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State v. Walls11/3/1995
ictim would also have taken several minutes to die from strangulation. Id. at 373, 444 S.E.2d at 909. The jury found three aggravating circumstances to exist: that the murder was committed while defendant was engaged in the commission of a first-degree rape, first-degree sexual offense, first-degree kidnapping and common-law robbery; that the murder was especially heinous, atrocious, or cruel; and that the murder was committed for the purpose of avoiding or preventing a lawful arrest.
We conclude that this case is similar to the murders in Moseley and Sexton. The victims were vulnerable, whether by age, size or other circumstances; their injuries were either painful, or the victims endured a period of panic; and for several minutes before their deaths, the victims remained conscious and aware. Thus, based upon the characteristics of this defendant and the crime he committed, we are convinced the sentence of death was neither excessive nor disproportionate.
We conclude, therefore, that defendant received a fair trial, free from prejudicial error. Further, after comparing this case to similar cases in which the death penalty was imposed, 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.
Justice WHICHARD Concurring in the result in part.
I do not agree with the statement in the opinion for the court that
defendant is incorrect in his argument that when the State fails to convince all twelve jurors that the answers to Issues Three and Four are "yes," then the jury must automatically answer those issues "no." Instead, the unanimity requirement extends to both "yes" and "no" answers to Issues Three and Four.
State v. Walls, ... N.C. ... , ... , ... S.E.2d ... , ... (1995) (slip op. at 78). For the reasons stated in Justice Frye's Dissenting-in-part opinion in State v. McCarver, the case upon which the opinion for the Court relies, I would hold the defendant's proffered argument correct. See State v. McCarver, 341 N.C. 364, 409-16, 462 S.E.2d 25, ... S.E.2d ... , ... (1995) (Frye, J., Concurring in part and Dissenting in part).
In the total context presented, however, I do not believe there is any serious possibility that the trial court's refusal to allow defendant to make the argument in question had any effect o the jury's decision. I therefore concur in the result reached on this issue in the opinion for the Court, though disagreeing with the reasoning.
Justice FRYE joins in this Concurring opinion.
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