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State v. Davis12/21/2000
denied, 431 U.S. 958, 53 L. Ed. 2d 276 (1977)), cert. denied, 510 U.S. 984, 126 L. Ed. 2d 438 (1993). Even if Dr. Noble were the agent of defendant's attorneys, he clearly lost such privilege once he was placed on the witness stand. Id. Moreover, "the trial court is always at liberty to compel disclosure of privileged communications if it `is necessary to a proper administration of justice.'" East, 345 N.C. at 545, 481 S.E.2d at 660 (quoting N.C.G.S. § 8-53.3 (Supp. 1996)). We find no abuse of the trial court's discretion in compelling disclosure of the communications. Likewise, defendant's argument that the order violated his Fifth Amendment privilege against self-incrimination is feckless. Thus, this assignment of error is without merit.
II. PRESERVATION ISSUES
Defendant raises four additional arguments that he concedes have been previously decided contrary to his position, but asks this Court to reconsider those decisions: (1) the trial court committed reversible constitutional error by refusing to instruct jurors that they "must" rather than "may" consider mitigating circumstances when deciding Issues Three and Four during their jury deliberations, (2) the trial court committed reversible constitutional error by placing the burden of proof on defendant to satisfy the jury with respect to mitigating circumstances and refusing to instruct jurors that proof by a preponderance of the evidence is proof which indicates that it is more likely than not that a mitigating circumstance exists, (3) the trial court committed reversible constitutional error by erroneously instructing the jurors that they could find that a mitigating circumstance exists and simultaneously find that the mitigating circumstance has no mitigating value, and (4) the trial court committed reversible constitutional error by denying defendant's motion in limine to prohibit submission of the (e)(9) aggravating circumstance and subsequently instructing the jury on this factor.
After carefully considering defendant's arguments on these issues, we find no compelling reason to depart from our prior holdings. Accordingly, we reject these arguments.
III. PROPORTIONALITY
Having concluded that defendant's capital sentencing proceeding was free of prejudicial error, we turn now to duties reserved exclusively for this Court in capital cases. It is our duty under N.C.G.S. § 15A-2000(d)(2) to ascertain: (1) whether the record supports the jury's finding of the aggravating circumstances on which the sentence of death was based; (2) whether the death sentence was entered under the influence of passion, prejudice, or other arbitrary consideration; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
In the Miller murder, the following aggravating circumstances were submitted to and found by the jury: (1) the murder was committed while defendant was engaged in the commission of armed robbery, N.C.G.S. § 15A-2000(e)(5); (2) the murder was committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6); (3) the murder was especially heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9); and (4) the murder was part of a course of conduct in which defendant engaged and which included the commission by defendant of other crimes of violence against other persons, N.C.G.S. § 15A-2000(e)(11). After thoroughly examining the record, transcripts, and briefs in the instant case, we conclude that the record fully supports the aggravating circumstances submitted to and found by the jury. Additionally, we find no indication that the sentence of death in this case was imposed under the influence of passion, prejud
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