1995

WHICHARD, Justice.

Defendant was tried capitally for the first-degree murder and robbery with a dangerous weapon of Helen Purdy, his neighbor. The jury found defendant guilty on both charges and recommended a sentence of death for the first-degree murder.

The trial court sentenced accordingly on the murder charge and sentenced defendant to forty years in prison for the robbery, to begin at the expiration of the murder sentence or "any judgment in place of" it. We hold that defendant had a fair trial, free of prejudicial error, and that the sentence of death is not disproportionate. The State's guilt-phase evidence tended to show the following:

The victim, Helen Purdy, was a seventy-one-year-old resident of Eden, North Carolina. She lived alone beside the home of defendant, his grandmother, and his uncle. Because of her fragile health, friends and family members took turns looking after and checking in on her.

On 9 March 1992 Gchuther Morris, Mrs. Purdy's sister-in-law, tried calling Mrs. Purdy all day and became concerned when she did not get an answer. Around 9:15 p.m. Linda Purdy, Shirley Gray, and Ralph Carter went to Mrs. Purdy's house.

They found her dead on her living room floor, lying in a pool of blood. Aside from the front door being unlocked, everything in the house generally appeared in order; there was no sign of a struggle. In Mrs. Purdy's bedroom the bed covers were turned back to one side, as if someone had been lying on the bed, and Mrs. Purdy's purse was lying open on the bed.

Dr. Robert L. Thompson, the forensic pathologist who performed the autopsy, found thirteen cut and stab wounds as well as numerous minor cuts and abrasions to Mrs. Purdy's hands, neck, and face.

The significant findings included: (1) two incised or cut wounds in the victim's right chest, both with depths of 4 3/4 inches, one penetrating the pericardium sac and the other the liver; (2) two incised or cut wounds in the left chest with depths of 4 1/2 inches and 6 inches, again penetrating the pericardium sac and liver; (3) two incised or cut wounds in the left armpit with depths of 6 inches and 3 1/2 inches; (4) wounds to the back of the left arm, two of which went completely through the arm; (5) a small abrasion of the lower lip; (6) a superficial one-inch-long cut in the area of the left ear and a one-half inch cut below the angle of the jaw on the left side; (7) scratches and cuts on both wrists; (8) a 5 1/8 inch cut on the left first finger, described as a defensive wound; and (9) a large incised wound in the left side of the neck measuring 4 inches down to the bone. Dr. Thompson opined that death was caused by the wounds to the chest, none of which would have been instantly fatal. It would have taken several minutes for death to occur.

Nadine Carter, defendant's grandmother, testified that on the morning of 9 March 1992, defendant had called her into his room and told her he needed to go to the hospital. He said he had been accosted by four young white males at the car wash when he was coming home the night before and had been stabbed in the leg. Defendant had a towel wrapped around his leg. When Mrs. Carter looked at defendant, she knew something was not right, but she believed his story and did not question him further. She then drove defendant to Morehead Hospital.

Mary Hertle, an emergency room employee of Morehead Hospital, was on duty on 9 March 1992. Defendant came to the emergency room around 8:30 a.m. reporting a puncture wound two or three inches deep to the left inner thigh.

Defendant said four white men had assaulted him at the car wash the previous night. Although defendant smelled of alcohol and said he did not come earlier because he was too drunk, Ms. Hertle observed that defendant did not appear intoxicated or in pain, his speech was not slurred, and he gave what appeared to be appropriate answers to questions.

Mark Joyce, an Eden police officer, also saw defendant at Morehead Hospital that morning. Defendant told him essentially the same story about his leg wound. In Joyce's opinion, although defendant had been drinking and there was a strong odor of alcohol about him, defendant was not impaired.

Greg Moore, an Eden Police Department detective, was assigned to investigate the murder. He had seen defendant on crutches on 9 March 1992 at the magistrate's office and knew defendant was reporting a knife wound to his leg. Detective Moore also knew defendant lived beside the victim.

At approximately 8:40 a.m. on 10 March 1992, Detective Moore and SBI Agent James Bowman interviewed defendant at the Rockingham County jail. At that time, defendant was incarcerated on another charge for which he had been arrested on 9 March 1992.

In substance, defendant initially gave these officers the following version of the events leading to his leg wound. Defendant said three white men had jumped him on Monday, 9 March 1992, about 4:30 or 5:00 a.m. He had been riding around and drinking with his friends, Quentin Broadnax and Jamel Price. After Broadnax dropped him off, defendant walked around before stopping at the corner of Henry and Early Streets. Defendant said he "threw up" at this time. Defendant then sat on the steps at the YMCA for a few hours. He said he may have dozed off.

According to defendant, he had been drinking beer and liquor for most of the day and evening. After leaving the YMCA steps, defendant walked up Monroe Street towards home and was in the car wash parking lot when he saw some people getting into a truck. He could tell they were white males.

The truck was directly across the street from Mrs. Purdy's house. He said he tried to cut through the lot to avoid them, but they pulled toward him and began shouting obscenities. When defendant hollered back, the men stopped the truck and began chasing him. Defendant tried to run, but they caught him, and he was too drunk to defend himself. As one man came up on his left side, defendant tried to kick him but got stabbed in the left leg in the process.

In the course of this interview, Detective Moore was advised that defendant had a doctor's appointment at 9:45 a.m. Prior to leaving for the appointment, defendant signed a consent to have a blood sample drawn. Following the doctor's appointment, Moore and Bowman again interviewed defendant. Prior to commencing the second interview, defendant was told a butcher knife had been found in the lot near his residence.

Thereafter, defendant confessed to the officers and gave a new statement. Detective Moore testified that defendant told the officers he went to the home of Helen Purdy in the early morning hours of 9 March 1992. He had been drinking and using cocaine and wanted to borrow money from Mrs. Purdy. Mrs. Purdy let defendant into her home and initially told him he could borrow five dollars. She then changed her mind and said he could not have any money.

Mrs. Purdy then went towards the telephone, whereupon defendant asked her not to call his grandmother. Defendant stated that at that point Mrs. Purdy noticed defendant had a knife, and she became excited. She tried to push defendant, and in the process the knife went in her. Defendant pulled the knife out and stuck it in his own leg.

Defendant said he did not know what happened after he cut himself and did not know how many times he stabbed Mrs. Purdy. Prior to going home defendant took fifteen dollars that Mrs. Purdy had placed near the telephone and used it to buy cocaine. He then threw the knife into a field next to his house. Agent Bowman testified that blood drawn from defendant the day after the murder was not tested for alcohol or drug content.

The State introduced a knife found across the street from the murder scene. Lieutenant Walter Johnson testified that the knife was found on the grass in plain view and that no effort had been made to hide it. Blood of Mrs. Purdy's type was found on the knife. Mrs. Carter identified the knife as one from her kitchen.

Denise Smith, a girlfriend of defendant's at the time of the murder, testified that in the summer of 1991, she asked defendant if he used cocaine or any other drug. Defendant said "no" but told her that if a person is arrested, he should say he was under the influence of drugs and he would get a lighter sentence.

After defendant was arrested for Mrs. Purdy's murder, Ms. Smith visited defendant in jail. While in the presence of another detainee, defendant commented he had been to a mental health appointment. When the other detainee mimicked The Twilight Zone tune, defendant stated, "Man, I'm not crazy."

Defendant also presented evidence. Jamel Price, defendant's friend, testified that he and defendant spent the day together on 8 March 1992. Defendant began drinking at approximately 12:30 p.m. that day. Price and defendant visited various establishments in Reidsville; and Price watched defendant consume more than one hundred ounces of beer, some wine, and some liquor.

Price did not see defendant take drugs, but he was not with him all the time. Another companion, Quentin Broadnax, gave a similar account. On cross-examination Broadnax said that they went to defendant's house before going to Reidsville and that he believed defendant got five dollars from Mrs. Carter.

Defendant testified in his own behalf. He said he spent the day on 8 March drinking beer, wine, and bootleg whiskey. He also consumed a twenty-five dollar bag of powder cocaine, a twenty dollar rock of crack cocaine, and two pills which he identified as "Zannex."

During the early morning hours of 9 March, he had wanted to buy cocaine. Although he had fifty or sixty dollars on him, he wanted to borrow more so he could get as much cocaine as possible. Mrs. Purdy's light was on, so he went to her door to ask for money. The remainder of defendant's testimony corresponded with the confession he had given to Detective Moore and Agent Bowman.

Defendant presented other evidence tending to show that he was mentally impaired at the time of the murder and that he had had a tumultuous childhood. Dr. John Warren, a clinical psychologist who examined defendant after his arrest, testified that defendant had a low average IQ and suffered from a borderline personality disorder as well as a substance-abuse problem.

He opined that defendant's mental capacity was diminished at the time of the offense, making it very unlikely that he could make and carry out a plan to kill.

During the sentencing phase, the State introduced evidence concerning the facts and circumstances of defendant's prior conviction for second-degree robbery. Darwin Neely, the victim of that robbery, testified that in March 1986 defendant and three other men abducted him, forced him into a car at gunpoint, stole his money and personal items, and temporarily held him hostage. All four men had guns.

The State introduced a certified copy of a judgment from Nassau County Court, State of New York, which had been entered upon defendant's plea of guilty to second-degree robbery. Defendant served four years in prison for that offense.

Defendant's penalty-phase evidence tended to show that he was well behaved, kind, and loving. Dr. Warren testified that defendant was under the influence of emotional disturbance at the time of the crime and that his ability to appreciate the criminality of his conduct was impaired.

Dr. Warren found that defendant would benefit from a structured environment, had done well in prison before, and did not have disciplinary problems. Lucy Moriello, a counselor with the New York Department of Corrections for eleven years, characterized defendant's time in prison in New York as good conduct, with appropriate behavior and no disciplinary problems.

On rebuttal, the State presented evidence of defendant's insolence while being held pretrial at the Rockingham County jail.

Prior to the presentation of any evidence, counsel for defendant conceded that defendant had stabbed and killed Mrs. Purdy, but contended that it was second-degree murder, not first.

The jury found defendant guilty of first-degree murder on the theories of premeditation and deliberation and felony murder. It also found him guilty of robbery with a dangerous weapon. At the capital sentencing proceeding, the jury found as aggravating circumstances that the crime was committed for pecuniary gain and that defendant had been previously convicted of a felony involving the use or threat of violence.

The jury rejected all proposed statutory mitigating circumstances and found three of the eleven nonstatutory mitigating circumstances submitted. It unanimously recommended a sentence of death, which the trial court accordingly imposed.

Defendant's assignments of error all pertain to the sentencing phase. First, defendant argues that the trial court erred in submitting the prior violent felony aggravating circumstance, N.C.G.S. [section] 15A-2000(e)(3) (Supp. 1994), because the evidence did not support the circumstance as it was submitted to the jury. The trial court instructed the jury, in pertinent part:

If you find from the evidence, . . . beyond a reasonable doubt that on or about March 9th, 1992, the defendant had been convicted of second degree robbery and that the defendant threatened to use violence to the person in order to accomplish his criminal act and that the defendant killed Helen Moore Purdy after he committed the second degree robbery, you would find this aggravating circumstance . . . .

Defendant contends that this instruction required the jury to find that defendant personally threatened or used violence during the prior robbery, and he argues that the evidence did not support such a finding.

The aggravating circumstance reads as follows: "The defendant had been previously convicted of a felony involving the use or threat of violence to the person." N.C.G.S. [section] 15A-2000(e)(3).

Defendant concedes that this Court has previously interpreted this circumstance to require only that "the felony for which he was convicted involved the 'use or threat of violence to the person.'" State v. Goodman, 298 N.C. 1, 22, 257 S.E.2d 569, 583 (1979). He argues, though, that the trial court's instruction changed the theory of the circumstance by requiring a more exact showing that defendant himself threatened or used violence during the earlier robbery. We disagree.

Defendant did not object to the instruction at trial, so we review for plain error. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). This instruction, taken as a whole, would not have been viewed by a reasonable juror as limiting the aggravating circumstance so as to require a showing that defendant personally used or threatened violence.

Early in the instructions, the court told the jury the issue was, "had the defendant been previously convicted of a felony involving the use or threat of violence to the person." (Emphasis added.) The issue was identically worded on the issues and recommendation form. A reasonable juror thus would not likely have interpreted an isolated reference to defendant's personal threat or use of violence as limiting the circumstance contrary to the clear wording in other portions of the instructions and on the forms submitted to the jury.

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At the sentencing hearing, psychiatrist Dr. John Warren testified that defendant suffered from borderline personality disorder, a low IQ, and substance-abuse disorder. Based on these three conditions, he opined that defendant suffered from mental or emotional disturbance at the time of the offense and was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

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PROPORTIONALITY REVIEW

Having found no error in either the guilt or sentencing phase, we must determine whether: (1) the evidence supports the aggravating circumstances the jury found; (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. [section] 15A- 2000(d)(2).

The jury found defendant guilty of first- degree murder under the theory of malice, premeditation, and deliberation, as well as under the felony murder rule. It also found him guilty of robbery with a dangerous weapon. At the capital sentencing proceeding the trial court submitted two aggravating circumstances, both of which the jury found: that defendant had been previously convicted of a violent felony, N.C.G.S. [section] 15A-2000(e)(3); and that the murder was committed for pecuniary gain, N.C.G.S. [section] 15A-2000(e)(6). We conclude that the evidence supports both circumstances. We further conclude that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor. We therefore consider proportionality.

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, 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, 65 L. Ed. 2d 1137 (1980). We compare this case to others in the pool, which we defined in State v. Williams, 308 N.C. 47, 79- 80, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983), and State v. Bacon, 337 N.C. 66, 106- 07, 446 S.E.2d 542, 563- 64 (1994), cert. denied, ___ U.S. ___, 130 L. Ed. 2d 1083 (1995), that "are roughly similar with regard to the crime and the defendant." State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985). Whether the death penalty is disproportionate "ultimately rest[s] upon the 'experienced judgments' of the members of this Court." Green, 336 N.C. at 198, 443 S.E.2d at 47.

The trial court submitted four statutory mitigating circumstances: defendant had no significant history of prior criminal activity, N.C.G.S. [section] 15A-2000(f)(1); the murder was committed while defendant was under the influence of mental or emotional disturbance, N.C.G.S. [section] 15A-2000(f)(2); defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, N.C.G.S. [section] 15A-2000(f)(6); and defendant's age at the time of the crime, N.C.G.S. [section] 15A-2000(f)(7).

Notably, the jury found none of these to exist. The trial court also submitted the "catchall" circumstance, N.C.G.S. [section] 15A-2000(f)(9), and the jury answered it in the negative. The jury found only three nonstatutory mitigating circumstances--that defendant confessed his guilt and cooperated with law enforcement officers, that his parents had failed to provide him with a nurturing and supporting relationship, and that his grandmother had tried to get substance-abuse help for him just prior to the crime. The jury determined that the aggravating circumstances outweighed the mitigating circumstances and recommended a sentence of death.

This case has several distinguishing features. The jury convicted defendant under both the felony murder rule and the theory of malice, premeditation, and deliberation. "The finding of premeditation and deliberation indicates a more cold- blooded and calculated crime." State v. Artis, 325 N.C. 278, 341, 384 S.E.2d 470, 506 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990).

Further, the victim was killed in her own living room in the middle of the night. A murder in the home "shocks the conscience, not only because a life was senselessly taken, but because it was taken [at] an especially private place, one [where] a person has a right to feel secure." Brown, 320 N.C. at 231, 358 S.E.2d at 34. Defendant chose to kill a person who had treated him with kindness and compassion, for whom he had done yard work in the past, and who had been his neighbor for quite some time.

Additionally, the evidence indicated that defendant stabbed the victim over thirteen times with an eight-inch butcher knife. One of the stab wounds penetrated to a depth of six inches, and at least three others were four inches deep or more.

Finally, the victim was a seventy-one-year-old woman who suffered from cancer and arthritis. At 5'2 1/2" tall and 119 pounds, she was no match for defendant, a healthy twenty-four-year-old man. Defendant killed her for fifteen dollars to enable him to buy crack cocaine which he smoked while she lay dead on her living room floor. These features distinguish this case from those in which we have held the death penalty disproportionate.

Defendant contends that this case is disproportionate because other robbery- and burglary-murder cases resulted in life sentences rather than death sentences. While we cannot distinguish all of those cases from this one, "the fact that one, two, or several juries have returned recommendations of life imprisonment in cases similar to the one under review 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.

Defendant also contends this case is similar to State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985), one of the cases in which we found a death sentence disproportionate, and that his sentence must therefore be vacated. We disagree.

In Young the defendant, age nineteen, and two companions went to the victim's home and robbed and killed him. Defendant stabbed the victim twice, and one of his companions "finished him" by stabbing him five or six more times. The three young men then stole money and valuable coins and fled the scene. The defendant's two companions were not tried capitally because they received a plea bargain in exchange for testifying against the defendant.

The defendant's crime in this case is readily distinguishable from that in Young. In Young the aggravating circumstances found were that the murder occurred during a robbery and was motivated by pecuniary gain. Pursuant to State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987), these circumstances would now be held redundant, leaving only one aggravator as opposed to the two clearly discrete aggravators found here. The most obvious distinctions, however, are the ages of the defendants and their prior criminal histories. In Young there was no finding of a prior felony conviction, and the defendant was nineteen years old.

Defendant here, by contrast, was twenty-four years old and had already served four years in prison for second-degree robbery. Additionally, the defendant in Young stabbed the victim twice, while the defendant here stabbed his victim more than thirteen times. These features distinguish this case from Young as well as from the six other cases wherein we have held the death sentence disproportionate: 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. 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).

Considering this crime and this defendant, particularly the features noted above, we conclude that the death sentence is not excessive or disproportionate. We hold that defendant received a fair trial and sentencing proceeding, free of prejudicial error.

NO ERROR.