Execution Is Not the Answer to Failures of State's Foster Care System

PFADP.org

The case of Perrie Dyon Simpson highlights the systematic failure of North Carolina 's foster care system in the 1960s and the 1970s.

A product of that failed system, Perrie is facing an execution date on Jan. 20, 2006. The execution of this remorseful man would be an exercise in needless cruelty.

Perrie, a black male, was sentenced to death by a Rockingham County jury for the August 27, 1984, murder of Rev. Jean Ernest Darter, a white male.

At the time of the murder, Perrie was 21 years old. Acknowledging his guilt and accepting responsibility for his actions, Perrie confessed to the murder and entered a plea of guilty.

Perrie was sentenced to death, while Stephanie Eury, his 16-year-old codefendant who instigated the murder, was sentenced to life imprisonment. Eury has a parole hearing on February 1, 2006.

Perrie is not a career criminal or someone with a history of violence. Rather, he is the product of North Carolina 's failure to care for its most vulnerable citizens: our unwanted children.

Perrie entered the foster care system immediately upon his birth because Perrie's mother had severely abused Perrie's older brother.

The abuse left Perrie's brother blind, deaf, and brain damaged to the point he was eventually institutionalized. Perrie's mother received a prison sentence for the abuse.

Neither of Perrie's parents ever demonstrated any interest in his life, yet they refused to relinquish custody and allow Perrie to be adopted. Consequently, Perrie spent the first eighteen years of his life in the foster care system bouncing from placement to placement.

During his childhood, Perrie was moved 18 different times to variety of foster homes, a relative's home and institutions. Because he was moved constantly, Perrie never formed the personal attachments or sense of security which are so necessary for a child's emotional development.

The foster care system failed to provide Perrie with a stable environment and address his severe learning disabilities and psychiatric needs, resulting in absolute failure in the school system.

Joan Landreth, a 23-year veteran with Guilford County Social Services, worked with Perrie from the time he was 10 to 17 years old. Landreth testified for Perrie in court but was not permitted to tell the jury that, because of Perrie's chaotic childhood, he did not have the ability to think clearly and control his behavior at the time of the murder.

This type of testimony, particularly from a mental health professional with direct, personal experience with the defendant, is very significant to jurors deciding between life and death.

Perrie's difficult childhood was further complicated by severe attention deficiency and hyperactivity disorder which went undiagnosed and untreated. Perrie also suffered from other significant mental and personality disorders.

Due to lack of treatment, Perrie continued to suffer from significantly impaired comprehension in written and verbal communication. As these disorders festered in the foster care system, Perrie became increasingly isolated socially and lacking in self-esteem.

Social worker Landreth states that Perrie's various custodians within the foster care system were untrained and unequipped to detect or care for his serious problems, that that the State of North Carolina utterly failed to provide the treatment that Perrie so desperately needed.

Desperate for the kind of family that he was denied as a child, Perrie became emotionally dependent on Stephanie Eury. At the time of the murder, Eury was nine months pregnant with their child.

Perrie thought this was his chance to have a family. It was Eury who led Perrie to Rev. Darter's home on the fateful night of the crime, it was Eury who decided Rev. Darter must be killed and it was Eury who told Perrie to commit the murder.

Perrie, now 42, has repeatedly expressed remorse for the murder and thinks about Rev. Darter every day. Life without parole is sufficient and appropriate punishment in this case.

From the time of his birth, Perrie was at a severe disadvantage in never having a permanent home, a stable family life, a continuity in his education and his medical and psychological treatment. Executing Perrie Simpson now only adds another tragedy to this series of events.

Stop Scheduled Executions

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State v. Simpson, 320 N.C. 313, 357 S.E.2d 332 (N.C. 1987) (Direct Appeal).

Defendant was convicted in the Superior Court, Rockingham County, Julius J. Rousseau, J., of first-degree murder, robbery with a dangerous weapon, and conspiracy to commit murder. Defendant appealed.

The Supreme Court, Mitchell, J., held that: (1) magistrate's denial of bail upon defendant's initial arrest for unrelated charge did not require suppression of defendant's subsequent voluntary confession; (2) police officer's comments, while explaining polygraph test defendant had been asked to take, did not amount to threat or coercion so as to invalidate subsequent confession; and (3) trial court's refusal to allow more than one of defendant's attorneys to participate in final argument to jury at conclusion of sentencing phase on murder charge constituted prejudicial error requiring new sentencing proceeding. Convictions affirmed; remanded for resentencing. Martin, J., dissented in part and filed opinion, in which Meyer, J., joined.

MITCHELL, Justice.

The defendant, Perrie Dyon Simpson, pled guilty to one count of first degree murder, one count of robbery with a dangerous weapon and one count of conspiracy to commit murder.

After his guilty pleas were entered, a jury was empaneled in accord with the requirements of N.C.G.S. § 15A-2000(a) for purposes of determining the defendant's punishment for first degree murder. After hearing evidence in the sentencing proceeding, the jury recommended that the defendant be sentenced to death.

On 12 March 1985, judgments and commitments were entered sentencing the defendant to death for the offense of first degree murder, imprisonment for forty years for the offense of robbery with a dangerous weapon and imprisonment for three years for conspiracy to commit murder.

The defendant appealed the judgment and sentence of death for first degree murder to this Court as a matter of right.

His motion to bypass the Court of Appeals on the appeal of the judgments for robbery with a dangerous weapon and conspiracy to commit murder was allowed by this Court on 6 February 1986.

The defendant contends inter alia on appeal that the trial court erred by holding that his confession was admissible in the cases against him, because it was the product of his being held unlawfully in custody and because it was involuntary.

We conclude that the defendant's confession was properly received in evidence and reject this contention.

As a result we hold that there was no error in the trial or judgments against the defendant for robbery with a dangerous weapon and conspiracy to commit murder. We also hold that the conviction of the defendant for first degree murder was without error.

The defendant also contends that the trial court erred during the sentencing proceeding in the first degree murder case by allowing only one of his counsel to participate in the defendant's final argument to the jury. We find this contention to be meritorious.

Accordingly, we remand the first degree murder case to the Superior Court, Rockingham County for a new sentencing proceeding and resentencing according to law as prescribed in capital cases.

A complete review of the evidence introduced at trial is unnecessary to an understanding of those issues we deem it necessary to reach and decide.

Some of the evidence for the State tended to show that Reverend Jean Ernest Darter, a ninety-two-year old retired Baptist minister, was found dead in his home on the evening of 28 August 1984.

He had been tied to a bedpost at the foot of his bed by a belt which was wrapped around his neck. Both of his arms had been slashed open. His head was bloated and his face was covered with blood.

There were numerous cuts and bruises on his head, and his left cheek bore an imprint that matched the bottom of a broken Tab bottle lying on the bed.

Blood and fragments of glass were in the victim's eyes. A bloody razor blade lay near his right hand. Certain items were missing from the home.

Expert medical testimony tended to show that any of three major areas of trauma suffered by the victim could have been life threatening, but that the victim's death was due to ligature strangulation caused by the belt around his neck.

The victim's death by strangulation occurred over a period of five or six minutes or longer, depending upon the amount of force used during the process of strangulation.

The victim would have lost consciousness within three to five minutes after his breathing was stopped by strangulation.

Fingerprints were found in the Darter home on a hall telephone, in the bedroom and in the kitchen. Some of the fingerprints found matched those of the defendant, Perrie Dyon Simpson. Others matched the fingerprints of the defendant's girl friend, Stephanie Eury.

On 21 September 1984, the defendant was arrested on a warrant for an assault in Greensboro which was unrelated to the crimes for which the defendant stands convicted.

After advising the defendant of his rights, the arresting officers briefly questioned him about the unrelated assault. They then began to discuss the Darter murder with him. The defendant initially denied any knowledge of the Darter murder.

The officers temporarily ended questioning of the defendant after he agreed to take a polygraph test.

Upon having the polygraph procedures explained to him and being told that the machine would reveal any lying on his part, the defendant said that the machine would show that he was lying and that there was something that he needed to tell the officers.

Shortly thereafter, the defendant was again advised of his rights. He then gave a statement in the nature of a confession indicating that he and Stephanie Eury had gone to Reverend Darter's home on 26 August 1984 at Stephanie's suggestion on the pretext that they were travelers who needed help.

Reverend Darter gave them food and money at that time and allowed them to use the telephone in his home. After leaving the Darter home, the defendant and Stephanie Eury decided to go back and rob Darter.

The defendant said that, on the evening of Monday, 27 August 1984, he and Stephanie Eury left the Eury home and began to plan the robbery and murder of Darter. The defendant stated that: "Stephanie said if we go in there and rob the man we can't let him live and I said that is the truth."

They then went to the Darter home and, after making sure that no one could see them, knocked on the door. Reverend Darter let them in. When Darter attempted to call the police to help Simpson and Eury, the defendant Simpson pulled Darter away from the telephone.

He told Eury to cut the phone cord, which she did. Eury ran to the living room and pulled the drapes, while the defendant held Darter down on the bed in the bedroom. Eury began to ransack the residence for valuables to steal. When she brought food to the bedroom to show to the defendant, he told her to look for money.

He continued to hold Darter on the bed and told Darter, "I want some money or else." Simpson stated that Reverend Darter said that he had no money and to go ahead and kill him, he was going to Heaven.

Simpson stated that: "The preacher was smiling as he told me to kill him because he was going to Heaven and this made me mad."

The defendant Simpson stated that he called to Eury to check the bedroom for money. He grabbed a belt from the footboard of the bed and looped it around Reverend Darter's neck.

He held the belt tightly around the victim's neck with his right hand while he went through items on the bed with his left hand and "told the preacher that he better tell me where some more money was but the preacher could not talk as he was choking."

The belt around the victim's neck broke, and Simpson grabbed a thicker leather belt from the footboard and looped it around the victim's neck, pulling it tight.

The defendant stated that he called to Eury "to bring me something in the bedroom to kill this preacher with."

When the items Eury brought the defendant to kill the victim with proved unsatisfactory, he had her hold the belt and pull it tighter around the victim's neck, while he went to the kitchen "and looked around for some device to beat the old preacher and finish him off."

Having found a full sixteen ounce soft drink bottle, Simpson returned to the bedroom. He and Eury then pulled together to tighten the belt around the victim's neck. Simpson then hit the victim in the face with the soft drink bottle three times, at which point it broke.

The defendant stated that he tied the end of the belt to the footboard of the bed and went to the bathroom of the home and got a razor blade. During this time Eury continued to search the house and gather up more items.

Simpson cut both of the victim's arms, while Eury gathered up items to be stolen and put them in a grocery bag and a plastic laundry basket. They then cut off the lights in the home and left with the items they had stolen.

After the defendant confessed, warrants were issued charging him with first degree murder, robbery with a dangerous weapon, and conspiracy to commit murder. Additional facts are discussed where pertinent at later points in this opinion.

By his first assignment of error, the defendant contends the trial court erred by entering judgment as to each of the three charges against him, because his confession was inadmissible as evidence.

Although the defendant pled guilty to each of the charges before us on this appeal, the question of the admissibility of his confession as evidence supporting his convictions for each of those charges is properly before us for review. N.C.G.S. § 15A-979(b) (1983).

The trial court conducted a pretrial voir dire hearing on the defendant's motion to suppress his confession. At the conclusion of that hearing, the trial court made findings and conclusions based upon competent evidence of record.

These included inter alia that: Jean Ernest Darter was killed in his home on 26 August 1984. Officers of the Reidsville Police Department and the State Bureau of Investigation immediately began an investigation.

They discovered that a long distance call had been made from the victim's residence to Ruby Locklear at a Greensboro residence on the day of the murder.

Locklear told the officers that the defendant sometimes called her. A search of the victim's home revealed latent fingerprints on the victim's telephone which matched those of the defendant.

The officers began a search for the defendant on 20 September 1984. At about that time they learned that a warrant for the defendant's arrest for simple assault in Guilford County was outstanding.

The officers learned that the defendant at times came to the residence of his girl friend's mother, Peggy Eury. Shortly after 9:00 p.m. on Friday, 21 September 1984, officers went to the Eury residence and were admitted by Peggy Eury.

They found the defendant there and arrested him under authority of the Guilford County warrant for simple assault.

The defendant was taken to the Reidsville Police Department at approximately 9:30 p.m. The warrant was read to the defendant, and he was advised of his constitutional rights.

The defendant signed a written waiver stating that he had read his rights, understood his rights, wished to talk to the officers without the presence of an attorney, and that no promises or threats had been made.

The defendant did not have the odor of alcohol about him or appear to be under the influence of any impairing substance.

He appeared alert and responsive to questions asked by the officers and to understand what he was saying and doing. The officers advised the defendant that they wanted to talk to him about the Guilford County assault and other crimes, including a murder in Reidsville.

The defendant told the officers that he knew nothing about the Reidsville murder other than what he had read in newspapers.

The officers called an off duty magistrate at 11:15 p.m. and asked him to come to the police station in Reidsville. At that time, they asked the defendant if he wanted anything to eat. He responded that he did, and a meal was ordered for him.

Shortly thereafter Magistrate R.J. Hudson arrived and was informed of the Guilford County warrant for the defendant for simple assault. The magistrate advised the defendant that bond would not be set because no letter of transmittal recommending the amount of bond to be set or a court date accompanied the Guilford County warrant.

The magistrate informed the defendant that he was charged with simple assault and that the magistrate was sending him back to Guilford County for the setting of a proper bond.

The meal the defendant had requested was then brought to him. At approximately 12:47 a.m. on 22 September 1984, the defendant, accompanied by three officers, was taken in an automobile from Reidsville to Greensboro.

They arrived at the Greensboro Police Department at about 1:30 a.m. At that time the defendant was told that he would go before a magistrate for a bond hearing and was asked if he wished to talk to the officers before going to the magistrate.

The defendant asked if he could sign his own bond and was told that any such decision was for the magistrate.

The defendant was told on several occasions that he could go before a magistrate before making any statement to the officers. He said that he would go ahead and talk to the officers.

One of the officers told the defendant that he thought the defendant knew more about the murder in Reidsville than he had told the officers previously. The defendant was then asked to take a polygraph test and agreed.

The defendant was taken across a hall to the office of Lieutenant Davis, a lieutenant of detectives with the Greensboro Police Department at approximately 1:38 a.m.

Lieutenant Davis advised the defendant of his constitutional rights and explained the polygraph test. He told the defendant that if he had anything to do with the murder, other than what he had told the officers previously, it would show up on the polygraph.

The defendant then read and signed an agreement indicating that he desired to take the polygraph test.

Lieutenant Davis told the defendant that he would advise the defendant not to take the polygraph test if he had any knowledge about the murder. At that point, the defendant advised the officer that the test would show that he was lying.

Throughout the procedure with Lieutenant Davis, the defendant never complained, never showed any indication that he was dissatisfied, and cooperated fully with the officers.

The defendant then asked to use the telephone and called a person "who appeared to be Ruby Locklear" and asked for his father. He was told that his father was not present.

Lieutenant Davis then sent two police officers to look for the defendant's father. The defendant was offered a cup of coffee at that time. After getting the coffee, the defendant stated, "what I am about to tell you, you won't like."

The defendant then signed a written waiver of his constitutional rights which were again explained to him by Lieutenant Davis.

At approximately 2:44 a.m. on 22 September 1984, the defendant gave his inculpatory oral statement in the nature of a confession. After giving his oral statement, the defendant was told that the officers wanted to take a written statement from him.

The taking of a statement by the defendant which was reduced to writing by the officers commenced at about 3:00 a.m. and was completed at 5:38 a.m.

The defendant was then taken before a magistrate in Greensboro and brought back to Reidsville where a warrant for his arrest for murder had been issued.

After making such findings of fact, the trial court concluded in pertinent part that: Based upon the foregoing the Court concludes that the defendant was taken before Madistrate [sic] Hudson some time after 11:00 p.m., having been arrested about 9:30 p.m.

And the Court finds this was not an undue delay. The Court further concludes Magistrate Hudson exercised his judicial function and ordered that the defendant be taken to the magistrate in Guilford County.

The Court further concludes that once the defendant was taken to Guilford County sometime after 1:30 a.m. on September 21st [sic], that he was advised that he had the right to go to the magistrate or talk and that the defendant waived his right to go before the magistrate and elected to talk.

The Court further concludes that the defendant's statement was freely and voluntarily given and knowingly, understandingly given. No promises or threats had been made to him and that under the totality of the circumstances it was not coercive but to the contrary, was freely and voluntarily and knowingly given after being advised of his constitutional rights.

The Court further concludes that even though Magistrate Hudson did not set bond while at the Reidsville Police Department that at that time there had been no prejudice to the defendant and that it was not until after the defendant waived his right to go before a magistrate that the defendant made any statement to the police officers.

Therefore, the Court concludes, that the statement given to the police officers in the Greensboro Police Department in the early morning hours of September the 21st [sic], 1984, are admissible in the trial of this case.

The defendant first argues in support of this assignment that the trial court erred in holding his confession admissible, because he was being held in custody unlawfully at the time he confessed.

The defendant does not contend that the delay in bringing him before Magistrate Hudson was unreasonably long. Instead, the defendant argues that Magistrate Hudson was required under N.C.G.S. § 15A-511(e) to release the defendant or set reasonable bail when the defendant appeared before him at 11:54 p.m. on 21 September 1984.

The defendant argues that had Magistrate Hudson done this, the defendant would have immediately effected his release from custody and would not have confessed.

Therefore, the defendant argues that he was unlawfully in custody after his right to reasonable bail was denied at 11:54 p.m., and that his confession was ipso facto the result of such unlawful custody.

* * *

The defendant next argues in support of this assignment of error that his confession was the product of fear and, therefore, was involuntary and inadmissible.

Specifically, the defendant argues that Lieutenant Davis who offered him the polygraph test did so in a manner which induced fear in the defendant causing his will to be overborne and resulting in his confession.

The evidence as to what occurred when Lieutenant Davis offered the polygraph test to the defendant was not in conflict.

It tended to show that Davis advised the defendant fully of his constitutional rights, and that the defendant waived those rights orally and in writing and agreed to talk with Davis. Davis then asked the defendant whether he had ever taken a polygraph test and was told that he had not.

Davis then conducted what he described as the "pre-test interview" in which he explained to the defendant what would happen once he was connected to the machine.

After telling the defendant of the machine's ability to detect physiological changes that occur if a person lies, Davis asked the defendant if he was afraid of snakes. The defendant said that he was.

Thereafter, Davis told the defendant that for a person involved in the Darter murder, the questions asked during the exam "will become a snake," and, if the person lied, "the snake will bite them."

Davis told the defendant that, for a person who had nothing to do with the Darter murder, the test would be like a "paper snake" and could do no harm.

Davis then gave the defendant a form to sign before the test was administered. He explained that the form was a disclaimer of liability, which meant the defendant could not sue the police department or Davis for damages arising from the test.

Davis next told the defendant that, if Davis were the defendant's father or a defense attorney, he would tell the defendant, "if you are not telling the truth don't take a polygraph."

The defendant looked at the polygraph machine and said it would show he was lying. He told Davis he needed to tell him something.

The defendant then was given the opportunity to call his father. When he was unsuccessful in reaching his father, he was taken to another room where he was given a cup of coffee.

Shortly thereafter, the officers again advised him of his constitutional rights. He waived them, gave his oral confession, then cooperated with the officers who reduced his confession to a writing which he signed.

The trial court made detailed findings, including that the defendant had been fully advised of his constitutional rights on several occasions prior to confessing, and had waived those rights on each occasion.

The trial court found that the defendant had been given food and drink on more than one occasion prior to confessing.

The trial court further found that during the "pre-test interview" with Lieutenant Davis concerning the polygraph test, the defendant never complained, never showed any indication that he was dissatisfied and cooperated fully.

The trial court made findings to the effect that the defendant was alert and responsive and understood his situation at all pertinent times.

The trial court's findings were supported by competent evidence. Based on its findings, the trial court concluded that the defendant's statement was freely and voluntarily given and knowingly, understandingly given.

No promises or threats had been made to him and that under the totality of the circumstances it was not coercive but to the contrary, was freely and voluntarily and knowingly given after being advised of his constitutional rights.

In the present case, the defendant conceded that the procedural requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) were met. Therefore, the determination of whether the defendant's confession was voluntarily and understandingly made must be reached from a consideration of the entire record. State v. Corley, 310 N.C. 40, 311 S.E.2d 540 (1984).

We have rejected any absolute or per se rule requiring the exclusion of a defendant's confession as involuntary in all situations in which promises or threats are made to him. Id. at 47-48, 311 S.E.2d at 544-45. See State v. Richardson, 316 N.C. 594, 342 S.E.2d 823 (1986).

To the contrary, we have indicated that courts must look to the totality of the circumstances in determining whether any such promise or threat induced hope or fear which in fact overcame the defendant's will and caused him to confess or, instead, whether the confession was understandingly and voluntarily given despite a promise or threat. State v. Corley, 310 N.C. at 47-48, 311 S.E.2d at 544- 45; State v. Jackson, 308 N.C. 549, 581, 304 S.E.2d 134, 152 (1983).

In a voir dire hearing on the admissibility of a defendant's confession, the trial court must determine whether the State has borne its burden of establishing by a preponderance of the evidence that the confession was voluntary. State v. Corley, 310 N.C. at 52, 311 S.E.2d at 547.

The findings of the trial court are conclusive and binding upon appellate courts when supported by competent evidence of record. Id. However, the trial court's conclusions of law are fully reviewable. Id. In the present case, there was evidence before the trial court during the voir dire that the defendant was repeatedly given the Miranda warnings by the officers.

On each occasion he was alert, responsive and appeared to understand his rights as they were described to him. He repeatedly waived those rights.

There was also evidence before the trial court tending to show that the defendant was not deceived about the nature of the crimes under investigation. He was provided food and drink and allowed to attempt to communicate with his father.

When the defendant was unable to locate his father by telephone, two of the officers went to search for him. The evidence did not indicate that the officers even informed the defendant that they had found his fingerprints at the scene of the crime.

The twenty-one-year-old defendant was not a juvenile. The record did not indicate that he was interrogated for an unduly long period of time.

In light of the totality of the circumstances, the trial court concluded that Lieutenant Davis' comparison of the polygraph test to a snake and his advice to the defendant not to take the test if he was lying did not amount to a threat or coercion.

* * *

The trial court erred in refusing to permit both counsel for the defendant to address the jury during the defendant's final argument. This deprived the defendant of a substantial right and amounted to prejudicial error. State v. Eury, 317 N.C. at 517, 346 S.E.2d at 450.

As a result the defendant is entitled to be resentenced at a new sentencing proceeding conducted according to the requirements of N.C.G.S. § 15A-2000. In fairness to the trial court we note that Gladden and Eury were not available to provide it with guidance here, as the defendant was sentenced prior to our decisions in those cases.

State v. Simpson, 331 N.C. 267, 415 S.E.2d 351 (N.C. 1992) (Direct Appeal After Resentencing).

Defendant was convicted in the Superior Court, Rockingham County, Julius J. Rousseau, J., of first-degree murder, robbery with a dangerous weapon, and conspiracy to commit murder. Defendant appealed. The Supreme Court, 320 N.C. 313, 357 S.E.2d 332, affirmed the convictions but remanded for resentencing.

On remand, the Superior Court, Rockingham County, Judson D. DeRamus, Jr., J., entered judgment on the jury's recommendation that the defendant be sentenced to death. Appeal was taken.

The Supreme Court, Whichard, J., held that: (1) an erroneous instruction that the jury had to find mitigating circumstances unanimously was not harmless error, in light of substantial evidence to support at least two mitigating circumstances; (2) the jury poll was not sufficiently specific to permit a finding that the instructional error was harmless; and (3) prospective jurors' knowledge that a prior jury had returned a death sentence for the same murder did not per se require excusal for cause. Death sentence vacated; remanded for resentencing.

WHICHARD, Justice.

Defendant pled guilty to the first-degree murder of Jean Earnest Darter, robbery with a dangerous weapon, and conspiracy to commit murder.

After his guilty pleas were entered, a jury was empaneled for the purpose of determining defendant's punishment for the first-degree murder. N.C.G.S. § 15A-2000(a) (1988).

Upon the jury's recommendation, the trial court sentenced defendant to death for the first-degree murder.

Defendant previously appealed to this Court as of right on the judgment and sentence of death, and was allowed to bypass the Court of Appeals as to the judgments and sentences for the additional offenses. On defendant's first appeal, this Court found no error in the judgments and sentences for armed robbery and conspiracy to commit murder.

It found prejudicial error in the capital sentencing proceeding, however, and remanded the case to the trial court for resentencing on the first-degree murder. State v. Simpson, 320 N.C. 313, 357 S.E.2d 332 (1987), cert. denied, 485 U.S. 963, 108 S.Ct. 1230, 99 L.Ed.2d 430 (1988).

At the new sentencing proceeding, the jury unanimously found two aggravating circumstances. Of the twenty-nine mitigating circumstances submitted, the jury unanimously found only four.

Upon the jury's recommendation that defendant be sentenced to death, the trial court entered the judgment from which defendant now appeals.

The facts of the murder, which are not pertinent to the issues on this appeal, are summarized in the Court's prior opinion. See id. Additional facts relevant to this appeal are discussed below.

Subsequent to the sentencing hearing at issue, the United States Supreme Court held unconstitutional under the Eighth and Fourteenth Amendments of the United States Constitution jury instructions in capital proceedings which require jurors to be unanimous in the finding of mitigating circumstances. McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). Our review of the record reveals, and the State concedes, that the trial court here so instructed the jury.

Specifically, the trial court instructed the jury to write "yes" after a mitigating circumstance if the jury found unanimously that it existed and to write "no" if the jury did not unanimously find it to exist.

The State further concedes that it cannot argue successfully that this error was harmless because there is evidence from which one or more jurors could have found one or more of the twenty-five rejected mitigating circumstances.

For example, there was substantial evidence to support the mitigating circumstance that defendant committed the murder while he was under the influence of mental or emotional disturbance, and that the capacity of defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. N.C.G.S. § 15A-2000(f)(2), 2000(f)(6) (1988).

Both circumstances were supported by the uncontradicted testimony of Dr. Claudia Coleman, a psychologist, that defendant's ability to conform his conduct to the requirements of the law was impaired because he was suffering from emotional disturbance, attention deficit/hyperactivity disorder, and a "not otherwise specified" or "mixed" personality disorder.

The trial court peremptorily instructed the jury that all the evidence tended to show the existence of these two statutory circumstances; yet, the jury answered "no" as to both.

Given the substantial evidence in support of these and other mitigating circumstances, we cannot conclude beyond a reasonable doubt that the erroneous unanimity instruction did not preclude one or more jurors from considering one or more circumstances in mitigation.

* * *

Because it is likely to recur upon resentencing, we also address defendant's issue of whether a prospective juror who knows that a prior jury recommended the death penalty for the same murder should be excused for cause.

The trial court denied defendant's motions to excuse for cause several prospective jurors who knew defendant had been sentenced to death for Darter's murder. Three had formed an opinion about the appropriateness of the sentence recommended in the first sentencing hearing.

The parties uncovered the jurors' prior knowledge and opinions during individual, sequestered voir dire examinations by the trial court to explore pretrial exposure or bias.

The trial court, the State, and defense counsel closely and extensively questioned each prospective juror on the effect the prior knowledge or opinion would have on the juror's ability to make an independent decision.

All stated that they would be able to put aside that prior knowledge and/or opinion and render an impartial, fair decision based only on the evidence presented and the law as explained by the trial court.

In most instances, the trial court instructed the prospective juror that the previous proceeding had been legally flawed and should have no bearing on the disposition at the current hearing. In one instance, the trial court instructed the juror that she should not discuss her prior knowledge with other jurors during jury deliberations.

We join other jurisdictions in declining to impose a per se rule that any juror with knowledge that a previous jury returned a recommendation of death for the same murder must be excused for cause.

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DEATH SENTENCE VACATED. REMANDED FOR NEW CAPITAL SENTENCING PROCEEDING.

State v. Simpson, 341 N.C. 316, 462 S.E.2d 191 (N.C. 1995) (Direct Appeal After Second Resentencing)

Following affirmance of defendant's convictions for first-degree murder, robbery with a dangerous weapon, and conspiracy to commit murder, vacation of death sentence, and remand for resentencing on murder conviction, 320 N.C. 313, 357 S.E.2d 332, and following vacation of second death sentence and second remand for resentencing, 331 N.C. 267, 415 S.E.2d 351, the Superior Court, Rockingham County, James C. Davis, J., imposed sentence of death. Defendant appealed as of right.

The Supreme Court, Lake, J., held that: (1) sentencing court properly disallowed certain questions to prospective jurors purportedly designed to identify if any of them would always vote for death penalty when murder was premeditated; (2) sentencing court properly disallowed questions to prospective jurors as to whether they could properly consider aggravating and mitigating circumstances; (3) five prospective jurors were properly excused for cause; (4) sentencing court was not required to give peremptory instructions as to various statutory mitigating circumstances; (5) jury instruction that, since all evidence showed that certain mitigating circumstance existed, jury was required to consider that circumstance in defendant's favor, was inappropriate for nonstatutory mitigating circumstance; (6) sentencing court was not required to accept defendant's proposed jury instruction that statutory mitigating circumstances proven by preponderance of evidence must be given some mitigating weight; (7) sentencing court was not required to instruct jury that it must consider defendant's mental or emotional age at time of offense; (8) sentencing court properly instructed jury that effect of statutory mitigating circumstance of age should be determined from all facts and circumstances found from evidence; (9) sentencing court properly excluded testimony that abuse of defendant's brother by defendant's mother precipitated placement of defendant in foster-care system; (10) any error that occurred when expert in matters of child placement was prevented from rendering expert opinion on defendant's emotional or mental disturbance was harmless; (11) any error that occurred when expert in matters of child placement was not allowed to testify that she was never afraid of defendant when she was alone with him was harmless; (12) state was properly allowed to cross-examine psychological expert as to diagnoses of other mental health professionals on which he relied; and (13) death sentence was not disproportionate. No error.

LAKE, Justice.

This appeal marks the third time this case has been before this Court for sentencing review. The defendant, Perrie Dyon Simpson, confessed to the 27 August 1984 murder and robbery of Jean E. Darter, a ninety-two-year-old retired Baptist minister.

On 4 March 1985, defendant entered pleas of guilty to the first-degree murder of Reverend Darter, robbery with a dangerous weapon, and conspiracy to commit murder.

In the intervening years, defendant has received three capital sentencing proceedings pursuant to N.C.G.S. § 15A-2000, and each of the three juries, after hearing the evidence and arguments of counsel, has recommended a sentence of death.

Defendant appealed to this Court as of right from his first judgment and sentence of death, and he was allowed to bypass the Court of Appeals as to the judgments and sentences for the additional offenses.

Upon review, this Court found no error in the judgments and sentences for robbery with a dangerous weapon and conspiracy to commit murder and found no error in the conviction of defendant for first-degree murder.

However, this Court found prejudicial error in the capital sentencing proceeding and remanded to the trial court for a new sentencing proceeding for the first-degree murder. State v. Simpson, 320 N.C. 313, 357 S.E.2d 332 (1987), cert. denied, 485 U.S. 963, 108 S.Ct. 1230, 99 L.Ed.2d 430 (1988).

Following his second capital sentencing proceeding and the recommended sentence of death and judgment accordingly, defendant again appealed as of right to this Court. Based on the ruling of the United States Supreme Court in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), this Court vacated defendant's sentence of death and remanded for a third capital sentencing proceeding. State v. Simpson, 331 N.C. 267, 415 S.E.2d 351 (1992).

At the third capital sentencing proceeding, as in the two previous proceedings, the State presented evidence tending to show that on 27 August 1984, ninety-two-year-old Reverend Jean E. Darter was murdered in his Reidsville home.

Reverend Darter's daughter, Doris Darter Faircloth, testified she tried to telephone her father the night of his murder but was unable to reach him.

Faircloth and her husband decided to drive to Reverend Darter's house, and when they arrived, they noticed that the only light turned on was in the bathroom.

Mr. and Mrs. Faircloth unlocked the back door and went to the bathroom to see if Reverend Darter had fallen and hurt himself. He was not in the bathroom.

Mrs. Faircloth went to her father's bedroom and saw him lying across the bed. "I knew that he was dead because he was so still." Mr. Faircloth turned the bedroom light on, and what they saw was "so horrible that I seemed not to be able to see it all collectively. I saw it in bits and pieces."

Mrs. Faircloth noticed a strap around her father's neck, "and it was tied to the bedpost and then I looked at his eyes and by that time I said somebody did this to him."

Because the telephone cords had been cut, Mr. and Mrs. Faircloth called the police from a neighbor's telephone.

Mrs. Faircloth testified her father was an avid gardener and at the age of ninety-two, was still very active. He continued to study and still preached occasionally. "His health was remarkable for his age. His mind was very alert."

Reverend Darter wore glasses and had injured his back jumping out of a fishing boat a few years before his death. He wore a back brace to maintain his active life when his back gave him pain.

Detective Sergeant Ronnie Ellison responded to the Faircloths' call for help. When he entered Reverend Darter's house, he observed there were no signs of forced entry, and that the cords on the telephones in the hall and in the bedroom had been cut.

Mobile Crime Laboratory Operator W.F. Lemmons with the State Bureau of Investigation ("SBI") identified, collected, and preserved evidence at the murder scene. He conducted a walk-through of the house to determine the housekeeping habits of Reverend Darter and to help identify anything out of place.

Lemmons' inspection revealed that although Reverend Darter kept the inside of the house neat and clean, in one bedroom, the sheets and covers were wadded up, the dresser drawers were pulled out, and the contents dumped onto the floor.

He noticed there was a bundle of knives lying in the kitchen sink, and that both the freezer and refrigerator doors were cracked open.

The food inside was beginning to thaw. In a room just off of the kitchen was a storage area where Lemmons found a carton of glass Tab bottles; one bottle was missing.

In the bathroom, Lemmons observed a pack of razor blades in the sink. Lemmons also discovered a writing pad with the names "Lisa Marie Johnson" and "Curtis Anthony Parker" written on it.

In another bedroom, Lemmons found Reverend Darter lying on the bed, with his feet on the floor. Two belts were wrapped around Reverend Darter's neck.

The outer belt was the largest and thickest, and it was tied to the bedpost. The inner belt was broken. Reverend Darter's face was bloated and bloody.

He had glass in his left eye, and a design composed of many small circles and dots was imprinted on the Reverend's left cheek.

Both of the Reverend's arms were cut open from his elbows to his wrists. Blood was on the bed and had run down the side of the bed and formed a puddle on the floor; there was blood on the walls and window blinds.

Also on the bed were the contents of two dresser drawers, shattered glass, the Reverend's broken glasses, his false teeth, a razor blade, and the neck of a glass Tab bottle. Directly under Reverend Darter's elbow was a photo album entitled, "My Grandchildren."

Agent Walter L. House, also with the SBI, was a member of the Darter murder investigation team. He testified that the Faircloths turned over to him Reverend Darter's telephone bill.

According to the bill, a long-distance telephone call had been made from Reverend Darter's house to a telephone in Greensboro on 26 August 1984.

Agent House and Captain Eddie Lambeth determined the telephone number belonged to a woman named Ruby Locklear. House and Lambeth visited her and asked if she knew anyone in Reidsville.

Locklear replied that the only person who ever called from Reidsville was a man named Perrie Dyon Simpson and that he called her when he wanted to reach his father. Agent House also testified that eight latent fingerprints found in the Darter house matched the defendant's.

The police learned there was an outstanding warrant for defendant in Greensboro for simple assault, so defendant was arrested on 21 September 1984.

Defendant was advised of his Miranda rights and agreed to talk with officers about the Darter murder. He signed a written statement to the effect that he had read about the Darter murder but knew nothing about it.

Defendant stated he had never met or seen Reverend Darter and had never been inside Reverend Darter's house. Defendant was then transported to Greensboro for a bond hearing on the assault charge.

In Greensboro, police asked defendant if they could talk some more about the Darter murder, and defendant agreed.

During this questioning period, defendant made a sixteen-page written statement confessing his involvement in the murder.

Defendant confessed that on 26 August 1984, he and his pregnant, sixteen-year-old girlfriend, Stephanie Eury, went for a walk to look for some money.

Stephanie went to the front door of Reverend Darter's house and rang the doorbell. She told Reverend Darter she was hungry, so he brought her a diet soft drink and gave the defendant a glass of milk. Stephanie asked if they could come inside, so the three went into the front living room.

Stephanie told the Reverend that she and defendant were traveling to Florida and had gotten stuck in Reidsville. The Reverend suggested they contact the Salvation Army or the police.

Stephanie asked Darter if he could give them some money, and Reverend Darter gave her four dollars, explaining that was all the money he had in cash.

Defendant told police that he and Stephanie "noticed the preacher had a nice home." After getting permission to use the telephone, defendant called Ruby Locklear in Greensboro to see if she had seen defendant's father.

When defendant got off of the telephone, he heard Stephanie tell the Reverend her name was "Lisa" and defendant's name was "Curtis Anthony." Defendant watched the Reverend write these names down on a pad of paper.

Defendant told the police that before he and Stephanie left the house, the Reverend gave them some sponge cake and peaches to take with them. Defendant admitted that "Reverend Darter was real friendly to us and was very helpful."

The next day, 27 August 1984, defendant said that he and Stephanie "both talked about going back to preacher Darter's house to get some money. Stephanie and I decided we would go back to Darter's house and we would not come back empty-handed no matter what."

Defendant told police that he and Stephanie walked around outside waiting for it to get dark. Once it was dark enough, the two walked to Reverend Darter's house, looking around to make sure no one saw them. They rang the doorbell, and when Reverend Darter answered the door, they forced their way inside. Reverend Darter ran to the telephone, but defendant "pulled the preacher's hands off the telephone."

Defendant told Stephanie to cut the telephone cords, and in the meantime, he was "struggling with Preacher Darter holding onto the preacher's arms to control him and force him back in his bedroom so he would tell me where some money was."

Defendant held the Reverend down on the bed, with his hands around his neck, telling him he wanted money "or else," but the Reverend told defendant he did not have any money.

The Reverend told defendant that if he was killed, he knew he was going to heaven. Defendant told the police, "this frustrated me and I grabbed him tighter around the throat."

Defendant reached across the bed and got a belt and "looped it around his neck and tightened the belt." While he held the belt tight, defendant rummaged through two dresser drawers Stephanie had dumped onto the bed. Not finding anything he wanted, defendant drew the "belt more tight around his neck and I told the preacher he had better tell us where some more money was but the preacher could not talk because he was choking."

When the first belt broke, defendant got another, thicker belt "and looped this leather belt around the preacher's neck and tightened up on this leather belt. Then I called Stephanie to bring me something in the bedroom to kill this preacher with."

When defendant did not receive any weapon to his liking, he called for Stephanie to come and hold the belt while he "went in the kitchen and looked for some device to beat the old preacher and finish him off."

He picked up a full pop bottle and then decided to put it back and get an empty bottle. He returned to the bedroom, pulled tight on the belt, and "hit the old preacher hard three times with this bottle and on the third blow the soft drink bottle broke."

Defendant then decided to tie the end of the belt to the bedpost, and he went into the bathroom and got a double-edged razor blade. "I held this double-edged razor blade between my right index finger and right thumb and then I sliced the preacher's arms from the biceps all of the way down the under side of the forearms to the wrist. I cut both of the preacher's arms."

Stephanie gathered a bag of food, a porcelain lamp, a radio, and boxes of Kleenex and packed them in a plastic laundry basket. "The last thing we did before leaving the preacher's house was to turn off all the lights except the bathroom light."

Agent House further testified that after defendant made his confession, defendant read the statement out loud checking for mistakes. When defendant came to a portion of the statement where he had used profanity, he laughed.

Pathologist Michael James Shkrum performed an autopsy on Reverend Darter and testified the Reverend sustained blunt-trauma injuries to his face causing swelling and bruising.

The bone between the eye socket and the brain was fractured, the cheek and the jaw bone were broken, and the Reverend's tongue was torn.

Strangulation bruises appeared on the neck. It was Dr. Shkrum's opinion that Reverend Darter died from ligature strangulation, and that it would have taken several minutes for his heart to stop beating. It was Dr. Shkrum's further opinion that Reverend Darter experienced pain.

Dr. Shkrum also testified that because Reverend Darter sustained bruising around his face, his heart was still beating when those injuries were inflicted.

The defendant testified on his own behalf and presented evidence tending to show that after his birth, he went directly from the hospital into the foster-care system.

Joan Landreth, a social worker, testified that the Guilford County Department of Social Services was granted custody of defendant when he was ten days old.

Ms. Landreth was directly responsible for the defendant's placement when he was nine years old. She testified that by the time defendant reached the age of eighteen, he had been placed with a number of foster-care families.

However, defendant's older brother, Daryl, continuously lived with their maternal grandmother, Althea Kermen.

Ms. Landreth testified that defendant was allowed to visit with his grandmother and brother, but that Ms. Kermen repeatedly turned defendant back over to the care of the foster-care system. Throughout his childhood, defendant experienced problems with recurring skin rashes and slurred speech.

Dr. Claudia Coleman conducted a psychological examination of defendant and reviewed defendant's social history records compiled by the Department of Social Services ("DSS").

She testified that in her expert opinion, defendant suffered from severe mental and emotional disturbances. Specifically, Dr. Coleman diagnosed defendant as suffering from attention deficit/hyperactivity disorder ("ADHD") and from a "mixed personality" disorder.

Dr. Coleman concluded that based upon the DSS records, defendant began to exhibit these mental and emotional disturbances at an early age, probably prior to his fifth birthday, and that the defendant's frequent movement between various foster families aggravated his ADHD.

Further, Dr. Coleman testified that at the time of the murder, defendant had the emotional age of a twelve to fourteen year old, and that while defendant was able to plan the robbery and was aware that his actions were wrong, defendant's disorders nevertheless left him without the capacity to stop his actions.

The jury found the existence of the two aggravating circumstances submitted: (1) the murder was committed by the defendant while he was engaged in the commission of a robbery; and (2) the murder was especially heinous, atrocious, or cruel. One or more jurors additionally found the following statutory and nonstatutory mitigating circumstances: (1) the murder was committed while defendant was under the influence of a mental or emotional disturbance; (2) defendant aided in the apprehension of another capital felon; (3) defendant's mental or emotional age at the time of the murder was mitigating; (4) defendant's development was adversely affected by the lack of permanence in his life as a result of the frequent changes in placement with foster-care families and schools; (5) defendant was taken from the care of his grandmother while his brother was allowed to remain in her care; (6) defendant experienced a mental or emotional disturbance at an early age; (7) defendant's mental or emotional disturbance affected his ability in school; (8) defendant's mental or emotional disturbance affected his ability to sustain employment; (9) defendant's behavior improved during times when he was in a structured environment; (10) defendant confessed to his involvement in the murder prior to his arrest; (11) defendant did not minimize his culpability in the murder; (12) defendant voluntarily consented to a search of his property for evidence of the robbery and murder; and (13) defendant voluntarily pled guilty to murder, armed robbery, and conspiracy to commit murder.

The jury found beyond a reasonable doubt that the mitigating circumstances were insufficient to outweigh the aggravating circumstances, and it further found that the aggravating circumstances were sufficiently substantial to call for the imposition of the death penalty.

The trial court entered judgment in accordance with the jury's recommendation of death. It is from this judgment and commitment of death that defendant currently appeals. For the reasons stated herein, we conclude that the capital sentencing proceeding was free from prejudicial error and that the sentence of death is not disproportionate.

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PROPORTIONALITY REVIEW

Having found no error in the sentencing phase, it is now our duty to consider whether: (1) the evidence supports the aggravating circumstances found by the jury; (2) passion, prejudice, or "any other arbitrary factor" influenced the imposition of the death sentence; and (3) the sentence 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).

The trial court submitted two aggravating circumstances to the jury: that the murder was committed while defendant was engaged in the commission of a robbery, N.C.G.S. § 15A-2000(e)(5); and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9).

The jury found both aggravating circumstances to exist. We conclude that the jury's finding of each of the aggravating circumstances was supported by the evidence. We further conclude that the jury did not sentence defendant to death while under the influence of passion, prejudice, or any other arbitrary factor.

We now turn to our final statutory duty and determine whether the sentence of death in this case is excessive or disproportionate. One 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, 108 S.Ct. 2835, 100 L.Ed.2d 935 (1988).

Another is to guard "against the capricious or random imposition of the death penalty." State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137, reh'g denied, 448 U.S. 918, 101 S.Ct. 41, 65 L.Ed.2d 1181 (1980).

We compare this case to similar cases in the pool, defined in State v. Williams, 308 N.C. at 79-80, 301 S.E.2d at 355 and State v. Bacon, 337 N.C. at 106-07, 446 S.E.2d at 563-64, as those that "are roughly similar with regard to the crime and the defendant." Lawson, 310 N.C. at 648, 314 S.E.2d at 503.

Ultimately, whether the death penalty is determined to be disproportionate "rest[s] upon the 'experienced judgments' of the members of this Court." Green, 336 N.C. at 198, 443 S.E.2d at 47.

This Court has determined that the sentence of death was 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). The present case is, however, distinguishable from each.

In State v. Benson, the defendant robbed the victim and shot him in the legs. The victim died of cardiac arrest, and defendant was convicted of first-degree murder based solely upon the theory of felony murder.

The only aggravating circumstance found by the jury was that the crime was committed for pecuniary gain.

In determining the sentence to be disproportionate, this Court noted that it appeared defendant was simply attempting to rob the victim because he only fired at the victim's legs. 323 N.C. at 329, 372 S.E.2d at 523.

By contrast, in the present case, defendant decided before he ever entered the house he would kill Reverend Darter and went about his purpose with the aid of belts, a bottle and a double-edged razor blade. Indeed, so gruesome was this murder that the jury found it was "especially heinous, atrocious, or cruel."

In State v. Stokes, the defendant, who was but seventeen, along with four other individuals robbed and beat the victim to death.

Defendant was found guilty of first-degree murder under the theory of felony murder, and only one aggravating circumstance, that the crime was especially heinous, atrocious, or cruel, was found.

This Court found the sentence of death disproportionate, in part, because only the defendant had received the death penalty.

One of defendant's accomplices received a life sentence even though he "committed the same crime in the same manner." 319 N.C. at 27, 352 S.E.2d at 667. By contrast, in the present case, defendant's culpability was greater than that of his accomplice.

It was defendant who wrapped two belts around Reverend Darter's neck; who beat the Reverend in the face with a glass bottle; and who, with a double-edged razor blade, sliced the Reverend's arms, seventeen inches on one arm and fourteen inches on the other.

Although defendant's accomplice, Stephanie Eury, received a life sentence, she and defendant did not commit "the same crime in the same manner."

In State v. Rogers, the defendant was convicted of first-degree murder for mistakenly shooting the victim. Defendant had intended to shoot the victim's friend, with whom he was arguing.

Only one aggravating circumstance was found, that "[t]he murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons." 316 N.C. at 234, 341 S.E.2d at 731.

By contrast, in the present case, this killing was not a mistake, nor was it committed during an argument.

Defendant took great care to wait until it was dark outside before he and his accomplice approached the victim's house.

Defendant even took the precaution of ordering his accomplice to cut the telephone lines so that Reverend Darter could not call for help.

In State v. Young, the defendant, after drinking heavily all day, stabbed and robbed a man in order to buy more liquor. Defendant had two accomplices with him.

The Court noted that in armed robbery cases where death is imposed, the jury has found the aggravating circumstance that the defendant was engaged in a course of conduct that included the commission of violence against another person and/or that the crime was especially heinous, atrocious, or cruel. 312 N.C. at 691, 325 S.E.2d at 194.

Neither of these circumstances was found by the jury in Young. By contrast, in the present case, the jury found that Reverend Darter's murder was especially heinous, atrocious, or cruel.

In State v. Hill, the defendant shot a police officer while engaged in a struggle near defendant's automobile.

This Court found the death sentence disproportionate based, in part, on the speculative nature of the evidence surrounding the murder and the apparent lack of motive. 311 N.C. at 479, 319 S.E.2d at 172.

By contrast, in the present case, the evidence shows it was indeed the defendant who viciously murdered a ninety-two-year-old man for a lamp, a radio, a bag of food, boxes of Kleenex, and a plastic laundry basket.

In State v. Bondurant, the defendant pointed a gun at the victim and taunted him for some two to three minutes before finally shooting him.

Of importance to the Court in finding the death sentence disproportionate was that defendant immediately secured medical attention for the victim, directing the driver of the car to the hospital. 309 N.C. at 694, 309 S.E.2d at 182-83.

By contrast, in the present case, defendant did not seek medical attention for the retired preacher. Instead, defendant left Reverend Darter to die in his blood, tied to his bed.

In State v. Jackson, the defendant flagged down the victim's car, telling his companions that he intended to rob the victim. The victim was later found dead with two gunshot wounds to the head.

This Court found the death sentence disproportionate because there was "no evidence of what occurred after defendant left with McAulay [the victim]." 309 N.C. at 46, 305 S.E.2d at 717.

By contrast, in the present case, the defendant confessed that, in fact, he killed Reverend Darter. [49] We are aware that juries have imposed life sentences in several robbery-murder cases. This fact nevertheless "does not automatically establish that juries have 'consistently' returned life sentences in factually similar cases." Green, 336 N.C. at 198, 443 S.E.2d at 47.

This Court too has long rejected a mechanical or empirical approach to comparing cases that are superficially similar. Robinson, 336 N.C. at 139, 443 S.E.2d at 337.

We find that this case is similar in many respects to one case in particular in which we have found the sentence of death proportionate--State v. Bacon, 337 N.C. 66, 446 S.E.2d 542.

In Bacon, defendant plotted with his lover, Bonnie Sue Clark, to kill her estranged husband so they could share a total of $130,000 in life insurance proceeds.

The two lured the victim into a car, and as they drove down the street, defendant stabbed the victim sixteen times with a knife he had earlier placed on the floor.

Clark, who was driving the car, pulled into a parking lot, and defendant hit her head against the car window and instructed her to say that she and her husband had been robbed. Defendant then went home, showered and had a drink. Bacon, 337 N.C. at 108, 446 S.E.2d at 565.

At the capital sentencing proceeding, the jury found the one aggravating circumstance submitted--that the murder was committed for pecuniary gain.

One or more members of the jury also found the existence of nine mitigating circumstances--that defendant had no significant history of prior criminal activity; acted under the domination of another person; had no history of violent behavior; had character, habits, mentality, propensities and activities indicating that he was unlikely to commit another violent crime; had committed the murder as a result of circumstances unlikely to recur; had established that his codefendant, Bonnie Sue Clark, had received a life sentence; had shown remorse since his arrest; and had a family who loved him, continued to visit him while he has been incarcerated, and would continue to do so.

The jury refused to find, among others, that the murder was committed while defendant was under the influence of a mental or emotional disturbance; that his capacity to appreciate the criminality of his conduct, or to conform his conduct to the requirements of the law was impaired; and that his age had mitigating value. Id. at 82-83, 446 S.E.2d at 549.

The Court concluded that the sentence of death was not disproportionate in light of the calculated and brutal nature of the murder, "all for half of the victim's rather meager insurance proceeds." Id. at 116, 446 S.E.2d at 570.

Likewise, in the present case, defendant schemed and plotted his attack upon an old and defenseless man who had welcomed defendant into his home and given him food and aid.

Defendant lurked outside the house waiting for night to fall before he forced his way inside and mercilessly terrorized and tortured a man who only the day before had tried to help him.

Just as the defendant in Bacon, this defendant's ability to appreciate the criminality of his conduct was not found to be impaired.

In light of the fact that the victim befriended the defendant only the day before his murder, and the utterly brutal manner in which defendant murdered this elderly man, we find this murder to be even more callous than the murder in Bacon.

We conclude that defendant received a fair sentencing proceeding, free from prejudicial error. Further, after comparing this case to similar cases in which the death penalty was imposed and considering both the crime and the defendant, we cannot hold, as a matter of law, that the sentence of death was disproportionate or excessive. NO ERROR.

Perrie Dyon Simpson