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North Carolina v. McKoy9/7/1988
REF-->476 U.S. 1165, 90 L. Ed. 2d 733 (1986), overruled on other grounds, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988).
Defendant has not persuaded us that we should depart from our prior holdings on these "preservation" issues, and we decline to do so.
We conclude that the sentencing phase of defendant's trial was fair and free of prejudicial error.
Proportionality Review
Because we have found no error in the guilt and sentencing phases, we are required to review the record and determine: (1) whether the record supports the jury's findings of the aggravating circumstances upon which the sentencing court based its sentence of death; (2) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (3) whether the sentence of death 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) (1983); State v. Robbins, 319 N.C. 465, 526, 356 S.E.2d 279, 315 (1987).
The jury found, as aggravating circumstances, that (1) defendant had been convicted previously of a felony involving the use of violence to the person, and (2) the murder was committed against a deputy sheriff while engaged in the performance of his official duties. N.C.G.S. § 15A-2000(e)(3), (8) (1983). As to the first aggravating circumstance, the State presented uncontroverted documentary evidence establishing that defendant previously had
pled guilty to second degree murder and been sentenced to imprisonment of not less than twenty-two nor more than twenty-eight years. As to the second aggravating circumstance, the record contains plenary, uncontroverted evidence that the victim was, at the time of the shooting, a deputy sheriff engaged in the performance of his official duties. The record thus fully supports the jury's findings of the aggravating circumstances upon which the sentencing court based its sentence of death.
We find nothing in the record which suggests that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. We thus turn to our final statutory duty of proportionality review.
In conducting proportionality review, we "determine whether the death sentence in this case is excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant." State v. Brown, 315 N.C. 40, 70, 337 S.E.2d 808, 829 (1985). We use the "pool" of similar cases announced in State v. Williams, 308 N.C. 47, 301 S.E.2d 335, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177, reh'g denied, 464 U.S. 1004, 78 L. Ed. 2d 704 (1983). Id. However, " e do not find it necessary to extrapolate or analyze in our opinions all, or any particular number, of the cases in our proportionality pool." State v. Robbins, 319 N.C. at 529, 356 S.E.2d at 316 (emphasis in original).
The crime here was committed against a law enforcement officer while he was engaged in the performance of his official duties. We have noted that this aggravating circumstance, found in N.C.G.S. § 15A-2000(e)(8), reflects the General Assembly's recognition of the "common concern" that "the collective conscience requires the most severe penalty for those who flout our system of law enforcement." State v. Brown, 320 N.C. at 230,
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