State v. Davis12/21/2000
curs when two aggravating circumstances based upon the same evidence are submitted to the jury." Call, 349 N.C. at 426, 508 S.E.2d at 523. In State v. East, 345 N.C. 535, 481 S.E.2d 652, cert. denied, 522 U.S. 918, 139 L. Ed. 2d 236 (1997), this Court stated:
It is established law in North Carolina that it is error to submit two aggravating circumstances when the evidence to support each is precisely the same. State v. Gibbs, 335 N.C. 1, 58-59, 436 S.E.2d 321, 354 (1993), cert. denied, U.S. , 129 L. Ed. 2d 881 (1994); State v. Jennings, 333 N.C. 579, 627-28, 430 S.E.2d 188, 213-14, cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993). Conversely, where the aggravating circumstances are supported by separate evidence, it is not error to submit both to the jury, even though the evidence supporting each may overlap. State v. Gay, 334 N.C. 467, 495, 434 S.E.2d 840, 856 (1993); State v. Jones, 327 N.C. 439, 452, 396 S.E.2d 309, 316 (1990). East, 345 N.C. at 553-54, 481 S.E.2d at 664.
" ome overlap in the evidence supporting each aggravating circumstance is permissible so long as there is not a complete overlap of evidence." Call, 349 N.C. at 426, 508 S.E.2d at 523.
As to the (e)(5) circumstance, whether the murder was committed while defendant was engaged in the commission of armed robbery, the trial court instructed the jury to consider only:
taking of the keys to the Bravada automobile, the taking of the Bravada automobile and the VCR which was in the family room . . . in considering this aggravating factor. You may not consider the taking of the credit card, Miss Joyce Miller's purse or the checks of Miss Joyce Miller in order for the State to prove this aggravating factor. Those items may be considered on another aggravating factor which I'll explain to you later, but you may not consider the taking of the credit card, the checks or the purse of Miss Joyce Miller when you consider this aggravating circumstance.
As to the (e)(6) pecuniary gain circumstance, the trial judge then instructed the jury to consider only "the taking of the credit card, checks and the purse of Miss Miller." He further clarified that " ou may not consider the taking of the VCR, the automobile -- that is the Bravada -- or the keys to the Bravada automobile when you consider this aggravating factor. Those items may only be considered for purposes of the armed robbery."
It is clear from the record that the trial court did not allow the jury to find both aggravating circumstances using the same evidence. Both circumstances were supported by sufficient, independent evidence. The trial court properly instructed the jury that it could not use the same evidence as the basis for finding both the (e)(5) and (e)(6) circumstances. This argument is rejected.
In his twenty-second argument, defendant challenges the prosecutor's statements to the jurors during jury selection regarding the State's burden of proof. Defendant contends that he is entitled to a new capital sentencing proceeding because the prosecutor repeatedly told jurors during jury selection that the State's burden of proof was "beyond a reasonable doubt to the satisfaction of the jury." Defendant argues that the prosecutor misstated the standard, causing the jurors to believe that the burden of proof was essentially "satisfaction of the jury." Defendant further argues that the misstatement confused the jury, constituted plain error, and violated defendant's constitutional right to a fundamentally fair sentencing hearing.
Defendant failed to object to the prosecutor's statements. Defendant's failure to raise this issue in the trial court constitutes waiver. N.C. R. App. P. 10(b)(2). "`
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