JOSEPH TIMOTHY KEEL, Petitioner-Appellant,
v.
JAMES B. FRENCH, Warden, Central Prison, Raleigh, North Carolina,
Respondent-Appellee.

December 7, 1998

Before MURNAGHAN, WILLIAMS, and MOTZ, Circuit Judges.

MURNAGHAN, Circuit Judge:

Joseph Timothy Keel ("Keel") appeals from the dismissal of his petition for habeas corpus relief. He has presented several claims, some of which were deemed to be procedurally barred by the district court. Other claims, such as his ineffective assistance of counsel claims relating to trial counsel's failure to raise a Batson challenge and failure to introduce certain evidence during the guilt/innocence phase of the trial, were dismissed without a hearing. Although we find that Keel's arguments are not procedurally barred, we affirm never- theless.

Keel murdered his father-in-law, John Simmons ("Simmons") on the evening of July 10, 1990. Three days after the shooting, Lieutenant Jerry Wiggs of the Edgecombe County, North Carolina Sheriff's Department interviewed Keel. Keel made a statement which Wiggs wrote down and Keel signed. Keel admitted that he had shot Simmons on the hog farm on July 10, 1990.

Keel stated that he had asked Simmons for a ride to the farm, and upon their arrival had picked up the farm truck. He drove ahead of Simmons to the farm building and went inside. When Simmons arrived, Keel fired a shot into the cab of Simmons' truck. Simmons got out of the truck and said he had been hit. Keel told Simmons to sit down inside.

Keel stated that he then shot Simmons again because Simmons had a knife and was coming after him. Keel said that Simmons fell, but got up again, and Keel then helped him to the truck. He stated that he did not know why he had shot Simmons in the first place.

At trial, Keel introduced evidence that, at the hog farm, he and Simmons had argued about a prior dispute between them. The two men had a fist fight, during which Simmons sustained some injuries. Simmons allegedly picked up a knife and pushed Keel to the floor. Keel then fired the pistol once, hitting Simmons and knocking him down. He then went to assist Simmons, put him in the truck, and drove it up to the office.

He then went inside the farm truck and pulled out the rifle. Keel went inside the office and fired a shot through the window and into Simmons' head as the latter was sitting in his truck. Keel also introduced evidence tending to show that he had been drinking and using cocaine on the evening of the killing.

On August 20, 1990, the Edgecombe County Grand Jury returned a true bill of indictment charging Keel with one count of first degree murder. Keel entered a plea of not guilty and was capitally tried at the August 12, 1991 Criminal Session of the Superior Court, Edgecombe County, for murder in the first degree and sentenced to death. Concluding that the trial court had committed prejudicial error on the basis of an erroneous jury instruction, the North Carolina Supreme Court held that Keel must receive a new trial. State v. Keel 333 N.C. 52, 423 S.E.2d 458 (1992).

Keel was again tried capitally during the March 5, 1993 Criminal Session for murder in the first degree. The jury returned a guilty verdict. At the conclusion of the separate capital sentencing proceeding conducted pursuant to North Carolina General Statutes § 15A-2000 (Supp. 1994), the jury recommended that Keel be sentenced to death.

The jury found that Keel had previously been convicted of a felony involving the use of violence to the person, a statutory aggravating factor. The jury also found eight mitigating circumstances, but nonetheless recommended death. On March 30, 1993, the trial court entered judgment sentencing the defendant to death.

After his conviction and sentence, Keel again appealed to the North Carolina Supreme Court. The Supreme Court unanimously voted to uphold the verdict. State v. Keel, 337 N.C. 469, 447 S.E.2d 748 (1994). Keel filed a petition for writ of certiorari to the United States Supreme Court. This petition was denied on February 27, 1995. Keel v. North Carolina, 513 U.S. 1198, 115 S. Ct. 1270, 131 L.Ed.2d 147 (1995).

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CONCLUSION

To review, we find that Keel's arguments are not procedurally barred, but affirm because those arguments lack merit. We also affirm the district court's rulings as to the merits of all of Keel's other claims. AFFIRMED

State v. Keel, 423 S.E.2d 458 (N.C. 1992). (Direct Appeal - Reversed)

Defendant was convicted in the Superior Court, Edgecombe County, Frank R. Brown, J., of first-degree murder. Defendant appealed. The Supreme Court, Mitchell, J., held that jury instruction that "intentionally killed" referred not to presence of specific intent to kill and that sense of the expression was that act that resulted in death is intentionally committed violated due process and was prejudicial error. Reversed. Meyer, J., dissented and filed opinion in which Lake, J., joined.

MITCHELL, Justice.

The defendant presented no evidence at the guilt-innocence determination phase of his capital trial. The State's evidence tended to show the following. On 10 July 1990, at about 10 p.m., the defendant, Joseph Timothy "Timmy" Keel, knocked on the door of Albry Thurman's mobile home. When Thurman answered the door, the defendant told him that John Simmons, the defendant's father-in-law, had been shot. The defendant told Thurman that it had been a drive-by shooting.

Thurman testified that the defendant's shirt was covered with blood and that Simmons was outside in a yellow pickup truck, situated in the passenger side so that he faced the steering wheel. Simmons had a bullet wound in the right side of his head, and the truck's windows were rolled down. Albry Thurman's wife, Shelby Thurman, called 911. Shelby Thurman testified that the defendant told her that Simmons had been shot by a person riding in a red station wagon near the dumpsters on Gay Road.

Edgecombe County Sheriff's Deputy Robert Davis testified that he was called to Baker's Park, the trailer park where the Thurmans' mobile home was located, on the night of 10 July 1990. When he arrived, the rescue squad was already there. The defendant came out of the trailer and met Davis in the yard. The defendant told Davis that he had received a phone call earlier in the evening asking him to go to Shell Bank Farm, the hog farm where the defendant worked. The defendant said that Simmons had driven him to the farm.

On the way back, while Simmons was driving, someone in a red station wagon or a large Chevrolet had shot Simmons twice when they were at the intersection of Leggett Road and Gay Road. The defendant appeared to be upset, and his shirt was covered with blood. Deputy Davis examined the pickup truck and found that the windows were rolled down. There was a bullet hole just behind the driver's side window, and there was a small pool of blood in the passenger seat near the window.

Sergeant Donnie Lynn of the Edgecombe County Sheriff's Department also interviewed the defendant on the night of the shooting. The defendant told Sergeant Lynn that he and his wife lived with the victim, Johnny Simmons, and that, on the night of the shooting, Simmons had driven the defendant to Shell Bank Farm after the defendant's boss had called to tell him to check on the hogs at the farm.

The defendant stated that he had taken the company truck from the driveway of the farm manager's house and had driven that truck down to the farm while Simmons followed in the yellow pickup truck. The defendant said that after he checked out the farm and found nothing wrong, he took the company truck back to the manager's house and left the farm with Simmons in the yellow truck. Simmons was driving.

When they were on Gay Road near some trash dumpsters, a car passed them, and the defendant heard two pops. Simmons slumped over, and the defendant managed to stop the truck. The defendant moved Simmons over to the passenger side of the truck and drove the truck away.

On the night of the shooting, the defendant showed Sergeant Lynn where these events allegedly occurred. Sergeant Lynn testified that he found nothing in the vicinity of the Gay Road dumpsters to indicate that a drive-by shooting had occurred. He testified that he returned to the farm the following day, when he noticed what appeared to be blood outside the farm office and found a .22 caliber shell casing nearby.

Inside the building, Sergeant Lynn saw blood spatters on the walls and floors and found a jumpsuit with blood on it. He also found a blood-soaked mop at the back of the building, some .22 caliber bullets in a drawer in the office, and a hole in the window screen of the farm office.

Dr. Louis Levy, the medical examiner for Nash and Edgecombe Counties, testified that the victim had suffered two gunshot wounds, that the shots had been fired from a distance, and that they had been fired from opposite sides of the victim's head. He testified that the victim had died of shock as a result of the gunshot wounds. Dr. Levy's opinion was that neither gunshot wound was consistent with a drive-by shooting.

James Stevey, a co-worker of the defendant, testified that he was the first to arrive at work on the day after the shooting. The key that was usually over the front door of the farm's office building was missing, so Stevey went into the building only after the defendant entered by a side door and opened the front door from the inside. This was not the normal practice, and Stevey had never seen the defendant enter the building in this way. Stevey testified that he had noticed a puddle of blood in front of the building and that the defendant had kicked dirt over the puddle.

Once they were inside the building, the defendant went ahead of Stevey into the area of the building in which workers changed their clothes. By the time Stevey went in, the defendant was already running the clothes washer. This was unusual, because another employee usually did the washing. The defendant then began wiping blood off the floor with a rag. When Stevey asked what had happened, the defendant told Stevey that the defendant's father-in-law had been shot. Stevey also testified that he saw a bloody mop outside the building and that generally there was no animal blood in the office building, because hogs were not killed at that location.

Lieutenant Jerry Wiggs of the Edgecombe County Sheriff's Department testified that he interviewed the defendant on 13 July 1990 at the office of the Sheriff's Department. After waiving his rights, the defendant made a statement, recorded in writing by Lieutenant Wiggs and signed by the defendant, in which he admitted that he had shot his father-in-law at the hog farm on 10 July 1990. He stated that he had called the victim and asked for a ride to the farm. When they arrived at the farm, the defendant picked up the farm truck. He then proceeded to the farm building, driving ahead of the victim.

The defendant went into the farm building, and from there, he fired a shot into the victim's truck cab. The victim got out of his truck, saying he was hit, and the defendant made him sit down in the kitchen area of the farm building. The defendant stated that he shot the victim again, because the victim had a knife and was coming after him. The victim fell, but got up again, and the defendant helped him get into the truck. The defendant then drove to Baker's Park to get some help. The defendant stated that he had thrown the rifle into one of the fields in the hog pen and that he did not know why he had shot the victim.

Ceclia Edmondson, the defendant's next-door neighbor, testified that on 9 July 1990, the defendant was standing outside Edmondson's house when the victim accused the defendant of being a woman-beater and asked the defendant what kind of drugs he was taking. The defendant stated, "I'm going to kill that bald-headed, mother-f---ing son-of-a-bitch if he doesn't leave me alone." Edmondson testified that the defendant had been drinking and smelled of alcohol when he made this statement.

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Because the defendant's mental state at the time of the crime was at issue in the present case, the State has failed to show that the trial court's error in defining the intent required for first- degree murder was harmless beyond a reasonable doubt. We conclude that the trial court committed prejudicial error by improperly instructing the jury as to the intent *60 element of first-degree murder. Therefore, the defendant must receive a new trial.

State v. Keel, 447 S.E.2d 748 (N.C. 1994). (Direct Appeal - Affirmed)

After defendant's initial conviction of first-degree murder and sentence of death was reversed by the Supreme Court, 333 N.C. 52, 423 S.E.2d 458, and defendant was again found guilty of first-degree murder and sentenced to death following jury trial before the Superior Court, Edgecombe County, Brown, J. Defendant appealed. The Supreme Court, Mitchell, J., held that: (1) trial court properly allowed state's challenges for cause to prospective jurors on basis of their opposition to capital punishment without first giving defendant opportunity to attempt to rehabilitate them; (2) any error in omission of instruction on "sixth element" of first-degree murder, absence of self-defense, in reinstructing jury during deliberations was not plain error; (3) evidence, including reasonable inferences and findings regarding premeditation and deliberation, was for jury and thus motion to dismiss was properly denied; (4) conviction for involuntary manslaughter was properly submitted as potential aggravating circumstance of prior felony conviction "involving the use of violence to the person"; (5) court did not commit instructional error with respect to instructions on mitigating factors or with respect to issues and recommendation sheet; and (6) imposition of death penalty was not disproportionate to other cases. No error.

MITCHELL, Justice.

This is the second time this case has been before this Court on appeal. The defendant was initially tried at the 12 August 1991 Criminal Session of Superior Court, Edgecombe County, at which time he was convicted of murder in the first degree and sentenced to death. Concluding that the trial court had committed prejudicial error, this Court held that the defendant must receive a new trial. State v. Keel, 333 N.C. 52, 423 S.E.2d 458 (1992)

The defendant was again tried capitally during the 5 March 1993 Criminal Session of Superior Court, Edgecombe County, for murder in the first degree. The jury returned a verdict finding the defendant guilty of that crime. At the conclusion of a separate capital sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000 the jury recommended that the defendant be sentenced to death. On 30 March 1993, the trial court entered judgment sentencing the defendant to death. Thereafter, the defendant gave notice of this appeal of right, which we now undertake to review.

Some of the State's evidence introduced during the guilt-innocence determination phase of the defendant's second capital trial in this case tended to show the following. At approximately 10:00 p.m. on 10 July 1990, the defendant Joseph Timothy Keel knocked on the door of Aubrey Thurman's mobile home. When Thurman answered the door, the defendant told him that John Simmons, the defendant's father-in-law, had been shot. Aubrey Thurman testified that the defendant's shirt was covered with blood.

Simmons was outside the Thurman mobile home seated in the center of the seat of a small truck and positioned so that he faced the steering wheel. Aubrey Thurman never detected any movement on the part of Simmons. Aubrey Thurman's wife Shelby called the 911 emergency services telephone number immediately. Shelby Thurman testified that the defendant told her that Simmons had been shot in a drive-by shooting on Gay Road by a person in a station wagon.

Edgecombe County Deputy Sheriff Bob Davis testified that he was called to Baker's Park, where the Thurmans' mobile home was located, on the night of 10 July 1990. When he arrived, the defendant met him at the front door of the Thurmans' mobile home. The defendant told Davis that he had received a phone call earlier in the evening asking him to go to Shell Bank Farm, the hog farm where the defendant was employed. The defendant said that Simmons had driven him to the farm.

On the way back from the farm, while Simmons was driving, someone in a station wagon had shot Simmons near the intersection of Leggett Road and Gay Road. Deputy Davis examined the truck the defendant and Simmons had been using and found that the windows were rolled down and intact. There was a bullet hole on the driver's side of the truck in the cab section and what appeared to be an exit hole made by a bullet on the interior of the truck. A pool of blood was located near the center of the seat of the truck toward the passenger side.

Sergeant Donnie Lynn of the Edgecombe County Sheriff's Department also interviewed the defendant on the night of the shooting. The defendant stated that he and his wife lived with his wife's father, Johnny Simmons. The defendant told Sergeant Lynn that on the night of the shooting, Simmons had driven the defendant to Shell Bank Farm after the defendant's boss had called to tell him to check on the hogs.

The defendant stated that he had taken the company truck from the driveway of the farm manager's house and had driven that truck to the farm while Simmons followed in the small pick-up truck. After attending to business at the hog farm, the defendant left the company truck there and rode with Simmons. When they were on Gay Road near some trash dumpsters, a car passed them and the defendant heard two pops. Simmons slumped over, and the defendant then managed to stop the truck.

The defendant moved Simmons over to the passenger's side of the truck and drove away. On the night of the shooting, the defendant showed Sergeant Lynn the locations where the events he had described allegedly occurred. Sergeant Lynn testified that he found nothing in the vicinity of the Gay Road dumpsters to indicate that a drive-by shooting had occurred.

Lynn testified that he returned to the farm the following day and noticed what appeared to be blood outside the farm office. He found a fired .22 caliber shell casing nearby. Inside the building, Sergeant Lynn saw blood spattered on the walls and floors and found a jumpsuit which bore blood stains. He also found a bloody mop and two boxes of .22 caliber shells, as well as some loose shells in a drawer in the office.

Dr. Louis Levy, Medical Examiner for Edgecombe County, testified that Simmons had suffered two gunshot wounds to the head. One wound was in the right malar region and the other was behind the left ear. Both were entrance wounds. Dr. Levy testified that the cause of John Simmons' death was shock resulting from these gunshot wounds. Dr. Levy testified that, in addition to the gunshot wounds, the victim had suffered bruises and abrasions of the lips, nose and forehead. He had also suffered a blunt force injury beginning at the right eyebrow and extending upward. The victim also had suffered abrasions on his left side and hemorrhaging to his buttocks and both legs. His body also bore a figure-eight shaped lesion over the left knee.

Dr. Levy testified that the victim could not have received both gunshot wounds from the same side, since the paths of the wounds entered on opposite sides of the head. Dr. Levy opined that this configuration of wounds was inconsistent with a drive-by shooting. On cross-examination, he testified that the wounds were consistent with a .22 caliber bullet, and that the victim was alive at the time both of the wounds were inflicted.

Gary Stanbough, the manager of Shell Bank Farm, testified that he spoke by telephone with the defendant at approximately 8:00 p.m. on 10 July 1990. The defendant asked for permission to go fishing in a pond at the farm. The defendant stated that he wanted to know if he could come by to get the farm truck to drive to the pond. Stanbough allowed the defendant to borrow the truck. Stanbough testified that a single-shot .22 caliber rifle was kept behind the seat of the farm truck, but that he never saw the rifle again after the defendant borrowed the truck that night.

James Stevey, an employee of the farm, testified that he went to work on the day after the shooting. The key that was usually over the front door of the office building at the farm was missing. Stevey was able to enter the building only after the defendant entered by a side door and opened the front door from inside. Stevey had noticed a puddle of blood in front of the building and saw the defendant kick dirt over the puddle.

Once they were inside the building, the defendant went ahead of Stevey into the area of the building in which workers change their clothes. By the time Stevey entered, the defendant was already running the washing machine. Stevey had never seen the defendant run the machine before. The defendant then began wiping blood off the floor with a rag. The defendant said that his father-in-law had been shot but did not admit to Stevey that he had shot the victim.

Lieutenant Jerry Wiggs of the Edgecombe County Sheriff's Department testified that he interviewed the defendant on 13 July 1990--three days after the shooting--at the office of the sheriff's department. After being advised of and waiving his constitutional rights, the defendant made a statement which Wiggs wrote down and which was signed by the defendant. In his statement, the defendant admitted that he had shot the victim at the hog farm on 10 July 1990.

He stated that he had asked Simmons for a ride to the farm. When they arrived at the farm, the defendant picked up the farm truck. He then proceeded to the farm building, driving ahead of Simmons. The defendant went into the farm building upon his arrival. When Simmons drove up outside the building, the defendant was inside the building and fired a shot into the cab of Simmons' truck. Simmons got out of the truck, saying that he was hit.

The defendant told him to sit down in the kitchen area of the farm building. The defendant stated that he then shot Simmons again, because Simmons had a knife and was coming after him. The defendant said that Simmons fell, but got up again, and the defendant then helped him into the truck. The defendant then drove to the Thurmans' mobile home for help. The defendant stated that he had thrown the rifle he used to shoot the victim into a hog pen. He stated that he did not know why he had shot Simmons the first time.

Cecila Edmondson, the defendant's next door neighbor, testified that on 9 July 1990--the day before the victim was shot--the defendant was standing outside her house. She overheard the defendant state that he was going to kill "the bull-headed mother f___ing son of a bitch." Edmondson testified that the victim and the defendant had been arguing before she heard the defendant make that statement.

The defendant introduced evidence tending to show the following. On the evening of 10 July 1990, John Simmons told the defendant that he had received a telephone call telling the defendant to go to work. Simmons drove the defendant to Gary Stanbough's house to get the farm truck. The defendant then drove the farm truck from Stanbough's house to the area in which the farm office was located. Upon arrival, the defendant went into the office and came back out.

The defendant and Simmons began to discuss prior arguing that had occurred between the defendant and John Simmons' wife and his daughter, Amy. Simmons told the defendant that the defendant and Amy needed to find another place to live. Simmons and the defendant then engaged in a fist fight. Simmons ran into the office, where the two men began pushing each other.

The defendant told Simmons that he wished that Simmons would stop accusing him of "messing" with Simmons' wife, Jennifer. The two men began fighting again, and the defendant kicked Simmons on his knee and in his chest. Simmons fell and hit a counter in the kitchen area of the office. When he got up he had blood on his hand.

Simmons picked up a knife from the counter and pushed the defendant. The defendant fell over some chairs and against a refrigerator. The defendant then pulled out a .25 caliber pistol and told Simmons to stop. The defendant fired the pistol one time, hitting Simmons and knocking him down. The defendant then went to assist Simmons. He drove Simmons' truck to the front of the office and put Simmons inside.

The defendant then pulled the truck up to a window of the office. He went back to the farm truck and took out the rifle. He went into the office and fired a shot through the window into Simmons' head as Simmons was sitting in the truck slumped over. The defendant took mops from the office and cleaned the blood off the floor. Then he drove Simmons to the Thurmans' mobile home where he tried to assist emergency personnel upon their arrival.

The defendant also introduced evidence tending to show that he had been drinking and using cocaine on the evening of the killing. His brother and sister-in-law testified that he smelled of alcohol and was crying shortly after the shooting. The defendant testified that he did not intend to kill or hurt Simmons.

After arguments of counsel and instructions by the trial court, the jury returned a verdict finding the defendant guilty of murder in the first degree. Thereafter, the trial court conducted a separate capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000.

During the sentencing proceeding, the State expressly relied on the evidence previously introduced and also presented additional evidence. The State introduced a certified record of a conviction of the defendant on 20 March 1987 for the offense of involuntary manslaughter. Dr. George C. Hemingway, a pediatrician and Medical Examiner for Edgecombe County, testified that at approximately 5:00 a.m. on 26 June 1986, he examined an eleven-month-old infant named Victor Matthew Keel at the emergency room at Heritage Hospital. Dr. Hemingway observed bruises about the child's head, face, legs and arms. The bruises were relatively recent bruises, six to eight hours old.

Dr. Louis Levy testified that he performed an autopsy on the body of the child Victor Keel on 26 June 1986 and found a three-inch fracture of the skull located on the right side of the head. In Dr. Levy's opinion, that injury caused the child's death. The defendant also presented evidence during the sentencing proceeding. The defendant testified that when he had been in prison, he had been president of the prison Jaycee Club and had helped organize functions to raise money for the prison and to help people in the community.

He testified that he participated in a wood drive during which inmates would get together to go out of the prison and cut and split wood to provide for those who did not have firewood. He also testified that he had started a choir in Granville County, completed his high school education, obtained an associate degree from Heritage Bible College and had enrolled in and completed drug and alcohol abuse classes.

The defendant testified that he did not intentionally kill his eleven- month-old son. He testified, in fact, that his son had injured himself by falling down the front steps of the defendant's mobile home. The defendant testified that his son had also received a bruise on his forehead when he hit a door at his grandmother's house on the date of his death. The defendant said that when he had learned that his son had breathing trouble, he attempted to get help. When his son again stopped breathing, the defendant attempted to revive the child. The defendant acknowledged that he was an alcoholic and had blacked out in the past.

The defendant also offered evidence through his parents and brother to the effect that the defendant's son had struck his head on a door on the day of his death. The defendant's mother testified that he had lost interest in school when he had been taken off the wrestling team. She also testified that he had sought treatment for alcohol abuse. The defendant's brother testified that once when he was twelve years old, he and the defendant were walking in a field and saw some wild dogs coming their way. The defendant grabbed him by the arm and got him up a tree until the dogs left.

Dr. Jonathan Weiner, an expert in forensic psychiatry, testified that he had diagnosed the defendant as being dependent on alcohol and marijuana. Dr. Weiner felt that he was probably dependent on cocaine as well. Dr. Weiner testified that from the time the defendant was young, he had problems dealing with feelings and impulses. When he was young, the defendant dealt with problems with people by fighting. Dr. Weiner further diagnosed the defendant as having a borderline personality disorder in that he never was able to come to a sense of who he was.

Dr. Weiner testified that the defendant had a history of alcoholism in his family. In an earlier part of his life, the defendant had thought about hurting himself. During one episode when he was in a drug treatment program and withdrawing from drugs, the defendant cut himself with a razor blade. Dr. Weiner testified that the defendant seemed to function better in a prison environment than outside of prison because he did not have access to alcohol and drugs in prison.

Lane B. Simpson, a pastor, testified that he met the defendant when the defendant's child died. Simpson testified that the defendant had accepted the Lord while in jail and wanted to be a fine Christian young man. John College testified that he was the defendant's direct supervisor at Shell Bank Farm for approximately six months. The defendant was a good worker.

Dr. Robert L. Conder, Jr., an expert in the field of neuro-psychology, testified that he examined the defendant, took a history from the defendant and administered a battery of tests to him. Dr. Conder testified that the defendant was in the borderline area between low-average IQ and mild mental retardation. The defendant's IQ is 78 and his intellectual functioning in the lower seven percent of the population.

Dr. Conder diagnosed the defendant as having an organic personality syndrome. At the conclusion of all evidence at the capital sentencing proceeding, and after arguments of counsel and instructions by the trial court, the jury recommended that the defendant be sentenced to death. The trial court entered judgment sentencing the defendant to death, and the defendant gave notice of appeal to this Court.

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For the foregoing reasons, we conclude that the sentence of death entered in the present case is not disproportionate. Having considered and rejected all of the defendant's assigned errors, we hold that the defendant's trial and capital sentencing proceeding were free of prejudicial error and that the resulting sentence of death was not disproportionate punishment. Therefore, the sentence of death entered against the defendant must be and is left undisturbed. No error.