State v. Davis12/21/2000
ice, or any other arbitrary consideration. We now turn to our final statutory duty of proportionality review.
It is proper in our proportionality review to compare the present case with other cases in which this Court has concluded that the death penalty was disproportionate. State v. McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162 (1993), cert. denied, 512 U.S. 1254, 129 L. Ed. 2d 895 (1994). We have found the death penalty disproportionate in seven cases. State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997), and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373; State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).
We conclude that this case is not substantially similar to any of the aforementioned cases where this Court has held that the death penalty was disproportionate. Some distinguishing characteristics of this case include: (1) defendant prevented the victim from calling for help by pulling the phone cord from the receptacle and hacking her to death; and (2) the jury found four aggravating circumstances, in a combination that this Court has never ruled to be disproportionate. However, it is not the number of aggravating circumstances found by one jury that controls the proportionality review. Rather, "`we will consider the totality of the circumstances presented in each individual case and the presence or absence of a particular [aggravating circumstance] will not necessarily be controlling.'" Stokes, 319 N.C. at 23-24, 352 S.E.2d at 666 (quoting Bondurant, 309 N.C. at 694 n.1, 309 S.E.2d at 183 n.1). There is no question regarding specific intent to kill in the instant case, as there sometimes is in felony murder cases. Here, defendant shot the victim and then made it impossible for her to call for help or leave. Moreover, Miller was shot at close range in her own home. This Court has emphasized that a murder committed in the home particularly "shocks the conscience, not only because a life was senselessly taken, but because it was taken by the surreptitious invasion of an especially private place, one in which a person has a right to feel secure." Brown, 320 N.C. at 231, 358 S.E.2d at 34, quoted in State v. Adams, 347 N.C. 48, 77, 490 S.E.2d 220, 236 (1997), cert. denied, 522 U.S. 1096, 139 L. Ed. 2d 878 (1998).
It is also proper to compare this case to those where the death sentence was found proportionate. McCollum, 334 N.C. at 244, 433 S.E.2d at 164. However, it is unnecessary to cite every case used for comparison. Id.; State v. Syriani, 333 N.C. 350, 400, 428 S.E.2d 118, 146, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993). Whether the death penalty is disproportionate "in a particular case ultimately rest 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, 513 U.S. 1046, 130 L. Ed. 2d 547 (1994).
In the instant case, defendant, after being taken into Miller's home, stole from her and then, without adequate provocation, furtively waited in her home for her to return so that he could shoot her. While she was attempting to call for help, defendant hacked her to death with a meat cleaver, in the presence of her two foster children.
After comparing this case to other roughly similar cases as to the crime and defendant, we cannot conclude as a matter of law that the de
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