IN THE SUPREME COURT OF NORTH CAROLINA
No. 98A93
STATE OF NORTH CAROLINA
v.
PHILLIP LEE INGLE
FILED: 29 JULY 1994
Appeal as of right pursuant to N.C.G.S.
7A-27(a) from judgments imposing two sentences of death entered by
Downs, J., at the 8 February 1993 Criminal Session of Superior Court,
Cleveland County, upon change of venue for trial from Rutherford
County. Heard in the Supreme Court 9 May 1994.
MEYER, Justice.
On 14 October 1991, defendant, Phillip Lee Ingle,
was indicted by a Rutherford County grand jury for the first-degree
murders of William Fred Davis and Margaret Shufford Davis. On
12 November 1992, defendant's motion for change of venue due to
pretrial publicity was granted by Judge Chase B. Saunders.
Venue was changed to Cleveland County. The offenses were
joined for trial on 8 February 1993.
On 17 February 1993, the jury returned verdicts
of guilty of first-degree murder on the basis of malice,
premeditation, and deliberation. Following a sentencing
proceeding pursuant to N.C.G.S. 15A-2000, the jury recommended
and the trial court, on 19 February 1993, imposed the sentence of
death in both cases.
Defendant has brought forth twenty-nine
assignments of error. After a careful and thorough review of
the transcript, the record, the briefs, and oral arguments of
counsel, we conclude that defendant received a fair trial and
sentencing proceeding, free from prejudicial error.
The evidence presented at trial tended to show
the following:
In July 1991, William Fred Davis, sixty-eight
years old, and his wife, Margaret Shufford Davis, sixty-seven years
old, lived in their home in a rural area of Rutherford County.
The nearest residence was a mobile home located about 150 yards from
the house, which defendant had rented from the Davises in 1987.
On Sunday, 28 July 1991, Mr. and Mrs. Davis were
given a ride home from church. Mrs. Davis was carrying a light-beige
pocketbook with a billfold inside it. Later that day, Kathy
Davis, the Davises' daughter-in-law, spoke with Mrs. Davis and saw
Mr. Davis when he stopped by her home to deliver some vegetables.
Ruth Blanton, the Davises' daughter, saw her
father that afternoon in a field near his home and also spoke with
her mother at the Davises' home. Mrs. Blanton again stopped by
the Davises' home around 6:00 p.m. to borrow a vacuum cleaner.
No one was at the home, but the back door was unlocked, so she
picked up the vacuum cleaner and left.
Sometime between 6:00 p.m. and 8:45 p.m.,
defendant was driving around the area of the victims' home. He
knew the Davises from having rented a mobile home from them in 1987.
He went to the Davises' house and drove his car around to the back
of the house.
He parked his car, took an axe handle from it,
and entered the house through the unlocked back door. Mrs.
Davis was in the kitchen, and defendant approached her from behind
and began to beat her on the head with the axe handle until she fell
to the floor. After doing this, defendant went into the den of
the house, where Mr. Davis was seated in a recliner watching
television.
Because Mr. Davis was hard of hearing, the
television was turned up to a high volume, and the evidence tended
to show that he was unaware that defendant had attacked his wife in
the kitchen. After moving to the den, defendant attacked Mr.
Davis and beat him on the head with the axe handle. Both Mr.
and Mrs. Davis died as a result of the wounds inflicted by defendant.
The autopsies of Mr. and Mrs. Davis were
conducted on 30 July 1991. There were six major lacerations on
the scalp and face of Mrs. Davis. An internal examination
revealed contusions, hemorrhaging into the brain, and multiple skull
fractures. Also present were wounds to her left elbow and
right hand that could have been sustained as she tried to defend
herself or that could have been the result of a fall.
An external examination of Mr. Davis showed blood
and brain tissue on his head, face, and clothing. Both of his
eyes had been blackened, and he had bled into the substance of his
left eye. His skull bones had been thoroughly fractured and
pressed inward into his brain.
There were twelve lacerations on his face and
scalp. His dentures were protruding from his mouth. His
left little finger was almost completely torn from his hand, and his
left ring finger had abrasions on it. The wounds to Mr. Davis'
hand could have been sustained as Mr. Davis tried to defend himself
or could have been caused by the hand resting on the top of Mr.
Davis' head as the first blows were inflicted.
The examining physician testified that the nature
of the injuries to both victims was consistent with having been
caused by a blunt instrument such as an axe handle.
After beating the couple to death, defendant left
the house, taking Mrs. Davis' pocketbook and a floral-patterned
dress that belonged to her. He then went to an area about
three miles away from the Davises' home, discarded the dress, and
set fire to the pocketbook and its contents. Defendant then
departed the area. He returned to the area some time later,
picked up the pocketbook, and threw it and the axe handle into a
creek.
Defendant later led law enforcement officers to
the spot where he disposed of these items. The pocketbook was
discovered on the bank of the stream, but the axe handle was never
found.
While defendant was away from the area where the
pocketbook was left burning, it was spotted by a local resident, who
notified the Sheriff's Department. By the time the resident
and a Sheriff's deputy returned to the spot, defendant had retrieved
the pocketbook. The deputy did discover the dress that had
belonged to Mrs. Davis.
Items found in the pocketbook after its recovery
by police and at the site where it was partially burned were
identified as items that had customarily been carried by Mrs. Davis,
and the pocketbook itself was identified as one that had belonged to
Mrs. Davis.
A police investigation of the Davis murders did
not lead to an arrest for several weeks. During that time, in
mid-August of 1991, defendant visited with his friend Jeff Houser.
During a conversation with Houser, defendant made the statement,
"Man, I killed two people. I beat them to death."
Defendant asked Houser if he needed anyone killed, and Houser
jokingly responded by indicating that he did and pointed to his
neighbor's house.
Defendant then began to ask questions about
Houser's neighbor, so Houser told defendant that he was just kidding
about wanting his neighbor killed and that the neighbor was "a real
big guy and they're heavily armed." Defendant responded:
"That doesn't matter. . . . [T]hey'll never see me coming.
All I need is an ax handle." When Houser told defendant to
forget about it, defendant responded: "Well, man, I wouldn't
be telling you this, but I know I can trust you . . . ."
Some weeks later, around the 10th or 12th of
September 1991, defendant returned to Houser's residence suffering
from a black eye. Another visitor at Houser's home, Steve
White, asked defendant about the black eye, and defendant stated
that he "fell and hit a door knob." White did not believe that
to be the truth and told defendant so. After asking Houser if
he was still having trouble with his neighbor, defendant stated, "I'll
take care of him for you." Defendant said, "I'll kill his
whole family. . . . I'll get a stick. . . . I'll beat
them to death." Defendant went on to say, "I love to watch
people dying in agony. Pain. Suffering."
At the time of this second visit to Houser's
residence, defendant had recently committed another double murder in
Gaston County. Defendant had broken into the rural home of an
elderly couple named E.Z. and Sarah Willis and had beaten them both
to death with a tire iron. Defendant's black eye had been
caused when Mr. Willis hit defendant in the head with his cane.
As a result of the conversations defendant had
with Houser and White, the men contacted the State Bureau of
Investigation (SBI). Subsequently, defendant was questioned by
law enforcement officers with regard to the Willis murders.
When questioned about the Davis murders, defendant stated, "Yeah, I
killed them, too."
Defendant gave a statement that detailed his
involvement in both the Willis and Davis murders. He did not
offer any sort of motive for the murders but stated that he did not
kill the victims for sexual gratification or to steal from them.
In his defense, defendant presented evidence
designed to show that at the time of the murders, he was
experiencing a psychotic episode that was the result of a borderline
personality disorder. Defendant also presented evidence of an
extremely troubled childhood in which he had witnessed his mother
overdose on drugs and attempt to commit suicide in his presence on a
number of occasions.
Defendant himself had attempted suicide on more
than one occasion, once attempting to hang himself from a tree at
age five or six. On another occasion, at age nineteen,
defendant stated that he wanted to kill himself and then shot
himself in the stomach with a rifle. There was also evidence
that defendant had been sexually abused by an older man while a
child.
Defendant had been a continuous abuser of drugs
and alcohol and had been periodically admitted to various hospitals
and mental institutions for problems associated with drug and
alcohol abuse.
A week or two prior to the Davis murders,
defendant had been involved in an argument involving his grandmother,
and it was defendant's psychiatric expert's opinion that it could
have been the sight of elderly people, the Davises, that triggered
what the expert characterized as the psychotic episode that resulted
in the murders.
Other facts will be presented as necessary for
the proper resolution of the issues brought forward by defendant.
[1] In his first assignment of error, defendant
contends that it was error for the trial court to refuse to submit
the lesser charge of second-degree murder with regard to the killing
of Mr. Davis. The trial court did submit this offense with
regard to the killing of Mrs. Davis.
"A trial court is required to instruct on a
lesser included offense only when there is evidence to support a
verdict finding the defendant guilty of the lesser offense."
State v. Gibbs, 335 N.C. 1, 52, 436 S.E.2d 321, 350 (1993), cert.
denied, ___ U.S. ___, ___ L. Ed. 2d ___, 1994 WL 112017 (1994); see
also State v. Woodard, 324 N.C. 227, 376 S.E.2d 753 (1989). "When
no evidence supports a lesser included offense, the trial court has
no duty to instruct the jury on such offenses." State v.
Tucker, 329 N.C. 709, 721, 407 S.E.2d 805, 812-13 (1991).
"Second degree murder is the unlawful killing of
a human being with malice but without premeditation and deliberation."
State v. Young, 324 N.C. 489, 493, 380 S.E.2d 94, 96 (1989). "Only
where defendant has brought forth evidence to negate the element of
premeditation and deliberation, or where the evidence is equivocal
as to premeditation and deliberation, is defendant entitled to an
instruction on second-degree murder." State v. Zuniga, 320 N.C.
233, 260, 357 S.E.2d 898, 916, cert. denied, 484 U.S. 959, 98 L. Ed.
2d 384 (1987), denial of post-conviction relief reversed on other
grounds, ___ N.C. ___, ___ S.E.2d ___, 1994 WL 268085 (1994).
Defendant contends that the testimony of his
expert witness that he was in a psychotic state at the time of both
murders was sufficient to negate or call into question the elements
of premeditation and deliberation with regard to the murder of Mr.
Davis. We disagree.
A careful review of defendant's expert's
testimony reveals that the evidence presented called into question
defendant's ability to distinguish between right and wrong but never
indicated that at the time of the crimes he was unable to
premeditate or deliberate his actions.
The psychiatrist testified that defendant's
borderline personality disorder could have been the result of
psychiatric trauma experienced as a child and that defendant's
substance abuse was a symptom of this disorder.
He further testified that the psychotic episode
experienced by defendant at the time of the murders was a feature
one would expect to see associated with borderline personality
disorder.
In addition, defendant's psychiatrist
unequivocally stated that it was his opinion that at the time of the
murders, defendant was unable to distinguish right from wrong and
was unable to determine the nature and quality of his acts.
The psychiatrist went on to testify that
defendant told him that he looked in the window at the Davises
before entering the house, and after doing so, he returned to his
car to retrieve an axe handle. The psychiatrist speculated
that it could have been defendant's recent disagreement with his
grandmother followed by the sight of elderly people that triggered
defendant's psychotic episode.
Nowhere, however, is there any testimony that
defendant was unable to plan his actions or that he lacked the
ability to premeditate and deliberate.
The ability to distinguish between right and
wrong and the ability to premeditate and deliberate are entirely
different considerations. This distinction was explained by
Justice Lake in State v. Cooper:
For criminal responsibility it requires that
the accused have, at the time of the act, the higher mental
ability to distinguish between right and wrong with reference to
that act. It requires less mental ability to form a
purpose to do an act than to determine its moral quality.
The jury, by its verdict, has conclusively established that this
defendant, at the time he killed his wife and the four little
children, had this higher level of mental capacity. It
necessarily follows that he had the lesser, included capacity.
State v. Cooper, 286 N.C. 549, 573, 213 S.E.2d
305, 321 (1975).
These principles, when applied to the present
case, illustrate the weakness of defendant's argument. There
was no evidence that defendant was unable to premeditate or
deliberate with regard to his actions at the time of the murders.
Testimony that defendant lacked the ability to engage in the higher
function of determining the moral acceptability of his actions, even
if believed, does not negate or call into question his ability to
plan his actions. Accordingly, such evidence does not justify
the submission of an instruction on second-degree murder.
The trial court correctly refused to submit the
charge of second-degree murder with regard to the killing of Mr.
Davis. Defendant's assignment of error on these grounds is
overruled.
In his next assignment of error, defendant
contends that the evidence of his insanity at the time of the
killings was uncontroverted, and for that reason, the trial court
erred in denying defendant's motion to dismiss at the close of all
the evidence or, as defendant contends, erred by not granting him
the equivalent of a directed verdict. We disagree.
We note that although defendant did not
specifically request a directed verdict on the issue of his insanity,
it is well settled that a motion to dismiss and a motion for a
directed verdict have the same effect. State v. Mize, 315 N.C.
285, 290, 337 S.E.2d 562, 565 (1985); Cooper, 286 N.C. at 568, 213
S.E.2d at 318.
"[I]n considering whether a trial court has erred
in refusing to direct a verdict of not guilty by reason of insanity,
we must bear in mind the rule that 'in all cases there is a
presumption of sanity, and when there is other evidence to support
this presumption, this is sufficient to rebut defendant's evidence
of insanity . . . .'" State v. Evangelista, 319 N.C. 152, 162,
353 S.E.2d 375, 382 (1987) (quoting State v. Mize, 315 N.C. at 290,
337 S.E.2d at 565).
[2] In North Carolina, in order for a defendant
to be exempt from criminal responsibility for an act by reason of
insanity, he must prove to the satisfaction of the jury that at the
time of the act, he was laboring under such a defect of reason
caused by disease or a deficiency of the mind that he was incapable
of knowing the nature and quality of his act or, if he did know the
nature and quality of his act, that he was incapable of
distinguishing between right and wrong in relation to the act.
State v. Bonney, 329 N.C. 61, 405 S.E.2d 145 (1991); State v.
Mancuso, 321 N.C. 464, 364 S.E.2d 359 (1988); State v. Evangelista,
319 N.C. 152, 353 S.E.2d 375; State v. Mize, 315 N.C. 285, 337
S.E.2d 562.
In the case of an unwitnessed crime, the question
of the mental condition of a defendant at the precise time of the
crime becomes especially problematic. Accordingly, courts have
allowed evidence of a defendant's actions at relevant times before
and after the commission of the crime to serve as an indication of
the defendant's mental condition at the time of the act. As we
noted in State v. Duncan:
To determine the issue as to whether the
defendant was insane at the time of the alleged commission of
the offense[,] evidence tending to show the mental condition of
the accused both before and after the commission of the act, as
well as at the time of the act charged, is competent, provided
the inquiry bears such relation to the person's condition of
mind at the time of the alleged crime as to be worthy of
consideration in respect thereto. It would be
impracticable to limit the evidence to such condition at the
exact time.
State v. Duncan, 244 N.C. 374, 377, 93 S.E.2d
421, 423 (1956); see also State v. Cooper, 286 N.C. 549, 213
S.E.2d 305.
[3] In the present case, many details surrounding
the commission of the crime serve to rebut defendant's contention
that he was unable to appreciate the nature and quality of his
actions at the time of the murders. Immediately after leaving
the Davises' house with Mrs. Davis' pocketbook, defendant set fire
to the pocketbook. He returned a short time after doing so,
retrieved the pocketbook, and threw it and the murder weapon into a
nearby creek.
When discussing his crime with his friend Houser,
he specifically stated, "Well, man, I wouldn't be telling you this,
but I know I can trust you . . . ." He also stated, while
gesturing to his daughter, that he had too much to lose and too much
to live for to get caught. Defendant's expert testified that
his wife had told him that defendant had behaved normally in the
period following the Davis murders and preceding the Willis murders.
Although this evidence is not conclusive on the
issue of whether defendant was insane at the time of the murders, in
order for evidence of sanity to foreclose defendant's right to a
directed verdict, it is sufficient if the evidence tends to
controvert defendant's evidence that he was unable to distinguish
between right and wrong at the time of the murders.
We hold that there was sufficient evidence of
defendant's sanity to withstand his motion to dismiss made at the
conclusion of the State's evidence. The trial court correctly
denied the motion, and defendant's assignment of error on these
grounds is overruled.
[4] In his next assignment of error, defendant
contends that the trial court erred when it allowed the State to
introduce evidence of the Willis murders, committed some six weeks
after the crime at issue here. Defendant concedes that case
law supports the trial court's conclusion that the evidence was
relevant and admissible for purposes of showing defendant's state of
mind, method of operation, and preparation, but argues that this
evidence should nonetheless have been disallowed pursuant to Rule
403, which provides that relevant evidence "may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice." N.C.G.S. 8C-1, Rule 403 (1992).
Defendant contends that inasmuch as he had
confessed to the murders in the Davis case as well as the Willis
case, the testimony concerning the Willis murders added nothing to
the State's case, served only to inflame the passions of the jury,
and had "an undue tendency to suggest decision on an improper
basis." State v. Mercer, 317 N.C. 87, 94, 343 S.E.2d 885, 889
(1986) (quoting N.C.G.S. 8C-1, Rule 403 commentary (Supp.
1985)). We disagree.
"[A] naked extrajudicial confession,
uncorroborated by other evidence, is not sufficient to support a
criminal conviction." State v. Sloan, 316 N.C. 714, 725, 343
S.E.2d 527, 534 (1986). "According to the law of this
jurisdiction, the State must at least produce corroborative evidence,
independent of defendant's confession, which tends to prove the
commission of the charged crime." Id.; see also State v.
Parker, 315 N.C. 222, 337 S.E.2d 487 (1985) (corroboration rule
relaxed in noncapital cases). Accordingly, evidence of the
Willis murders aided in the corroboration of defendant's confession.
In addition, the evidence at issue here was
properly admissible under Rule 404, which provides that evidence of
other crimes, wrongs, or acts may be admissible in order to show "proof
of motive, opportunity, intent, preparation, plan, knowledge."
N.C.G.S. 8C-1, Rule 404(b) (1992). Accordingly, evidence
of the Willis murders was relevant to assist in the determination of
a number of facts in the present case, including the central fact of
the identity of the Davises' assailant, thus meeting the relevancy
requirements of Rule 401. Rule 402 provides that relevant
evidence is generally admissible, subject to certain limitations.
The admissibility of this type of evidence is further limited by the
provisions of Rule 403, which provides that even the admissibility
of relevant evidence is subject to a determination by the trial
court that the probative value of the evidence is not substantially
outweighed by its prejudicial effect.
As this Court noted in State v. Mercer, Rule
403 calls for a balancing of the proffered evidence's probative
value against its prejudicial effect. Necessarily,
evidence which is probative in the State's case will have a
prejudicial effect on the defendant; the question, then, is one
of degree. The relevant evidence is properly admissible
under Rule 402 unless the judge determines that it must be
excluded, for instance, because of the risk of "unfair prejudice."
317 N.C. at 93, 343 S.E.2d at 889. The
decision whether to admit evidence subsequent to a Rule 403 analysis
rests within the sound discretion of the trial court, and its ruling
will not be overturned unless it is shown that the ruling was "manifestly
unsupported by reason and could not have been the result of a
reasoned decision." State v. Riddick, 315 N.C. 749, 756, 340
S.E.2d 55, 59 (1986), quoted in State v. Handy, 331 N.C. 515, 532,
419 S.E.2d 545, 554 (1992). Defendant has made no such showing.
The State was required to produce corroborative
evidence beyond defendant's confession in order to secure a
conviction of murder. Testimony concerning the Willis murders,
committed under remarkably similar circumstances, had substantial
probative value of defendant's criminality and guilt in the Davis
murders.
The record does not suggest that the prosecution
presented evidence in an inflammatory manner or in a manner designed
to inflame the passions of the jury. We hold that the trial
court properly admitted evidence of the Willis murders; accordingly,
defendant's assignment of error on these grounds is overruled.
[5] In his next assignment of error, defendant
contends that the trial court erred when it denied his motion to
suppress the inculpatory statement that he made to law enforcement
officers subsequent to his arrest. As the basis for this
assignment of error, defendant contends that at the time of the
giving of the statement, he lacked the capacity to waive his rights.
Defendant concedes that at the time of the motion hearing, no
evidence was presented that he lacked the capacity to waive his
rights at the time of the interrogation, but nonetheless requests
that this Court examine the circumstances surrounding the hearing in
order to determine whether the statement should have been admitted.
When a person is in the custody of a law
enforcement officer,
the person must be warned that he has a right
to remain silent, that any statement he does make may be used as
evidence against him, andthat he has a right to the presence of
an attorney, either retained or appointed. The defendant
may waive effectuation of these rights, provided the waiver is
made voluntarily, knowingly and intelligently.
Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed.
2d 694, 706-07 (1966). In the present case, defendant was
given his Miranda warnings and initialed a written form that
indicated that he understood his rights and was willing to answer
questions without a lawyer. Even so, however,
"the ultimate test of the admissibility of a
confession still remains whether the statement made by the
accused was in fact voluntarily and understandingly given.
The fact that the technical procedural requirements of Miranda
are demonstrated by the prosecution is not, standing alone,
controlling on the question of whether a confession was
voluntarily and understandingly made. The answer to this
question can be found only from a consideration of all
circumstances surrounding the statement."
State v. Mlo, 335 N.C. 353, 363, 440 S.E.2d 98,
102 (1994) (quoting State v. Rook, 304 N.C. 201, 216, 283 S.E.2d
732, 742 (1981), cert. denied, 455 U.S. 1038, 72 L. Ed. 2d 155
(1982)), cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___, 1994 WL
194303 (1994). In the present case, defendant contends that he
did not voluntarily and understandingly give his statement because
he was insane at the time of questioning and lacked the capacity to
waive his rights. An examination of the record indicates that
this was not so.
In accordance with the requirements of N.C.G.S.
15A-977(f), the trial court made findings of fact and conclusions of
law with regard to defendant's motion to suppress. See
N.C.G.S. 15A-977(f) (1988). The trial court made the
following findings of fact:
That at the time of the interrogation, the
defendant appeared to be in a reasonably good and healthy
physical condition, having the only apparent--the only apparent
wound or disfigurement being a black eye. That he was not
under the influence of any alcohol or drugs. That his
mental condition at and during the time of interrogation was
coherent and one of understanding. That the answers that
he gave in response to the questions asked were reasonable ones
and they were responsive ones.
That there were no promises or offers of
reward or inducements made by law enforcement officers for the
defendant to make any statement. That there were no
threats or suggested violence or show of violence by any law
enforcement officers to persuade or induce the defendant to make
any statement.
That when the defendant did desire to stop
talking and make no further statement and request the presence
of a lawyer, no further questions were asked of him. That
his--that his responses to questions asked of him were logical,
straight forward, sensible and were not in the category of
bizarre.
These findings of fact made by the trial court
are binding on appeal if supported by competent evidence.
State v. James, 321 N.C. 676, 365 S.E.2d 579 (1988). In the
present case, the record indicates that these findings are fully
supported by the testimony given during a voir dire examination of
the police officer who took defendant's statement.
With regard to defendant's mental condition, SBI
Agent Dan Crawford testified that at the time defendant was being
questioned, he responded appropriately and completely and did not
appear to be under the influence of alcohol or drugs. He
responded to the questions in a sensible manner and did not exhibit
any bizarre or unusual behavior whatsoever.
Defendant offered no evidence that tended to show
that he was insane or that he did not voluntarily and
understandingly waive his rights. The findings of the trial
court are supported by the evidence; accordingly, we adopt them and
consider them to be binding upon this Court.
"Nevertheless, the conclusions of law drawn from
the facts found are not binding on the appellate court and 'are
fully reviewable on appeal.'" Mlo, 335 N.C. at 365, 440 S.E.2d
at 103 (quoting State v. Mahaley, 332 N.C. 583, 593, 423 S.E.2d 58,
64 (1992)). The focus of our inquiry on this appeal now is
whether the conclusions reached by the trial court are supported by
the findings of fact. Such an inquiry requires the Court to
examine "all circumstances surrounding the statement." Rook,
304 N.C. at 216, 283 S.E.2d at 742.
The trial court concluded that "the defendant was
in full understanding of his constitutional right to remain silent
and his right to counsel and all other rights; and that he freely,
knowingly, intelligently and voluntarily waived each of those rights
and thereupon made the statement to the officers."
An examination of all of the circumstances
surrounding the giving of the statement leads this Court to the same
conclusion. After having been given information that defendant
might have been connected with the Gaston County murders of Mr. and
Mrs. Willis, Agent Crawford and Detective Phillips of the Gaston
County Police travelled to defendant's residence to question him
about the murders.
Upon arriving at defendant's residence, they
informed him of the purpose of their visit. Because they were
in the presence of defendant's wife and small children, the officers
asked defendant if he wanted to discuss the matters outside of his
mobile home and further asked him if he would accompany them to the
police facilities in Gaston County.
Defendant agreed to do so and attempted to
contact his employer to let his employer know that he would either
be late or not present for work that day. No questions were
asked of defendant until he had waived his rights, and during the
time period defendant was questioned, he did not act in an unusual
or bizarre manner or otherwise give any indication that he was
incapable of knowingly and understandingly waiving his rights.
During questioning, defendant chose not to answer certain questions
and eventually decided on his own that he should not proceed any
further in answering questions without the assistance of an attorney.
Given the circumstances surrounding defendant's
waiver of his rights and the lack of any evidence that defendant was
insane at the time of the giving of the statement, we hold that the
trial court correctly concluded that defendant knowingly and
understandingly waived his rights and that it properly admitted his
inculpatory statements. Defendant's assignment of error on
these grounds is overruled.
In his next assignment of error, defendant argues
that the trial court erred when it failed to correct what defendant
contends was a grossly improper closing argument by the prosecutor
at the conclusion of the guilt/innocence phase of the trial.
[6] In anticipation of an instruction that the
jury could find defendant guilty of second-degree murder with regard
to the killing of Mrs. Davis, the prosecutor stated the following:
[MR. LEONARD (Prosecutor):] And with
respect to Mrs. Davis, they say, Oh, you ought to water this
thing down. You ought to go back there and trade it out
somehow. You ought to find him guilty--not guilty; but I
suppose they're hoping at a very minimum in her case that you'll
say he's guilty of no murder--of no more than murder in the
second degree.
I tell you what. With respect to either
one of these people--with respect to this lady right here, with
respect to Mrs. Davis, I hope you'll do this. Before you
come back in this case--
MR. BURWELL [Defense Counsel]:
Objection.
MR. DAVIS [Defense Counsel]: Objection.
MR. LEONARD: --and say he's guilty--
THE COURT: Wait. Wait. Wait
a minute.
MR. DAVIS: He's saying I hope.
THE COURT: Well, overruled. Go
ahead.
MR. LEONARD: My gosh. My gosh.
No wonder we're in the mess we're in. No wonder we're in a
mess.
I hope you'll say with respect to this lady
right here that this man is guilty also of murder in the first
degree. And before you say in the death of this woman that
this defendant's guilty of murder in the second degree, before
you give him that benefit--or rather than give him that benefit,
I'd rather see you just--
MR. BURWELL: Objection.
MR. LEONARD: --throw the whole thing
out of the courtroom.
THE COURT: Overruled.
MR. LEONARD: Just throw the whole thing
out. That's how strongly we feel about this. That's
my contention. I contend that both cases ought to be
thrown slam out of this courtroom before you water down either
one of them based on this evidence. I would rather see you
do that--
MR. BURWELL: Objection.
THE COURT: Overruled.
MR. LEONARD: --and turn him loose and
return his ax handle to him--
MR. BURWELL: Objection.
MR. LEONARD: --and if he wants to, let
him go to work--
THE COURT: Sustained.
MR. LEONARD: --all the way to seven
[future victims].
Defendant's first assignment of error with regard
to this portion of the prosecutor's argument is that it was improper
for the prosecutor to state that it was his preference that the jury
should "throw the whole thing out of this courtroom" rather than
return a verdict of second-degree murder with regard to both victims.
Defendant contends that this statement amounted to animpermissible
statement of opinion on the part of the prosecutor.
We perceive no impropriety in a statement by the
prosecution requesting that the jury return a verdict of guilty of
the most serious crime charged and requesting that the jury not
consider a verdict convicting defendant of the lesser crime.
The prosecutor's role is to do just that:
compel the jury to convict a defendant of the charges that the
prosecution has attempted to prove at trial, not charges that the
prosecution contends have no applicability. "[I]t is
permissible for a prosecutor to ask the jury to return the highest
degree of conviction and the most severe punishment available for
the offense charged." State v. Hager, 320 N.C. 77, 84, 357
S.E.2d 615, 619 (1987).
That the prosecutor stated that it was his
preference that the cases be "thrown slam out this courtroom" rather
than return a verdict that he contends is clearly contrary to the
evidence presented by the State merits no relief for defendant.
"The prosecutor's comments in this case were proper in light of his
role as a zealous advocate for convictions in criminal cases."
State v. McCollum, 334 N.C. 208, 227, 433 S.E.2d 144, 154 (1993).
[7] Defendant's next assignment of error with
regard to this portion of the prosecutor's argument concerns what
defendant characterizes as "an improper suggestion that defendant,
if acquitted, would commit a crime." State v. Zuniga, 320 N.C.
233, 257, 357 S.E.2d 898, 914. The portion of the argument
referred to by defendant is that part in which the prosecutor
indicated that rather than return a verdict of second-degree murder,
the prosecutor would prefer to return defendant's axe handle to him
and let him work his way up to seven victims.
It is true that this Court has disapproved of
such arguments in the past. In State v. Miller, a breaking and
entering case, the prosecutor argued that
"[the defendants] are storebreakers.
Both of them. Sure, turn them loose. I could stand
it myself. Personally, I could, just insofar [as] . . . I
don't own any buildings. It would be . . . it would hurt
me. Turn them loose they say. And if you do, buckle
your knees tight and lock your houses in the evening. Get
the merchant patrol in your front yard with you, German police
dogs! And when they break through your defenses, ladies
and gentlemen, don't cry on me down at the solicitor's office,
and say 'What are you doing about it?'"
State v. Miller, 271 N.C. 646, 656, 157 S.E.2d
335, 344 (1967). In holding that this portion of the State's
argument was improper, we noted that "the appealing defendants did
not testify in their behalf, and they did not introduce any evidence
as to their reputation for character. Yet, with no supporting
evidence the solicitor defiled the characters of the defendants in
his argument to the jury." Id. at 657, 157 S.E.2d at 344.
The particular facts of the present case, however,
suggest that the comment was not merely improper speculation, but
was grounded upon a substantial evidentiary basis.
After killing Mr. and Mrs. Davis, the
uncontroverted evidence showed that defendant repeated his brutal
crime just six weeks later. No explanation was ever given
other than speculation that his "psychotic episode" could have been
triggered by the sight of old people. The jury was informed
that while in custody and after termination of questioning,
defendant had voluntarily and spontaneously stated to SBI Agent
Crawford that "I'm glad that y'all caught me. . . . I'd have
probably done it again." Before defendant was apprehended, he
had told a friend about the murders and said that he enjoyed
watching people dying and in agony. He offered to kill his
friend's neighbor for him, stating that all he needed was an axe
handle.
Defendant's expert explained that, although he
was not familiar with the particular diagnostic criteria involved, a
"serial killer" might "repeatedly kill somebody and usually [follow]
the same type pattern in his finding . . . a victim and killing the
victim." This expert responded affirmatively to the
prosecutor's inquiry on cross-examination whether this pattern could
repeat itself on a "first, second, third, fourth, fifth, sixth,
seventh occasion."
We believe the circumstances of the present case
warrant the conclusion that this portion of the argument, taken in
context and in light of the testimony given at trial, was based upon
fair inferences drawn from the evidence and, as such, was not
improper. Defendant's assignment of error on these grounds is
overruled.
In his next assignment of error, defendant
contends that the trial court erred when it submitted the N.C.G.S.
15A-2000(e)(9) aggravating circumstance that the murder of Mr. Davis
was especially heinous, atrocious, or cruel.
[8] In his first argument on the submission of
this factor, defendant contends that the jury instructions
concerning the circumstance are unconstitutionally vague.
Defendant concedes that this Court has consistently decided this
question otherwise and presents no argument as a basis to depart
from our earlier decisions on the matter. See State v. Syriani,
333 N.C. 350, 391-92, 428 S.E.2d 118, 139-41, cert. denied, ___ U.S.
___, 126 L. Ed. 2d 341 (1993), reh'g denied, ___ U.S. ___, 126 L.
Ed. 2d 707 (1994); State v. Fullwood, 323 N.C. 371, 399-400, 373
S.E.2d 518, 535-36 (1988), sentence vacated on other grounds, 494
U.S. 1022, 108 L. Ed. 2d 602 (1990), on remand, 329 N.C. 233, 404
S.E.2d 842 (1991).
We have reviewed the instructions given for this
aggravating circumstance and find them to be nearly identical to
those expressly approved by this Court in the past.
Defendant's assignment of error on these grounds is overruled.
[9] Defendant next contends that the evidence of
the circumstances of Mr. Davis' killing did not warrant the
submission of the instruction. Defendant contends that because
the evidence showed that Mr. Davis was unaware of his assailant's
presence and was rendered unconscious by the first blow, he did not
suffer any of the physical or psychological torture that would cause
his murder to be "especially" heinous, atrocious, or cruel. We
disagree.
The interpretation of events posited by defendant
is not the proper scenario upon which the trial court is to base its
decision of whether to submit this aggravating circumstance.
Rather, "'[i]n determining if there is sufficient evidence to submit
an aggravating circumstance to the jury, the trial judge must
consider the evidence in the light most favorable to the State.'"
State v. Quick, 329 N.C. 1, 31, 405 S.E.2d 179, 197 (1991) (quoting
State v. Huff, 325 N.C. 1, 55, 381 S.E.2d 635, 666 (1989), sentence
vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990),
on remand, 328 N.C. 532, 402 S.E.2d 577 (1991)). "The State is
entitled to every reasonable inference to be drawn from the facts.
Contradictions and discrepancies are for the jury to resolve, and
all evidence admitted which is favorable to the State is to be
considered." State v. Gibbs, 335 N.C. 1, 61, 436 S.E.2d 321,
356.
In addition, the decision to submit the factor
does not entirely center around the experience endured by the victim
during the killing. As we noted in State v. Gibbs:
We have identified several types of murders
which may warrant submission of circumstance (e)(9): One
type includes killings physically agonizing or otherwise
dehumanizing to the victim. State v. Lloyd, 321 N.C. 301,
319, 364 S.E.2d 316, 328 (1988). A second type includes
killings less violent but "conscienceless, pitiless, or
unnecessarily torturous to the victim," State v. Brown, 315 N.C.
40, 65, 337 S.E.2d 808, 826-27 (1985), including those which
leave the victim in her "last moments aware of but helpless to
prevent impending death," State v. Hamlet, 312 N.C. 162, 175,
321 S.E.2d 837, 846 (1984). A third type exists where "the
killing demonstrates an unusual depravity of mind on the part of
the defendant beyond that normally present in first-degree
murder." Brown, 315 N.C. at 65, 337 S.E.2d at 827.
Gibbs, 335 N.C. at 61-62, 436 S.E.2d at 356.
We believe the murder in the present case easily meets the criteria
outlined in several of the categories that this Court has previously
identified as indicative of a murder that is especially heinous,
atrocious, or cruel.
The evidence, supported by defendant's own
account of the events, shows that defendant beat Mr. Davis on the
head so hard that the fractures in his skull could be felt
underneath his scalp. Bits of Mr. Davis' brain were on his
shirt, his dentures protruded from his mouth, and there were a total
of twelve lacerations on his face and head. There was blood
spattered about the room and surrounding the reclining chair in
which Mr. Davis' body was found.
When a murderer attacks an elderly victim by
surprise and beats his brains out of his head by repeated blows of
an axe handle without the slightest sign of provocation, it may be
said that there is an inference that the murder was conscienceless
and pitiless. Evidence that defendant committed a similar set
of murders just six weeks later, after a boastful discussion of his
murderous capabilities, is further evidence of a lack of pity for
defendant's victims.
The facts of this case suggest a depravity of
mind on the part of the killer not easily matched by even the most
egregious of slayings, as well as a level of brutality that exceeds
that ordinarily present in first-degree murders. See N.C.P.I.--Crim.
150.10, at 18-19 (1992). We hold that there was sufficient
evidence to support the submission of the aggravating circumstance
that the murder was especially heinous, atrocious, or cruel.
Defendant's assignment of error on these grounds is overruled.
[10] In his next assignment of error, defendant
contends that the trial court erred when it submitted, over his
objection, the N.C.G.S. 15A-2000(f)(1) mitigating circumstance
that defendant had no significant history of prior criminal activity.
Defendant acknowledges the series of cases in which this Court has
held that where evidence is presented in a capital sentencing
proceeding that may support a statutory mitigating circumstance,
N.C.G.S. 15A-2000(b) directs that the circumstance must be
submitted for the jury's consideration absent defendant's request or
even over his objection. See State v. Gibbs, 335 N.C. at 61,
436 S.E.2d at 352-53; State v. Mahaley, 332 N.C. at 597, 423 S.E.2d
at 66; State v. Artis, 325 N.C. 278, 314, 384 S.E.2d 470, 490
(1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed.
2d 601 (1990), on remand, 329 N.C. 679, 406 S.E.2d 827 (1991); State
v. Lloyd, 321 N.C. 301, 311-13, 364 S.E.2d 316, 324, sentence
vacated on other grounds, 488 U.S. 807, 102 L. Ed. 2d 18 (1988), on
remand & sentence reinstated, 323 N.C. 622, 374 S.E.2d 277 (1988),
sentence vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601
(1990), on remand, 329 N.C. 662, 407 S.E.2d 218 (1991); State v.
Brown, 315 N.C. 40, 62, 337 S.E.2d 808, 825 (1985), cert. denied,
476 U.S. 1165, 90 L. Ed. 2d 733 (1986), overruled on other grounds
by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988).
"Even when a defendant offers no evidence to support the existence
of a mitigating circumstance, the mitigating circumstance must be
submitted when the State offers or elicits evidence from which the
jury could reasonably infer that the circumstance exists."
State v. Stokes, 308 N.C. 634, 652, 304 S.E.2d 184, 195-96 (1983).
[11] Accordingly, it is this Court's duty only to
review the evidence brought forth at trial in order to determine
whether the submission of the circumstance was proper.
A review of the record indicates that evidence of
defendant's prior criminal activity consisted principally of
testimony concerning his use of illegal drugs. In addition,
the State's cross-examination of defendant's aunt revealed that she
"took out warrants on him" for communicating threats and trespassing.
Despite the fact that some of these activities were unadjudicated
crimes, it is proper for the trial court to take these activities
into account in making its determination of whether to submit the
(f)(1) mitigating circumstance. State v. Noland, 312 N.C. 1,
20-21, 320 S.E.2d 642, 654 (1984), cert. denied, 469 U.S. 1230, 84
L. Ed. 2d 369, reh'g denied, 471 U.S. 1050, 85 L. Ed. 2d 342 (1985),
post-conviction relief granted on other grounds sub nom. Noland v.
Dixon, 831 F. Supp. 490 (W.D. N.C. 1993); State v. Stokes, 308 N.C.
at 653-54, 304 S.E.2d at 196.
There was sufficient evidence presented at trial
to warrant the submission of the circumstance. We hold that
the trial court correctly submitted the mitigating circumstance that
defendant had no significant history of prior criminal activity.
Defendant's contention at trial in opposition to
the submission of this mitigating circumstance was that his criminal
history was in fact significant and that the judge should have so
found as a matter of law and refused to submit the circumstance.
We disagree.
Defendant's position loses force when we compare
the present case to those in which this Court has determined whether
the trial court correctly determined whether the factor should or
should not have been submitted. One such case is State v.
Mahaley, in which this Court held that the defendant was entitled to
a new sentencing hearing because the trial court did not submit the
(f)(1) mitigating circumstance. In that case,
"[e]vidence of prior history of criminal activities was limited to
that tending to show [the defendant's] use of illegal drugs and her
theft of money and credit cards to support her drug habit."
Mahaley, 332 N.C. at 597, 423 S.E.2d at 67.
In the case of State v. Lloyd, we held that the
trial court correctly submitted the circumstance, despite
defendant's objection, when the evidence showed two felony
convictions and convictions for seven alcohol-related misdemeanors.
Lloyd, 321 N.C. at 312, 364 S.E.2d at 324.
In State v. Wilson, we held that the trial court
erred in refusing to submit this mitigating circumstance when the
record showed that the defendant possessed a criminal history that
included a prior felony conviction for second-degree kidnapping,
storage of illegal drugs in his shed, and involvement in the theft
of farm equipment near the time of the murder. State v.
Wilson, 322 N.C. 117, 143, 367 S.E.2d 589, 604 (1988).
It is thus clear that the evidence of criminal
activity in the present case was slight enough to call for the
submission of this circumstance for the jury's consideration.
Defendant's assignment of error on these grounds is overruled.
In his next assignment of error, defendant
alleges that the trial court erred when it refused to correct what
defendant contends were improper and inflammatory portions of the
prosecution's sentencing phase argument. Defendant assigns
error to several portions of the argument, and we shall address them
seriatim.
[12] Defendant's first complaint with regard to
the prosecutor's argument concerns the prosecutor's depiction of
what might have taken place when the Davises' grandson, Paul,
discovered them dead in their home. The prosecutor engaged in
a lengthy argument that, in essence, speculated how Paul, when he
became an old man of eighty-six years, would look back on the day
when he "flew" into the home of his grandparents and encountered
their dead bodies, finding that he could not kiss his grandma and
grandpa because defendant had bludgeoned them to death.
Counsel for defendant made twelve objections during this portion of
the argument.
Defendant argues that there is no evidence
whatsoever that Paul tried to "fly into grandpa's arms" and "kiss
grandpa's sweet old head" and that it was improper for the
prosecutor to argue facts not in evidence.
This Court has had the opportunity to review
similarly styled arguments in the past. In State v. Syriani,
the prosecutor argued that the defendant in that case, after having
killed his wife, cut short his departure from the scene of the
killing in order to return and kill his daughter. The
prosecutor argued that "[b]ut for a good citizen who was willing to
put himself in harm's way between [the daughter] and the Defendant,
we would be trying a triple murder here today." Syriani, 333
N.C. at 398, 428 S.E.2d at 144.
After citing the well-established rule that "[c]ounsel
are entitled to argue to the jury all the law and facts in evidence
and all reasonable inferences that may be drawn therefrom," id., we
held that the prosecutor's "arguments, although touching upon facts
not testified to, were reasonable inferences based on the evidence
and were within the wide latitude properly given counsel in argument,"
id. at 398-99, 428 S.E.2d at 144.
In State v. Kirkley, the defendant alleged that
it was error for the prosecutor to create, in oral argument, a
"scenario" of each of the crimes committed by the defendant.
We again stated the rule that attorneys are allowed to argue all
reasonable inferences drawn from the facts and held that "there was
sufficient evidence from which the prosecutor's scenarios of how
each murder was committed could reasonably be inferred." State
v. Kirkley, 308 N.C. 196, 212, 302 S.E.2d 144, 153 (1983), overruled
on other grounds by State v. Shank, 322 N.C. 243, 367 S.E.2d 639
(1988). The same is true in the present case with regard to
what may have occurred when Paul discovered the dead bodies of his
grandparents.
The evidence showed that when the Davises'
daughter, Ruth Davis Blanton, arrived at the house with her children,
seven-year-old Paul entered the house ahead of her as she began to
unload certain items from the car. Moments later, Paul ran
from the house "screaming that everybody was dead." Mrs.
Blanton then went into the house to retrieve the two-year-old, who
was standing near the clearly visible body of Mrs. Davis, which was
on the floor surrounded by blood. By the time Mrs. Blanton
exited the house, Paul was in her car crying. Mrs. Blanton
testified that her son was terrified and very upset.
Although the prosecutor's portrayal and
characterization of Paul's reaction that day is too lengthy to fully
reproduce here, we have reviewed the record and find that the
argument was a reasonable description of what may have taken place
that day when Paul entered the house. Paul was a
seven-year-old child going to visit the home of his grandparents.
Despite the absence of evidence of Paul's
personal relationship and feelings toward his grandparents, the
prosecutor's emphasis on the inherent tragedy of the episode and
Paul's reaction were a reasonable extrapolation of what may have
been the thoughts and actions of such a boy upon encountering such a
grisly scene. "Prosecutorial arguments are not placed in an
isolated vacuum on appeal. Fair consideration must be given to
the context in which the remarks were made and to the overall
factual circumstances to which they referred." State v. Pinch,
306 N.C. 1, 24, 292 S.E.2d 203, 221-22, cert. denied, 459 U.S. 1056,
74 L. Ed. 2d 622 (1982), reh'g denied, 459 U.S. 1189, 74 L. Ed. 2d
1031 (1983), overruled on other grounds by State v. Benson, 323 N.C.
318, 372 S.E.2d 517 (1988), and by State v. Robinson, 336 N.C. 78,
443 S.E.2d 306 (1994). It cannot be said that this argument
was unsupported by the evidence or by any facts or circumstances
permitting such an inference. Defendant's assignment of error
on these grounds is overruled.
[13] In his next assignment of error with regard
to the prosecutor's sentencing phase argument, defendant contends
that references to the Willises as "victims . . . in this case" was
improper because such a reference constituted use of evidence of the
Willises' deaths in a manner that exceeded the purposes for which
that evidence was admitted at trial.
The Willis murders, which occurred six weeks
after the Davis murders, were admitted in the guilt/innocence phase
of the trial for the purpose of showing defendant's state of mind,
identity, and plan during the Davis murders. In the sentencing
phase, however, the Willis murders became relevant with regard to
other issues, including (1) defendant's depravity of mind at the
time of and following the Davis murders, which was relevant for the
purpose of demonstrating that the Davis murders were especially
heinous, atrocious, or cruel; and (2) the aggravating circumstance
that the Davis murders were part of a course of conduct that
included crimes of violence against others. See State v.
Cummings, 332 N.C. 487, 422 S.E.2d 692 (1992)(similarity of murders
warrants submission of the course of conduct aggravating
circumstance despite murders being twenty-six months apart).
In addition, we note that the prosecutor did not
specifically argue that the Willises were "victims . . . in this
case" but, instead, recalled that Mr. Willis "laid a lick on the
head of [defendant]" and said, "thank goodness for that. At
least the victims got a lick in somewhere in this case."
Defendant acknowledges that this Court has held
that if "evidence of the other deaths was properly admitted as
components of the [S]tate's case, it was not error for the district
attorney to refer to them in his argument before the jury."
State v. Barfield, 298 N.C. 306, 330, 259 S.E.2d 510, 530 (1979),
cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137, reh'g denied, 448
U.S. 918, 65 L. Ed. 2d 1181 (1980). Defendant contends,
however, that by referring to the Willises in such a manner in his
sentencing argument, the prosecutor somehow went beyond the limits
of what may be fairly be asserted in his sentencing phase arguments.
We disagree.
The prosecutor's brief reference to the Willises
as "victims," taken in context, cannot be said to be misleading,
prejudicial, or likely to cause the jury to return an improper
sentencing recommendation against defendant for the murder of the
Davises. We hold that the trial court properly overruled
defendant's objections to this portion of the argument, and
defendant's assignment of error on these grounds is likewise
overruled.
[14] In his next assignment of error with regard
to the prosecutor's sentencing phase argument, defendant alleges
that the prosecutor improperly injected his own religious beliefs
into the argument by making such comments, over defendant's
objections, as:
MR. LEONARD: I'm going to go back to
Polk County, if the Lord will let me live long enough to get
there. I'm going back to Polk County and I'm going to lay
my head down on my pillow tonight and I'm going to sleep a good
sleep, I believe and hope. And when I lay my head down on
that pillow, I'm going to say, Lord, I did my best.
MR. BURWELL: Objection.
THE COURT: Overruled.
MR. LEONARD: I did everything I could
do. I did everything I could do, and I hope I'll get a
good night's sleep. See, that's my privilege. That's
the luxury that I have right now because I've had my say.
I've done everything I can do for the citizens of the state, the
citizens of this county, the other counties and people affected.
I've done everything I can do for these folks. I've done
all I can do for you.
MR. BURWELL: Objection.
THE COURT: Overruled.
MR. LEONARD: I've done all I can do.
And I'll lay my head down on my pillow and when I say my prayers,
that's what I'll say to the Lord and I'll have a good conscience
about it. I'm fortunate, though, because I'm about to sit
down and leave you to these gentlemen and then submit you to
your obligations as jurors.
When you go to bed tonight or tomorrow night,
whenever it is, you do back in that jury room what you think you
need to do and what you think will enable you to lay your head
down on your pillow and your bed in your home here in Cleveland
County and to feel satisfied that what you did was just, was
justice. Coming back to justice. That's what we've
wanted you to do all the way along. You've done justice
all along. And as I say, we're simply asking that you
extend justice to its logical conclusion.
Defendant contends that this argument amounted to
an improper appeal to the jurors' religious beliefs inasmuch as it
was an implication that only a sentence of death would allow them to
be at peace with the Lord at the conclusion of their role in the
case. As such, defendant contends, the argument violated the
prohibition against the improper invocation of religious beliefs in
jury argument.
This Court has in the past disapproved of
prosecutorial arguments that made improper use of religious
sentiment. See, e.g., State v. Moose, 310 N.C. 482, 501, 313
S.E.2d 507, 519-20 (1984) (argument that the power of public
officials is ordained by God and to resist them is to resist God
disapproved); State v. Oliver, 309 N.C. 326, 359, 307 S.E.2d 304,
326 (1983) (indicating the impropriety in arguing that the death
penalty is divinely inspired). On the other hand, "this Court
has repeatedly noted the wide latitude allowed counsel in arguing
hotly contested cases, e.g., State v. Britt, 288 N.C. 699, 220
S.E.2d 283 (1975); State v. Pinch, 306 N.C. 1, 292 S.E.2d 203, and
it has found biblical arguments to fall within permissible margins
more often than not." Artis, 325 N.C. 278, 331, 384 S.E.2d
470, 500.
The complained-of argument may more properly be
characterized as a request that the jury fulfill its duty to render
a verdict in accordance with the dictates of justice and was not a
direct appeal by the prosecutor to take religion into account when
considering the sentence. The argument does not contain the
extensive references to religion, including copious readings from
the Bible urging that murderers be put to death, against which we
have cautioned in the past. See, e.g., id. (amalgamation of
biblical language and statutory citation swings close to impropriety
of saying the law of the State codifies divine law).
Defendant's assignment of error on these grounds is overruled.
[15] In his next assignment of error with regard
to the prosecutor's sentencing argument, defendant contends that it
was error for the prosecutor to argue that defendant "authored and
wrote his own death warrant. We're simply asking that you
affix your signature as jurors and representatives of the citizens
of Cleveland County." Defendant contends that this argument
improperly diminished the jury's sense of responsibility with regard
to its sentencing determination. See Caldwell v. Mississippi,
472 U.S. 320, 86 L. Ed. 2d 231 (1985).
In Caldwell v. Mississippi, the Supreme Court
held that "it is constitutionally impermissible to rest a death
sentence on a determination made by a sentencer who has been led to
believe that the responsibility for determining the appropriateness
of the defendant's death rests elsewhere." Id. at 328-29, 86
L. Ed. 2d at 239.
We do not believe that this portion of the
argument led the jury to believe that it was not responsible for
determining the appropriateness of defendant's sentence. The
argument, taken in context, is more properly viewed as having the
opposite effect: requesting the jurors to affix their
signatures to the verdict served to remind them that it was they who
would decide the propriety of defendant's punishment for crimes
committed by him. Defendant's assignment of error on these
grounds is overruled.
In defendant's final contention with regard to
the prosecutor's sentencing argument, he contends that the
cumulative effect of each of these alleged errors warrants a new
trial. Again, we disagree. Defendant's contentions,
taken alone or cumulatively, are not sufficient to warrant the
reversal of the outcome of his sentencing hearing. Defendant's
assignments of error with regard to the prosecutor's argument are
overruled.
[16] In his next assignment of error, defendant
contends that he is entitled to a new sentencing hearing because the
prosecutor improperly commented upon the possibility of parole
during the sentencing phase.
The following exchange occurred at trial:
[MR. BURWELL:] I submit to you it's a
hard question as to which is worse. If you kill him.
It's quick. It's over. If you give him a life
sentence, he spends the rest of his life down there thinking
about it.
MR LEONARD: Objection, Your Honor
please. The implication he will be there for the rest of
his life.
MR. BURWELL: Objection.
MR. LEONARD: State versus Ross, 311
North Carolina 408--
MR. BURWELL: Your Honor--
MR. LEONARD: --Improper argument.
MR. BURWELL: Your Honor--
THE COURT: Wait just a minute.
Overruled.
MR. BURWELL: Can the jury be instructed
not to--
THE COURT: Overruled. Continue
with your argument.
Defendant contends that because the trial court
did not give a cautionary instruction with regard to the
prosecutor's comment, the jury was left with the impression that
defendant might be paroled if given a life sentence, thus improperly
introducing the issue of parole into the sentencing proceedings. It
is true that "a criminal defendant's status under the parole laws is
irrelevant to a sentencing determination and, as such, cannot be
considered by the jury during sentencing, whether in a capital
sentencing proceeding under N.C.G.S. 15A-2000 or in an
ordinary case." State v. Robbins, 319 N.C. 465, 518, 356
S.E.2d 279, 310, cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226
(1987).
Accordingly, it was improper for the prosecutor
to raise, by implication, the possibility of defendant's parole if
he had been given a life sentence. We do not find it necessary,
however, to examine the effect of the trial court's overruling of
the prosecutor's objection, as the issue of whether it was improper
for defense counsel to argue as he did is not the issue before the
Court. Instead, we look to the impact of the uncorrected
statement of the prosecutor made during the course of his objection.
In order for an improper prosecutorial comment to
warrant a new trial, the comment must have amounted to prejudicial
error. State v. Green, 336 N.C. 142, 186, 443 S.E.2d 14, 40
(1994); State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487-88
(1992); State v. Britt, 291 N.C. 528, 537, 231 S.E.2d 644, 651
(1977). In the context of an improper prosecutorial comment,
properly objected to, which does not implicate a specifically
guaranteed constitutional right, the standard of review for
prejudice is whether the defendant has shown that there is a
reasonable possibility that had the error in question not been
committed, a different result would have been reached at trial.
N.C.G.S. 15A-1443(a) (1988).
In the present case, defendant has not met this
burden. The comment was relatively innocuous and came as part
of the prosecutor's objection to what was arguably an improper
statement made by defendant's counsel. See State v. Boyd, 311
N.C. 408, 425 n.1, 319 S.E.2d 189, 201 n.1 (1984) (disapproving of
defense counsel's attempt to inform the jury that defendant would
spend the rest of his life in prison if life sentence imposed), cert.
denied, 471 U.S. 1030, 85 L. Ed. 2d 324 (1985). The trial
court overruled the State's objection, and defense counsel was
allowed to proceed with his argument. The remark did not
amount to prejudicial error; accordingly, defendant's assignment of
error on these grounds is overruled.
Defendant further argues that, as a result of the
prosecutor's comment, he was entitled to have the trial court
instruct the jury on the meaning of a life sentence. We
disagree. Such an instruction is warranted if the jury
inquires about the meaning of a life sentence or the eligibility of
defendant for parole. "We have not held that the jury is to be
so instructed in the absence of such inquiry." State v.
Robinson, 336 N.C. 78, 124, 443 S.E.2d 306, 329. The trial
court properly declined to instruct the jury as to the meaning of a
life sentence; accordingly, defendant's assignment of error on these
grounds is overruled.
PROPORTIONALITY REVIEW
[7] We have reviewed the guilt-innocence phase
and the sentencing phase of defendant's trial and have found no
error. It is now the duty of this Court to review the record
and determine (1) whether the record supports the jury's finding of
the aggravating circumstances upon which the sentencing court based
its sentence of death; (2) whether the sentence was imposed under
the influence of passion, prejudice, or any other arbitrary factor;
and (3) whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant. N.C.G.S.
15A-2000(d)(2) (1988).
The following aggravating circumstances were
submitted to the jury with regard to the murder of Mr. William Fred
Davis:
(1) Was the murder of William Fred
Davis especially heinous, atrocious or cruel?
[N.C.G.S. 15A-2000(e)(9) (1988).]
. . . .
(2) Was the murder of William Fred Davis
part of a course of conduct in which the defendant engaged and
did that course of conduct include the commission by the
Defendant of other crimes of violence against another person or
persons? [N.C.G.S. 15A-2000(e)(11) (1988).]
The jury responded "yes" to each of these
inquiries, thus indicating that it found each of the aggravating
circumstances to exist.
The following aggravating circumstance was
submitted to the jury with regard to the murder of Mrs. Margaret
Davis:
(1) Was the murder of Margaret Davis part of
a course of conduct in which the Defendant engaged and did that
course of conduct include the commission by the Defendant of
other crimes of violence against another person or persons?
[N.C.G.S. 15A-2000(e)(11).]
The jury answered "yes" to this inquiry as well,
indicating that it found the existence of this aggravating
circumstance.
After a review of the record, transcripts, briefs,
and oral argument of counsel, we conclude that the evidence supports
the jury's finding of each of these aggravating circumstances.
In addition, we conclude that the sentence of death was not imposed
by the jury while under the influence of passion, prejudice, or any
other arbitrary factor. Accordingly, we undertake our final
task in the review of the sentence imposed, and that is to engage in
a review of the proportionality of the sentence. State v.
Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 355, cert. denied, 464
U.S. 865, 78 L. Ed. 2d 177, reh'g denied, 464 U.S. 1004, 78 L. Ed.
2d 704 (1983).
"In conducting proportionality review, '[we]
determine whether the death sentence in this case is excessive or
disproportionate to the penalty imposed in similar cases,
considering the crime and the defendant.'" State v. McHone,
334 N.C. 627, 646, 435 S.E.2d 296, 307 (1993) (quoting Brown, 315
N.C. 40, 70, 337 S.E.2d 808, 829), cert. denied, ___ U.S. ___, 128
L. Ed. 2d 220 (1994).
"The purpose of [proportionality] review is to
eliminate the possibility that a person will be sentenced to die by
the action of an aberrant jury." State v. Holden, 321 N.C.
125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S.
1061, 100 L. Ed. 2d 935 (1988). In so doing, proportionality
review serves as "a check against the capricious or random
imposition of the death penalty." Barfield, 298 N.C. 306, 354,
259 S.E.2d 510, 544.
This Court has thus far determined the sentence
of death to be disproportionate in seven cases: 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. 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).
In only two of those cases, State v. Rogers and
State v. Bondurant, did the jury find that the murder was committed
as part of a course of conduct including the commission of other
crimes of violence against others, the aggravating circumstance
found for the murders of both Mr. and Mrs. Davis. Rogers, 316
N.C. at 234, 341 S.E.2d at 731; State v. Bondurant, 309 N.C. 674,
309 S.E.2d 170.
In Rogers, the event upon which the aggravating
circumstance was based was the firing of a pistol at the victim's
companion in the moments immediately following the shooting of the
victim. These facts stand in stark contrast to the
accompanying crimes of violence in the present case; we perceive a
marked and significant difference between the consecutive
bludgeoning of two elderly persons in their home and the firing of a
pistol at a man standing outside of a nightclub, as was the case in
Rogers.
In addition, the facts surrounding the murder in
Rogers militate against a comparison between the two cases. In
that case, there was evidence of previous ill will including
physical threats between one of the defendants and the victim's
companion. There was testimony that the victim had been
carrying a weapon of his own a few hours prior to the killing and
that he had been "'acting wild.'" Rogers, 316 N.C. at 212, 341
S.E.2d at 719. Finally, the defendants' testimony in Rogers
was that the victim had fired the first shot.
In State v. Bondurant, the defendant inexplicably
shot his friend in the head with a pistol after taunting the victim,
saying, "'You don't believe I'll shoot you, do you?'"
Bondurant, 309 N.C. at 677, 309 S.E.2d at 173. Immediately
after shooting the victim, however, defendant directed that the
victim be taken to the hospital and accompanied him there.
While at the hospital, defendant spoke with police officers about
the incident. In Bondurant, we held that the sentence of death
did "'not rise to the level of those murders in which we have
approved the death sentence upon proportionality review.'" Id.
at 693, 309 S.E.2d at 182 (quoting State v. Jackson, 309 N.C. at 46,
305 S.E.2d at 717).
We noted that defendant did not kill the victim
in the perpetration of another felony, that he did not coldly
calculate the commission of the crime for a long period of time, and
that it was not a torturous murder. Id.
In addition, we found it important that "immediately
after he shot the victim, [defendant] exhibited a concern for [the
victim's] life and remorse for his action by directing the driver of
the automobile to the hospital." Id. at 694, 309 S.E.2d at
182. The aspect of the case that supported the finding of the
aggravating circumstance was apparently the fact that after shooting
the victim, Bondurant "pointed the gun at [a witness] for 'two or
three minutes' and asked him what he would say when they got to the
hospital." Id. at 677, 309 S.E.2d at 173.
It is thus clear that these cases involve
entirely different sorts of killings. It is fair and easy to
say that the brutal and apparently unprovoked beating to death of
the Davises reflects a far more egregious set of circumstances than
those present in Rogers and Bondurant, or in any of the cases in
which this Court has held the death penalty to be disproportionate.
We find no noteworthy similarities between those cases and the
present case that are advantageous to defendant.
Defendant contends that the sentence of death
should be set aside because his victims were taken completely by
surprise and were killed instantly. Even if we were to
subscribe to the truth of this disputed assertion, when considered
with the undisputed facts of this case, we find it an insufficient
basis upon which to conclude that the sentence of death is
disproportionate.
Defendant further contends that the sentence of
death is disproportionate because of the substantial evidence of his
insanity at the time of the murders. We do not adhere to the
point of view taken by defendant on this point. The jury
specifically rejected the four statutory mitigating circumstances
submitted to it: that "Defendant has no significant history of
prior criminal activity," see N.C.G.S. 15A-2000(f)(1) (1988);
that the "murder was committed while the [D]efendant was under the
influence of mental or emotional disturbance," see N.C.G.S.
15A-2000(f)(2) (1988); that "the capacity of the Defendant to
appreciate the criminality of his conduct or to conform his conduct
to the requirements of law was impaired," see N.C.G.S.
15A-2000(f)(6) (1988); and the catchall circumstance, see N.C.G.S.
15A-2000(f)(9) (1988). Of the remaining ten nonstatutory
mitigating circumstances submitted, the jury found the existence of
six.1
_______________________________
1The jury found the following nonstatutory
mitigating circumstances with regard to the killing of William Fred
Davis:
(6) Whether Phillip Ingle confessed to law
enforcement officers that he killed Margaret and Fred Davis?
. . . .
(7) Whether Phillip Ingle as a child saw his
mother try to kill herself on at least one occassion [sic] by
cutting her wrist?
. . . .
(8) Whether Phillip Ingle as a child saw his
mother overdose on drugs on at least one occassion [sic]?
. . . .
(9) Whether Phillip Ingle as a child tried
to hang himself on at least one occassion [sic]?
. . . .
(10) Whether Phillip Ingle as a young man
attempted to commit suicide by shooting himself?
. . . .
(12) Whether Phillip Ingle has two daughters
ages 9 and 2?
The jury found the same mitigating circumstances
to exist with regard to the killing of Margaret Davis.
Simply put, the facts show a brutal murder of an
elderly couple committed without provocation and for no apparent
motive other than defendant's pleasure in committing the crimes.
There is nothing about this case, including
defendant's troubled upbringing, that leads us to the conclusion
that the sentence of death is disproportionate. We have
affirmed the death penalty in many cases where the defendant's
background consisted of similar hardship. See State v.
McDougall, 308 N.C. 1, 301 S.E.2d 308 (evidence of severe and
traumatic experiences as a child; grandfather committed suicide in
his presence; indications of cocaine-induced psychosis), cert.
denied, 464 U.S. 865, 78 L. Ed. 2d 173 (1983); State v. Rook, 304
N.C. 201, 283 S.E.2d 732 (parents were violent and constantly drunk,
beat their children frequently; evidence that defendant had a mental
disorder and unstable personality as a result of experiences during
formative years).
The facts of this case speak for themselves:
Defendant crept into the victims' home and suddenly engaged in an
incomprehensible, savage, and senseless bludgeoning with an axe
handle. After he had beaten Mrs. Davis, defendant moved to the
next room and similarly beat Mr. Davis to death. Upon the
completion of these tasks, defendant discarded the axe handle and
attempted to dispose of other items taken from the home. He
later announced his deeds to an acquaintance and offered to "take
care of" a troublesome neighbor and "kill his whole family."
The jury refused to attribute defendant's actions
to an inability to appreciate the nature and quality of his actions
at the time of the killings. The jury likewise declined to
find as mitigation that defendant suffered from mental disturbance
at the time of the killings. We hold that the sentence of
death in this case is not disproportionate and decline to set aside
the death penalty imposed.
In summary, we have carefully reviewed the
transcript of this trial and sentencing proceeding as well as the
record, briefs, and oral arguments of counsel. We have
addressed all of defendant's assignments of error and conclude that
defendant received a fair trial and capital sentencing proceeding
free from prejudicial error. The convictions and the
aggravating circumstances are supported by the evidence. The
sentence of death was not imposed under the influence of passion,
prejudice, or any other arbitrary factor and is not disproportionate.
NO ERROR.
