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Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "471 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6202354 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/0307-01" ] }, { "cite": "430 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "208" } ], "opinion_index": 0 }, { "cite": "333 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545734 ], "pin_cites": [ { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0579-01" ] }, { "cite": "133 L. Ed. 2d 63", "category": "reporters:federal", "reporter": "L. 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KENNETH NEAL" ], "opinions": [ { "text": "LAKE, Justice.\nThe defendant was indicted on 1 May 1995 for the first-degree murder of Amanda Lynn McCurdy. The defendant was tried capitally, and the jury found defendant guilty of the first-degree murder on the basis of malice, premeditation and deliberation. Following a capital sentencing proceeding pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended that the defendant be sentenced to death. For the reasons set forth herein, we conclude that the defendant received a fair trial and capital sentencing proceeding, free of prejudicial error.\nAt trial, the State presented evidence tending to show that prior to April 1995, Amanda McCurdy and the defendant had a relationship for seven or eight years, living together for part of that time. McCurdy had two daughters, one of them by the defendant. The defendant had one previous criminal conviction for possession of stolen property, as well as a history of using drugs, particularly crack cocaine.\nIn the weeks before 13 April 1995, Amanda McCurdy revealed to co-workers, friends and family that the defendant was threatening to kill her. Gardenia Mitchell, a co-worker, testified that McCurdy disclosed to her that McCurdy was attempting to end her relationship with defendant and had put him out of the house. Members of McCurdy\u2019s family, including her father, her sister and her brother, testified that McCurdy told each of them that the defendant was threatening to kill her. McCurdy\u2019s twelve-year-old daughter testified that defendant threatened to kill her mother the week before the murder.\nAround midday on 13 April 1995, McCurdy dropped her two children off at her father\u2019s house so she could rest before going to work. According to the statement given by the defendant to the police, when McCurdy returned home, defendant was waiting outside. The two argued about when the defendant would remove his clothes from the home. Defendant left and walked around the neighborhood for twenty to thirty minutes before returning to the house. The defendant then forced his way into McCurdy\u2019s home and continued to argue with her. According to defendant, McCurdy came at him with a hammer, hitting his finger. Defendant took the hammer from McCurdy, and she ran to the bathroom. Before McCurdy could completely shut the door, defendant forced his way into the bathroom, and the two began to \u201cfist fight.\u201d McCurdy ran to the living room. According to defendant\u2019s statement, McCurdy asked him to \u201cplease stop,\u201d saying that she would take defendant back. Defendant told her that it was \u201ctoo late.\u201d Defendant hit McCurdy in the head with the hammer multiple times and continued to strike her after she fell to the floor. When the hammer head broke off, defendant jammed the hammer handle down McCurdy\u2019s throat.\nDefendant then changed his bloody clothes and took the bloody items out of the house in a paper bag. When defendant left the house, McCurdy was still breathing. After leaving McCurdy\u2019s house, defendant went to the house of his friend Ronald Mitchell and asked for a plastic bag. Defendant appeared nervous. Defendant then placed the paper bag containing the bloody items into the plastic bag and left the plastic bag in a trash pile located at the road. That afternoon, defendant accepted a ride from Willie Ed Albrighton because defendant \u201cwanted to get off the street.\u201d They went to Greensboro, where defendant bought cocaine. From there, defendant went to a motel where he registered under the name \u201cJohn Smith\u201d and smoked cocaine with three other people.\nThe next morning, Raymond Logan and Charles McCurdy, the victim\u2019s father, summoned police to McCurdy\u2019s home after becoming concerned about her well-being. The police discovered McCurdy\u2019s body in the living room. A large amount of blood was pooled around her head and spattered around the room. There was a partial shoe impression in blood by McCurdy\u2019s feet, which was later matched to a pair of defendant\u2019s tennis shoes. The blood-spatter patterns in the living room indicated that some of the blows to McCurdy\u2019s head were delivered near the floor. The head of a hammer lay next to her head, and the hammer handle protruded from her mouth.\nDr. Robert L. Thompson, a pathologist, performed an autopsy on the victim\u2019s body. Based on his examination, Dr. Thompson concluded that the cause of death was blunt-force injuries to the victim\u2019s head. The injuries sustained were consistent with those that would result from being struck by a hammer. The victim was struck at least fifteen times. Additionally, Dr. Thompson discovered hemorrhages around the victim\u2019s neck area, as well as pinpoint hemorrhages in the victim\u2019s eyes. Dr. Thompson determined that these injuries resulted from strangulation which occurred prior to death.\nOn 14 April 1995, defendant was arrested and charged with the first-degree murder of Amanda Lynn McCurdy. After police read defendant his Miranda rights, he signed a waiver of those rights. The defendant initially denied any involvement in the death of Amanda McCurdy. However, the defendant later gave oral and written statements describing how he forced his way into the victim\u2019s house, argued with the victim and then hit her repeatedly in the head with a hammer. He related how, after the hammer head broke off, he shoved the hammer handle down her throat and then left the house while she was still alive. The defendant also stated that he last used cocaine on Wednesday, 12 April 1995, the day before the murder. After the defendant confessed to killing McCurdy, he led officers to the location of his bag of clothes. Blood on the clothes matched Amanda McCurdy\u2019s blood.\nA probation officer testified for the defense and stated that defendant tested positive for cocaine use ten times from September 1992 through May 1994. Although the probation officer tried to get defendant to enter treatment programs, defendant refused. A family member and a friend both testified that defendant had a drug problem.\nJeannette Thomason, a psychologist, performed a psychological evaluation of the defendant. Thomason, testifying on behalf of the defendant, stated that he had a long history of drug abuse and was suffering from withdrawal symptoms: depression, confusion and poor judgment. According to Thomason, although the defendant had a limited capacity to deal with stressful situations, he was able to control his impulsiveness.\nDr. David Freeman, a neuroscientist and a physiologist, also testifying on behalf of the defendant, stated that long-term drug usage affects the way the brain operates, and that a withdrawal from the use of cocaine causes depression. However, Dr. Freeman admitted that he had neither talked with nor examined the defendant and that his testimony did not refer specifically to the defendant.\nThe defendant brings forward thirteen assignments of error for our review, all relating to either the jury selection or the sentencing proceeding.\nJURY SELECTION\nIn his first assignment of error, the defendant contends that his right to be present during all stages of his trial, pursuant to Article I, Section 23 of the North Carolina Constitution, was violated when the trial court excused jurors during bench conferences. During jury selection, the trial court conducted bench conferences on two separate days where it excused or deferred a total of twelve prospective jurors for mental, physical or hardship reasons. These bench conferences were held in the presence of counsel for defendant and for the State. The substance of each conference was entered into the record, showing the basis for each prospective juror\u2019s excusal, with the exception of only one instance. During the conference with the first prospective juror, the court reporter simply noted that the prospective juror handed the trial court a paper which was then handed to the attorneys. The defendant was present in the courtroom throughout these proceedings.\nArticle I, Section 23 of the North Carolina Constitution requires that defendants must be present at every stage of a capital trial proceeding. State v. Buchanan, 330 N.C. 202, 217, 410 S.E.2d 832, 841 (1991); State v. Huff, 325 N.C. 1, 29, 381 S.E.2d 635, 651 (1989), sentence vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990); State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987). This requirement arises out of the Confrontation Clause of the North Carolina Constitution, which provides in pertinent part: \u201cIn all criminal prosecutions, every person charged with crime has the right. . . to confront the accusers and witnesses with other testimony . . . .\u201d N.C. Const, art. I, \u00a7 23.\nThe constitutional requirement of the defendant\u2019s presence at a capital trial protects the defendant\u2019s interests, as well as the public interest in preserving human life. This requirement also \u201cprotects the integrity of the system by preserving the appearance of fairness and by optimizing the conditions for finding the truth.\u201d Huff, 325 N.C. at 30, 381 S.E.2d at 651. Hence, a defendant in a capital trial may not waive this right. Id.; Payne, 320 N.C. at 139, 357 S.E.2d at 612; State v. Moore, 275 N.C. 198, 208, 166 S.E.2d 652, 659 (1969). Moreover, the trial court bears a duty to insure that the defendant is present throughout his trial. Huff, 325 N.C. at 31, 381 S.E.2d at 651; Payne, 320 N.C. at 139, 357 S.E.2d at 612.\nNevertheless, \u201c[t]he burden is on the defendant to show the usefulness of his presence in order to prove a violation of his right to presence.\u201d State v. Buchanan, 330 N.C. at 224, 410 S.E.2d at 845. Once the defendant meets this burden, the burden shifts to the State to establish that the error is harmless beyond a reasonable doubt. Id.; Huff, 325 N.C. at 35, 381 S.E.2d at 654.\nIn State v. Buchanan, several bench conferences preceded the excusal of prospective jurors for cause with the express consent of counsel for the defendant and counsel for the State. The facts in Buchanan substantially overlap with the facts in the case sub judice; however, unlike Buchanan, here all of the bench conferences except one were recorded. In both cases,\ndefendant was personally present in the courtroom during the conferences. Further, and perhaps more importantly, his actual presence was not negated by the trial court\u2019s actions. At each of the conferences defendant was represented by his attorneys. Defendant was able to observe the context of each conference and inquire of his attorneys at any time regarding its substance. Through his attorneys defendant had constructive knowledge of all that transpired. Following the conferences defense counsel had the opportunity and the responsibility to raise for the record any matters to which defendant took exception. At all times defendant had a first-hand source of information as to the matters discussed during a conference.\nBuchanan, 330 N.C. at 223, 410 S.E.2d at 844-45.\nIn Buchanan, we held that \u201ca defendant\u2019s state constitutional right to be present at all stages of his capital trial is not violated when, with defendant present in the courtroom, the trial court conducts bench conferences, even though unrecorded, with counsel for both parties.\u201d Id. at 223, 410 S.E.2d at 845.\nIn the instant case, as in Buchanan, it does not appear that \u201cdefendant\u2019s presence would have had \u2018a relation, reasonably substantial, to the fulness of his opportunity to defend,\u2019 such that his absence thwarted the fairness and justness of his trial.\u201d Buchanan, 330 N.C. at 215, 410 S.E.2d at 839 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 78 L. Ed. 674, 678 (1934)). Accordingly, we hold that defendant\u2019s constitutional right to be present at all stages of his capital trial was not violated in this case. This assignment of error is overruled.\nIn his next assignment of error, defendant argues that the trial court erred by denying his request to conduct voir dire of prospective jurors as to their understanding of the meaning of a sentence of life without parole, so as to allow proper exercise of cause and peremptory challenges and determine whether venire members had misconceptions about parole eligibility that might bias them in favor of capital punishment. This Court has consistently decided this issue against defendant\u2019s position. See, e.g., State v. Chandler, 342 N.C. 742, 749, 467 S.E.2d 636, 648, cert. denied, - U.S. -, 136 L. Ed. 2d 133 (1996); State v. Skipper, 337 N.C. 1, 24, 446 S.E.2d 252, 264 (1994), cert. denied, 513 U.S. 1134, 130 L. Ed. 2d 895 (1995); State v. Green, 336 N.C. 142, 157, 443 S.E.2d 14, 23, cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547 (1994); State v. Lee, 335 N.C. 244, 268, 439 S.E.2d 547, 558, cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994); State v. Syriani, 333 N.C. 350, 399, 428 S.E.2d 118, 145, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993).\nFurthermore, the United States Supreme Court has never held that a defendant has a constitutional right to pose this question to prospective jurors. To support his argument, defendant cites Simmons v. South Carolina, 512 U.S. 154, 129 L. Ed. 2d 133 (1994). As we have stated previously, the Simmons Court \u201cdid not hold that a defendant has a constitutional right to question the venire about parole.\u201d State v. Spruill, 338 N.C. 612, 638, 452 S.E.2d 279, 292 (1994), cert. denied, - U.S. -, 133 L. Ed. 2d 63 (1995). Simmons simply held that where the State argues for the death penalty on the premise that the defendant will be dangerous in the future, the trial court must inform the jury that the sentence of life imprisonment carries with it no possibility of parole. The issue of defendant\u2019s danger to society in the future was not the basis of the State\u2019s argument for the death penalty in this case.\nFinally, the trial court in the case sub judice complied precisely with the provisions of N.C.G.S. \u00a7 15A-2002, which provides in part: \u201cThe judge shall instruct the jury, in words substantially equivalent to those of this section, that a sentence of life imprisonment means a sentence of life without parole.\u201d N.C.G.S. \u00a7 15A-2002 (Supp. 1996). There is nothing in the record demonstrating that the jurors did not believe the trial court or did not follow its instructions. \u201cWe presume \u2018that jurors . . . attend closely the particular language of the trial court\u2019s instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.\u2019 \u201d State v. Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208 (quoting Francis v. Franklin, 471 U.S. 307, 324 n.9, 85 L. Ed. 2d 344, 360 n.9 (1985)), cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993). Furthermore, the defendant\u2019s trial attorneys repeatedly told the jury that a sentence of life without parole would confine the defendant to a prison cell for the remainder of his life. Therefore, we hold that the trial court did not err in denying defendant\u2019s motion to explore the issue of parole during voir dire. This assignment of error is overruled.\nIn his next assignment of error, the defendant contends that the trial court erred by preventing his defense counsel from asking prospective jurors whether they would automatically reject the testimony of mental health professionals. The defendant contends that this question did not attempt to impermissibly stake out the jurors but rather sought to uncover jurors who would refuse to listen to a psychologist\u2019s testimony. We find this argument to be without merit.\n\u201cThe trial court is given broad discretion to control the extent and manner of questioning prospective jurors, and its decisions will not be overturned absent an abuse of discretion.\u201d State v. Mash, 328 N.C. 61, 63, 399 S.E.2d 307, 309 (1991). In Mash, this Court found no abuse of discretion when the defendant was prevented from \u201cinquiring into the potential jurors\u2019 attitudes about. . . the expert testimony of psychiatrists and psychologists.\u201d Id. Similarly, we find that the trial court did not abuse its discretion in the case sub judice.\nEven assuming, arguendo, that the defendant has demonstrated an abuse of discretion, the defendant has not shown that he was prejudiced thereby. The defendant argues that he was unable to question eight of the twelve jurors regarding their views towards psychological testimony. However, the record shows the defendant expressed that he was \u201csatisfied\u201d with these jurors at a point when he had used only two peremptory challenges. Because the defendant had not exhausted his peremptory challenges, he cannot demonstrate prejudice. See Mash, 328 N.C. at 64, 399 S.E.2d at 310. This assignment of error is overruled.\nThe defendant asserts in his next assignment of error that the trial court improperly excused a prospective juror for medical reasons without allowing the defendant to question the juror. The prospective juror was desirable to the defendant because the juror had experienced drug dependency and was reluctant to impose the death penalty. Nonetheless, we hold this assignment of error lacks merit.\n\u201cA defendant is not entitled to any particular juror. His right to challenge is not a right to select but to reject a juror.\u201d State v. Harris, 338 N.C. 211, 227, 449 S.E.2d 462, 470 (1994). According to N.C.G.S. \u00a7 15A-1212(2), a party may challenge for cause a prospective juror who is incapable of performing jury service by reason of mental or physical infirmity. Additionally, N.C.G.S. \u00a7 9-6(a) provides that citizens qualified for jury service may be excused for reasons \u201cof compelling personal hardship.\u201d N.C.G.S. \u00a7 9-6(a) (1986).\nDecisions concerning the excusal of prospective jurors are matters of discretion left to the trial court.\n\u201c[I]t is the duty of the trial judge to see that a competent, fair and impartial jury is empaneled, and to that end the judge may, in his discretion, excuse a prospective juror even without challenge from either party. Decisions as to a juror\u2019s competency at the time of selection and his continued competency to serve are matters resting in the trial judge\u2019s sound discretion and are not subject to review unless accompanied by some imputed error of law.\u201d\nState v. McKenna, 289 N.C. 668, 680, 224 S.E.2d 537, 546 (quoting State v. Waddell, 289 N.C. 19, 29, 220 S.E.2d 293, 300 (1975), death sentence vacated, 428 U.S. 904, 49 L. Ed. 2d 1210 (1976)), death sentence vacated, 429 U.S. 912, 50 L. Ed. 2d 278 (1976).\nIn the instant case, the prospective juror had a medical history including coronary bypass surgery and an addiction to Valium. He stated that thinking about the case was \u201cbringing the problem back,\u201d and that the stress of being a prospective juror awakened him in the middle of the night. The trial court properly exercised its discretion in excusing a prospective juror whose health was possibly in jeopardy. Accordingly, this assignment of error is overruled.\nCAPITAL SENTENCING PROCEEDING\nIn his next assignment of error, defendant contends that the trial court erred in its peremptory instructions on nonstatutory mitigating circumstances. The trial court agreed to submit ten nonstatutory mitigating circumstances and to give peremptory instructions on all. The trial court gave the following instruction as to each:\nIf one or more of you finds from the evidence before you that this mitigating circumstance is uncontroverted and is manifestly credible as all the evidence tends to show in this case then the defendant is entitled for you to find this mitigating circumstance.\nAnd if one or more of you finds by the preponderance of the evidence that this circumstance is also deemed mitigating, you would so indicate by having your foreman write \u201cyes\u201d in the space provided after this mitigating circumstance on the \u201cIssues and Recommendation\u201d form.\nNo juror answered in the affirmative as to any of the ten nonstatutory mitigators submitted.\nThe defendant asserts that these instructions failed to convey to the jurors that the evidence was uncontradicted and improperly imposed a higher burden of proof on the defense. We have stated previously that before a jury finds a nonstatutory mitigating circumstance, it must determine: first, that the evidence supports the existence of the circumstance and, second, that the circumstance has mitigating value. State v. Fullwood, 323 N.C. 371, 396, 373 S.E.2d 518, 533 (1988), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 602 (1990). According to the defendant\u2019s argument, before the jury could make these two determinations, the trial court\u2019s instructions erroneously forced jurors to determine (1) whether the evidence was uncontroverted, and (2) whether the evidence was manifestly credible.\nHowever, the defendant failed to object to this instruction, after any of the ten separate times that it was given or at the conclusion of the instructions, before the jury began deliberations. Thus, Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure bars this assignment of error. According to the Rule, \u201cA party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection ____\u201d N.C. R. App. P. 10(b)(2). \u201cThe purpose of Rule 10(b)(2) is to encourage the parties to inform the trial court of errors in its instructions so that it can correct the instructions and cure any potential errors before the jury deliberates on the case and thereby eliminate the need for a new trial.\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).\nNotwithstanding his failure to object to the instruction given, the defendant claims that his request for a peremptory instruction at the charge conference is sufficient compliance with Rule 10(b)(2) to preserve this issue for appellate review. The defendant likens his case to other cases where this Court liberally construed the meaning of Rule 10(b)(2). See, e.g., State v. Keel, 333 N.C. 52, 423 S.E.2d 458 (1992); State v. Ross, 322 N.C. 261, 367 S.E.2d 889 (1988). These cases differ from the case sub judice significantly. In these cases, the trial court agreed to give a specific, requested instruction, and then proceeded either to give an instruction which differed from the one specified or to omit the instruction altogether. Here, in contrast, the defendant made a general request for peremptory instructions on all of the submitted nonstatutory mitigating circumstances without giving the specific, suggested language. Defense counsel never notified the trial court of the specific instruction sought. Furthermore, the defendant, in failing to object to the given instruction, did not allow the trial court an opportunity to cure any perceived errors. Hence, \u201cthe spirit and purpose of Rule 10(b)(2) are not met.\u201d State v. Allen, 339 N.C. 545, 554-55, 453 S.E.2d 150, 155 (1995), overruled by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396 (1997).\nBecause this issue has not been preserved for appeal, we may review it only for plain error. Odom, 307 N.C. at 660, 300 S.E.2d at 378. \u201cTo constitute plain error, an instructional error must be \u2018so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him.\u2019 \u201d State v. Payne, 337 N.C. 505, 523, 448 S.E.2d 93, 103 (1994) (quoting State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993)), cert. denied, 514 U.S. 1038, 131 L. Ed. 2d 292 (1995). Defendant, therefore, \u201cmust convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.\u201d State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). Indeed, \u201c[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection had been made in the trial court.\u201d State v. White, 343 N.C. 378, 391, 471 S.E.2d 593, 600 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)), cert. denied, - U.S. -, 136 L. Ed. 2d 229 (1996).\nAfter careful consideration of this instruction in light of the arguments presented and the relevant record, we conclude that the trial court\u2019s instructions did not amount to plain error. We do not perceive how the jurors could have failed to understand the meaning of the words \u201cas all the evidence tends to show in this case,\u201d which words were used and applied in direct reference to and immediately following the words: \u201cThis mitigating circumstance is uncontroverted and is manifestly credible.\u201d Apparently, the defendant\u2019s two trial attorneys did not believe the trial court\u2019s instructions here were erroneous or that the instructions enhanced defendant\u2019s burden of proof on the ten separate occasions they heard the instructions read to the jury. Furthermore, the district attorney\u2019s arguments emphasized that the jury should consider whether these circumstances had mitigating value, not whether the evidence supported the existence of these circumstances. Hence, even though the trial court\u2019s instruction arguably may not have been \u201ca model of clarity,\u201d we do not believe that it affected the outcome of the case. State v. Williams, 339 N.C. 1, 46, 452 S.E.2d 245, 272 (1994), cert. denied, -U.S. -, 133 L. Ed. 2d 61 (1995). This assignment of error is overruled.\nIn his next assignment of error, the defendant contends that the trial court erred by failing to give peremptory instructions on the statutory mitigating circumstances that the offense was committed while the defendant was under the influence of a mental or emotional disturbance, N.C.G.S. \u00a7 15A-2000(f)(2) (Supp. 1996), and that the defendant\u2019s ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, N.C.G.S. \u00a7 15A-2000(f)(6). We conclude that this assignment of error lacks merit. The trial court agreed to submit three statutory mitigating circumstances, in addition to the (f)(9) catchall, and to peremptorily charge the jury as to the (f)(1) mitigator, that the defendant has no significant history of prior criminal activity. Although given a peremptory charge on this circumstance, none of the jurors found it to exist. In this regard, this Court has stated:\n\u201cWhere ... all of the evidence in [a capital prosecution], if believed, tends to show that a particular mitigating circumstance does exist, the defendant is entitled to a peremptory instruction on that circumstance.\u201d State v. Johnson, 298 N.C. 47, 76, 257 S.E.2d 597, 618 (1979). Even if the jury is given a peremptory instruction in regard to a certain mitigating circumstance, the individual jurors may still reject that circumstance on the basis that the supporting evidence was not convincing. Huff, 325 N.C. at 59, 381 S.E.2d at 669.\nState v. Gay, 334 N.C. 467, 492, 434 S.E.2d 840, 854 (1993) (alteration in original).\nIn the case sub judice, the trial court did not err in failing to give peremptory instructions on either the (f)(2) or (f)(6) statutory mitigating circumstances because the evidence was not uncontroverted. Although some evidence supported the submission of both of these statutory mitigating circumstances, there was also evidence negating the (f)(2) statutory mitigating circumstance, that the defendant was under the influence of a mental or emotional disturbance, as well as the (f)(6) statutory mitigating circumstance, that the defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.\nJeannette Thomason, the psychologist who evaluated the defendant, testified that defendant had a history of drug abuse and dependency, and that he was suffering from withdrawal symptoms. Thomason further testified that in her opinion, the defendant lacked the ability to control his behavior at the time of the crime. However, she also testified that defendant was able to control his impulsiveness.\nAccording to the testimony of Dr. David Freeman, long-term drug usage affects the way the brain operates. However, Dr. Freeman also stated that he had not talked with the defendant personally and that his testimony did not refer specifically to the defendant.\nWhile several witnesses testified regarding the defendant\u2019s drug abuse, other witnesses provided contradictory testimony. The defendant\u2019s employer testified that he had never seen any signs of drug use by the defendant. The defendant\u2019s sister-in-law testified that she was unaware of any problems the defendant may have had. Finally, the defendant\u2019s brother testified that, while he knew the defendant had a drug problem, he had seen no changes in the defendant over the years.\nThe testimony of witnesses who saw defendant immediately after the murder does not support the position that defendant was under the influence of a mental or emotional disturbance when he killed the victim, or that he failed to appreciate the criminality of his actions. Ronald Mitchell and Willie Ed Albrighton both testified that the defendant was not discernibly impaired. When the defendant was arrested the day after the murder, officers noted that he did not appear impaired or intoxicated. Further, the defendant stated that he did not use drugs until after the murder.\nAdditionally, the defendant\u2019s statement to police officers about his conduct leading up to and during the murder demonstrated purposefulness and deliberation. After arguing with McCurdy, defendant walked around the neighborhood for twenty or thirty minutes before returning. The defendant could recall his conversation and his actions in detail. When McCurdy said she was sorry and that she would take the defendant back, he responded that it was \u201ctoo late.\u201d His response demonstrates deliberate thought. Finally, the defendant\u2019s actions after killing McCurdy also demonstrate a recognition of the criminality of his conduct. The evidence shows defendant was sufficiently aware of his actions in that he wanted to \u201cget off the street\u201d and he registered in a motel in another county under a false name after removing and hiding his bloody clothes.\nWe conclude that the evidence is conflicting as to whether defendant was under the influence of a mental or emotional disturbance when he committed the murder and as to whether defendant\u2019s capacity to appreciate the criminality of his conduct was impaired. Therefore, the trial court did not err by refusing to give peremptory instructions as to these mitigating circumstances. \u201c \u2018[A] peremptory instruction is inappropriate when the evidence surrounding that issue is conflicting.\u2019 \u201d State v. Lynch, 340 N.C. 435, 476-77, 459 S.E.2d 679, 700 (1995) (quoting State v. Noland, 312 N.C. 1, 20, 320 S.E.2d 642, 654 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 369 (1985)), cert. denied, -U.S. -, 134 L. Ed. 2d 558 (1996).\nWe note that even though the trial court refused to give a peremptory instruction on the mitigating circumstance of whether defendant was under the influence of a mental or emotional disturbance, the jury nevertheless found this statutory circumstance to exist.\nThis assignment of error is overruled.\nPRESERVATION ISSUES\nThe defendant raises seven issues which he concedes have been decided against his position by this Court: (1) the trial court erred by submitting to the jury the especially heinous, atrocious, or cruel aggravating circumstance within the context of instructions that \u201cfailed adequately to limit the application of this inherently vague and overly broad circumstance\u201d; (2) the trial court erred by preventing the defendant from asking all jurors whether they would in all cases sentence a convicted murderer to die; (3) the trial court erred by preventing the defendant from addressing the jury in allocution; (4) the trial court erred by permitting the prosecutor to engage in extensive biblically based argument for death; (5) the trial court erred by using the \u201cinherently ambiguous\u201d terms \u201csatisfaction\u201d and \u201csatisfy\u201d to instruct the jury as to the defendant\u2019s burden of proof applicable to mitigating circumstances; (6) the trial court erred by instructing the jurors that they could reject nonstatutory mitigating evidence on the basis that it had no mitigating value; and (7) the trial court\u2019s use of the term \u201cmay\u201d in sentencing Issues Three and Four made consideration of proven mitigation discretionary with the sentencing jurors. We have fully considered the defendant\u2019s arguments relating to these assignments of error and find no compelling reason to depart from our prior holdings. Therefore, we overrule each of these assignments of error.\nPROPORTIONALITY REVIEW\nHaving concluded that defendant\u2019s trial and separate capital sentencing proceeding were free of prejudicial error, we are required by statute to review the record and determine (1) whether the evidence supports the aggravating circumstance found by the jury; (2) whether passion, prejudice or \u201cany other arbitrary factor\u201d influenced the imposition of the death sentence; and (3) whether the sentence \u201cis excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\u201d N.C.G.S. \u00a7 15A-2000(d)(2). After thoroughly reviewing the record, transcript and briefs in the present case, we conclude that the record fully supports the aggravating circumstance 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 factor. We therefore turn to our final statutory duty of proportionality review.\nOne purpose of proportionality review \u201cis to 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). Another is to guard \u201cagainst 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 defined the pool of cases for proportionality review in State v. Williams, 308 N.C. 47, 79-80, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983), and State v. Bacon, 337 N.C. 66, 106-07, 446 S.E.2d 542, 563-64 (1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995), and we compare the instant case to others in the pool that \u201care roughly similar with regard to the crime and the defendant.\u201d State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985). 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. at 198, 443 S.E.2d at 47.\nIn the case sub judice, the jury found the defendant guilty of first-degree murder on the basis of premeditation and deliberation. At sentencing, the trial court submitted the aggravating circumstance that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9). The jury unanimously found the existence of this aggravating circumstance. The jury found one of the three statutory mitigating circumstances submitted for its consideration: that the capital felony was committed while the defendant was mentally or emotionally disturbed, N.C.G.S. \u00a7 15A-2000(f)(2). The jury declined to find the existence or mitigating value of any one of the ten nonstatutory mitigating circumstances submitted.\nThis case has several distinguishing characteristics: The jury convicted the defendant under the theory of premeditation and deliberation; the victim\u2019s brutal murder was found to be especially heinous, atrocious, or cruel; the victim was killed in her own home; the victim suffered great physical pain before her death; and finally, the victim was of unequal physical strength to defendant. These characteristics collectively distinguish this case from those in which we have held the death penalty disproportionate.\nIn our proportionality review, it is appropriate to compare the present case to those 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), cert. denied, 512 U.S. 1254, 129 L. Ed. 2d 895 (1994). Of the cases in which this Court has found the death penalty disproportionate, only two involved the especially heinous, atrocious, or cruel aggravating circumstance. State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983). Neither Stokes nor Bondurant is similar to this case.\nIn Stokes, the defendant and a group of coconspirators robbed the victim\u2019s place of business. No evidence showed who the \u201cringleader\u201d of the group was. This Court vacated the sentence of death because the defendant was only a teenager, and it did not appear that defendant Stokes was more deserving of death than an accomplice, who was considerably older and received only a life sentence. Stokes, 319 N.C. at 21, 352 S.E.2d at 664. In the present case, the defendant alone was responsible for the victim\u2019s death. Defendant Stokes was only seventeen years old at the time of his crime. In this case, the defendant was thirty-eight years old at the time of the crime. In Stokes, the defendant was convicted under a theory of felony murder, and there was virtually no evidence of premeditation and deliberation. In the present case, the defendant was convicted upon a theory of premeditation and deliberation. \u201cThe finding of premeditation and deliberation indicates a more cold-blooded and calculated crime.\u201d State v. Artis, 325 N.C. 278, 341, 384 S.E.2d 470, 506 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). Finally, in Stokes, the victim was killed at his place of business. In this case, the victim was killed in her living room. A murder in one\u2019s home \u201cshocks the conscience, not only because a life was senselessly taken, but because it was taken [at] an especially private place, one [where] a person has a right to feel secure.\u201d State v. Brown, 320 N.C. 179, 231, 358 S.E.2d 1, 34, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987).\nIn Bondurant, the victim was shot while riding with the defendant in a car. Bondurant is distinguishable because the defendant immediately exhibited remorse and concern for the victim\u2019s life by directing the driver to go to the hospital. The defendant also went into the hospital to secure medical help for the victim. In the present case, by contrast, the defendant hit the victim\u2019s head with a hammer multiple times, ensuring the victim\u2019s death. Further, the defendant did not seek medical aid for the victim. Instead, the defendant thrust the broken hammer handle down the victim\u2019s throat and then left the house while the victim was still breathing, hid his bloody clothes, and spent the evening using cocaine.\nFor the foregoing reasons, we conclude that each case where this Court has found a sentence of death disproportionate is distinguishable from the case sub judice.\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 this Court reviews all of the cases in the pool when engaging in our duty of proportionality review, we have repeatedly stated that \u201cwe will not undertake to discuss or cite all of those cases each time we carry out that duty.\u201d Id. It suffices to say here 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 of death disproportionate or to those in which juries have consistently returned recommendations of life imprisonment.\nFinally, we noted in State v. Daniels, 337 N.C. 243, 287, 446 S.E.2d 298, 325 (1994), cert. denied, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995), that similarity of cases is not the last word on the subject of proportionality. Similarity \u201cmerely serves as an initial point of inquiry.\u201d Id.-, see also State v. Green, 336 N.C. at 198, 443 S.E.2d at 46-47. The issue of whether the death penalty is proportionate in a particular case ultimately rests \u201con the experienced judgment of the members of this Court, not simply on a mere numerical comparison of aggravators, mitigators and other circumstances.\u201d Daniels, 337 N.C. at 287, 446 S.E.2d at 325.\nBased on the nature of this crime, and particularly the distinguishing features noted above, we cannot conclude as a matter of law that the sentence of death was excessive or disproportionate. We hold that the defendant received a fair trial and capital sentencing proceeding, free of prejudicial error.\nNO ERROR.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by William P. Hart, Special Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Staples Hughes, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH NEAL\nNo. 145A96\n(Filed 24 July 1997)\n1. Constitutional Law \u00a7 342 (NCI4th)\u2014 capital murder\u2014 bench conferences \u2014 potential jurors excused or deferred \u2014 no error\nThere was no error in a capital first-degree murder prosecution where potential jurors were excused or deferred during bench conferences, all but one of which were recorded. The conferences were held in the presence of counsel for defendant and the State and defendant was present in the courtroom. It does not appear that defendant\u2019s presence would have had a relation, reasonably substantial, to the fulness of his opportunity to defend, such that his absence thwarted the fairness and justness of his trial. The facts in State v. Buchanan, 330 N.C. 202 substantially overlap with the facts in this case.\nAm Jur 2d, Criminal Law \u00a7\u00a7 692 et seq., 901 et seq.\nRight of accused to be present at suppression hearing or at other hearing or conference between court and attorneys concerning evidentiary questions. 23 ALR4th 955.\n2. Jury \u00a7 141 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 parole \u2014 defendant not allowed to question prospective jurors\nThere was no error in a capital first-degree murder prosecution in the denial of defendant\u2019s request to ask prospective jurors about their understanding of a sentence of life without parole. The North Carolina Supreme Court has consistently decided this issue against defendant\u2019s position and the United States Supreme Court has never held that a defendant has a constitutional right to pose this question to prospective jurors. Simmons v. South Carolina, 512 U.S. 154, held that the trial court must inform the jury that the sentence of life imprisonment carries with it no possibility of parole where the State argues for the death penalty on the premise that the defendant will be dangerous in the future; that issue was not the basis of the State\u2019s argument for the death penalty in this case. Finally, the trial court complied precisely with the provisions of N.C.G.S. \u00a7 15A-2002, which provides that the judge shall instruct the jury that a sentence of life imprisonment means life without parole, and there is nothing in the record demonstrating that the jurors did not believe the trial court or follow its instructions. Furthermore, defendant\u2019s attorneys repeatedly told the jury that a sentence of life without parole would confine the defendant to a prison cell for the remainder of his life.\nAm Jur 2d, Jury \u00a7\u00a7 199, 200, 205, 206.\n3. Jury \u00a7 119 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 question prohibited \u2014 peremptory challenges not exhausted \u2014 no error\nThe trial court did not abuse its discretion in a capital first-degree murder prosecution where defendant was prevented from asking potential jurors whether they would automatically reject the testimony of mental health professionals, but defendant has not shown prejudice because he indicated that he was \u201csatisfied\u201d with these jurors and did not exhaust his peremptory challenges.\nAm Jur 2d, Jury \u00a7\u00a7 205, 208.\nPropriety and effect of asking prospective jurors hypothetical questions, on voir dire, as to how they would decide issues of case. 99 ALR2d 7.\n4. Jury \u00a7 82 (NCI4th)\u2014 capital murder \u2014 prospective juror excused for medical reasons \u2014 no abuse of discretion\nThere was no abuse of discretion in a capital murder prosecution where the trial court excused a prospective juror who had a medical history including coronary bypass surgery and an addiction to Valium and who stated that thinking about the case was \u201cbringing the problem back,\u201d and that the stress of being a prospective juror awakened him in the middle of the night.\nAm Jur 2d, Jury \u00a7\u00a7 264, 331.\n5. Appeal and Error \u00a7 147 (NCI4th)\u2014 capital murder \u2014 non-statutory mitigating circumstances \u2014 peremptory instructions \u2014 no objection\nThe failure of a defendant in a capital murder prosecution to object to the trial court\u2019s peremptory instructions on nonstatutory mitigating circumstances violated Appellate Rule 10(b)(6). Although defendant contended that his request for a peremptory instruction at the charge conference was sufficient compliance to preserve the issue for appellate review, in other cases where Rule 10(b)(2) was liberally construed the trial court agreed to give a specific, requested instruction and then proceeded either to give an instruction which differed from the one specified or to omit the instruction altogether, while here defendant made a general request for peremptory instructions on all of the submitted non-statutory mitigating circumstances without giving the specific, suggested language and never notified the court of the specific instruction sought. In failing to object, defendant did not allow the court an opportunity to cure any perceived errors; hence, the spirit and purpose of the rule are not met.\nAm Jur 2d, Appellate Review \u00a7\u00a7 614-617.\n6. Criminal Law \u00a7 690 (NCI4th Rev.)\u2014 capital sentencing\u2014 nonstatutory mitigating circumstances \u2014 peremptory instructions \u2014 no plain error\nThe trial court\u2019s peremptory instructions on nonstatutory mitigating circumstances in a capital sentencing hearing were reviewed only for plain error where defendant had failed to object at trial and the instructions did not amount to plain error. The jurors could not have failed to understand the meaning of the words \u201cas all of the evidence tends to show in this case\u201d as used in direct reference to and immediately following the words, \u201cThis mitigating circumstance is uncontroverted and is manifestly credible.\u201d Apparently, defendant\u2019s two trial attorneys did not believe the instructions were erroneous or that they enhanced defendant\u2019s burden of proof on the ten separate occasions they heard the instructions read to the jury; furthermore, the district attorney\u2019s arguments emphasized that the jury should consider whether these circumstances had mitigating value, not whether the evidence supported the existence of these circumstances.\nAm Jur 2d, Trial \u00a7\u00a7 412-416, 1291.\n7. Criminal Law \u00a7 692 (NCI4th Rev.)\u2014 capital sentencing\u2014 mitigating circumstances \u2014 mental or emotional disturbance \u2014 impaired capacity \u2014 peremptory instructions not given \u2014 no error\nThe trial court did not err in a capital prosecution for first-degree murder by not giving a peremptory instruction on the statutory mitigating circumstances that the offense was committed while defendant was under the influence of a mental or emotional disturbance or that defendant\u2019s ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. Although some evidence supported the submission of both circumstances, the evidence was conflicting and the trial court did not err by refusing to give peremptory instructions as to these mitigating circumstances.\nAm Jur 2d, Trial \u00a7\u00a7 1120-1129, 1291.\n8. Criminal Law \u00a7 1402 (NCI4th Rev.)\u2014 death sentence \u2014 not disproportionate\nA death sentence was not disproportionate where the record fully supports the aggravating circumstance found by the jury, there is no indication that the sentence of death was imposed under the influence of passion, prejudice or ahy other arbitrary factor, and this case is more similar to cases where the death sentence was found proportionate than to those in which it was found disproportionate or to those in which juries have consistently returned recommendations of life imprisonment. The characteristics which collectively distinguish this case from those in which the death penalty was held disproportionate are that the jury convicted defendant under the theory of premeditation and deliberation; the victim\u2019s brutal murder was found to be especially heinous, atrocious, or cruel; the victim was killed in her own home; the victim suffered great physical pain before her death; and the victim was of unequal physical strength to defendant.\nAm Jur 2d, Criminal Law \u00a7\u00a7 609-612.\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.\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.\nAppeal as of right by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Cornelius, J., at the 12 February 1996 Criminal Session of Superior Court, Rockingham County, upon a jury verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 13 May 1997.\nMichael F. Easley, Attorney General, by William P. Hart, Special Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Staples Hughes, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0608-01", "first_page_order": 646, "last_page_order": 666 }