State v. White6/13/1996
ssues." This Court has previously held adversely to defendant's position on these issues. We decline to overrule these prior decisions, and we find no prejudicial error. However, these assignments of error are preserved for any necessary future review by a federal court.
First, defendant contends that the trial court's instruction on the aggravating circumstance that the murder was especially heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9), was unconstitutionally vague. The court followed the pattern jury instruction for the (e)(9) circumstance. See N.C.P.I.--Crim. 150.10, at 22-24 (1995).
Because these jury instructions incorporate narrowing definitions adopted by this Court and expressly approved by the United States Supreme Court, or are of the tenor of the definitions approved, we reaffirm that these instructions provide constitutionally sufficient guidance to the jury.
State v. Syriani, 333 N.C. 350, 391-92, 428 S.E.2d 118, 141, cert. denied, ___ U.S. ___, 126 L. Ed. 2d 341 (1993). This assignment of error is overruled.
Second, defendant contends that the trial court erred in instructing that each juror was allowed, rather than required, to consider the mitigating circumstances found to exist when weighing the aggravating circumstances against the mitigating circumstances. This Court approved the trial court's instruction in State v. Skipper, 337 N.C. 1, 446 S.E.2d 252 (1994), cert. denied, ___ U.S. ___, 130 L. Ed. 2d 895 (1995); State v. Lee, 335 N.C. 244, 439 S.E.2d 547. This assignment of error is overruled.
VIII. Having concluded that defendant's trial and separate capital sentencing proceeding were free from prejudicial error, we turn to the duties reserved by N.C.G.S. § 15A-2000(d)(2) exclusively for this Court in capital cases. We have examined the record, transcripts, and briefs and conclude that the evidence fully supports the aggravating circumstances found by the jury, that the murder was committed while defendant was engaged in first-degree kidnapping, second-degree burglary, and robbery with a dangerous weapon, 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). Further, we find no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary consideration. We must now turn to our final statutory duty of proportionality review.
Although defendant made no argument that his sentence is disproportionate, we are nevertheless mandated by N.C.G.S. § 15A-2000(d)(2) to conduct proportionality review. Proportionality review is designed 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, 108 S. Ct. 2835 (1988). In conducting proportionality review, we determine whether "the sentence of death in the present case is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." State v. Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177, 104 S. Ct. 202 (1983); accord N.C.G.S. § 15A-2000(d)(2). Whether the death penalty is disproportionate "ultimately rests upon the 'experienced judgments' of the members of this Court." State v. Green, 336 N.C. 142, 198, 443 S.E.2d 14, 47, cert. denied, ___ U.S. ___, 130 L. Ed. 2d 547 (1994). We do not conclude that the imposition of the death penalty in this case is excessive or disproportionate.
This case has several distinguishing factors. Defendant was convicted on the theories of premeditation and
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