On appeal by defendant as a matter of right from the judgment of Snepp, Judge, entered at the 18 May 1980 Criminal Session of Superior Court, Gaston County. The defendant was charged in an indictment, proper in form, with the murder of Eric Joines. Defendant pled not guilty, and trial began on 2 June 1980. The jury found the defendant guilty of first-degree murder under the felony murder rule and recommended the sentence of death.*fn1 From the conviction of murder and the judgment of death imposed thereon, the defendant appealed.
Meyer, Justice. Justice Exum dissenting as to sentence.
This appeal presents forty-seven assignments of error for our review. No meaningful summary statement of the numerous issues presented by these assignments is possible. We have
grouped the assignments essentially as they are in the defendant's brief. Our conclusion is that there was no error in the proceedings below, and the judgment and sentence of death is affirmed.
The evidence at trial showed that during the dark hours of 2-3 June 1979, Eric Joines was working the third shift at Station Number 5 of Service Distributors on Highway 321 North in Gastonia. His duties were selling gas and oil and collecting money. Sidney Sivvoy Kirksey testified that he had seen Mr. Joines after dark at Service Distributors on 2 June, and had telephoned him at the station later from Belmont and heard voices in the background. Herbert William Frye testified that sometime during the early morning hours of 3 June he and Mack Wright stopped at the station to get some gas and found Mr. Joines lying on his stomach in a puddle of blood with part of the back of his head blown away. The police were summoned to the scene and when Officer Wilson of the Gastonia City Police arrived a few minutes later, at about 4:18 a.m., Mr. Joines was still alive, coughing and gagging. Dr. Sivalingam Siva, an expert in neurosurgery, saw Mr. Joines in the emergency room at Gastonia Memorial Hospital. He testified that in his opinion, the wound in the right side of Mr. Joines' neck was caused by a shotgun blast, possibly from a very close range and that the victim died from lack of oxygen to the brain caused by the gunshot wound.
The testimony of two accomplices, cousins of each other, Linda Massey and Darryl Brawley, established that on the evening of 2 June the defendant, the two witnesses, and another male, not positively identified, were together in Charlotte traveling in a car belonging to Robert Brown, another cousin of Linda Massey. The defendant and Brown had traded cars earlier in the day. The defendant had a .20-gauge sawed-off shotgun with him in the car.
During the course of the evening, the group was drinking alcohol, smoking marijuana, and taking Valium. They traveled onto Interstate 85 and left Charlotte. They later got off the interstate at an exit and passed the service station where Eric Joines worked. They came back up the road to the station and stopped there, apparently "casing" the service station. They then traveled down the road in the opposite direction and once again returned to the service station. The unidentified fourth person
and the defendant, with shotgun in hand, went into the booth where Mr. Joines worked and robbed him. The defendant then shot him and they got back into the car with the money from the cash register they had put in a bag.
The defendant chose not to present any evidence during the guilt-innocence phase of the trial. The jury returned a verdict of guilty of first-degree murder under the felony murder rule.
At the sentencing phase, the State presented evidence of only one aggravating circumstance, that the murder of Eric Joines was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons. G.S. § 15A-2000(e)(11). The evidence showed that after the Joines killing in Gastonia, the defendant and the other three occupants of the car proceeded to Concord and there stopped at a Seven-Eleven convenience store. The defendant and the unidentified male entered the store and the defendant returned to the car, got his shotgun and went back into the store where he fatally shot the clerk, Mrs. Susan Verle Pierce. The two then robbed the store of $67.00 in cash.*fn2
The defendant presented evidence that he had cooperated with his attorney in a personal injury action, had voluntarily admitted himself to a drug treatment center, had been gainfully employed and was a good worker, had financially assisted his family members and was a loving family member. He also presented evidence tending to impeach the testimony of Darryl Brawley.
The judge submitted, and the jury found, the existence of the one aggravating circumstance. The judge submitted ten mitigating circumstances and the jury found the existence of seven of them:
A. T he defendant has no significant history of prior criminal activity.
B. The defendant's age at the time of this murder (24 years).
C. The defendant was gainfully employed at the time of the murder for which he has been convicted, was a good worker, and had been gainfully employed since he was a teenager.
D. The defendant demonstrated a determination to overcome his problems and to try to lead a better life by voluntarily submitting himself for treatment for drug problems in October, 1975 and January and February, 1976.
E. Defendants IQ of 69 is a mitigating circumstance.
F. Defendant's conduct in a normal business manner with Attorney Karl Adkins as to a personal injury case is a mitigating circumstance.
H. The defendant is considerate and loving to his mother and sisters.
I. The defendant is a considerate and loving father.
J. Any other circumstance or circumstances arising from the evidence which you deem to have mitigating value.
The jury found beyond a reasonable doubt that the aggravating circumstance outweighed the mitigating circumstances and recommended that the defendant be sentenced to death. Judgment was entered pursuant to this recommendation.
I. Pretrial Motions And Jury Selection
The defendant assigns as error (Assignments Nos. 21 and 22) the trial court's excusal for cause of the three veniremen, Robertson, Melton, and Williams. The defendant argues that these three potential jurors were improperly excused for cause and thus the defendant was deprived of his life without due process of law and his right to trial by jury.
This argument concerns the trial court's excusal for cause during voir dire of the three veniremen because of their responses to the Witherspoon v. Illinois*fn3 "death qualification" questions.
The applicable constitutional standard permits the excuse of a potential juror for cause if it is established that he 'would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case . . . .' Witherspoon v. Illinois, 391 U.S. 510, 522 at n. 21, 88 S. Ct. 1770, 1777, 20 L. Ed. 2d 776, 785 (1968); see State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941, 100 S. Ct. 2165, 64 L. Ed. 2d 796 (1980).
State v. Pinch, 306 N.C. 1, S.E.2d (1982). The defendant contends that the three jurors excused for cause on this basis did not unequivocally state that they were so unalterably opposed to the death penalty that they would be unwilling to vote in favor of the death sentence no matter how aggravated the facts and circumstances turned out to be. The record reveals that this contention is without merit, for considering contextually their responses to the questions propounded, the potential jurors expressed sufficient refusal to follow the law of capital punishment, should it become applicable to the case, to justify their excusal for cause. State v. Pinch,3 06 N.C. 1, S.E.2d ; State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980).
The record reveals that Frances Williams unequivocally stated that she would not impose the death penalty:
Examination By the Court:
Q. All right. Now, if you answered each of those yes -- that you found beyond a reasonable doubt there were aggravating circumstances, you found beyond a reasonable doubt that they were sufficiently substantial to call for the imposition of the death penalty, and you also found that the aggravating circumstances beyond a reasonable doubt outweighed the mitigating circumstances, would you then vote to impose the death penalty?
A. I just don't feel like I could impose the death penalty.
Q. Not even if you were satisfied beyond a reasonable doubt of those things?
A. No I feel life imprisonment.
Mr. Cloninger: Could I ask her one more question?
Examination By Mr. Cloninger:
Q. Mrs. Williams, you understand that unless you were convinced beyond a reasonable doubt that the aggravating circumstances were sufficiently substantial to require the death penalty you would not be required to recommend a sentence of death?
Q. All right. Knowing that, again I ask you could you not follow the law that His Honor gives you and apply it and make your own determination based on the law His Honor gives you and the evidence that you'll hear at the sentencing hearing?
A. Well, I understand that, you know, I have to take the evidence into consideration, and I realize that the law with the death penalty -- I understand that that is one of the penalties, but I just don't feel the death penalty is right. That's just --
Q. Yes, ma'am. I understand that. I understand your feelings. Do you understand that you would not be required under the law to make a recommendation of the sentence of death unless you yourself were personally satisfied beyond a
reasonable doubt that the aggravating circumstances that the State alleged were sufficiently substantial to justify in your mind a recommendation of a death sentence? Do you understand that?
A. Right. I have to feel that it's -- that -- that the evidence is all there and that in my mind I feel like that that's -- that's what you are trying to tell me, right?
Q. What I'm trying to tell you, I guess, is you understand that you are not required to make a recommendation of a sentence of death unless you are satisfied beyond a reasonable doubt that the aggravating circumstances are so bad -- are so substantially -- are so sufficiently substantial to require in your mind the imposition of the death sentence? If you are not convinced beyond a reasonable doubt of that in your mind, you are not required to make a recommendation of death. Now, again I ask you could you not do that?
A. I could in my mind think and decide, yes, how I felt.
Court: Well, Mrs. Williams, if you were satisfied of all those things beyond a reasonable doubt, then would you invoke to impose the death penalty?
A. I just don't feel like that I could.
The same is true of Mrs. Robertson:
Examination By the Court:
Q. If you serve as a juror in this case, could and would you if called upon to do so make a sentence recommendation of life imprisonment or death in accordance with the law of North Carolina as that will be explained to you by the court, or would you be unable to do so regardless of the law and the facts and circumstances and evidence because of your conscientious beliefs as to the proper punishment for first-degree murder?
A. I believe I would be unable to.
Q. You feel that in spite -- you could not follow the law -- that if -- even though the State has satisfied you beyond a
reasonable doubt of the things it is required to so satisfy you under the law that you could not return a recommendation of punishment of death because of your beliefs about that?
A. I believe I could not.
Examination By Mr. Cloninger:
Q. Do you feel if you were selected as a juror that you could consider the death penalty if it became necessary to consider it, that you could discuss it with other jurors, that you could discuss the law, and you could discuss the evidence in the case? You could consider it, couldn't you?
A. I could discuss the evidence, yes. I'm not too sure about discussing ...