The opinion of the court was delivered by: Mitchell, Chief Justice
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Freeman, J., on 7 November 1996 in Superior Court, Davidson County, upon a jury verdict finding defendant guilty of first-degree murder on the theory of premeditation and deliberation and under the felony murder rule. Defendant's motion to bypass the Court of Appeals as to his appeal of additional judgments was allowed by the Supreme Court on 18 July 1997. Heard in the Supreme Court 10 February 1998.
On 4 January 1993, defendant was indicted by the Davie County Grand Jury for first-degree murder, felonious breaking and entering, and assault with a deadly weapon with intent to kill inflicting serious injury. He was tried capitally in August 1994 and found guilty of all charges. The jury recommended a sentence of death for the murder conviction, and the trial court sentenced defendant accordingly. The trial court also sentenced defendant to imprisonment for the other crimes.
On appeal, this Court found error and remanded for a new trial. State v. Gregory, 342 N.C. 580, 467 S.E.2d 28 (1996). Venue was subsequently changed to Davidson County. Defendant was retried capitally at the 28 October 1996 Criminal Session of Superior Court, Davidson County. The jury found defendant guilty of all charges and, after a separate capital sentencing proceeding, recommended a sentence of death for the first-degree murder conviction. The trial court sentenced defendant to death for the murder and to consecutive terms of imprisonment of twenty years for felonious assault and ten years for felonious breaking and entering. Defendant appeals to this Court as of right from the sentence of death. His motion to bypass the Court of Appeals on his appeal of the remaining convictions was allowed by this Court on 18 July 1997.
The State's evidence tended to show inter alia that on 10 August 1992, seventeen-year-old Evette Howell lived with her parents in Mocksville, along with her fifteen-year-old brother, Fonzie, and her eighteen-month-old son, Xavier. Evette's parents left for work shortly before 7:00 a.m. Shortly after 8:00 a.m., Evette was found dead in the middle of her bed. Her body was partially covered with a bedsheet, and a fired handgun lay next to her body. Her infant son was found alive and lying next to her in the bed. Evette had been killed by a small-caliber gunshot wound to the left side of her head.
In the next bedroom, Fonzie was found lying on the floor, bloody. One fired shell casing and two unfired bullets were lying next to him on the floor. Fonzie was taken to the emergency room at Baptist Hospital. He arrived in a coma and was placed on a ventilator and a feeding tube. He spent the next six weeks in the intensive care unit and another fifteen months undergoing intensive medical treatment.
Defendant, William Christopher Gregory, had been Evette's boyfriend for some three years and was the father of Evette's child. In June 1992, after the last of many breakups with defendant, Evette came home with a black eye. The morning of Evette's murder, defendant and his cousin Gabe Wilson went to Evette's house with a shotgun, shells, and duct tape. When they arrived at the home, defendant got out of the car with a screwdriver, a hammer, and the duct tape. Defendant told Wilson he was going to kidnap Evette and that if Fonzie got in the way, he was going to kill him. Defendant broke into the house, yelling for Wilson to follow him. Defendant went into Evette's parents' room and took a .25-caliber automatic handgun. Defendant then went into Evette's bedroom and shut the door. Wilson heard Evette yell, "Fonzie, Fonzie." As Wilson began to exit the house, he heard a gunshot. Wilson was outside when he heard Fonzie say, "You got me Chris, you got me." He immediately heard another gun shot. Within a couple of minutes, defendant came out of the house and told Wilson that he had shot Evette and had then gone into Fonzie's room. Defendant's gun jammed, so he hit Fonzie over the head several times. He unjammed the gun, shot Fonzie in the face and then took the gun to Evette's room and put it on the bed beside her. Defendant told Wilson that Evette and Fonzie were both dead.
Upon leaving, defendant drove to his grandfather's house and told him that he had just shot Evette and Fonzie Howell and that Wilson had nothing to do with the shooting. Defendant, Wilson, and defendant's grandmother then went to the Davie County Jail, where defendant told Detective Allan Whitaker he had shot two people. Defendant was taken into custody and advised of his Miranda rights at 9:25 a.m. on 10 August 1992. Defendant signed a waiver of rights form and gave a statement to Detective Whitaker, which he signed after it was reduced to writing.
By assignment of error, defendant contends that the trial court committed prejudicial error when it denied his motion to suppress the initial statements he made to Detective Whitaker shortly after he shot Evette and Fonzie Howell. Defendant further contends that he was in custody when he gave his initial statements and had not been advised of his Miranda rights prior to giving those statements. These contentions are without merit.
This Court has consistently held that the rule of Miranda applies only where a defendant is subjected to custodial interrogation. State v. Gaines, 345 N.C. 647, 661, 483 S.E.2d 396, 405, cert. denied, ___ U.S. ___, 139 L. Ed. 2d 177 (1997). As we discussed in Gaines, "the definitive inquiry is whether there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest." Id. at 662, 483 S.E.2d. at 405; see also Stansbury v. California, 511 U.S. 318, 128 L. Ed. 2d 293 (1994). The United States Supreme Court has held that Miranda warnings are not required "simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect." Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977).
In the present case, defendant was not restrained or confined in any way. Defendant went to the jail entirely of his own volition, not at the request of any law enforcement officer. Without any questioning by officers, he stated he had just shot two people. Nothing in the record indicates that, at any time prior to his initial statements to Detective Whitaker, defendant had any reason to believe that he was not free to go at any time he wished. This assignment of error is overruled.
By another assignment of error, defendant contends that the trial court did not properly exercise its discretion because it summarily denied his motion for individual jury voir dire. Defendant argues that because of an absence of findings of fact showing the trial court's rationale for denying the motion, the trial court's ruling was an abuse of discretion. We do not agree.
"In capital cases the trial Judge for good cause shown may direct that jurors be selected one at a time, in which case each juror must first be passed by the State. These jurors may be sequestered before and after selection." N.C.G.S. § 15A-1214(j) (1997). A trial court's ruling on the issue of individual voir dire will not be disturbed absent an abuse of discretion. State v. Short, 322 N.C. 783, 788, 370 S.E.2d 351, 354 (1988).
Counsel for the defense, when arguing in support of this motion before the trial court, produced absolutely no evidence or argument as to why jurors should be questioned by individual voir dire. In fact, while discussing the motion before the trial court, defense counsel expressly acknowledged that there had been "a change of venue granted in this case and I do not imagine that the publicity in Davidson County is anywhere near the publicity in Davie County concerning these matters." Defendant has failed to identify any possible particular harm resulting from his having been required to question each of the prospective jurors in the presence of the other jurors. Therefore, defendant has failed to demonstrate that the trial court abused its discretion by denying his motion for individual jury selection. State v. Jones, 336 N.C. 229, 261, 443 S.E.2d 48, 64, cert. denied, 513 U.S. 1003, 130 L. Ed. 2d 423 (1994). This assignment of error is overruled.
By another assignment of error, defendant contends that the trial court committed error by overruling his objection to parts of the prosecutor's closing argument and by failing to intervene ex mero motu during another ...