum, 334 N.C. 208, 239, 433 S.E.2d 144, 161 (1993), cert. denied, - U.S. -, 129 L. Ed. 2d 895 (1994).\nThe trial court submitted and the jury found two aggravating circumstances: (i) this murder was committed while defendant was engaged in the commission of robbery with a firearm, N.C.G.S. \u00a7 15A-2000(e)(5); and (ii) this murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9). After a thorough review of the transcript, record on appeal, and briefs and oral arguments of counsel, we are convinced that the jury\u2019s,finding of each of these aggravating circumstances was supported by the evidence. We also conclude that nothing in the record suggests that defendant\u2019s death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor.\nFinally, we must consider whether the imposition of the death penalty in defendant\u2019s case is proportionate to other cases in which the death penalty has been affirmed, considering both the crime and. the defendant. State v. Robinson, 336 N.C. 78, 133, 443 S.E.2d 306, 334 (1994), cert. denied, - U.S. -, 130 L. Ed. 2d 650 (1995). The purpose of proportionality review is \u201cto eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury.\u201d State v. Holden, 321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). Proportionality review also acts \u201c[a]s a check against the capricious or random imposition of the death penalty.\u201d State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980). We compare this case to similar cases within a pool which we defined in State v. Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983), and in State v. Bacon, 337 N.C. 66, 106-07, 446 S.E.2d 542, 563-64 (1994), cert. denied - U.S. -, 130 L. Ed. 2d 1083 (1995). Our consideration on proportionality review is limited to cases roughly similar as to the crime and the defendant, but we are not bound to cite every case used for comparison. State v. Syriani, 333 N.C. 350, 400, 428 S.E.2d 118, 146, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993). Whether the death penalty is disproportionate \u201cultimately rest[s] upon the \u2018experienced judgments\u2019 of the members of this Court.\u201d State v. Green, 336 N.C. 142, 198, 443 S.E.2d 14, 47, cert. denied, - U.S. -, 130 L. Ed. 2d 547 (1994).\nDefendant was convicted of first-degree murder based on both felony murder and premeditation and deliberation. He was also convicted of robbery with a firearm. The jury found both of the submitted aggravating circumstances: (i) that this murder was committed while defendant was engaged in the commission of robbery with a firearm; and (ii) that this murder was especially heinous, atrocious, or cruel.\nThe jury found six of the nine mitigating circumstances submitted for its consideration. While four statutory circumstances were submitted to the jury, only one was found: that defendant aided in the apprehension of a capital felon, N.C.G.S. \u00a7 15A-2000(f)(8)..The jury declined to find the following statutory mitigating circumstances: (i) defendant has no significant history of prior criminal activity, N.C.G.S. \u00a7 15A-2000(f)(1); (ii) the age of defendant at the time of the murder, N.C.G.S. \u00a7 15A-2000(f)(7); and (iii) the catchall mitigating circumstance, N.C.G.S. \u00a7 15A-2000(f)(9). The nonstatutory mitigating circumstances found by the jury related to defendant\u2019s illegitimacy, his lack of a relationship with his natural father, his lack of a suitable male role model, his coming from a broken home where he was neglected by his mother, and defendant\u2019s actions in offering no resistance upon arrest and cooperating with law enforcement.\nThis Court has found the death sentence disproportionate on seven occasions. State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).\nOf these seven cases, in only two, Stokes and Bondurant, did the jury find the aggravating circumstance that the murder was \u201cespecially heinous, atrocious, or cruel.\u201d Four of the seven cases found disproportionate by this Court involved murders committed during armed robbery: State v. Benson, State v. Stokes, State v. Young, and State v. Jackson. In three of these cases \u2014 State v. Benson, State v. Stokes, and State v. Jackson \u2014 the defendant was found guilty of felony murder only.\nAfter comparing the present case with the above cases, we conclude that this case is not sufficiently similar to any of those cases in which the Court has previously found disproportionality to warrant a finding of disproportionality in this case.\nWe recognize that juries have returned life sentences for several robbery murders. However, this Court has long rejected any mechanical or empirical approach to the comparison of cases that are superficially similar. State v. Robinson, 336 N.C. at 139, 443 S.E.2d at 337. In conducting proportionality review, our attention is focused on an \u201c \u2018independent consideration of the individual defendant and the nature of the crime or crimes which he has committed.\u2019 \"'Id. (quoting State v. Pinch, 306 N.C. 1, 36, 292 S.E.2d 203, 229, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), overruled on other grounds by Rouse, 339 N.C. 59, 451 S.E.2d 543, by Robinson, 336 N.C. 78, 443 S.E.2d 306, and by Benson, 323 N.C. 318, 372 S.E.2d 517).\nWe conclude that this case is most analogous to cases in which this Court has held the death penalty not to be disproportionate.\nThe most significant distinguishing features of this case are the killing of a lone employee in the early morning hours and the especially heinous, atrocious, or cruel nature of the killing. In State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 733 (1986), overruled on other grounds by Vandiver, 321 N.C. 570, 364 S.E.2d 373, the defendant robbed a convenience store, kidnapped the clerk, drove her to an isolated location, and shot her six times. Id. at 71, 337 S.E.2d at 830. In finding the death penalty proportionate, the Court emphasized that the robbery-murder occurred in the early morning hours when the lone employee was most vulnerable. Id. This Court also found the death penalty proportionate in State v. Williams, 305 N.C. 656, 292 S.E.2d 243, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), where the defendant robbed and killed the lone employees of a gas station and a convenience store in the early morning hours. Id. at 661-62, 690, 292 S.E.2d at 248, 263.\nDefendant in the instant case robbed and murdered the sole employee of a convenience store in the early morning hours when the victim was the most vulnerable. The jury found that the killing was especially heinous, atrocious, or cruel; and this finding was amply supported by the evidence. Defendant shot the victim six times at close range; the medical examiner testified that two of the shots may have been fired while the victim was lying prone on the floor. After shooting the victim, defendant kicked the victim in the back of the head in an effort to ensure the victim\u2019s death. Further, the evidence revealed that the victim bled to death from a gunshot wound that pierced his lung, that none of the victim\u2019s injuries would have caused instantaneous death, and that the victim was alive and gasping for breath when defendant left the scene of the crime.\nIn light of the above, we find that this case rises to the level of cases in which this Court has approved the death penalty. Based on the experienced judgment of the members of this Court, we conclude that defendant\u2019s death sentence is not excessive or disproportionate.\nWe hold that defendant received a fair trial and capital sentencing proceeding free from prejudicial error. In comparing defendant\u2019s case to similar cases in which the death penalty was imposed and in consideration of both the crime and the defendant, we cannot hold as a matter of law that the death penalty was disproportionate or excessive.\nNO ERROR.\n. In North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970), the Court held that a defendant may enter a guilty plea containing a protestation of innocence when the defendant intelligently concludes that a guilty plea is in his best interest and the record contains strong evidence of actual guilt. Id. at 37-39, 27 L. Ed. 2d at 171-72.", "type": "majority", "author": "PARKER, Justice." }, { "text": "Justice Frye\nconcurring in part, dissenting in part.\nI concur in the Court\u2019s decision finding no prejudicial error in defendant\u2019s trial and conviction of first-degree murder. I dissent only as to the capital sentencing proceeding.\nI disagree with the majority\u2019s treatment of the issue relating to the submission of the statutory mitigating circumstance that defendant had no significant history of prior criminal activity, N.C.G.S. \u00a7 15A-2000(f)(1). In this case, defendant objected to the submission of this mitigating circumstance, arguing that the evidence available to the State was such that no reasonable juror could find defendant\u2019s criminal history insignificant. The trial court denied defendant\u2019s request for a voir dire on the evidence available to the State, concluding that the matter presented a jury question. Defendant argues, correctly I think, that no reasonable juror could have found it insignificant that he, a twenty-year-old youth, illegally possessed marijuana the day of the shooting, concealed the murder weapon on his person on a number of occasions in the days prior to the shooting, stole money from his girlfriend\u2019s mother days before the shooting, broke into a church and stole at least $900 worth of items weeks before the shooting, was convicted of two counts of larceny seven months prior to the shooting, and was convicted of fifteen counts of injury to property and an alcoholic beverage violation less than two years prior to the shooting.\nFurthermore, I disagree with the majority\u2019s reliance on State v. Walker, where the majority of this Court held that absent extraordinary facts, the erroneous submission of a mitigating circumstance is harmless. State v. Rowsey, 343 N.C. 603, 620, 472 S.E.2d 903, 912 (1996). See State v. Walker, 343 N.C. 216, 228, 469 S.E.2d 919, 926 (1996) (Frye, J. concurring). Here, it appears that the decision of the trial court to submit the (f)(1) mitigating circumstance led to the State\u2019s introduction of \u201crebuttal\u201d evidence at the capital sentencing proceeding that would not otherwise have been presented to the jury. The State was then free to argue to the jury that defendant did have a significant history of criminal activity despite the alleged contention to the contrary, thus belittling defendant\u2019s argument as to any mitigating circumstances. Since I am not convinced that without the rebuttal evidence the jury would nevertheless have recommended a sentence of death, I find the submission of the (f)(1) mitigating circumstance prejudicial error entitling defendant to a new capital sentencing proceeding.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Justice Frye" } ], "attorneys": [ "Michael F. Easley, Attorney General, by David Roy Blackwell, Special Deputy Attorney General, for the State.", "Malcolm Ray Blunter, Jr., Appellate Defender, by Staples Hughes, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RAYMOND DAYLE ROWSEY\nNo. 490A93\n(Filed 31 July 1996)\n1. Jury \u00a7 227 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 death qualification \u2014 equivocal answers\nThere was no error in a capital murder prosecution in granting the State\u2019s motion to excuse for cause a prospective juror where the record shows that the prospective juror gave equivocal and conflicting answers about whether he would be able to set aside his own beliefs with respect to the death penalty and left the impression that he would be unable to fairly and impartially follow the law.\nAm Jur 2d, Jury \u00a7\u00a7 191, 192, 228.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post-Witherspoon cases. 39 ALR3d 550.\n2. Evidence and Witnesses \u00a7 3218 (NCI4th)\u2014 capital murder \u2014 testimony by accomplice \u2014 inconsistent with plea bargain \u2014 issue of credibility\nThe trial court in a capital murder prosecution properly denied defendant\u2019s motion to prohibit an accomplice from testifying that he did not plan or participate in the killing or the robbery. Although defendant contended that this was inconsistent with the accomplice\u2019s guilty plea and that this amounted to presenting false testimony to the jury, defendant failed to show that any of the accomplice\u2019s testimony was false or that the State knowingly and intentionally used false testimony to obtain defendant\u2019s conviction. Any inconsistency in the testimony with guilt or with the plea agreement is relevant to credibility and defendant had ample opportunity to cross-examine the accomplice.\nAm Jur 2d, Evidence \u00a7 1485; Homicide \u00a7\u00a7 345, 429; Trial \u00a7\u00a7 504, 821, 822, 1362, 1363, 1401.\nNecessity of, and prejudicial effect of omitting, cautionary instruction to jury as to accomplice\u2019s testimony against defendant in federal criminal trial. 17 ALR Fed. 249.\n3. Criminal Law \u00a7 468 (NCI4th)\u2014 capital murder \u2014 prosecutor\u2019s argument \u2014 State\u2019s witness as accomplice\nThere was no plain error in a capital murder prosecution where the prosecutor stated in his closing argument that a State\u2019s witness, Steele, was defendant\u2019s accomplice. When viewed in context, the prosecutor\u2019s argument was not that Steele\u2019s mere presence at the scene of the crime showed that he was guilty of the crimes, but explained that the prosecutor entered into a plea bargain with Steele because defendant was more culpable and Steele\u2019s testimony was necessary to prove beyond a reasonable doubt that defendant shot the victim.\nAm Jur 2d, Evidence \u00a7 1485; Trial \u00a7\u00a7 504, 821, 822, 1362, 1363, 1401.\nNecessity of, and prejudicial effect of omitting, cautionary instruction to jury as to accomplice\u2019s testimony against defendant in federal criminal trial. 17 ALR Fed. 249.\n4. Criminal Law \u00a7 830 (NCI4th)\u2014 capital murder \u2014 instructions \u2014 accomplice testimony\nThere was no plain error in a capital murder prosecution where defendant argued that the court\u2019s instruction on accomplice testimony was not supported by the evidence, validated the prosecutor\u2019s notion that the accomplice, Steele, was guilty based either on actions after the fact or on a failure to act theory, and constituted an expression of opinion by the trial judge. The issue was not whether Steele was guilty, but whether his version of what occurred was credible and the trial court correctly instructed the jury to carefully scrutinize his testimony.\nAm Jur 2d, Trial \u00a7\u00a7 1225.\nNecessity of, and prejudicial effect of omitting, cautionary instruction to jury as to accomplice\u2019s testimony against defendant in federal criminal trial. 17 ALR Fed. 249.\n5. Criminal Law \u00a7 1355 (NCI4th)\u2014 capital sentencing \u2014 mitigating circumstances \u2014 no significant history of prior criminal activity \u2014 submitted over defendant\u2019s objection\nThe trial court did not err in a capital murder prosecution by submitting over defendant\u2019s objection the statutory mitigating circumstance that defendant had no significant history of prior criminal activity where defendant was convicted of two counts of larceny seven months before the shooting, fifteen counts of injury to property less than two years before the shooting, an alcoholic beverage violation less than two years before the shooting, illegally possessed marijuana on the day of the shooting, illegally concealed the murder weapon on his person on a number of occasions prior to the shooting, and participated in a breaking and entering of a church. Defendant\u2019s convictions consisted primarily of property crimes, he did not have any felony convictions, and there was no evidence of any prior violent criminal activity. A rational juror could conclude that defendant did not have a significant history of prior criminal activity at the time of the murder. N.C.G.S. \u00a7 15A-2000(f)(l).\nAm Jur 2d, Trial \u00a7\u00a7 841, 1760.\n6. Criminal Law \u00a7 1321 (NCI4th)\u2014 capital sentencing \u2014 Issue Four \u2014 unanimity\nThere was no plain error in a capital sentencing proceeding in instructing the jury that it must be unanimous in its answer to Issue Four on the Issues and Recommendation as to Punishment form. The jury sent a written inquiry to the trial court asking whether Issue Four had to be unanimous either way and the trial court informed the jury that the verdict had to be unanimous for yes and unanimous for no. This Court has recently considered and rejected defendant\u2019s argument in State v. McLaughlin, 341 N.C. 426.\nAm Jur 2d, Trial \u00a7\u00a7 1077 et seq.\nRequirement of jury unanimity as to mode of committing crime under statute setting forth the various modes by which offense may be committed. 75 ALR4th 91.\nSupreme Court\u2019s views on constitutionality of death penalty and procedures under which it is imposed. 51 L. Ed. 2d 886.\n7. Criminal Law \u00a7 1300 (NCI4th)\u2014 capital sentencing\u2014 alleged errors in guilt-innocence phase \u2014 not prejudicial in sentencing phase\nThere was no prejudice in a capital sentencing proceeding where the court had denied defendant\u2019s pretrial motion in limine asking the court to prevent an accomplice, Steele, from testifying; had failed to intervene ex mero mo tu during the prosecutor\u2019s guilt-innocence phase closing arguments; and had instructed the jury that there was evidence that Steele was an accomplice and that the testimony of an accomplice should be examined with care and caution.\nAm Jur 2d, Evidence \u00a7 1485; Homicide \u00a7\u00a7 345, 429; Trial \u00a7\u00a7 504, 821, 822, 1362, 1363, 1401.\nNecessity of, and prejudicial effect of omitting, cautionary instruction to jury as to accomplice\u2019s testimony against defendant in federal criminal trial. 17 ALR Fed. 249.\n8. Criminal Law \u00a7 912 (NCI4th)\u2014 capital murder \u2014 jury poll\u2014 emotional juror\nA defendant in a capital murder trial was not entitled to a new trial where the trial court polled each juror after the sentencing recommendation was read, one juror first did not respond, then became emotional, then responded \u201cYes\u201d to questions as to whether she had an answer and whether that answer was yes. Although defendant contends that the juror\u2019s response was ambiguous in that the second yes may have meant that she had an answer to the court\u2019s previous question, the trial court properly conducted the individual jury poll mandated by N.C.G.S. \u00a7 15A-2000(b), properly presented this juror with the question of whether she concurred with the verdict, there is no evidence that her response was coerced by any of the parties present, and the parties at the time did not indicate that the juror\u2019s answer was ambiguous despite being asked by the court whether they had anything else regarding the juror poll. The juror\u2019s emotional response and initial hesitation to answer is not sufficient to show that she did not assent to the verdict. This was the sixth juror to be polled; a reasonable juror in this situation would have understood that the trial court\u2019s final question was referring to the critical question of whether she assented to the verdict.\nAm Jur 2d, Trial \u00a7\u00a7 1766, 1770.\nJuror\u2019s reluctant, equivocal, or conditional assent to verdict, on polling, as ground for mistrial or new trial in criminal case. 25 ALRSd 1149.\n9. Criminal Law \u00a7 1363 (NCI4th)\u2014 capital sentencing \u2014 definition of evidence \u2014 defendant\u2019s demeanor\nThere was no plain error in a capital sentencing hearing in the instruction that evidence \u201cis what came from that witness stand there subject to oath and cross-examination.\u201d Although defendant contends that this instruction precluded the jury from considering defendant\u2019s demeanor in the courtroom, defendant did not request a nonstatutory mitigating circumstance that his demeanor in the courtroom demonstrated remorse; the trial court submitted the catchall mitigating circumstance, which allows the jury to find that a defendant\u2019s demeanor at trial showed regret or remorse or otherwise had mitigating value; viewed in context, the complained-of instruction did not improperly instruct the jury not to consider defendant\u2019s demeanor; the only indication in the record that defendant showed any remorse at trial is the prosecutor\u2019s statement in his sentencing proceeding closing argument that defendant shed tears while his mother was on the stand; and defendant\u2019s counsel did not argue that the jury should consider defendant\u2019s demeanor to be mitigating.\nAm Jur 2d, Trial \u00a7\u00a7 1081, 1124, 1125.\n10. Evidence and Witnesses \u00a7 748 (NCI4th)\u2014 capital sentencing \u2014 evidence withdrawn after admission over objection\u2014 no prejudice\nThere was no prejudicial error in a capital sentencing proceeding where the trial court overruled defendant\u2019s objection to lay opinion testimony elicited by the prosecutor on cross-examination on whether evidence concerning defendant\u2019s childhood had anything to do with the murder, but reversed that the ruling the next day and instructed the jury to disregard the evidence. Given the nature of the testimony and the fact that at least one juror found each of the nonstatutory mitigating circumstances related to defendant\u2019s childhood home life, the trial court\u2019s instruction was sufficient to cure any prejudice suffered by defendant.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 53, 54, 166, 167, 170.\nComment Note. \u2014 Ability to see, hear, smell, or otherwise sense, as proper subject of opinion by lay witness. 10 ALR3d 258.\nConstruction and application of Rule 701 of Federal Rules of Evidence providing for opinion testimony by lay witnesses under certain circumstances. 44 ALR Fed. 919.\n11. Evidence and Witnesses \u00a7 2783 (NCX4th)\u2014 capital sentencing \u2014 prosecutor\u2019s comment \u2014 curative instruction \u2014 no prejudice\nThere was no prejudicial error in a capital sentencing proceeding where defendant\u2019s brother testified that defendant had \u201ca big heart,\u201d the prosecutor said that he was sure the victim\u2019s mother appreciated that, and the trial court sustained defendant\u2019s objection. Sustaining an objection and issuing curative instructions cures any prejudice due to the jury\u2019s exposure to incompetent evidence, and the same rule applies when defendant contends that ,a question by a prosecutor was prejudicial. Here the court promptly sustained defendant\u2019s objection and defendant did not request any curative instructions.\nAm Jur 2d, Trial \u00a7\u00a7 428, 466, 470.\n12. Criminal Law \u00a7 1373 ,(NCI4th)\u2014 death sentence \u2014 not disproportionate\nA sentence of death in a first-degree murder prosecution was not disproportionate where the jury\u2019s finding of each of the aggravating circumstances was supported by the evidence; nothing in the record suggests that defendant\u2019s death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; this case is not sufficiently similar to any of those cases in which the North Carolina Supreme Court has previously found disproportionality to warrant a finding of disproportionality in this case; and this case is most analogous to cases in which the Court has held the death penalty not to be disproportionate. The most significant distinguishing features of this case are the killing of a lone employee in the early morning hours and the especially heinous, atrocious, or cruel nature of the killing. This case rises to the level of cases in which the Court has approved the death penalty.\nAm Jur 2d, Criminal Law \u00a7 628; Trial \u00a7\u00a7 841, 1760.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was committed for pecuniary gain, as consideration or in expectation of receiving something of monetary value, and the like \u2014 post-Gregg cases. 66 ALR4th 417.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like \u2014 post-Gregg cases. 63 ALR4th 478.\nSupreme Court\u2019s views on constitutionality of death penalty and procedures under which it is imposed. 51 L. Ed. 2d 886.\nJustice Frye concurring in part, dissenting in part.\nAppeal of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Brannon, J., on 1 October 1993 in Superior Court, Alamance County, upon a jury verdict of guilty of first-degree murder. Defendant\u2019s motion to bypass the Court of Appeals as to an additional judgment imposed for robbery with a dangerous weapon was allowed on 27 March 1995. Heard in the Supreme Court 13 October 1995.\nMichael F. Easley, Attorney General, by David Roy Blackwell, Special Deputy Attorney General, for the State.\nMalcolm Ray Blunter, Jr., Appellate Defender, by Staples Hughes, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0603-01", "first_page_order": 651, "last_page_order": 682 }