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Ed. 2d 1013", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "449 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "740" } ], "opinion_index": 0 }, { "cite": "338 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519858 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0064-01" ] }, { "cite": "139 L. Ed. 2d 64", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "481 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "38" } ], "opinion_index": 0 }, { "cite": "345 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53888 ], "year": 1997, "pin_cites": [ { "page": "283-84" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0254-01" ] }, { "cite": "514 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "513" } ], "opinion_index": 0 }, { "cite": "350 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132207 ], "year": 1999, "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0315-01" ] }, { "cite": "67 U.S.L.W. 3732", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 1999, "opinion_index": 0 }, { "cite": "505 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "107" } ], "opinion_index": 0 }, { "cite": "349 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571552 ], "year": 1998, "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0062-01" ] }, { "cite": "409 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "314" } ], "opinion_index": 0 }, { "cite": "330 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510833 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0038-01" ] }, { "cite": "494 U.S. 433", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4898 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/0433-01" ] } ], "analysis": { "cardinality": 1735, "char_count": 63179, "ocr_confidence": 0.762, "pagerank": { "raw": 1.0294652521328634e-07, "percentile": 0.5476958309152387 }, "sha256": "4627153600f3db503a42d1dd5cb509e12ea0d3b479c6c15f3794a9d62817fe61", "simhash": "1:c769f03a766edd30", "word_count": 10370 }, "last_updated": "2023-07-14T14:46:00.917666+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ROWLAND ANDREW HEDGEPETH" ], "opinions": [ { "text": "ORR, Justice.\nOn 23 February 1987, defendant Rowland Andrew Hedgepeth was indicted for the first-degree murder of Richard Casey and for assault with a deadly weapon with intent to kill inflicting serious injury on Beverly Hedgepeth, defendant\u2019s estranged wife. In October of 1987, defendant was tried capitally to a jury and found guilty. After a capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction, and the trial judge entered judgment accordingly. On appeal, we affirmed the murder conviction but found reversible error in the sentencing proceeding under McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990). Accordingly, we vacated the sentence of death and remanded for a new capital sentencing proceeding. State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309 (1991).\nThe new capital sentencing proceeding was held at the 19 May 1997 Criminal Session of Superior Court, Halifax County. The jury found the aggravating circumstance that the murder was part of a course of conduct in which defendant engaged, including defendant\u2019s commission of other crimes of violence against another person or persons. N.C.G.S. \u00a7 15A-2000(e)(ll) (1997). The jury also found the statutory mitigating circumstance that the murder was committed while defendant was under the influence of mental or emotional disturbance, N.C.G.S. \u00a7 15A-2000(f)(2), and seven nonstatutory mitigating circumstances. After determining that the aggravating circumstance found outweighed the mitigating circumstances found and that it was sufficiently substantial to call for imposition of the death penalty, the jury recommended a sentence of death for the first-degree murder conviction, and the trial judge entered judgment accordingly.\nDefendant appeals as of right from the sentence of death. After thorough consideration of the assignments of error brought forth on appeal by defendant, the transcript of the proceeding, the record on appeal, the briefs, and oral arguments, we hold that defendant received a fair capital sentencing proceeding, free from prejudicial error, and that the sentence of death is not disproportionate.\nBecause the facts were presented fully in our earlier opinion, State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309, we restate them here only as necessary to address and determine the issues presented in this appeal. At the new sentencing hearing, the State presented evidence tending to show that Beverly Hedgepeth and defendant married in 1980 and separated in 1986. On 13 February 1987, Mrs. Hedgepeth; Richard Casey; Dennis Morgan; and Dennis Morgan\u2019s wife, Ruth Morgan, went to a Howard Johnson\u2019s restaurant for breakfast after attending a dance. At the time of the sentencing rehearing, Mrs. Hedgepeth had remarried. She is referred to as Ms. Jolly in the transcript. They were seated at a booth when defendant entered the restaurant and sat in a booth adjacent to theirs.\nBecause Mr. Morgan had noticed the handle of a gun sticking out from under defendant\u2019s coat as defendant entered the restaurant, he rose and sat in the booth with defendant. According to Mr. Morgan, defendant was angry and told Mr. Morgan, inter alia, that he loved Mrs. Hedgepeth; \u201cthat Ricky Casey had slept with every woman in Roanoke Rapids\u201d but would not sleep with Mrs. Hedgepeth that night; and that he was going to kill Casey, Mrs. Hedgepeth, and himself. In the course of their conversation, Mr. Morgan informed defendant that Mrs. Hedgepeth\u2019s first husband had raped a child and subsequently killed himself. Defendant became more upset because he had not previously been informed of this occurrence.\nA short time later, defendant approached the booth where Mrs. Hedgepeth, Casey, and Mrs. Morgan sat and asked Casey to step outside the restaurant. After Casey told defendant that he did not want any trouble, defendant replied, \u201cLet me show you trouble\u201d or \u201cthis is trouble\u201d; pulled out the gun; and fired several times, killing Casey and wounding Mrs. Hedgepeth.\nThe defense, in mitigation, presented evidence by defendant\u2019s brother Billy Hedgepeth, who testified about defendant\u2019s childhood. Billy testified, among other things, that defendant\u2019s parents raised three children, including Billy and defendant. For a time, both parents worked in a cotton mill. Later, defendant\u2019s father became a construction worker. Defendant\u2019s father was a \u201cweekend drunk.\u201d\nBilly Hedgepeth testified that in 1976 defendant fell from a three-story building and suffered head injuries. As a result, defendant was out of work for a year or more and was unable to return to his former position. From the late 1970s to the early 1980s, Billy and defendant worked at construction sites in Ashland, Virginia; Good Hope, Louisiana; and Georgetown, South Carolina. Defendant worked in Louisiana for six or seven months of the time he was married to Mrs. Hedgepeth and sent all his pay except what he needed to live on home to Mrs. Hedgepeth. Defendant had a good relationship with the son bom of his union with Mrs. Hedgepeth and was supportive of Mrs. Hedgepeth\u2019s daughter from her previous marriage.\nDr. Joseph Neil Ortego, a board-certified psychiatrist and neurologist, testified based on his review of twelve reports of examinations of defendant, including school records and hospital records, and his two-hour evaluation of defendant. Dr. Ortego\u2019s testimony included his reading into the record a report prepared by him. In his report, Dr. Ortego concluded that defendant has a mixed personality disorder, is alcohol dependent and has permanent structural and functional brain damage as a result of the head injury. Dr. Ortega, reading from his report, testified that defendant\u2019s brain damage dramatically changed his degree of aggressiveness, rage, and inhibition when he was intoxicated, impairing his ability to control his emotions.\nDr. Ortego contrasted defendant\u2019s 1973 preinjury antisocial behavior when he had separated from his first wife with two incidents after the injury: defendant\u2019s behavior after he separated from Janis Hovis, a former girlfriend who once lived with him, and defendant\u2019s behavior on the night of 13 February 1987. in explaining defendant\u2019s behavior on the night of 13 February 1987, Dr. Ortego testified that \u201cat the point when [defendant] was intoxicated and enraged his ability to appreciate the criminality and the consequences [of his actions was] very much impaired.\u201d\nDr. Helen Rogers, a clinical psychologist with a specialty in clinical neuropsychology, testified that she conducted a five-to six-hour neuropsychological evaluation that consisted of a battery of tests designed to gauge brain function. Dr. Rogers\u2019 evaluation of defendant indicated \u201cimpairment in memory, verbal memory performance and a variety of difficulties in areas that suggest frontal lobe damage.\u201d Dr. Rogers also reviewed other medical records of defendant\u2019s, including a report prepared by the North Carolina Department of Correction in 1980 and one prepared at Dorothea Dix Hospital in March 1987. Dr. Rogers further testified that a person with frontal lobe injury would be \u201cmore vulnerable to the effects of any kind of stress [including] chemical stressors like .. . alcohol.\u201d\nThe State presented rebuttal evidence tending to show the following:\nOver defendant\u2019s objection, the State presented rebuttal evidence of defendant\u2019s prior bad acts. Defendant\u2019s first wife, Donna Rice, testified to incidences of defendant\u2019s abusive behavior towards her and her uncle, Clyde Hargrave. Rice testified that on one occasion, defendant struck her after forcing her to leave an evening program at the elementary school where she was employed.\nRice testified further that after she left defendant in June 1973, she moved in with her grandmother. When defendant called and announced that he was coming to get her, Rice summoned her uncle, Clyde Hargrave, to protect her. When Hargrave informed defendant that Rice did not wish to go with him, defendant struck Hargrave. After Hargrave obtained a warrant for defendant\u2019s arrest, defendant attacked him again.\nHargrave also testified to the June 1973 incident in which defendant assaulted him. Carlon Nicholson, another of Rice\u2019s uncles, testified that a week after the incident in which Hargrave was assaulted, defendant appealed to him for help in getting Rice back. Nicholson testified that when he refused defendant\u2019s request for help, defendant struck him.\nVicky Proctor, a former girlfriend of defendant\u2019s, testified that prior to defendant\u2019s head injury, defendant once took her out of a van and assaulted her in the street. On another occasion, she sustained injuries when she jumped out of a moving car that defendant was driving after he began beating her.\nSeveral witnesses testified to a 10 August 1979 incident in which defendant chased Janet Hovis, who had been living with defendant at the Henry Street Apartments for several months. Defendant then got into his car and drove towards two of his neighbors who were standing in front of some apartments. He drove over the curb and onto the cement steps of an apartment, pinning two people between his car and an apartment door. Defendant then got out of his car, grabbed one of the neighbors by her throat, threatening to kill her. He eventually got back into his car and left the scene.\nOn appeal, defendant first argues that the trial court erred by allowing the State to introduce unfairly prejudicial evidence of prior bad acts committed by defendant. In mitigation, through the expert testimony of Drs. Rogers and Ortego and through the testimony of Billy Hedgepeth, defendant presented evidence that a personality disorder he had prior to 1976 was exacerbated by the brain injury he suffered in the 1976 fall and that defendant\u2019s lack of control of his emotions resulting from the fall contributed to the shooting. Defendant argues that because this evidence was not offered to show that defendant had been nonviolent prior to the fall and because defendant did not attempt to rely on good character as a mitigating circumstance, evidence of defendant\u2019s assaultive behavior was not permissible rebuttal under N.C.G.S. \u00a7 8C-1, Rule 404.\nDefendant contends that evidence of his violent outbursts did not rebut mitigating evidence of his personality disorder and that evidence of his violent outburst in 1979 was not logically relevant in that it occurred after his head injury and, therefore, could not rebut defendant\u2019s evidence that his brain injury affected his impulse control and susceptibility to alcohol. Furthermore, he argues that the trial court\u2019s admission of extensive evidence of his violent acts was inflammatory and unfairly prejudicial and should have been excluded under Rule 403 of the North Carolina Rules of Evidence.\n\u201cAdmissibility of evidence at a capital sentencing proceeding is not subject to a strict application of the rules of evidence, but depends on the reliability and relevance of the proffered evidence.\u201d State v. Atkins, 349 N.C. 62, 77, 505 S.E.2d 97, 107 (1998), cert. denied, -U.S. -, -L. Ed. 2d-, 67 U.S.L.W. 3732 (1999). Because the Rules of Evidence do not apply in capital sentencing proceedings, N.C.G.S. \u00a7 8C-1, Rule 1101(b)(3) (1992), \u201ca trial court has great discretion to admit any evidence relevant to sentencing.\u201d State v. Thomas, 350 N.C. 315, 359, 514 S.E.2d 486, 513 (1999). \u201cAny evidence that the trial court deems relevant to sentencing may be introduced in the sentencing proceeding.\u201d State v. Perkins, 345 N.C. 254, 283-84, 481 S.E.2d 25, 38, cert. denied, \u2014 U.S.-, 139 L. Ed. 2d 64 (1997).\nIn State v. Ward, 338 N.C. 64, 449 S.E.2d 709 (1994), cert. denied, 514 U.S. 1134, 131 L. Ed. 2d 1013 (1995), we explained that in a capital sentencing proceeding,\n\u201cthe state may not in its case in chief offer evidence of defendant\u2019s bad character. A defendant, however, may offer evidence of whatever circumstances may reasonably be deemed to have mitigating value, whether or not they are listed in section (f) of the statute. Often this may be evidence of his good character. The state should, be able to, and we hold it may, offer evidence tending to rebut the truth of any mitigating circumstance upon which defendant relies and which is supported by the evidence, including defendant\u2019s good character.\u201d\nId. at 120, 449 S.E.2d at 740 (quoting State v. Silhan, 302 N.C. 223, 273, 275 S.E.2d 450, 484 (1981), overruled on other grounds by State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133 (1997)) (citation omitted).\nHere, defendant proffered some evidence of his good character. Through Billy Hedgepeth\u2019s testimony particularly, a portrait emerged of defendant as a good father and stepfather and a devoted husband who worked hard, got along with his co-workers, and provided for his family. We conclude that the trial court did not abuse its discretion in allowing the State to rebut this evidence of defendant\u2019s good character.\nThe transcript reveals that the trial court conducted voir dire to determine the admissibility of the evidence to be presented by Donna Nicholson Rice, Clyde Hargrave, and Vicky Proctor and concluded that the evidence was relevant and admissible rebuttal evidence. The trial court also conducted inquiry as to the admissibility of the testimony of several witnesses to the Hovis incident and concluded that their testimony was admissible. We also cannot conclude that the trial court abused its discretion in admitting evidence of defendant\u2019s prior violent outbursts to rebut the testimony in mitigation of Drs. Rogers and Ortego. Since their evidence attempted to explain the impact of defendant\u2019s brain injury on his assaultive behavior, evidence regarding the circumstances surrounding these incidents as testified to by the victims of this behavior was appropriate on rebuttal. This assignment of error is overruled.\nFurthermore, in State v. Williams, 350 N.C. 1, 510 S.E.2d 626 (1999), we addressed a similar issue. In Williams, the defendant argued that the trial court erred in allowing details of his prior criminal activity into evidence in his capital sentencing proceeding. As we stated in Williams, \u201c[o]nce any evidence is introduced in a capital sentencing proceeding tending to show a history of prior criminal activity by defendant, defendant and the State are free to present all evidence available concerning the extent and significance of that history.\u201d Id,, at 12, 510 S.E.2d at 634. Certainly, as in Williams, once defendant in the case sub judice proffered evidence of his prior violent outbursts, the State was free to offer a more comprehensive account of that assaultive behavior. We, therefore, conclude that the trial court did not err in allowing the testimony at issue.\nRule 403 of the North Carolina Rules of Evidence provides:\nAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\nN.C.G.S. \u00a7 8C-1, Rule 403 (1992). We have consistently noted that \u201c \u2018[n]ecessarily, evidence which is probative in the State\u2019s case will have a prejudicial effect on the defendant; the question is one of degree.\u2019 \u201d State v. Wilson, 345 N.C. 119, 127, 478 S.E.2d 507, 512-13 (1996) (quoting State v. Weathers, 339 N.C. 441, 449, 451 S.E.2d 266, 270 (1994)). It is also well established that \u201cthe exclusion of evidence under the balancing test of Rule 403 ... is within the trial court\u2019s sound discretion.\u201d State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).\nHere, the trial court found that the probative value of the evidence was not outweighed by the danger of unfair prejudice. We cannot conclude that the trial court abused its discretion in allowing evidence of defendant\u2019s prior violent acts, and we therefore reject defendant\u2019s contention that the probative value of the evidence of his prior violent acts was substantially outweighed by the danger of unfair prejudice under Rule 403.\nIn his next assignment of error, defendant contends that the trial court erred in excluding expert testimony that linked defendant\u2019s personality disorder and brain damage to the killing of Casey. During redirect examination and outside the presence of the jury, the following exchange occurred between defense counsel and Dr. Rogers:\nQ. Dr. Rogers, in your professional opinion did the defendant\u2019s brain damage contribute to his commission of the crime for which he\u2019s been convicted, that is, the murder of Richard Casey?\nA. Yes.\nQ. Excuse me?\nA. Yes.\nQ. And what is the basis for that opinion?\nA. That a compromised brain particularly when matched with alcohol and under stress is much more likely to respond impulsively and not be able to inhibit reaction.\nThe State objected, arguing that the question of whether defendant\u2019s injury contributed to the commission of the crime called for a legal conclusion, and the trial court sustained the State\u2019s objection.\nDefendant argues that because Dr. Roger\u2019s testimony explained the link between defendant\u2019s medical condition and the commission of the crime, it was relevant, mitigating evidence, and the trial court\u2019s refusal to admit it was constitutional error. In sustaining the objection, the trial court duly noted that the question was being asked on redirect and that the testimony had previously been elicited from the witness.\nOn redirect examination of a witness, \u201cthe calling party is ordinarily not permitted to . . . have the direct testimony repeated.\u201d State v. Weeks, 322 N.C. 152, 169, 367 S.E.2d 895, 905 (1988). Here, the testimony defendant attempted to elicit from Dr. Rogers is essentially the same as testimony previously elicited through direct examination of Dr. Rogers and testimony previously elicited from Dr. Ortego. Even assuming arguendo that the trial court erred, any prejudice to defendant is not sufficient so as to entitle him to a new sentencing hearing.\nDefendant next contends that the trial court erred in refusing to give the requested peremptory instruction that the murder was committed while defendant was under the influence of a mental or emotional disturbance and that defendant\u2019s ability to conform his conduct to the requirements of the law was impaired as set forth in N.C.G.S. \u00a7 15A-2000(f)(2) and (f)(6), respectively. Even though the trial court refused to give the requested peremptory instruction on the (f)(2) mitigating circumstance that the murder was committed while defendant was under the influence of mental or emotional disturbance, one or more of the jurors still found it to exist; however, none of the jurors found the (f)(6) mitigator that defendant\u2019s ability to conform his conduct to the law was impaired.\nDefendant argues that the facts in the instant case are similar to those in State v. Holden, 338 N.C. 394, 450 S.E.2d 878 (1994). In Holden, we held that the defendant was entitled to a new capital sentencing proceeding because the trial court refused to give a peremptory instruction to the jury on the (f)(2) mitigating circumstance despite the fact that the defendant presented uncontroverted evidence that the defendant suffered a mental or emotional disturbance at the time of the murder.\n\u201c[A] trial court should, if requested, give a peremptory instruction for any mitigating circumstance, whether statutory or nonstatutory, if it is supported by uncontroverted and manifestly credible evidence.\u201d State v. Adams, 347 N.C. 48, 70, 490 S.E.2d 220, 232 (1997), cert. denied,-U.S.-, 139 L. Ed. 2d 878 (1998). \u201cIf the evidence supporting the circumstance is controverted or is not manifestly credible, the trial court should not give the peremptory instruction.\u201d State v. Bishop, 343 N.C. 518, 557, 472 S.E.2d 842, 863 (1996), cert. denied, 519 U.S. 1097, 136 L. Ed. 2d 723 (1997). Furthermore, \u201c[t]he trial court\u2019s refusal to give the peremptory instruction does not prevent defendant from presenting, or the jury from considering, any evidence in support of the mitigating circumstance.\u201d Id.\nHere, defendant\u2019s evidence supporting the (f)(2) and (f)(6) mitigating circumstances was in fact controverted. Dr. Ortego and Dr. Rogers testified that the brain injury defendant suffered in the 1976 fall resulted in defendant\u2019s lack of control of Ms emotions when enraged and intoxicated, which contributed to the shooting. While the testimony of Dr. Ortego and Dr. Rogers supported the (f)(2) and (f)(6) mitigating circumstances, the State presented evidence to the contrary.\nThe State\u2019s evidence tended to show that the shooting of Casey and Mrs. Hedgepeth was planned in advance and that defendant was cold, calm, and calculated in carrying out his plan. There is evidence that he was neither enraged nor intoxicated at the time of the shooting. For example, after defendant informed Mr. Morgan that he intended to kill Casey and Mrs. Hedgepeth, Mr. Morgan suggested that defendant think about what he was doing. Defendant responded that \u201che had been thinking about it for several months or seven months.\u201d Defendant selectively shot only Casey and Mrs. Hedgepeth. Furthermore, Mrs. Hedgepeth testified that when defendant fired the first shot, his face looked calm and he did not appear to be intoxicated. Detective David Brown of the Roanoke Rapids Police Department, who apprehended defendant after the shooting, testified that defendant was not intoxicated.\nIn State v. Neal, 346 N.C. 608, 487 S.E.2d 734 (1997), cert. denied, -U.S.-, 140 L. Ed. 2d 131 (1998), we concluded that a peremptory instruction was inappropriate because the evidence surrounding the issue was conflicting. Because we conclude that the evidence as to the (f)(2) and (f)(6) mitigating circumstance was conflicting, we overrule this assignment of error.\nIn his next assignment of error, defendant contends that the trial court committed plain error in not instructing the jurors that they must give weight to statutory mitigating circumstances and in leading the jurors to believe they could give no weight to statutory mitigating circumstances. Defendant argues that the trial court\u2019s instruction to the jurors'that they were \u201cthe sole judges of the weight to be given to any individual circumstance . . . , whether aggravating or mitigating,\u201d along with the trial court\u2019s failure to inform the jurors that statutory mitigating circumstances must be given mitigating weight, deprived defendant of his constitutional right to have the jury give mitigating effect to the evidence of his mental and emotional disturbance and to his impaired capacity to conform his conduct to the requirements of the law.\n\u201cIf a juror determines that a statutory mitigating circumstance exists,... the juror must give that circumstance mitigating value. The General Assembly has determined as a matter of law that statutory mitigating circumstances have mitigating value.\u201d State v. Jaynes, 342 N.C. 249, 285, 464 S.E.2d 448, 470 (1995) (citations omitted), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). In State v. Howell, 343 N.C. 229, 239, 470 S.E.2d 38, 43 (1996), we found reversible error where the jury was \u201cthrice instructed... to decide whether any of the sixty-one mitigating circumstances had mitigating value.\u201d\nHere, the trial court instructed the jury with regard to the (f)(2) and (f)(6) mitigating circumstances in part as follows:\nIf one or more of you finds by a preponderance of the evidence that this circumstance exists, you would so indicate by having your foreperson write, \u201cYes,\u201d in the space provided after this mitigating circumstance on the \u201cIssues and Recommendation\u201d form. If none of you finds this circumstance to exist, you would so indicate by having your foreperson write, \u201cNo,\u201d in that space.\nAs to nonstatutory circumstances, the trial court instructed the jury as follows:\nYou should also consider the following circumstances arising from the evidence which you find to have mitigating value. If one or more of you finds by a preponderance of the evidence that any of the following circumstances exist and also are deemed by you to having [sic] mitigating value, you would so indicate by having your foreperson write, \u201cYes,\u201d in the space provided. If none of you finds the circumstance to exist, or if none of you deems it to have mitigating value, you would so indicate by having your foreperson write, \u201cNo,\u201d in that space.\nWith respect to the statutory catchall mitigating circumstance, the trial court instructed the jury as follows:\nIf one or more of you so finds by a preponderance of the evidence you would so indicate by having your foreperson write, \u201cYes,\u201d in the space provided after this mitigating circumstance on the \u201cIssues and Recommendation\u201d form. If none of you finds any such circumstance to exist, you would so indicate by having your foreperson write, \u201cNo,\u201d in that space.\nThese instructions are consistent with the pattern jury instructions for separate capital sentencing proceedings. See N.C.P.I. \u2014 Crim. 150.10 (1996) (amended June 1997).\nIn State v. Davis, 349 N.C. 1, 506 S.E.2d 455 (1998), cert. denied, -U.S.-,-L. Ed. 2d-, 67 U.S.L.W. 3748 (1999), we distinguished the jury instructions in question as to mitigating circumstances, which were in form and content substantially similar to the ones in question in the instant case, from those in Jaynes. We explained that \u201cthe trial court\u2019s instructions in Jaynes failed to appropriately distinguish between statutory and nonstatutory mitigating circumstances and, in fact, required the same finding as to both.\u201d Id. at 55, 506 S.E.2d at 485. Here, as in Davis,\nthe trial court properly informed the jurors that in order to find a statutory mitigating circumstance to exist, all they must find is that the circumstance is supported by a preponderance of the evidence. However, unlike statutory mitigating circumstances, the trial court instructed the jurors that in order to find nonstatutory mitigating circumstances, they must (1) find by a preponderance of the evidence that the circumstance existed, and (2) find that the circumstanc\u00e9 has mitigating value. These instructions properly distinguished between statutory and nonstatutory mitigating circumstances and informed the jurors of their duty under the law.\nId. at 56, 506 S.E.2d at 485. For the reasons stated in Davis, we conclude that the jury instructions in the instant case did not constitute error.\nDefendant next contends that the trial court erred in allowing a lay opinion that the victim remained alive for a period of time following the shooting. On direct examination, Mike Lucas, a customer in the restaurant at the time of the shooting, testified in part as follows:\nQ. Were you there at Howard Johnson\u2019s when the EMS, Emergency Medical Services arrived?\nA. Yes, sir.\nQ. And what, if anything, do you recall about their arrival, what they did while they were there?\nA. Well, I was back out of the way of and I know they went directly straight to that corner and I couldn\u2019t see what was happening in that corner when the EMT\u2019s arrived, but I know they were working on Mr. Casey and I saw him being wheeled out of there on a stretcher.\nQ. Do you know whether he was dead or alive at that time?\nA. I think he was alive when he went by.\nDefense counsel objected and moved to strike. The trial court overruled the objection.\nDefendant argues that Lucas was not competent to assess whether Casey was alive when he was wheeled out of the restaurant. Allowing this testimony, defendant contends, was prejudicial error entitling defendant to a new capital sentencing proceeding because it led the jury to believe that Casey survived the shooting and suffered until the time of his death.\n\u201cThe Rules of Evidence, although not applicable to capital sentencing proceedings, nevertheless may be relied upon for guidance when determining questions of reliability and relevance.\u201d State v. Strickland, 346 N.C. 443, 460, 488 S.E.2d 194, 204 (1997), cert. denied, -U.S.-, 139 L. Ed. 2d 757 (1998). Rule 701 of the North Carolina Rules of Evidence provides:\nIf the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\nN.C.G.S. \u00a7 8C-1, Rule 701 (1992).\nThe Court of Appeals\u2019 decision in State v. McCain, 6 N.C. App. 558, 170 S.E.2d 531 (1969), is also instructive. There, the court held that a detective\u2019s opinion that the deceased was dead at the crime scene was admissible. The court stated, \u201cThe question of whether a person is living or dead is not wholly scientific or of such a nature as to render valueless any opinion but that of an expert. Common inferences derived from the appearance, condition, or mental or physical state of persons . . . are proper subjects of opinion testimony by non-experts.\u201d Id. at 561, 170 S.E.2d at 533 (citation omitted). Here, the testimony of Lucas that \u201cI think he was alive\u201d when he was wheeled out of the restaurant was an inference rationally based on Lucas\u2019 perception and helped to clarify his testimony. Thus, we conclude that Lucas\u2019 statement was properly admitted.\nDefendant next assigns error to the trial court\u2019s denial of his challenge for cause to two prospective jurors who he argues could not serve impartially and a prospective juror who suffered from a physical infirmity. Defendant contends that jurors Denise Boone and Charles Britton should have been excused because of their views on capital punishment and that juror Richard Thiele should have been excused because he suffered from memory loss. Defendant contends that the trial court\u2019s refusal to strike Boone, Britton, and Thiele for cause violated defendant\u2019s rights under the Fourteenth Amendment to the United States Constitution.\nIn voir dire in response to questioning by the State, Boone stated that she would listen to the evidence and keep an open mind. However, in filling out the jury questionnaire, Boone indicated that her view on the death penalty was that someone who kills someone should be executed. Defense counsel questioned Boone based on her responses in the questionnaire in part as follows:\nQ. Now, is it your opinion that if you go out and kill somebody, that is, commit murder, that you ought to get the death penalty?\nA. Yes.\nQ. And would you be inclined to vote for the death penalty in this first degree murder case if you were on the jury?\nA. Yes.\nQ. Your answer is \u201cyes?\u201d\nA. Yes.\nQ. Is that in preference, that is, over top of life imprisonment?\nA. No.\nQ. Which would you prefer in this case, the death penalty or life imprisonment?\nAfter the prosecutor objected and the trial court overruled the objection, the dialogue continued as follows:\nA. Death.\nQ. Your preference is death . . .\nA. (Interjected) Yes.\nQ. ... in a first degree murder case?\nA. Yes.\nAfter defense counsel further questioned Boone, he challenged her for cause. The trial court then questioned Boone in part as follows:\nThe Court: Is your view of preference for the death penalty so strong that it would cause you to automatically vote for the death penalty and against life in every first degree murder case without regard to the evidence presented or the law?\nMs. Boone: No.\nThe Court: Is your feeling of preference to the death penalty such that it would prevent or substantially impair your ability to follow your duties as a juror and to follow the law of North Carolina?\nMs. Boone: Yes.\nThe Court: You\u2019re saying that your preference for the death penalty is so strong that it would prevent or impair your ability to follow the law?\nMs. Boone: Yes.\nThe Court: Are you saying to me then that you feel so strongly about the death penalty that if the law tells you to consider both possible punishments that it would impair or prevent your ability to follow the law?\nMs. Boone: No.\nThe Court: Are your feelings about the death penalty in favor of the death penalty so strong that regardless of the facts and circumstances \u2014 let me back up. Taking into account your feelings about the death penalty and your preference as you expressed it, would you be able to render a verdict in this case with respect to the law of North Carolina, in accordance with the law of North Carolina?\nMs. Boone: Yes.\nIn response to further questioning by the trial court, Ms. Boone indicated that she could follow the law and keep an open mind until she heard all the evidence and the trial court\u2019s instructions, but upon further questioning by defense counsel, the following exchange occurred:\nQ. Are you saying to me that if you serve on this jury, you will vote for the death penalty in this case because this man has been convicted of murder?\nA. Yes.\nQ. You\u2019re saying that. And is it your testimony to me now that without hearing anything but knowing he\u2019s convicted, been convicted, you favor the death penalty in this case, is that what you\u2019re saying?\nA. Yes.\nIn an attempt to reconcile and clarify Boone\u2019s responses, the trial court questioned Boone again as follows:\nThe Court: Are your feelings in favor of the death penalty so strong that you cannot consider life imprisonment?\nMs. Boone: No.\nThe Court: Are your feelings in favor of the death penalty so strong that it would substantially impair your ability to consider life imprisonment?\nMs. Boone: No.\nAfter questioning Boone further, the trial court denied defendant\u2019s challenge for cause, and defendant excused Boone peremptorily.\n\u201c[T]o determine whether a prospective juror may be excused for cause due to that juror\u2019s views on capital punishment, the trial court must consider whether those views would \u2018[\u201c[prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.[\u201d]\u2019 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))].\u201d State v. Bowman, 349 N.C. 459, 469-70, 509 S.E.2d 428, 435 (1998), cert. denied, \u2014 U.S.-,-L. Ed. 2d \u2022 \u2014 \u2022, 67 U.S.L.W. 3784 (1999). \u201cAbsent an abuse of discretion, it is the trial court\u2019s decision as to whether [a] prospective juror\u2019s beliefs would affect [his or] her performance as a juror.\u201d Id. at 471, 509 S.E.2d at 436.\n\u201cThe trial court has the opportunity to see and hear a juror and has the discretion, based on its observations and sound judgment, to determine whether a juror can be fair and impartial.\u201d State v. Dickens, 346 N.C. 26, 42, 484 S.E.2d 553, 561 (1997). While Boone\u2019s questionnaire responses and some of her responses during voir dire indicated that she preferred the death penalty for those convicted of murder, the trial court was able upon further questioning to discern that she was capable of putting aside her personal preference for the death penalty and of following the law. We conclude that the trial court did not abuse its discretion in denying defendant\u2019s challenge for cause of prospective juror Boone.\nDuring voir dire, defense counsel questioned prospective juror Britton as follows:\nQ. My question was, would you find it difficult, in view of your attitude, would you find it difficult to recommend the existence of mitigating circumstances in this case or any case?\nA. I can\u2019t answer fully until I\u2019ve heard everything, but I believe that in my personal beliefs I believe that premeditated murder, it would be hard for me to find a mitigating circumstance for that.\nQ. All right, sir. And in view of that response, would you say to me that in a first degree premeditated murder case that you would find it difficult to recommend the existence of a mitigating circumstance?\nA. Yes, sir, that\u2019s a true statement.\nQ. All right. And on the other hand, you would not find it difficult to recommend the existence of an aggravating circumstance?\nA. No, sir.\nDuring further questioning by the trial court, Britton stated that he would do his best to follow the law as instructed by the trial court, that he believed that he could be a fair and impartial juror in the case, but that he was not certain that he could be fair and impartial. Upon further questioning from the trial court, Britton indicated that he could fairly and impartially apply the law, consider the evidence, and render a recommendation in the case based on the evidence presented and the law as instructed by the trial court.\nWe have previously stated that \u201c \u2018in a case ... in which a juror\u2019s answers show that he could not follow the law as given ... by the judge in his instructions to the jury, it is error not to excuse such a juror.\u2019 \u201d State v. Cunningham, 333 N.C. 744, 754, 429 S.E.2d 718, 723 (1993) (quoting State v. Hightower, 331 N.C. 636, 641, 417 S.E.2d 237, 240 (1992)) (alterations in original). Britton\u2019s answers, however, do not sufficiently show that he could not follow the law. To the contrary, they evince a willingness to follow the law as instructed by the trial court. We, therefore, cannot conclude that the trial court abused its discretion in denying defendant\u2019s challenge for cause of prospective juror Britton.\nUnder N.C.G.S. \u00a7 15A-1212(2), a party may challenge a juror for cause on the grounds that the juror \u201c[i]s incapable by reason of mental or physical infirmity of rendering jury service.\u201d N.C.G.S. \u00a7 15A-1212(2) (1997). Defendant argues that prospective juror Thiele suffered from memory loss that rendered him incompetent to serve as a juror.\nDuring voir dire, in response to the prosecutor\u2019s questioning, Thiele discussed the fact that he was under treatment for an inoperable brain tumor. The following exchange later occurred between defense counsel and Thiele during voir dire:\nQ. ... Now, as a result of your brain tumor, have you experienced any mental difficulty?\nA. Memory, short-term memory.\nQ. And does that have any effect on your attention, your ability to pay attention or your ability to focus your attention?\nA. I don\u2019t believe so.\nQ. All right. But it might have an impact on your ability to remember?\nA. Possibly, I mean it\u2019s hard to answer that.\nAfter defense counsel challenged Thiele for cause, the trial court questioned Thiele further about his memory loss in part as follows:\nThe Court: ... Do you feel that you have any memory loss that would impair or affect your ability to serve on a jury knowing what a jury is expected to do?\nMr. Thiele: It\u2019s hard to say. I would try to as best \u2014 to the best of my ability. I don\u2019t know how else to answer that.\nThe Court: I certainly understand that, but what do you think the best of your ability will do in that regard? Thinking about what you do in your other activities such as work, whether it\u2019s remembering lectures or sermons or other things you do in church or family, other things as well?\nMr. Thiele: I hope that it wouldn\u2019t affect it, but that\u2019s a hard question for me to answer.\nThe Court: Have you noticed any significant change in that since, that is, has it gotten worse as time has gone on in the last year and a half, gotten better, remain [sic] the same, or is it something you noticed before the diagnosis?\nMr. Thiele: I think it\u2019s gradual worsening.\n\u2018 The Court: You said it\u2019s not affecting your ability to concentrate on matters, that is ... .\nMr. Thiele: (Interjected) I can do the tasks at hand.\nThe Court: And you\u2019re not having any trouble maintaining your attention on tasks at hand as you said?\nMr. Thiele: That\u2019s correct.\nIn response to the trial court\u2019s questioning, Mr. Thiele went on to state that as a consequence of his memory loss, he had \u201cto pay more attention to scheduling and writing things down\u201d but that he was \u201cfunctioning all right.\u201d He also stated that his memory loss sometimes caused him to lack confidence in his ability to recall facts. On further questioning by the trial court, Thiele stated that the ability to take notes during the trial would be helpful to him.\nIt is well settled that \u201c[t]he trial court\u2019s ruling on a challenge for cause will not be overturned absent abuse of discretion.\u201d State v. Quick, 329 N.C. 1, 17, 405 S.E.2d 179, 189 (1991). In the case sub judice, the trial court seemed convinced that Thiele\u2019s brain tumor and consequent loss of memory had not interfered with his full-time job as a loan officer and office supervisor and that note-taking during the trial would likely compensate for any impairment of his memory. After carefully examining Thiele, the trial court, in its discretion, was satisfied that he was competent to render jury service. Consequently, the trial court rejected defendant\u2019s challenge of Thiele for cause and denied defendant\u2019s request for an additional peremptory challenge.\nWe conclude that the denial of defendant\u2019s challenges for cause of prospective jurors Boone, Britton, and Thiele did not constitute an abuse of discretion. This assignment of error is overruled.\nDefendant next contends that the trial court erred in excusing prospective jurors Harold Vick and Frank Luis for cause. Defendant argues that these prospective jurors should not have been excused for cause because although they stated that they would be uncomfortable imposing the death penalty, they also expressed support for the death penalty. Defendant contends that the trial court\u2019s excusing Vick and Luis for cause violated defendant\u2019s constitutional rights.\nWhen, during voir dire, the prosecutor asked prospective juror Vick how he felt about the death penalty, Vick initially answered, \u201cI don\u2019t quite know how to answer that.\u201d When asked again, he responded, \u201cWell, I guess it would depend on the case.\u201d The following exchange occurred as the prosecutor questioned Vick further:\nQ. . .. You understand there are some people and there\u2019s nothing wrong with this, there are some people who would say, well, yeah, I guess I believe in it, but I could never sit on a jury where that was one of the choices. You understand? Do you feel that way, you say, you know, I believe in the death penalty or it might be all right in some cases but I would never vote to impose it on anybody?\nA. Well, I would say I believe in it but like you say when you get right down to it, when a person\u2019s life is in your hands regardless of what they\u2019ve done, you know, it might be difficult.\nWhen the trial court questioned Vick further, the following exchange occurred:\nQ. . . . But every juror who sits in there has got to be willing to do both [recommend the death penalty or life imprisonment] . . . , you understand what I\u2019m saying?\nA. Uh huh.\nQ. Okay. Do you feel you\u2019re that type person, that you\u2019re willing to consider both punishments?\nA. I would say so.\nQ. Have you felt that the death penalty was a necessary law, have you felt that most of your adult life?\nA. Is this a yes or no question?\nQ. Yes, sir.\nA. Well, you got to draw the line somewhere, so I would have to say yes.\nLater, the prosecutor asked Vick the following question:\nQ. If the State of North Carolina was to present evidence in this case and the defendant was to present evidence, if they chose, if after hearing this evidence and the law that the Judge gives you if you were satisfied that the death penalty ought to be imposed in this case right here, could you, yourself, recommend the death penalty knowing that the Court would be bound and would follow your recommendation?\nAfter the trial court overruled an objection by defense counsel, Vick answered as follows, and the following exchange took place:\nA. I don\u2019t know that.\nQ. Can you explain why you don\u2019t know that?\nA. It\u2019s like I told you while ago, you know, when you take another human\u2019s life into your hands, I\u2019d be doing the same thing that he did or if he did it, or whatever, you know. Right or wrong, I still would have to live with that.\nQ. Well then, would it be fair to say that you would just be \u2014 for whatever reason you feel that you just could not because of your views about imposing the death penalty, that you simply could not vote to impose the death penalty in this case no matter what the evidence is?\nA. I won\u2019t say I could not, but I could say it would be difficult.\nAfter the prosecutor challenged Vick for cause, the court questioned Vick in part as follows:\nThe Court: . . . Are your feelings such that you could ever vote in favor of a death penalty?\nMr. Vick: I really think that would depend on the circumstances.\nThe Court: So, is that saying to me that there are circumstances under which you could vote for a death penalty?\nMr. Vick: Naturally, you know, if you know somebody that\u2019s involved in something it would be easier to vote or if you have feelings toward somebody that\u2019s been involved in something it would be easier. If it was a family member of mine it could be easier for me to vote for the death penalty, but people you don\u2019t know, you know, it\u2019s \u2014 maybe it\u2019s just feelings. I\u2019m trying to be honest again.\nThe Court: In that case that you gave an example of would that be a situation where maybe you wouldn\u2019t feel like you were being fair and impartial?\nMr. Vick: Right.\nThe Court: Now, being a fair and impartial juror, are there circumstances under which you could vote in favor of a death penalty?\nMr. Vick: I don\u2019t know that.\nThe Court: All right. Are your feelings about this such then that they would prevent or substantially impair your ability to perform your sworn duties as a juror?\nMr. Vick: I would say so.\nThe trial court then granted the prosecutor\u2019s challenge for cause and ruled \u201cthat the feelings expressed by this juror indicate that his views are such that [they] would prevent or substantially impair his ability to perform his sworn duties as a juror and that he would not be qualified to serve.\u201d\nDuring questioning by the prosecutor in the voir dire of prospective juror Luis, Luis stated his belief that the death penalty is \u201cnecessary in certain circumstances.\u201d During further questioning, after Luis was asked, over defense counsel\u2019s objection, whether he \u201ccould be part of the legal machinery which might bring the death penalty about in this particular case as a juror,\u201d the following exchange occurred:\nA. Like you said, I believe in the death penalty but I don\u2019t know if I could, you know, be the one, you know, that says, well, he\u2019s sentenced to death, you know, that\u2019s a lot of responsibility.\nQ. Right. Would you say that you\u2019ve got mixed feelings about that?\nA. Yeah.\nQ. And you understand that\u2019s all right, that\u2019s fine, and all we want you to do is just be completely honest about what you could and couldn\u2019t do?\nA. Right.\nQ. You understand that in order for somebody to sit on this jury, okay, regardless of who it is, whether it\u2019s you or any other juror, they must be able to consider imposing the death penalty on this defendant, okay?\nA. Right.\nQ. And they must be willing to do it under certain circumstances and they must be willing to consider imposing a life sentence on this defendant and be willing to do it under certain circumstances? You understand what I mean?\nA. Yes, I understand.\nQ. Are you saying that you feel that you just couldn\u2019t do that?\nA. I think so.\nQ. Okay. Is that because even though you, even though you feel like the death penalty is a necessary law, you just feel that you couldn\u2019t vote to impose it on anybody?\nA. Right.\nAfter further questioning in which Luis unequivocally stated that, because of both personal and religious reasons, he could not vote to impose the death penalty on Hedgepeth or anyone else and acknowledged that his views on the death penalty would either prevent or substantially impair his ability to perform his duties as a juror, the prosecutor challenged Luis for cause. Defense counsel objected but did not request to examine the witness, and the trial court allowed the challenge for cause of Luis.\n\u201c[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding [prospective jurors] for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.\u201d Witherspoon v. Illinois, 391 U.S. 510, 522, 20 L. Ed. 2d 776, 784-85 (1968). Jurors, however, may be excluded for cause if their views on capital punishment would \u201c \u2018prevent or substantially impair the performance of [their] duties as a juror in accordance with [their] instructions and [their] oath.\u2019 \u201d Wainwright, 469 U.S. at 424, 83 L. Ed. 2d at 851-52 (quoting Adams, 448 U.S. at 45, 65 L. Ed. 2d at 589). \u201cA prospective juror\u2019s bias or inability to follow the law does not have to be proven with unmistakable clarity, and the decision as to whether a juror\u2019s views would substantially impair the performance of his [or her] duties is within the trial court\u2019s broad discretion.\u201d State v. Gregory, 340 N.C. 365, 394, 459 S.E.2d 638, 655 (1995), cert. denied, 517 U.S. 1108, 134 L. Ed. 2d 478 (1996).\nHere, prospective juror Vick\u2019s responses during voir dire strongly indicated his potential inability to consider the death penalty, while the responses of prospective juror Luis revealed a complete unwillingness to consider the death penalty. The trial court reasonably found that the personal views of both Vick and Luis would substantially impair their performance as jurors. Thus, we conclude that the trial court did not abuse its discretion in excusing prospective jurors Vick and Luis for cause.\nPROPORTIONALITY REVIEW\nHaving found no error in the guilt-innocence phase in State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309, and no error in defendant\u2019s new capital sentencing proceeding herein, we are required to review the record and determine (1) whether the record supports the aggravating circumstance found by the jury; (2) whether \u201cthe sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor\u201d; and (3) whether \u201cthe sentence of death is 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). We engage in proportionality review as a safeguard \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).\nHere, as noted above, the jury found the aggravating circumstance that the murder was part of a course of conduct in which defendant engaged, including defendant\u2019s commission of other crimes of violence against another person or persons. N.C.G.S. \u00a7 15A-2000(e)(ll). After meticulous review and careful deliberation, we conclude that the aggravating circumstance submitted to and found by the jury is fully supported by the record. We further conclude that there is no indication that the sentence of death was imposed under the influence of passion, prejudice, or another arbitrary factor.\nFinally, we must consider whether imposition of the death penalty in defendant\u2019s case is disproportionate or excessive in comparison to similar cases. We note that on seven occasions, this court has concluded that the sentence of death was disproportionate. 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. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997), and 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).\nThis case has several characteristics that distinguish it from those cases in which we have determined the death penalty to be disproportionate. Here, in upholding defendant\u2019s conviction, we noted that \u201c[t]here [was] plenary and convincing evidence of all elements of first-degree murder, including premeditation and deliberation.\u201d Hedgepeth, 330 N.C. at 46, 409 S.E.2d at 314. \u201cA conviction based on the theory of premeditation and deliberation indicates a more calculated and cold-blooded crime.\u201d State v. Davis, 340 N.C. 1, 31, 455 S.E.2d 627, 643, cert. denied, 516 U.S. 846, 133 L. Ed. 2d 83 (1995). Furthermore, not only did defendant intentionally kill Casey, he also assaulted Mrs. Hedgepeth with a deadly weapon with the intent to kill inflicting serious injury.\nOf the cases in which we found the death penalty disproportionate, Bondurant and Rogers are the only two where the jury found the (e)(ll) aggravating circumstance, found in the instant case, that the defendant engaged in a course of conduct which involved a crime of violence against another. In Bondurant, immediately after he shot the victim, the defendant directed the driver of the car in which he and the victim had been riding to go the hospital. This Court was impressed by the fact that \u201c[i]n no other capital case among those in our proportionality pool did the defendant express concern for the victim\u2019s life or remorse for his action by attempting to secure immediate medical attention for the deceased.\u201d Bondurant, 309 N.C. at 694, 309 S.E.2d at 182-83. Here, in fact, a news director testified that at the police station after the shooting, defendant looked at him; shrugged his shoulders; smirked; and said, \u201cMan, I ran out of bullets.\u201d Such a statement strongly suggests that defendant\u2019s only regret was that he did not succeed in killing Mrs. Hedgepeth.\nIn Rogers, the only other case where the jury found the (e)(ll) aggravating circumstance and in which we have found the death penalty disproportionate, the defendant mistakenly shot the victim while attempting to shoot a friend of the victim\u2019s. Here, there was evidence that defendant had contemplated killing Casey and Mrs. Hedgepeth for months prior to the shooting. After comparing the case sub judice to the seven cases in which this Court has concluded that the sentence of death was disproportionate, we conclude that this case is not substantially similar to any of them.\nWe continue our inquiry by comparing this case to the cases in which this Court has found the death penalty to be proportionate. \u201cAlthough we review all of these cases when engaging in this statutory duty, we will not undertake to discuss or cite all of those cases each time we carry out that duty.\u201d Davis, 349 N.C. at 60, 506 S.E.2d at 488. As we noted in Bowman, 349 N.C. at 482, 509 S.E.2d at 442, the (e)(ll) aggravating circumstance, found by the jury here, is one of \u201cfour statutory aggravating circumstances which, standing alone, this Court has held sufficient to support a sentence of death.\u201d See also State v. Bacon, 337 N.C. 66, 110 n.8, 446 S.E.2d 542, 566 n.8 (1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995). In addition, \u201c[a] single aggravating circumstance may outweigh a number of mitigating circumstances and may be sufficient to support a death sentence.\u201d Id. at 110, 446 S.E.2d at 566.\nHere, the trial court submitted and the jury found the aggravating circumstance that the murder of Casey was part of a course of conduct in which defendant engaged and which included another violent crime, the shooting of Mrs. Hedgepeth. Defendant intended to kill both Casey and Mrs. Hedgepeth and succeeded in killing Casey. We conclude that this case is more similar to cases in which we have found the sentence of death to be proportionate than to those in which juries consistently have returned recommendations of life imprisonment. Based on the nature of this crime, we cannot conclude that the sentence of death is disproportionate or excessive.\nDefendant received a fair capital sentencing proceeding, free from prejudicial error. Accordingly, we leave the judgment of the trial court undisturbed.\nNO ERROR.", "type": "majority", "author": "ORR, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Ralf F. Haskell, Special Deputy Attorney General, for the State.", "Thomas K. Maher for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROWLAND ANDREW HEDGEPETH\nNo. 578A97\n(Filed 20 August 1999)\n1. Evidence\u2014 capital sentencing \u2014 prior violent outbursts and assaults \u2014 rebuttal of character and mitigating evidence\nThe trial court did not err by permitting the State to rebut evidence of defendant\u2019s good character in a capital sentencing proceeding by evidence of defendant\u2019s prior violent outbursts and assaultive behavior. Furthermore, testimony by the victims of these violent outbursts and assaults regarding the circumstances of these incidents, which occurred prior to the time defendant received a brain injury in a 1976 fall, was admissible to rebut defendant\u2019s mitigating evidence that a personality disorder he had prior to 1976 was exacerbated by the 1976 fall and brain injury and that defendant\u2019s lack of control of his emotions resulting from the fall contributed to his shooting of the victim.\n2. Evidence\u2014 capital sentencing \u2014 mental health testimony\u2014 exclusion on redirect \u2014 same as direct evidence \u2014 harmless error\nAny error by the trial court in excluding in this capital sentencing proceeding redirect testimony by defendant\u2019s mental health expert that linked defendant\u2019s personality disorder and brain damage to his killing of the victim was not prejudicial to defendant where this testimony was essentially the same as testimony previously elicited through the direct examination of this witness and testimony previously elicited from a second mental health expert.\n3. Sentencing\u2014 capital sentencing \u2014 mitigating circumstances \u2014 peremptory instructions not required\nThe trial court did not err in refusing to give defendant\u2019s requested peremptory instruction in a capital sentencing proceeding on the (f)(2) mitigating circumstance that the murder was committed while defendant was under the influence of a mental or emotional disturbance or the (f)(6) mitigating circumstance that defendant\u2019s ability to conform his conduct to the requirements of the law was impaired where evidence of defendant\u2019s mental health experts supporting these mitigating circumstances was controverted by the State\u2019s evidence tending to show that defendant\u2019s shooting of the victim was planned in advance and that defendant was cold, calm, and calculated in carrying out his plan. N.C.G.S. \u00a7 15A-2000(f)(2), (f)(6).\n4. Sentencing\u2014 capital sentencing \u2014 instructions\u2014distinction between statutory and nonstatutory mitigating circumstances\nThe trial court\u2019s instructions in a capital sentencing proceeding properly distinguished between statutory and nonstatutory mitigating circumstances, although the court did not specifically instruct that the jurors must give weight to statutory mitigating circumstances, where the trial court properly informed the jurors that, in order to find the existence of a statutory mitigating circumstance, one or more jurors must find that the circumstance is supported by a preponderance of the evidence, and that in order to find the existence of a nonstatutory mitigating circumstance, one or more jurors must (1) find by a preponderance of the evidence that the circumstance exists, and (2) find that the circumstance has mitigating value.\n5. Evidence\u2014 lay opinion \u2014 victim alive after shooting\nA lay opinion by a restaurant customer that he thought the victim was alive when he was wheeled out of the restaurant after being shot by defendant was properly admitted in this capital sentencing proceeding since it was an inference rationally based upon the perception of the witness and helped to clarify his testimony.\n6. Jury\u2014 capital sentencing \u2014 jury selection \u2014 preference for death penalty \u2014 ability to follow law \u2014 denial of challenge for cause\nThe trial court did not abuse its discretion in denying defendant\u2019s challenge for cause of a prospective juror in a capital resentencing proceeding whose questionnaire responses and some of her responses on voir dire indicated that she preferred the death penalty for those convicted of murder where the trial court was able upon further questioning to discern that she was capable of putting aside her personal preference for the death penalty and of following the law.\n7. Jury\u2014 capital sentencing \u2014 jury selection \u2014 difficulty finding mitigating circumstance \u2014 denial of challenge for cause\nThe trial court did not abuse its discretion in denying defendant\u2019s challenge for cause of a prospective juror in a capital resentencing proceeding who stated on voir dire that he would find it difficult to find a mitigating circumstance for a premeditated first-degree murder and indicated during questioning by the trial court that he was not certain that he could be fair and impartial where, upon further questioning by the trial court, the juror indicated that he could fairly and impartially apply the law, consider the evidence, and render a recommendation based on the evidence presented and the law as instructed by the trial court.\n8. Jury\u2014 capital sentencing \u2014 jury selection \u2014 brain tumor\u2014 memory loss \u2014 denial of challenge for cause\nThe trial court did not abuse its discretion in denying defendant\u2019s challenge for cause of a prospective juror in a capital resentencing proceeding who suffered from short-term memory loss as a result of an inoperable brain tumor where the trial court determined the brain tumor and consequent memory loss had not interfered with the juror\u2019s full-time job as a loan officer and office supervisor and that note-taking during the trial would likely compensate for any impairment of his memory.\n9. Jury\u2014 capital sentencing \u2014 jury selection \u2014 inability to return death penalty \u2014 excusal for cause\nThe trial court in a capital resentencing proceeding did not abuse its discretion by allowing the prosecutor\u2019s challenges for cause of two prospective jurors where the first juror\u2019s responses during voir dire strongly indicated his potential inability to consider the death penalty, the second juror\u2019s responses revealed a complete unwillingness to impose the death penalty, and the trial court reasonably found that the personal views of both jurors would substantially impair their performance as jurors.\n10. Capital sentencing\u2014 death penalty not disproportionate\nImposition of the death penalty on defendant for first-degree murder was not excessive or disproportionate where defendant was convicted on the theory of premeditation and deliberation; the jury found the aggravating circumstance that the murder of the victim was part of a course of conduct in which defendant engaged and which included another violent crime, the shooting of his estranged wife; defendant intended to kill both the victim and his estranged wife; a statement made by defendant at the police station indicated that his only regret was that he did not succeed in killing his estranged wife; and the course of conduct aggravating circumstance has been held sufficient, standing alone, to support a sentence of death.\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 Smith (W. Osmond, III), J., at a new capital sentencing proceeding held at the 19 May 1997 Criminal Session of Superior Court, Halifax County, upon defendant\u2019s conviction of first-degree murder. Heard in the Supreme Court 11 May 1999.\nMichael F. Easley, Attorney General, by Ralf F. Haskell, Special Deputy Attorney General, for the State.\nThomas K. Maher for defendant-appellant." }, "file_name": "0776-01", "first_page_order": 828, "last_page_order": 856 }