The opinion of the court was delivered by: Parker, Justice.
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Warren, J., at the 29 January 1996 Criminal Session of Superior Court, Rutherford County, upon a jury verdict of guilty of first-degree murder. Defendant's motion to bypass the Court of Appeals as to additional judgments for first-degree burglary and robbery with a dangerous weapon was allowed 19 December 1996. Heard in the Supreme Court 17 November 1997.
Defendant was indicted 7 September 1994 for first-degree murder, first-degree burglary, and robbery with a dangerous weapon. In January 1996 he was tried capitally and found guilty of first-degree murder upon theories of (i) malice, premeditation, and deliberation and (ii) felony murder. He was also found guilty of first-degree burglary and robbery with a dangerous weapon. Following a capital sentencing proceeding, the jury recommended a sentence of death for the murder, and the trial court entered judgment accordingly. For the first-degree burglary conviction, the trial court entered a consecutive sentence of imprisonment for fifty years, and for the robbery conviction, a consecutive sentence of forty years. We find no error meriting reversal of defendant's convictions. However, for the reasons stated herein, we conclude that defendant is entitled to a new capital sentencing proceeding.
On 17 August 1994 Georgia Ann Dayberry Hamrick ("victim"), eighty-three, was battered and knifed to death in her home in Spindale, Rutherford County, North Carolina. The State's evidence tended to show that defendant broke into the victim's home, beat her to find out where her valuables were, and then cut her throat. He took several rings, two of which he sold over the next couple of days for $250.00 and $60.00.
In the early morning hours of Wednesday, 17 August, during a summer rainstorm, defendant pulled out the top corner of the front storm door of the victim's house, breaking the pane of glass, and kicked in the wooden door to get inside. Defendant awakened the victim and, taking her into the various rooms of her house, battered her over the head to force her to give him money and jewelry. Blood drops stained the dining room table and floor, and blood spatter stained the dining room curtains and walls. The kitchen cabinets and walls also bore blood spatter, and a large amount of blood was pooled on the kitchen floor and table. The victim attempted to defend herself against the blows but was overpowered. Defendant then cut the victim's throat with a kitchen knife, exposing and lacerating the jugular vein, and left the house. The victim, still alive, was able to move down the hall to her bedroom, where she collapsed in a chair and died.
Searches of defendant's house, located about two hundred yards from the victim's house, produced from defendant's closet a pair of wet Fila tennis shoes whose soles were consistent with shoe prints, in both dust and blood, found in the victim's house and on her front door. A pawn ticket for $60.00, dated Thursday, 18 August, was found in the purse of defendant's girlfriend, Lisa Hill. The ticket was for a diamond and sapphire ring that the victim's family members testified had belonged to the victim. A second of the victim's rings was found behind the television in defendant's house. A search of defendant's car produced a small silver sewing kit that had belonged to the victim.
Upon interrogation, defendant revealed that in the early morning hours of 17 August, he remembered waking up in his house and sitting and looking at ten or twelve rings, not knowing where they came from. He also said that, at that time, he could see in his mind a white woman with a knife, as if he were having some type of vision. He told the police that he was scared because he did not know where the rings came from. He also told the police that on 18 August he and Hill sold one of the rings to a jewelry store and pawned another at a pawn shop. The police recovered these two rings, and the victim's family members testified that they had belonged to the victim. As for the rest of the rings, defendant said he put some of them in a trash can in a convenience store restroom and some more in a gutter behind a shop in town. The police recovered six rings from the restroom and three more from the gutter where defendant had indicated. Police confirmed that all the rings belonged to the victim.
Defendant presented evidence that despite his possession of the victim's rings there was not enough evidence linking defendant to the burglary and murder; he also presented evidence that the crimes were committed by a person who was seen around the time of the crimes by various eyewitnesses and whom the police never found. Defendant's clothes and shoes, seized from his home, did not produce any evidence of microscopic glass fragments expected to be left from the breaking of the glass in the front storm door, nor did the clothes or shoes test positive for human blood. None of the fingerprints and palm prints found in the victim's home matched defendant's. The Fila shoe prints found in the victim's home, while not inconsistent with a pair of Filas owned by defendant, did not reveal any of the characteristic nicks and cuts present on defendant's shoes.
A witness who lived in the victim's neighborhood testified that during the storm on the night of the murder she saw a man in a yellow raincoat walk by her house in the direction of the victim's house and that a short time later she heard some loud "pops" coming from that direction. She testified that the man's appearance was not consistent with that of defendant. Another witness testified that she saw a man in the neighborhood who was wearing a yellow raincoat, acting very suspiciously and driving a white Grand Am. She also testified that the man's face and general appearance were inconsistent with defendant's appearance.
In short, defendant's argument at trial was that no conclusive blood, hair, fiber, or glass evidence was found on defendant's clothes, in his car, or in his house; and no evidence was presented by the State regarding the identity of the man in the yellow raincoat.
Defendant first contends that the trial court erroneously admitted into evidence defendant's statements produced as a result of custodial interrogation and the stolen property recovered as a result of information provided in those statements, in violation of the Fourth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution. Specifically, defendant asserts (i) that the Spindale Police stopped him without reasonable suspicion and arrested him without probable cause and (ii) that as a result of the illegal seizure and unlawful arrest, special agents of the State Bureau of Investigation ("SBI") obtained incriminating statements from him and statements that led to the recovery of stolen property. These statements and the property, defendant contends, were the fruits of an illegal seizure and should not have been admitted at trial. We disagree with defendant.
Evidence presented at the suppression hearing concerning the facts and circumstances surrounding defendant's detention and arrest are as follows. At 9:03 p.m. on 18 August 1994, Spindale Police Officer Chris justice responded to a report of an automobile breaking and entering at the Uptown Beauty Salon located on Main Street in Spindale. When Officer Justice arrived there at 9:09 p.m., Ms. Patsy Hodge reported that she had been inside the salon having her hair done and that when she left she discovered that someone had broken out the right window of her vehicle. Ms. Derlene Watson, the proprietor of the beauty salon, told Officer Justice that while the salon staff had been working on Ms. Hodge's hair, Ms. Watson had seen a tall black male wearing a white t-shirt and dark colored pants walking back and forth on the sidewalk in front of the salon, "just acting suspicious to her." While at the salon, Officer Justice also spoke with Mr. Ray Sprouse, a local resident who told Justice he had seen a black male pick up a cement block from in front of a building and walk back toward the beauty salon and then, about a minute later, saw the same man run down an adjacent alleyway. After talking with Ms. Hodge, Ms. Watson, and Mr. Sprouse, Officer justice broadcast a description to other officers on his walkie-talkie of a black male wearing a white t-shirt and dark pants who had fled on foot down the alley.
Within five minutes of Officer Justice's broadcast of the description, Spindale Police Officer Glen Harmon saw a person fitting the description in front of the Methodist Church on Main Street, roughly two blocks from the beauty salon, walking toward the rear of the church with a soft drink in his hand. Officer Harmon met the person, the defendant, at the back gate of the church and told him that he fit the description of a suspect in a vehicle breaking and entering that had just occurred uptown and that defendant "needed to just stay right there for a second" while he radioed Officer Justice to come. Officer Harmon then told defendant that he needed to search him for weapons and asked defendant if he was carrying any weapons. Defendant said he had no weapons and had nothing to do with a breaking and entering; then, beginning to get upset, defendant emptied his pockets and threw the contents on the ground, saying, "Search me, search me." Officer Harmon recognized defendant as a suspect in the Hamrick murder which had occurred the day before.
At this point at 9:15 p.m., Officer Justice arrived; he too recognized defendant as a suspect in the murder case. Officers Harmon and Justice put defendant in the back of a patrol car and radioed for another officer to pick up Ms. Watson from the beauty shop and bring her to the Methodist Church to see if she could identify defendant as the person she had observed outside her shop. It took "several minutes" for Ms. Watson to be brought to the Methodist Church. When she arrived the officers shined a flashlight on defendant in the back of the patrol car, and she identified defendant as the person she had seen going back and forth in front of the salon. Defendant then remained in the back of the patrol car at the Methodist Church for about thirty more minutes while the officers conferred with the Assistant Chief of Police on what to do with defendant since he was also a suspect in the Hamrick murder case.
At 10:11 p.m. Officer Justice drove the patrol car with defendant in the backseat back to the beauty shop area so that Mr. Sprouse could see if defendant was the person he had seen pick up the cement block and then later run through the alley. Defendant was kept in the backseat of the patrol car, and the officers shined a flashlight on him so that Mr. Sprouse could identify him. Mr. Sprouse could not identify defendant's face but did indicate that defendant's clothes were of the same type as the clothes on the person he had seen. Defendant was then told he was under arrest and was transported to the police station, arriving there at 10:37 p.m.
Defendant was booked at the station, and his clothes were taken for possible evidence of glass fragments from the automobile window. Defendant was then transported at about 11:00 p.m. to a magistrate and charged with breaking and entering a motor vehicle. The magistrate, who was the same magistrate who had earlier that evening issued a warrant for police to search defendant's house for evidence in the Hamrick murder investigation, set bond in the amount of $100,000 on the breaking and entering charge. Defendant was then fingerprinted and taken to the Rutherford County jail, arriving sometime between 11:30 p.m. and 12:00 a.m. At 1:20 a.m. SBI Special Agents Bruce Jarvis and Andy Cline questioned defendant about evidence linking defendant to the Hamrick murder; it was during this questioning that defendant made the statements which he now contends should have been suppressed.
Defendant first argues that the trial court erred in concluding that Officer Harmon possessed sufficient factual justification for detaining defendant as defendant walked past the Methodist Church. In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968), the United States Supreme Court recognized the right of a law enforcement officer to detain a person for investigation of a crime without probable cause to arrest him if the officer can point to specific and articulable facts that, with inferences from those facts, create a reasonable suspicion that the person has committed a crime. State v. Lovin, 339 N.C. 695, 703, 454 S.E.2d 229, 234 (1995). As the United States Supreme Court has stated:
"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response."
Here, Officer Justice received information from Ms. Watson that around the time that the automobile was broken into, a tall black male with dark pants and a white t-shirt had been acting suspiciously nearby; Officer Justice also received information from Mr. Sprouse that, at about the same time, a black male wearing dark pants and a white t-shirt had picked up a cement block and walked toward the location of the automobile and then, moments later, had run down an alleyway. Officer Harmon received a transmission from Officer Justice to be on the lookout for a tall black male wearing a white t-shirt and black pants who was seen on foot at a certain location and moving in a certain direction. Officer Harmon saw a person fitting the description just moments later and within two blocks of the location specified.
We hold from these facts that the proximity in time and location and the accuracy of the physical description of the race, gender, and clothing of the suspect gave the officers reasonable suspicion to make an investigative stop of defendant. See State v. Lovin, 339 N.C. at 703-04, 454 S.E.2d at 234 (reasonable suspicion existed, even though there was no witness to crime itself, where police had description of person seen driving victim's car as having "a lot of hair," a gold watch and large frame glasses; information about where the car was headed; and information that the person acted suspiciously); State v. Rinck, 303 N.C. 551, 558-60, 280 S.E.2d 912, 919-20 (1981) (reasonable basis for directing defendants to stop existed where, while there was no witness to the homicide, two men were seen acting suspiciously at victim's house late at night and, within about thirty minutes of the homicide, were seen walking along the road within two hundred feet of victim's house); State v. Buie, 297 N.C. 159, 162, 254 S.E.2d 26, 28 (reasonable grounds to stop defendant where woman reported intruder in motel room at 4:10 a.m. and gave description to police of a black male wearing dark clothing, approximately 5' 11" tall and weighing about 190 pounds, and where twenty minutes after the report and five to ten minutes after a radio transmission of the description, an officer saw defendant near the scene of the crime, wet, as if he had been running or perspiring heavily, and wearing a gold-colored leisure suit), cert. denied, 444 U.S. 971, 62 L. Ed. 2d 386 (1979).
Defendant next argues that even if the initial stop was properly and lawfully based on reasonable suspicion, the nature and length of the detention of defendant, that is, secured in a patrol car from shortly after 9:15 p.m. until 10:11 p.m., exceeded the permissible scope of an investigative stop without probable cause. We disagree with defendant's argument and hold that the length and nature of the detention was reasonable since probable cause was in fact established shortly after the stop.
The Fourth Amendment requires that an investigatory stop be brief and that officers pursue an investigation in a diligent and reasonable manner to confirm or dispel their suspicion quickly. United States v. Sharpe, 470 U.S. 675, 686, 84 L. Ed. 2d 605, 615-16 (1985). Defendant notes that absent probable cause to arrest, the United States Supreme Court has never permitted a detention as intrusive as the hour-long detention of defendant in the patrol car. In this case, however, the officers diligently and reasonably pursued the investigation and quickly succeeded in receiving confirmation of defendant's identity, which raised the level of suspicion that defendant committed the breaking and entering from reasonable suspicion to probable cause.
At or slightly after 9:15 p.m., defendant was made to sit in the patrol car. He was not handcuffed. The record shows that defendant sat in the patrol car for a short period of time, "several minutes," while the officers waited for Ms. Watson to arrive and identify defendant. When Ms. Watson arrived, she identified defendant as the person she had seen in front of the beauty shop. We conclude that the identification made by Ms. Watson, in conjunction with Mr. Sprouse's description, provided the officers with probable cause to believe that defendant was the person who committed the breaking and entering of Ms. Hodge's vehicle.
The existence of probable cause depends upon "whether at that moment the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense."
State v. Bright, 301 N.C. 243, 255, 271 S.E.2d 368, 376 (1980) (alterations in original) (quoting Beck v. Ohio, 379 U.S. 89, 91, 13 L. Ed. 2d 142, 145 (1964)). Mr. Sprouse's information about a black male wearing dark pants and a white t-shirt who picked up a cement block and walked toward the beauty shop and then later ran down an alley strongly links a person of that description to the crime; Ms. Watson's information about seeing a black male in a white t-shirt and dark pants acting suspiciously in front of her shop links that person to the person seen by Mr. Sprouse at about the same time; defendant, who fit the description, was then stopped within two blocks of the crime scene and fifteen minutes of the report of the crime; finally, Ms. Watson's identification of defendant as the person she saw in front of her shop completed the link between defendant specifically and the breaking and entering.
We have compared the facts and circumstances of this case to the facts and circumstances in other cases on this issue; and we conclude that when the officers received the confirmation of Ms. Watson's identification, they possessed reasonably trustworthy information sufficient to warrant a reasonable belief that defendant had committed the breaking and entering and that there was thus probable cause to arrest defendant. This Court has previously held that an officer was provided with probable cause prerequisite to a lawful arrest based on "the proximity of defendant to the location where the offenses were committed and the similarity of defendant's appearance to the description which had been reported to the police." State v. Wrenn, 316 N.C. 141, 147, 340 S.E.2d 443, 447 (1986). In Wrenn this Court held that probable cause existed where a burglary report was received at 3:24 a.m. describing the suspect as a white male dressed in dark clothing, possibly wearing a knit hat and armed with a handgun, and where approximately two minutes after receiving the call, an officer saw a vehicle being driven by a white male wearing dark clothing. See also State v. Joyner, 301 N.C. 18, 21-22, 269 S.E.2d 125, 128-29 (1980) (probable cause to arrest existed where burglary/rape victim described suspect as black male with facial hair, wearing a toboggan and a green or blue jogging suit with white stripes, and where an officer saw the defendant, who matched the description, three and a half blocks from the crime scene and seven to ten minutes after the commission of the offenses); State v. Bright, 301 N.C. at 255-56, 271 S.E.2d at 377 (probable cause existed based on abduction victim's description of the abductor and his vehicle, combined with information from bowling alley employees that the defendant matched the description and was seen in the bowling alley prior to the abduction, and observation by officers that the defendant and his vehicle matched the victim's descriptions); State v. Tippett, 270 N.C. 588, 595, 155 S.E.2d 269, 274-75 (1967) (probable cause to arrest existed where burglary victim described suspect as a barefooted white male, not a blond, wearing rough work clothes, and where police, upon arriving at the scene at 1:19 a.m., saw a barefooted male who eluded them and then later, at 3:00 or 3:30 a.m., was seen hiding behind a bush two blocks from the scene of the crime).
Finally, defendant argues that the statements he made to the SBI agents and the property recovered based on those statements should not have been admitted since they were fruits of the illegal seizure or unlawful arrest. Since we have held that there was no illegal seizure or unlawful arrest, this argument necessarily fails. State v. Lovin, 339 N.C. at 704, 454 S.E.2d at 235.
Defendant next contends that the trial court erroneously admitted into evidence other statements and evidence procured by the SBI after defendant invoked his constitutional right to remain silent, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Defendant's argument cannot succeed, however, since the record discloses that defendant never requested that interrogation cease.
Pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378 (1981), the Fifth and Fourteenth Amendments require that during custodial interrogation, if the individual "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, 384 U.S. at 473-74, 16 L. Ed. 2d at 723; Edwards, 451 U.S. at 482, 68 L. Ed. 2d at 384. A defendant may terminate custodial interrogation by indicating in any manner that he wishes to remain silent. State v. Murphy, 342 N.C. 813, 823, 467 S.E.2d 428, 434 (1996).
In this case at the end of the first portion of defendant's interrogation, at about 4:00 a.m. on 19 August 1994, defendant made a statement that after he had gotten some sleep he would be willing to take the officers to the place where he had thrown some purses he had stolen from breaking into vehicles. The agents concluded the interview and returned defendant to his cell. Shortly thereafter, the agents learned that other officers had recovered two additional rings which belonged to the victim, one from defendant's home and the other from a pawn shop. At 4:20 a.m. they resumed their interrogation of defendant, whereupon defendant made the second portion of his statement.
Defendant asserts that his statement to the officers that he would show them where the purses were once he had gotten some sleep constituted an invocation of his constitutional right to have the interrogation cease. At the hearing on the motion to suppress, the trial court found the following facts: defendant received his Miranda warnings and willingly spoke with the agents, he voluntarily signed the interview sheet and Miranda form, he did not appear intoxicated or under the influence of drugs or alcohol, the agents concluded the first portion of the interview at approximately 4:00 a.m., within twenty minutes the agents learned that other officers recovered rings belonging to the victim, the agents then resumed their interview of defendant, the interview continued until 6:10 a.m., defendant remained alert and at times emotional, and defendant did not ask for an attorney and did not ask that the interview end.
These findings are binding since they are supported by competent evidence in the record, State v. Jackson, 308 N.C. 549, 581-81, 304 S.E.2d 134, 152 (1983); and we agree with the State that the trial court committed no constitutional error in admitting the evidence from defendant's second statement. In State v. Murphy this Court concluded that the defendant invoked his Fifth Amendment right to silence when he stood up and stated, "I got nothing to say." State v. Murphy, 342 N.C. at 822, 467 S.E.2d at 433. We reasoned that
the defendant's conduct, in abruptly standing up, combined with his unambiguous statement, "I got nothing to say," were clear indicators that he wished to terminate the interrogation and invoke his right to remain silent. The defendant similarly had indicated a desire to end two prior interrogations by standing up. . . . Finally, the fact that the interrogating officers immediately ceased the interrogation and took the defendant to be "booked" makes it equally clear that the officers understood that the defendant was terminating the interrogation and invoking his right to remain silent.
Id. at 823, 467 S.E.2d at 433-34. Here, by contrast, and contrary to defendant's arguments, defendant made no statement or gesture suggesting that he wished the interrogation to cease. His statement to the officers that he would be willing to take them to where he had discarded some stolen property after he had gotten some sleep was not an invocation of his Fifth Amendment rights. Thus, it was not error for the trial court to admit into evidence defendant's subsequent statement or the fruits of that statement.
Defendant next assigns error to the trial court's supervision of jury voir dire, specifically contending that the trial court (i) failed to prohibit the State from staking out prospective jurors with respect to whether they could vote for the death penalty in this case, (ii) failed to prohibit the State from staking out prospective jurors with respect to whether they could weigh aggravating circumstances more heavily than mitigating circumstances, and (iii) prohibited defendant from asking questions of a prospective juror permitted by the United States Constitution under Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492 (1992). Defendant contends that the trial court's conduct in these three instances permitted the State to select a jury that would tend to disregard mitigating evidence and automatically vote for the death penalty.
Defendant's arguments concerning jury selection are not persuasive. The trial court properly controlled voir dire questioning during jury selection, did not allow the prosecutor to stake out prospective jurors, and did not deny defendant the opportunity to question a prospective juror in accordance with Morgan. We have previously outlined the fundamental law on jury selection:
"The primary goal of the jury selection process is to ensure selection of a jury comprised only of persons who will render a fair and impartial verdict." State v. Locklear, 331 N.C. 239, 247, 415 S.E.2d 726, 731 (1992). Pursuant to N.C.G.S. § 15A-1214(c), counsel may question prospective jurors concerning their fitness or competency to serve as jurors to determine whether there is a basis to challenge for cause or whether to exercise a peremptory challenge. N.C.G.S. § 15A-1214(c) (1988). The trial Judge has broad discretion to regulate jury voir dire. State v. Lee, 335 N.C. 244, 268, 439 S.E.2d 547, 559, cert. denied,  U.S. , 130 L. Ed. 2d 162 (1994). "In order for a defendant to show reversible error in the trial court's regulation of jury selection, a defendant must show that the court abused its discretion and that he was prejudiced thereby." Id. The right to an adequate voir dire to identify unqualified jurors does not give rise to a constitutional violation unless the trial court's exercise of discretion in preventing a defendant from pursuing a relevant line of questioning renders the trial fundamentally unfair. Morgan v. Illinois, 504 U.S. 719, 730 n.5, 119 L. Ed. 2d 492, 503 n.5 (1992); Mu'Min v. Virginia, 500 U.S. 415, 425-26, 114 L. Ed. 2d 493, 506 (1991).
State v. Fullwood, 343 N.C. 725, 732-33, 472 S.E.2d 883, 886-87 (1996), cert. denied, ___ U.S. ___, 137 L. Ed. 2d 339 (1997). The trial court may refuse to allow counsel to ask questions that use hypothetical evidence or scenarios to attempt to "stake-out" prospective jurors and cause them to pledge themselves to a particular position in advance of the actual presentation of the evidence. State v. Larry, 345 N.C. 497, 509, 481 S.E.2d 907, 914, cert. denied, ___ U.S. ___, 139 L. Ed. 2d 234 (1997); State v. Robinson, 339 N.C. 263, 271-73, 451 S.E.2d 196, 202 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).
In the instant case during jury selection, the trial court overruled defendant's objection to the following question when asked of three prospective jurors by the prosecutor:
Assuming that you were on a jury which has found the defendant guilty of First Degree Murder, if that jury then at the sentencing phase, finds the existence of aggravating factors and finds that those factors outweigh any mitigating factors, and further finds that the aggravating factors are sufficiently substantial so as to call for the imposition of the death penalty, ...