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					No. 506A90                                                         TWENTY-SIXTH DISTRICT



                           SUPREME COURT OF NORTH CAROLINA

                       ***********************************************



STATE OF NORTH CAROLINA                     )
                                            )              From Mecklenburg
                 v.                         )
                                            )
JOHN DENNIS DANIELS                         )



                       ***********************************************

                             DEFENDANT-APPELLANT'S BRIEF

                       ***********************************************

           QUESTIONS PRESENTED     I.     WHETHER THE TRIAL COURT'S EX PARTE
                COMMUNICATION     WITH    A   PROSECUTOR     VIOLATED
                APPELLANT'S RIGHT TO BE PRESENT AT EVERY STAGE OF THE
                TRIAL?


     II.         WHETHER THE TRIAL COURT'S CONFERENCE IN CHAMBERS
                 WITH ALL COUNSEL, BUT OUT OF APPELLANT'S PRESENCE,
                 CONCERNING THE REQUEST TO BE EXCUSED BY A JUROR
                 ALREADY SELECTED VIOLATED APPELLANT'S RIGHT TO
                 PRESENCE?


    III.         WHETHER THE TRIAL COURT ERRED BY DENYING
                 DEFENDANT'S MOTION TO DISMISS EVIDENCE ABOUT HIS
                 LETTER TO THE GOVERNOR?


    IV.          WHETHER THE TRIAL COURT ERRED BY EXCLUDING FROM THE
                 SUPPRESSION HEARING TESTIMONY BY A LAW ENFORCEMENT
                 OFFICER ABOUT APPELLANT'S MENTAL STATE NEAR THE TIME
                 APPELLANT MADE CUSTODIAL STATEMENTS?


     V.          WHETHER THE TRIAL COURT ERRED BY SUSTAINING THE
                 STATE'S OBJECTION TO APPELLANT'S PROPER EFFORT TO
                 REFRESH THE RECOLLECTION OF A KEY STATE'S WITNESS
                 ABOUT HIS PRIOR, PARTIALLY EXCULPATORY STATEMENT?
                                 -2-




 VI.    WHETHER THE TRIAL COURT ERRED BY GRANTING THE
        STATE'S MOTION TO EXCLUDE TESTIMONY BY AN ATTORNEY
        WHO PRACTICED IN THE SAME OFFICE AS ONE OF APPELLANT'S
        ATTORNEYS AND BY DENYING DEFENSE COUNSEL'S MOTION
        TO WITHDRAW, WHERE NO OTHER WITNESS COULD HAVE
        TESTIFIED ABOUT THE SAME IMPORTANT MATTER?


VII.    WHETHER THE TRIAL COURT ERRED BY FAILING TO INSTRUCT
        THE JURY THAT A KILLING COMMITTED DURING A QUARREL IS
        NOT COMMITTED AFTER DELIBERATION, DESPITE APPELLANT'S
        TIMELY REQUEST FOR SUCH AN INSTRUCTION AND THE TRIAL
        COURT'S AGREEMENT TO GIVE SUCH AN INSTRUCTION?


VIII.   WHETHER THE TRIAL COURT ERRED BY INSTRUCTING THE
        JURY ON THE THEORY OF FELONY-MURDER, WHERE THE
        EVIDENCE OF THE PREDICATE FELONY OF COMMON LAW
        ROBBERY WAS INSUFFICIENT?


 IX.    WHETHER THE TRIAL COURT ERRED BY OVERRULING
        APPELLANT'S OBJECTION TO TESTIMONY BY A PROSECUTION
        PSYCHIATRIC EXPERT ABOUT APPELLANT'S MENTAL STATE AT
        THE TIME OF THE OFFENSES, WHERE THE WITNESS ADMITTED
        THAT SHE HAD NOT INTERVIEWED APPELLANT HIMSELF?


  X.    WHETHER THE TRIAL COURT ERRED, IN ITS JURY
        INSTRUCTIONS ABOUT APPELLANT'S HISTORY OF PRIOR
        CRIMINAL   CONDUCT,    BY    LIMITING   THE    JURY'S
        CONSIDERATION TO CONVICTIONS IN THE PREVIOUS TEN
        YEARS AND TO THE ABSENCE OF ANY FELONY CONVICTIONS?


 XI.    WHETHER THE TRIAL COURT ERRED BY INSTRUCTING THE
        JURY THAT IT COULD REFUSE TO CONSIDER SOME
        NONSTATUTORY MITIGATING EVIDENCE IF IT DEEMED THE
        EVIDENCE TO HAVE NO MITIGATING VALUE AND BY FAILING
        TO INSTRUCT THE JURY THAT STATUTORY MITIGATING
        FACTORS AND SOME NONSTATUTORY MITIGATING FACTORS
        HAVE MITIGATING VALUE IF FOUND TO EXIST?


XII.    WHETHER THE TRIAL COURT ERRED BY FAILING TO PROHIBIT
        ONE OF THE PROSECUTORS FROM MINIMIZING THE JURY'S
        SENTENCING RESPONSIBILITY DURING CLOSING ARGUMENT
        AND FROM ARGUING THAT THE BIBLE REQUIRED THE JURY TO
        SENTENCE APPELLANT TO DEATH?
                                                       -3-




    XIII.          WHETHER THE TRIAL COURT ERRED IN SUBMITTING TO THE
                   JURY AS A POSSIBLE AGGRAVATING FACTOR THAT THE
                   KILLNG WAS COMMITTED FOR PECUNIARY GAIN, SINCE THE
                   EVIDENCE WAS INSUFFICIENT TO SUPPORT THIS FACTOR?


    XIV.           WHETHER THE TRIAL COURT ERRED BY FAILING TO DIRECT
                   JURORS TO CONSIDER AND GIVE APPROPRIATE EFFECT TO
                   MITIGATING EVIDENCE?


    XV.            WHETHER THE NORTH CAROLINA DEATH PENALTY STATUTE,
                   N.C. GEN. STAT. º15A-2000, IS UNCONSTITUTIONAL AND THE
                   DEATH SENTENCE IN THIS CASE WAS IMPOSED IN A
                   DISCRIMINATORY MANNER?




STATEMENT OF THE CASEOn January 18, 1990, John Dennis Daniels was arrested for first-degree murder

of his aunt, Isabelle Daniels Crawford; assault against his wife, Diane Daniels, with a deadly weapon with intent

to kill inflicting serious injury; assault against his son, Jonathan Maurice Daniels, with a deadly weapon

inflicting serious injury; assault against his next-door neighbor, Glenn Funderburke, with a deadly weapon; and

attempting to burn a dwelling house. (Rpp. 2-12) On February 5, 1990, a grand jury returned bills of indictment

charging him with one count of first-degree murder of Isabelle Daniels Crawford; one count of assault against

Diane Daniels with a deadly weapon with intent to kill inflicting serious injury; one count of assault against

Jonathan Maurice Daniels with a deadly weapon inflicting serious injury; one count of assault against Glenn

Funderburke, with a deadly weapon; and one count of burning a dwelling house. (Rpp. 13-17) Mr. Daniels was

indicted for common law robbery of Ms. Crawford on July 16, 1990. (Rp. 18) The case came on for joint trial

upon pleas of not guilty at the August 27, 1990 Criminal Session of the Superior Court of Mecklenburg County,

the Honorable Shirley L. Fulton, presiding. (Rp. 1)


           Following jury selection and the presentation of evidence, the jury on September 20, 1990 returned

verdicts finding Mr. Daniels guilty of first-degree murder, common law robbery, assault with a deadly weapon

with intent to kill inflicting serious injury, two counts of assault with a deadly weapon, and attempting to burn a

dwelling house. (Rpp. 125-30)
                                                      -4-




         Following the presentation of further evidence relating to the sentence to be imposed for first-degree

murder, the trial court submitted three aggravating circumstances for the jury's consideration: (1) the murder

was committed for pecuniary gain; (2) the murder was especially heinous, atrocious, or cruel; and (3) the

murder was part of a course of conduct that included crimes of violence against one or more other persons. The

jury found the existence of all three aggravating circumstances. (Rpp. 157-58)


         The trial court submitted 14 mitigating circumstances for the jury's consideration. The jury found 11

mitigating circumstances. (Rpp. 158-62)


         On September 24, 1990, the jury returned a sentencing recommendation that defendant be put to death.

(Rp. 164). That day, the trial court sentenced Mr. Daniels to death for first-degree murder; to consecutive,

consolidated terms of 20 years imprisonment for the three assault charges; and to a consecutive term of 10 years

imprisonment for attempting to burn a dwelling house. Judgment was arrested on the charge of common law

robbery. (Rpp. 165-74) Mr. Daniels entered a notice of appeal. By order dated October 8, 1990, this Court

stayed execution of Mr. Daniels' death sentence pending appeal. (Rpp. 175-76) By order dated February 14,

1992, this Court granted Mr. Daniels' motion to bypass the Court of Appeals with respect to the appeal of his

three convictions for assault and attempting to burn a dwelling house. (Rp. 1)
                                                      -5-




STATEMENT OF THE FACTSEvidence in the Guilt/Innocence PhaseThe State's EvidenceOn January

18, 1990, Charlotte Police Officer Thomas Wayne Griffith went to 914 Clanton Road in Charlotte in response

to a dispatcher's call, arriving at 12:30 a.m. A fire engine and two police cars were there when he arrived.

Smoke poured from the house. The front door was partially open. He tried to push it open more, but it was

blocked from the inside by a cabinet from the living room. Griffith, who was also a volunteer firefighter,

donned an airpack and entered the house with two firefighters. The house was dark and smoky; Griffith had to

use a flashlight to see. He saw no one inside, but the firefighters found Mr. Daniels inside, brought him outside,

and gave him oxygen. Firefighters had to hold him down while administering first aid to him. He refused to go

to a hospital. Mr. Daniels was wearing only jogging pants; he was not wearing a shirt or shoes. He clutched a

pillow and refused to let it go. He asked either, "Why did you save me?" or "Why did you bring me out of the

house?" According to Officer Griffith, Mr. Daniels intended to set the fire and stay in the house. (Tpp. 1932-

38, 1963-70)


         Officer Griffith told Mr. Daniels that he was going to jail for assaulting his wife, son, and neighbor.

Griffith put him in the back seat of Griffith's police car and left the scene at 12:50 a.m., heading for the Law

Enforcement Center. While in the car, Mr. Daniels said, "'We need to go to Mint Street.'" Griffith said they

would have to go to the jail first and that they could discuss Mr. Daniels' request later. Mr. Daniels again said,

"'We need to go to Mint Street'" and then said so repeatedly. Griffith asked Mr. Daniels what he was talking

about. Mr. Daniels replied, "'I'm trying to tell you something. We need to go to Mint Street.'" Finally Griffith

asked, "'Well what are you trying to tell me?'" Mr. Daniels answered, "'I'm trying to tell you I think I might

have killed my aunt.'" Mr. Daniels obeyed Officer Griffith's directive to point out the house -- 1633 Cliffwood

Place -- and they arrived there at 12:55 a.m.. Another officer followed them there. (Tpp. 1938-40)


         Officer Griffith entered the front door, while the other officer watched appellant. Griffith saw blood in

the hallway between the bathroom, kitchen and den. The house was neat, not ransacked. He saw that a

wastepaper basket had been knocked over and the carpet had been disturbed. Those were the only items

disturbed in the house. An electrical cord was on the floor. He followed the blood and found the body of an
                                                         -6-




older black women, Isabelle Crawford, on the bedroom floor. A cord was wrapped around her neck. She lay

face down and wore a housedress. She had no pulse and her skin was cold and damp. Griffith realized she was

dead. (Tpp. 1940-46, 1970-71)


         Griffith radioed his finding to police headquarters. Other officers arrived, including Sergeant DeLuca.

DeLuca told Griffith to take Mr. Daniels to the Law Enforcement Center to await an investigator, not for

booking. Mr. Daniels repeatedly asked for a pen and paper while they were en route. They arrived at the Law

Enforcement Center at 1:15 a.m. Griffith brought Mr. Daniels into a small room, about six feet by eight feet.

(Tpp. 1950-52)


         Griffith took Mr. Daniels to the bathroom and gave him a cigarette. He gave appellant a pen and paper

and closed the door. A few minutes later, Mr. Daniels opened the door and returned the pen and paper. He had

written the following on the paper:


                      Dear sir


                                 I'm not crazy

                      What I did was premediated! [sic]

                      Time 1:42 1/18/90.



                                                 John D. Daniels

                      I do not want a trial

                      I do not want my family around

                      I do not want news report [sic]

Griffith's signature was written at the bottom at some time. Appellant asked Griffith to see to it that the
                                                1
Governor received the letter. (1952-55, 1973-75)


         1
           The prosecution introduced the letter as an exhibit; therefore, it is part of the Record on Appeal.
(Rp. 20) A photocopy appears in the Appendix to this brief.
                                                       -7-




         Griffith then closed the door to the room. A short time later Griffith heard a noise in the room,

entered, and saw Mr. Daniels on the floor with the drawstring from his pants around his neck. Another string

was attached to a filing cabinet, which was 4'3" high. Griffith helped Mr. Daniels remove the cord from around

his neck. Griffith inferred that Mr. Daniels was trying to asphyxiate himself. Mr. Daniels did not appear to be

injured. Griffith was upset about this incident. Griffith smelled smoke from the fire and an old odor of wine

about appellant. (Tpp. 1955-57, 1971-73)


         Griffith first saw Investigator Robert A. Holl at 2:00 a.m., after Griffith had taken the drawstring away

from appellant. He gave the cord to Holl and explained how he had found appellant on the floor. He told Holl

that Mr. Daniels had asked at 914 Clanton Road why the firefighters had taken him out of the house and he told

Holl about appellant's comments while riding to the Law Enforcement Center. Griffith had not warned Mr.

Daniels of his rights pursuant to N.C. Gen. Stat. º15A-501 and he told Holl that he would not advise appellant

of his rights. According to Griffith, Charlotte Police Department policy directs arresting officers not to advise a

defendant of rights, even after an arrest, unless the arresting officer will question the defendant. Mr. Daniels did

not ask Griffith to see an attorney or friends. Griffith and Holl then took Mr. Daniels to an interview room

among the investigators' offices. Appellant had no difficulty walking. He had scratches on his fingers and

hand. Griffith stayed there until Holl returned from visiting the crime scenes at 4:30 to 4:45 a.m. (Tpp. 1957-

61, 1968-70, 1976-77)


         At some point after he was brought to the Law Enforcement Center, Mr. Daniels asked Griffith about

returning to work that day. Griffith learned that Mr. Daniels was a cocaine user. (Tp. 1975)


         Investigator Gary Michael Davis of the Charlotte Fire Department testified as an expert in the causes

and origins of fires. He responded to 914 Clanton Road on January 18, 1990 at 12:36 a.m. Mr. Daniels was

found in a rear bedroom. It had minor smoke damage. However, the general condition of the house included

heavy sooting, blistering paint, and areas of intense burning. He concluded that the point of origin of the fire

(the most heavily burned area) was in the hallway near the bathroom door. He took samples of the carpet and
                                                       -8-




carpet pad for analysis by the Charlotte Police Department. The analysis showed the presence of a heavy

petroleum distillant, such as kerosene. In Davis' opinion, the fire began in the hallway from fuel taken from a

kerosene heater and ignited. He said that the property loss totalled $17, 528.68. (Tpp. 1978-89, 2011-13)


         Davis interviewed Glenn Funderburke, appellant's neighbor, at the scene to learn the circumstances of

the fire. Davis saw Investigator Holl at the scene and went to Isabelle Daniels Crawford's house with Holl.

Then they went to the hospital to talk to appellant's son, Jonathan Maurice Daniels; Jonathan said that the

kerosene heater was not being used for heating that night. They then went to the Law Enforcement Center,

arriving at 3:37 a.m. (Tpp. 1989-93)


         Davis was present during Holl's interview of Mr. Daniels. He smelled a strong odor of smoke and a

slight odor of alcohol about Mr. Daniels. Holl advised appellant of his rights. Mr. Daniels never asked to see

an attorney or friends. Neither Davis nor Holl made any promises or threats to appellant. Mr. Davis still wore

only gym pants; he had no shirt or shoes. Davis saw soot around appellant's mouth and nose from the fire,

indicating that he probably had inhaled smoke. (Tpp. 1993-98, 2014-15, 2020)


         During the interview, appellant said he had "'[p]lenty of arrests, assaults on a female, DWI, and

trespassing'." He said that on the night of January 17, he went to his aunt's house to find a place for his wife and

son to stay and to ask for money. He had drunk a fifth of wine that day and had not eaten lunch or supper. He

had also had two beers by 3:00 p.m. Mr. Daniels said "in a way he was intoxicated," but then he said that he did

not want any help, that he was wrong, and that he hurt for no reason at all. Mr. Daniels said that he was behind

on his rent and that he was about to lose his house. (Tpp. 1998-2000)


         With respect to the assault on his aunt, Mr. Daniels said he hit her in the mouth, that she was going to

call his mother, and that he asked her for money. He took $70 to $80 from her wallet, though he did not know

where the wallet was. He used the money to buy cocaine at a motel. (Tpp. 2000-01)
                                                       -9-




         Mr. Daniels then discussed the killing of his aunt. He hit her at a hallway door and dragged her toward

the back of the house with a cord. He wrapped the cord around her neck three times. He said, "'I don't know

why I killed her. Bills set me off. My lady has got bills. I tried to kill my lady.'" (Tp. 2001)


         Holl then wrote out a six-page statement, not in appellant's exact words. He would write a section and

ask appellant whether it was correct. Appellant initialled each page and signed the last page. Holl placed the

statement in front of Mr. Daniels and asked him to read it. Mr. Daniels sat and looked at the statement for a

long time and made head motions, but he did not move the pages. Holl read it back to appellant and appellant

signed it. (Tpp. 2002-04, 2016-20)


         According to the statement, Mr. Daniels went to his aunt's house before dark to see if she would let his

wife and son stay there. He and his wife were having problems because of bills. His aunt said she was going to

call Mr. Daniels' mother, but he told her not to. He punched her once in the mouth; she fell to the floor and she

began to bleed (Davis inferred that appellant punched Ms. Crawford to prevent her from calling his mother).

Mr. Daniels said he was somewhat drunk after consuming a fifth of wine, but he said he knew right from wrong

and that he was wrong. Ms. Crawford was too heavy to pick up. He wrapped an electrical cord around her

neck three times and dragged her to the back bedroom. He put pressure on the cord to strangle her and killed

her. He did not remember where her pocketbook was, but he picked it up and removed her wallet, with $70 to

$80. Appellant left the house, threw the wallet near a fence, and bought cocaine at a motel. (Tpp. 2004-05,

2023)


         He walked around Charlotte and arrived home at 10:30 p.m. His wife, Diane, asked why he was home

so early, why he was not at work. Appellant said, "I should have killed her. I don't know why I took it out on

my aunt." Mr. Daniels smoked more cocaine, washed up, took a hammer from the bathroom, and hit Diane on

the head more than once. She yelled for their son, Maurice, and told him to get a butcher knife. She went

toward the front door; appellant grabbed them both and they all fell into the kitchen. Appellant hit Diane and
                                                       -10-




Maurice in the head with a rock from an aquarium in the den. He took the hammer again and hit Maurice once

in the head. Mr. Daniels did not want to kill Maurice; Maurice "just got caught up in it." (Tpp. 2005-07)


         Diane and Maurice then went out the front door. Appellant went outside and hit Diane again with the

hammer near the head; she was lying on the ground. Appellant went back inside his house. His neighbor,

Glenn Funderburke, came over. Mr. Daniels had something in his hand and told Funderburke to leave or he

would kill him, too. Funderburke left. (Tp. 2007)


         Mr. Daniels saw the kerosene heater in the hallway. It had been knocked over during the fight and

kerosene had leaked onto the floor. Appellant took rubbing alcohol from the bathroom, poured it onto the

kerosene, and started a fire with matches. He went into the bedroom and lay down on the bed. He rolled off

and the next thing he knew, he was in the front yard, receiving first aid. (Tp. 2007)


         Davis acknowledged that nothing in the statement showed that Mr. Daniels planned to kill or rob his

aunt when he went to her house on January 17. (Tpp. 2023-24)


         Diane Durham Daniels is Mr. Daniels' wife. They knew each other as children in Charlotte and had

been married for seven years at the time of the offenses. Appellant, Diane, and their son, Jonathan Maurice

Daniels (known as Maurice), lived at 914 Clanton Road on January 17, 1990. Maurice was 12 years old then.

In January 1990, appellant worked for Jack's Cookies and Diane worked at Hardee's. Appellant also worked for

their next-door neighbor, Glenn Funderburke. Diane did not know Isabelle Daniels Crawford, appellant's aunt

personally. Appellant and Diane had marital problems, but were trying to resolve them at the time of the

offenses. Appellant had last hit Diane six months to one year earlier. Mr. Daniels had a serious alcoholism

problem, but he had stopped becoming intoxicated by January 1990. He was violent when he was intoxicated.

Diane believed he had a cocaine problem, too. They had financial difficulties; appellant pawned items to obtain

money. Diane had smelled cocaine twice before and could recognize its odor. She was fired from her job with

IBM for possessing drugs; she claimed that they were his drugs. She would take away or adulterate his drugs
                                                     -11-




and liquor to prevent him from consuming them. She denied ever using cocaine. (Tpp. 2029-31, 2040-45,

2047-48)


        On January 17, 1990, Mr. Daniels and Diane went to court to settle a debt for her car. They had a good

time that morning; they did not argue. They agreed to share the payments on their upcoming electricity bill.

Appellant told Diane how to take the bus home. (Tpp. 2031-33, 2046)


        Diane next saw appellant at home that night, between 10:00 and 10:30 p.m. Since he worked on a

night shift and normally left work at 11:00 p.m., she asked why he was home so early. Appellant said he came

home so they could spend time together. Appellant did not appear to be intoxicated and she smelled no alcohol

about him. He went in and out of the bathroom twice. The second time he left the bathroom, she smelled the

odor of cocaine. (Tpp. 2033-35)


        Diane dozed off. She awoke feeling appellant hitting her in the head with a hammer they kept in the

bathroom. She asked what he was doing. He replied, "'Nothing.'" She begged him to stop. Diane realized that

blood was draining down her face. He tried to hit her again with the hammer. She grabbed it, they struggled

over it, and it slipped out of her hand. Diane yelled for Maurice. He came and asked appellant what he was

doing. Again he said "'Nothing.'" Diane said he was beating her with a hammer. Maurice tried to take the

hammer away; he pulled appellant away. Appellant and Diane continued to struggle. Appellant grabbed a

kerosene lantern from a bookshelf and hit Diane in the head. Appellant did not say anything to her during the

fight. Diane picked up a ceramic cat from the living room, but it slipped out of her bloody hand. She was

bleeding from the head. Diane told Maurice to get a knife. She tried unsuccessfully to leave through the locked

back door. Then they went to the den, where he knocked her down or she fell down. Appellant hit Maurice

with a bridge from an aquarium. Maurice told her to run and she ran out the front door and passed out in the

driveway. Diane regained consciousness en route to Charlotte Memorial Hospital. She stayed in the hospital

for eight days. Since the incident, she had had tension headaches and sinus problems. (Tpp. 2035-40)
                                                      -12-




         Jonathan Maurice Daniels, known as Maurice, is Mr. Daniels' son. He was 12 years old at the time of

the offenses. He and appellant had a good relationship. Appellant was peaceful when he did not drink alcohol

or use drugs. Maurice did not attend school on January 17, 1990 because of a family accident. He came home

that night at 10:00 p.m. and went to bed at 10:30. He awoke when Diane called him. Maurice ran to his

parents' bedroom, saw appellant on top of her struggling over a hammer. Diane told Maurice to pull appellant

off. Appellant fell. Maurice tried to pull him away and Diane broke free. She ran into the living room;

appellant and Maurice followed. She tried to run out a door and appellant grabbed her. She ran into the kitchen

and they fought there. Maurice did not remember Diane asking him to get anything, but he grabbed a bent

butter knife. Appellant and Maurice fought over the knife and Diane ran past them. Maurice let go and ran

after her. At some point, appellant hit Maurice with a bridge from an aquarium. It broke, and appellant hit

Diane with the rest of it. (Tpp. 2049-51, 2055)


         Appellant chased Maurice into Glenn Funderburke's yard. Diane fell in the driveway, bleeding from

the head. Mr. Funderburke came out and brought Maurice into his house, where Mrs. Funderburke tended his

head. Mr. Funderburke telephoned the police, went to the Daniels' house, came back, and said that appellant

had drawn a knife on him. He called the police again. Mr. Funderburke went outside again to help Diane.

Then the police arrived. Maurice went to the hospital, where he received stitches for his injury. (Tpp. 2051-53)


         Maurice did not see appellant hit Diane with the hammer. Appellant did not hit Maurice with the

hammer. During the fight, appellant did not act "like himself." Maurice said, "you could just look at him in the

eyes and tell that it wasn't him." Appellant acted "spaced out," "like he didn't know what was going on . . . what

he was doing." (Tpp. 2053-56)


         Glenn Hosea Funderburke lived at 908 Clanton Road; he was Mr. Daniels' next-door neighbor for five

to six years. Mr. Funderburke is a painter and Mr. Daniels sometimes helped him with painting jobs. They

were close friends and got along well when Mr. Daniels was not drinking or using cocaine. They drank a beer

occasionally and Funderburke knew that appellant used cocaine, but he did not know that appellant had an
                                                      -13-




alcoholism or cocaine problem. Appellant had told Funderburke that he and his wife had financial difficulties.

(Tpp. 2067-68, 2075-76, 2079)


         On January 17, 1990, Mr. Daniels was scheduled to work with Funderburke, but he told Funderburke

that he had to go to court. He said he would try to work with Funderburke later that day, but he did not appear.

Funderburke did not see him again during the day. (Tp. 2068)


         Later that night, around midnight, Funderburke and his wife heard a noise outside. Funderburke went

to the front door and saw Maurice Daniels. Maurice asked for help because his father was trying to kill his

mother, that he was beating her with a hammer. Maurice said that appellant had hit him in the head with a

hammer. Maurice did not mention the item from the aquarium. Funderburke took him inside. He and his wife

cleaned blood off Maurice's head and Funderburke telephoned the police. Maurice asked Funderburke to help

his mother, to talk to appellant. Funderburke thought he could talk to Mr. Daniels as a friend. (Tpp. 2068-70)


         Funderburke entered Mr. Daniels' house. He saw Mr. Daniels in the living room with a flame next to

him. He told appellant to put out the fire, that appellant was going to burn down his house. Mr. Daniels told

him "'to get the hell out of his house.'" Funderburke said. "'It's me. It's Glenn. I'm trying to help you put the

fire out. You're going to burn your house down.'" Mr. Daniels again told Funderburke "to get the hell out of his

house." Appellant hit ("shrugged") Funderburke lightly in the shoulder; he did not hurt Funderburke. Appellant

pulled out a knife, holding it down, and said "'Get the hell out of my house. I'm going to kill you, too.'" He did

not attack Funderburke with the knife. Mr. Daniels was angry. According to Funderburke, "It wasn't the

Dennis that I know." Funderburke noticed "the look he had in his eyes. Looked violent, just his eyes looked

like he was totally mad . . . ." Appellant looked "wild. He didn't look like the friend that I knew." Funderburke

became afraid when appellant pulled the knife. He returned home and telephoned 911. His wife pointed out

Diane Daniels, hanging onto a fence outside. Diane fell onto the driveway. Funderburke went outside to her.

She was bleeding from the head. Funderburke heard one police officer at the scene discuss Mr. Daniels being

on "ice," a drug that "makes you go crazy." (Tpp. 2070-79)
                                                    -14-




        Hilda Jane Starnes was a Charlotte Fire Department firefighter. On January 18, 1990, after midnight,

she went to 914 Clanton Road in response to a dispatcher's call about an assault. When she arrived, she saw

Diane on the ground, bleeding from the head, and she began giving Diane first aid. Maurice was brought

outside and Starnes put him into an ambulance. Maurice was very upset; he said, "'My father is going to kill

himself.'" Then her Fire Department captain yelled that the house was on fire. She obeyed the captain's orders

to give an airpack to Officer Griffith. The captain explained that the man in the house (Mr. Daniels) might be

dangerous. Starnes put on her own airpack and they went inside. Something blocked the door, but they were

able to crawl in. They encountered very thick smoke. Starnes and her partner extinguished the fire in the

hallway. A refrigerator blocked the back door. The visibility was so poor that she did not see Mr. Daniels

when she checked the master bedroom. Another firefighter found him there shortly afterward. She saw a

hammer on a kitchen counter and two knives on the kitchen floor. (Tpp. 2057-66)


        Sylvia Latrelle Ferguson is a crime scene search officer with the Charlotte Police Department

laboratory. She arrived at Mr. Daniels' house on January 18, 1990 at 1:55 a.m. She took photographs inside

and outside and collected a hammer and two knives from the kitchen. She also collected a glass vial. Officer

Ferguson went to Ms. Crawford's house at 2:40 a.m. She saw blood on the carpet, going from the dining room

to the hall to the den. In the rear bedroom she saw the body of a black woman -- Ms. Crawford -- face down

with an electrical cord wrapped three times around her neck. Blood was on her right shoulder, heel, and head.

A wastebasket had been turned over. A purse was on the floor, near a dining room cabinet. There were no

signs of forced entry or ransacking. The house was in neat condition. Ferguson collected a watch from the den

area. She also saw an earring. (Tpp. 2082-94, 2099-2103)


        Dr. Steve Robert Monson, a physician with Carolinas Medical Center, testified as an expert in

emergency room medicine. He treated Maurice and Diane Daniels on January 18, 1990. Maurice had a small

laceration on his scalp and abrasions on his forehead. Dr. Monson anesthetized, cleaned, and sutured the

laceration and cleaned the abrasions. Maurice returned five days later to have the stitches removed. In Dr.
                                                       -15-




Monson's opinion, Maurice's cut was not serious.         Monson could not determine what object had caused

Maurice's cut. (Tpp. 2113-15, 2117)


         Diane had a scalp laceration and X-rays revealed a skull fracture. A neurosurgeon performed surgery

to treat the fracture and Diane stayed in the hospital for three or four days after the surgery. The fracture was

potentially life-threatening because of the possibility of brain injury. (Tpp. 2115-16)


         Veronica Marie Goff lived behind Ms. Crawford. She last saw Ms. Crawford on January 17, 1990 at

about 4:45 or 5:00 p.m. outside her house. She could recognize Mr. Daniels, but she did not see him that day.

She knew him from his work for Mr. Crawford, Isabel Crawford's late husband. During that period, Mr.

Daniels was quiet and peaceful whenever she saw him. (Tpp. 2118-20)


         Isabel Patton was a neighbor of Ms. Crawford and a co-worker of Mr. Daniels at Jack's Cookies. On

January 17, 1990, between 5:00 and 6:00 p.m., as she sat on her front porch, Ms. Goff saw Mr. Daniels walking

down the street, carrying a large, wrapped item. She had not seen him in the neighborhood before. (Tpp. 2120-

23)


         Patricia Ann Levins, a crime scene search technician with the Charlotte Police Department laboratory,

testified that she took fingernail scrapings from Ms. Crawford's body at the medical examiner's office on

January 18, 1990. On January 26, she collected six items from Mr. Daniels' house: a shirt, a coat, a pair of

shoes, small ceramic pieces, and a brick. They were on the floor next to a broken aquarium. A drop of red-

colored stain was on one shoe. A faded red stain was on the shirt. (Tpp. 2123-29) Jeffrey Dale Cox of the

Charlotte Police Department testified that blood samples were taken for analysis from appellant, Maurice

Daniels, Diane Daniels, and Ms. Crawford. (Tpp. 2129-33)


         Jane Burton, chief criminalist in the Charlotte-Mecklenburg Crime Laboratory, testified as an expert in

forensic serology. She compared blood stains found on the shirt and one of the shoes taken from Mr. Daniels'

house with the blood samples collected by Officer Cox. She concluded that the blood on the shoe and the shirt
                                                        -16-




probably was Type B blood and probably came from a person with Type B blood. Both appellant and Ms.

Crawford (but not Maurice or Diane Daniels) had type B blood. She could not determine which of these two

people was the likely source of the blood on the shoe and the shirt. (Tpp. 2133-41)


         Investigator R.A. Holl of the Charlotte Police Department testified about his investigation of the

offenses on January 18, 1990. He arrived at the Law Enforcement Center at 2:05 a.m. and spoke with Officer

Griffith, and he and Griffith took Mr. Daniels to an interview room in the Felony Investigations section. Mr.

Daniels was wearing sweatpants. He had no difficulty walking and he was not choking or crying. Holl then left

to visit the crime scenes. He noticed that Ms. Crawford's house was neat and orderly. He saw blood on the

carpet leading from the back door into a hall. Ms. Crawford's body was lying face-down on the floor in a rear

bedroom. He saw a pocketbook on the floor and an earring in a small pool of blood in or near the dining room.

A corner of the den rug was rolled. An extension cord was pulled toward the back bedroom and a wastepaper

basket was overturned. An electrical cord was wrapped around Ms. Crawford's neck three times. Blood was on

a watch in the den. (Tpp. 2144-53)


         Holl left Ms. Crawford's house at 4:40 a.m. and returned to the Law Enforcement Center. He saw Mr.

Daniels there at 4:55. He had previously told Officer Griffith not to advise Mr. Daniels of his rights, despite the

provision of N.C. Gen. Stat. º15A-501(5) that a defendant must be informed without unnecessary delay of his

right to speak to counsel and friends.       Holl explained that under Charlotte Police Department policy, a

transporting officer -- such as Officer Griffith -- should not advise a defendant of his or her rights, that only the

investigating officer, who will interrogate the defendant, should advise the defendant about rights. (Tpp. 2153-

54, 2170-72)


         Holl and Fire Department Investigator Davis interviewed Mr. Daniels in an interview room.          Holl did

not use a tape recorder to record the interview, although tape recorders were available. Mr. Daniels, who said

he was 32 years old, read the waiver form and signed it. Holl knew that Mr. Daniels had already told Griffith

he had killed his aunt and he knew about the note Mr. Daniels had written to the Governor. Mr. Daniels was
                                                       -17-




quiet and withdrawn and spoke slowly during the interview. He would take "a period of time" to answer after a

question was asked. He slouched in his chair. Mr. Daniels looked at the floor and off to the side, making very

little eye contact with Holl or Davis. Holl asked Mr. Daniels whether he killed his aunt and appellant said yes.

During the first part of the interview, Mr. Daniels discussed the three assaults and the attempt to burn his house.

(Tpp. 2154-59, 2174)


         During the second part of the interview, Holl wrote out a statement from information provided by Mr.

Daniels. Holl did not use a tape recorder to record the interview; it is not his practice to use a tape recorder,

though tape recorders are available. Mr. Daniels said he could distinguish between right and wrong. Appellant

volunteered that he did not want to leave fingerprints on his aunt's body. Holl did not know before the

interview that a wallet might have been stolen from Ms. Crawford. Mr. Daniels said he had consumed a fifth of

wine, but he did not say whether he had consumed anything else before the killing. Mr. Daniels did not indicate

in the interview that he had planned to commit any crime against his aunt, including robbery and homicide. The

only plan he mentioned was his intent to ask Ms. Crawford to allow Maurice and Diane to stay with her. Mr.

Daniels said that he did not know why he killed his aunt. He did not say when he took the money from her

pocketbook. Holl acknowledged that appellant could have taken the money after the killing, as an after-

thought. Holl later found Ms. Crawford's wallet in a dumpster in the area that Mr. Daniels had said he had

discarded it. Holl did not learn anything during his investigation indicating that Mr. Daniels had used "ice" (a

form of methamphetamine); Holl did not hear of ice being used in Charlotte until the spring after these offenses.

Holl did not discuss with other officers whether any of them had mentioned appellant's possible use of ice in

Mr. Funderburke's presence. (Tpp. 2159-68, 2174-79)


         Dr. James M. Sullivan, medical examiner for Mecklenburg County, testified as an expert in forensic

pathology. He performed the autopsy on Ms. Crawford. In his exterior examination he observed the cord

wrapped around the neck; blood coming from the nose and mouth; a peri-orbital contusion (black eye); two

small lip lacerations; bruising, abrasion, and fracture of the nose; and bruises on the scalp. There were also

bruises on the right arm and hand, consistent both with defensive wounds and with striking something. The
                                                      -18-




cord left ligature furrows consistent with the body being dragged and with movement of the skin against the

cord during strangulation. In Dr. Sullivan's opinion, the cause of death was ligature strangulation. Sullivan said

that studies showed that judo experts skilled in neck compression can make someone lose consciousness in as

short as 15 to 20 seconds. Dr. Sullivan did not state how long it might take to lose consciousness, saying only

"As long as it takes. There is no maximum. Depends on how effectively it's done." Sullivan did not have an

opinion on whether ligature strangulation causes pain.        Ligature strangulation usually causes death by

interfering with the blood supply to the brain and sometimes by restricting the air supply to the lungs. The

resulting lack of oxygen to the brain causes loss of consciousness and then death. (Tpp. 2182-86, 2193-2205)


         Catherine Joan Crawford Nelson, Isabelle Crawford's daughter, testified that her mother was 77 years

old when she died. Ms. Nelson identified the watch found in her mother's house as her father's watch. She

identified a photograph of Ms. Crawford as a photograph of her mother. (Tpp. 2208-09, 2214-15)




                  The Defendant's EvidenceLieutenant G.W. Bradshaw of the

Mecklenburg County Sheriff's Department, was a shift supervisor at the intake center on January 17 and 18,

1990. It is the facility to which police officers bring defendants after arrest. He saw Mr. Daniels there on

January 18 at 7:15 a.m., when Investigator Holl and other officers brought appellant there. As a result of

information they gave him about Mr. Daniels, Bradshaw followed jail policy concerning inmates with potential

suicidal tendencies by relaying the information he had learned to a nurse. Also pursuant to the policy, he

refused to accept Mr. Daniels as an inmate until appellant had an emergency mental evaluation. A three-way

discussion between Bradshaw, the nurse, and Commander Bruce Treadway of the Charlotte Police Department

followed. Treadway did not agree to Bradshaw's request to take Mr. Daniels to a hospital. (Tpp. 2236-40)


         As a result of the conversation, Bradshaw followed orders to go to the Public Defender's Office across

the street to ask Isabel Scott Day, the Public Defender, to go to the intake center to seek an emergency

commitment of Mr. Daniels for a mental evaluation. When they returned to the intake center, Mr. Daniels
                                                        -19-




appeared to be withdrawn, mostly looking down at the floor, and shaking occasionally. When Lieutenant

Bradshaw and Mr. Daniels spoke that morning, Mr. Daniels sometimes did, but sometimes did not, seem to

understand what Lieutenant Bradshaw said. Sometimes Mr. Daniels responded to Ms. Day's questions, but

sometimes he did not respond. Mr. Daniels was sent to a hospital for psychiatric evaluation after seeing a

magistrate. (Tpp. 2240-45)


         Dr. William Tyson, a clinical psychologist, testified as an expert in clinical and forensic psychology.

He conducted a comprehensive psychological evaluation of Mr. Daniels. Dr. Tyson interviewed Mr. Daniels

for one and one-half to two hours; administered a battery of psychological tests; and obtained background

material, including statements, police investigative material, and material from previous evaluations of Mr.

Daniels. During his interview of appellant, Mr. Daniels told Dr. Tyson about the details of the offenses,

including that he had killed his aunt, that he had set fire to his house, that he had been drinking wine, that he had

smoked crack cocaine before and after the killing, that he was fighting with his wife and going to court, and that

he had been under a great deal of stress. In Dr. Tyson's opinion, Mr. Daniels had a chronic and pervasive mixed

personality disorder (also classified as personality disorder "not otherwise specified"), marked by social

isolation and withdrawal, unstable moods and behavior, and deficient emotional and social skills. He also had

cocaine and alcohol dependence and a history of abuse of multiple drugs. He had very poor and primitive

impulse control and social understanding. These problems were aggravated by long-term substance abuse of

both alcohol and cocaine and experimentation with other substances. Mr. Daniels told Dr. Tyson that he had

started using marijuana at the age of 15 and alcohol at the age of 17. Two years before the offenses he stopped

using them and began to use cocaine. He also experimented with amphetamine, LSD, heroin, and tranquilizers.

(Tpp. 2261-64, 2274-91)


         With respect to Mr. Daniels' poor impulse control, Dr. Tyson explained that Mr. Daniels did not

develop skills -- or had only primitive skills -- for controlling emotions, delaying gratification, and coping with

stress and daily problems. His emotional and social development skills were those of a child of 11 or 12 years

old. Chronic substance abuse would have nearly negated even those primitive skills. As a result, Mr. Daniels
                                                       -20-




would be very unpredictable, easily upset by stressful situations, and apt to erupt or explode in stressful

situations. He could not cope even with normal daily stress. (Tpp. 2264-66)


         Defense counsel asked whether Mr. Daniels had the capacity to form a specific intent to kill his aunt

on January 17, 1990. Dr, Tyson answered that the combined effect of Mr. Daniels' personality disorder, chronic

substance abuse, and any drugs or alcohol consumed that day would have compromised his ability to think, to

control his impulses, and critically to evaluate his behavior "to the point of being inconsequential." That is, Mr.

Daniels' acts would have been reflexive and reactive, done without thinking, like a driver's reflexive response to

an imminent automobile accident. Mr. Daniels did meet the criteria for the insanity defense; he was competent

to stand trial. In Dr. Tyson's opinion, Mr. Daniels' poor impulse control could be treated effectively. (Tpp.

2266-70, 2273-74, 2278-87)


         Dr. John N. Bolinsky, Jr., a psychiatrist, testified as an expert in psychiatry. Dr. Bolinsky conducted

an evaluation of Mr. Daniels. He interviewed Mr. Daniels twice. He also reviewed Mr. Daniels' medical

records, including records of his hospitalization at Dorothea Dix Hospital and from two facilities where

appellant had been treated for alcoholism: Black Mountain Alcohol Rehabilitation Center and the Randolph

Clinic. Dr. Bolinsky also reviewed Mr. Daniels' statements to police officers and he spoke to Dr. Tyson. (Tpp.

2291-96)


         Dr. Bolinsky made a tentative diagnosis of Mr. Daniels as having a personality disorder not otherwise

specified. In Dr. Bolinsky's opinion, Mr. Daniels' capacity to form a specific intent to kill his aunt "would have

been profoundly impaired, if not in essence absent." Dr. Bolinsky explained that the combination of Mr.

Daniels' deficient coping skills, chronic substance abuse, and use of cocaine and alcohol on the day of the

offenses would have made him irritable, suspicious, hostile -- "perhaps 'paranoid'" -- and extremely impulsive.

He would have acted reflexively, without thinking about what he was doing. Cocaine and alcohol use would

have a far more dramatic impact on Mr. Daniels' capacity to plan activity in response to provocation or

distracting events than it would have on a normal person's capacity. Dr. Bolinsky testified that cocaine can
                                                     -21-




cause violent behavior.    It commonly produces suspiciousness or paranoia, which, when coupled with

irritability or impulsiveness, leads to violence. A person such as Mr. Daniels could lose impulse control and,

after the effects of cocaine ingestion disappear, regain control. Dr. Bolinsky explained that after ingesting

cocaine, a person typically will progress from the initial paranoia and euphoria to a "crash" marked by profound

depression and withdrawal. (Tpp. 2296-2307)


   Penalty PhaseThe State's EvidenceDr. Cynthia Bernice White, a psychiatrist from Washington, D.C.,

testified as an expert in general psychiatry with an emphasis on substance abuse. Dr. White did not interview

Mr. Daniels. She reviewed the police report on the case and the evaluations of appellant by Dr. Bolinsky, Dr.

Tyson, and Dr. Groce. She met with Dr. Groce and discussed with him the files of Dorothea Dix Hospital on

Mr. Daniels. She did not discuss her evaluation with Dr. Bolinsky. Dr. White interviewed appellant's estranged

wife, Diane; she also interviewed some high school classmates, a military superior of appellant, and a former

employee (or employer). White reviewed his file at his last job and his military records. (Tpp. 2437-43)


        Dr. White testified that she did not write a report on her evaluation. She acknowledged that she never

interviewed or tested Mr. Daniels and that Diane Daniels was the only family member and only victim to whom

she had spoken. She said that of her six courtroom appearances, she has given an opinion at least three times

without interviewing the person involved. She said that those appearances involved evaluations of pilots for the

Federal Aviation Administration (not criminal cases). (Tpp. 2459-63)


        Dr. White testified that acute alcohol or cocaine intoxication can impair judgment. A person who is a

chronic abuser of alcohol or cocaine can develop a tolerance to those substances, so that ingestion does not

produce the effects it formerly did upon occasional use. In such a case, ingestion of larger amounts or over a

longer time is required to produce the same effects. White said that in such a case, a person might be

responding more to expectations about the effects than to the actual chemical effects of ingestion. (Tpp. 2447-

49)
                                                      -22-




         Dr. White noted appellant's nearly 20-year history of alcohol abuse and said that a person with such a

history knows what to expect from alcohol consumption and would act aggressively after drinking a moderate

amount as well as after drinking a large amount. White said that under the expectancy theory, Mr. Daniels

would have been "aware of his own levels of aggression and violence at the time that he is drinking and after

that time . . . ." (Tpp. 2449-51)


         In Dr. White's opinion, appellant did not fit the criteria for alcohol intoxication under the Diagnostic

and Statistical Manual-III (Revised). She testified that he has an antisocial personality disorder. That disorder

is marked by an almost lifelong history of maladaptive social interaction with respect to a person's thinking and

conduct. Mr. Daniels has shown such behavior since junior high school. This disorder often involves a careless

disregard for social norms, poor impulse control, antisoical and aggressive behavior that leads to arrests,

irritability, episodes of spousal and child abuse, unstable work history, and financial problems. Such a person

often feels justified in hurting others because of a feeling that others are hostile. Alcohol and drug abuse are

associated with antisocial personality disorder. (Tpp. 2451-54)


         White noted these factors in appellant's January 18 statement with respect to her diagnosis: financial

problems, disregard for others' feelings shown by punching his aunt, and knowing that he had acted wrongly.

Without explanation or elaboration about her reasons, she interpreted his statement that "I killed my aunt" as

showing that he felt justified and lacking in remorse about killing his aunt. White said that taking the money

from his aunt's wallet and striking Diane with a hammer are also consistent with antisocial personality disorder.

(Tpp. 2454-56)


         Dr. White said that Mr. Daniels' letter to the Governor was consistent with antisocial personality

disorder. She claimed that it showed lack of remorse, a feeling that the killing was justified, "grandstanding,"

and a "quite cunning" appeal to an official who can pardon appellant. She characterized Mr. Daniels' tying the

pants cord around his neck as a "suicide gesture," an apparent suicide attempt that usually is not sufficiently

serious to cause long-term injury or death. She said that such conduct is consistent with antisocial personality
                                                      -23-




disorder, that such a person commits a suicide gesture to gain sympathy when he or she can no longer

manipulate the environment to advantage. (Tpp. 2456-59)


         White acknowledged that her opinion about Mr. Daniels' mental state at the time of the offenses was

based on his drinking of a fifth of wine the evening of the offenses and his history of alcohol and cocaine abuse.

She did not have any information that he had used cocaine that night, since the police reports did not mention

cocaine use. She said that her opinion would not be affected by knowing that he had used cocaine that night.

(Tpp. 2463-64)


         White said that personality disorders are treatable, but that the prognosis for treating antisocial

personality disorder is poor. Substance abuse is treatable, but there is no guarantee that a person will remain

sober during treatment. (Tpp. 2464-65)


         Dr. James M. Sullivan, the medical examiner, gave his opinion that Ms. Crawford was beaten before

she was strangled. He said that the minimum time she would have lived after strangulation began would have

been several minutes; he could not give an opinion about the maximum time. (Tpp. 2466-67)




                  The Defendant's EvidenceThe parties stipulated that Mr. Daniels'

convictions during the previous 10 years were: communicating threats and simple assault (1988), misdemeanor

breaking or entering (1988), and driving while impaired (1987). (Tp. 2468)


         Sandy Carter, chief nurse of the Mecklenburg County Jail, testified that she was called at home with

respect to Mr. Daniels' arrest and that she advised the jail staff to obtain an order to commit appellant

immediately to Dorothea Dix Hospital. He stayed at Dix for about two weeks and then returned to the jail. He

remained in jail pending trial. Mr. Daniels did not cause any problems and did not behave violently or

aggressively in jail. (Tpp. 2468-71)
                                                        -24-




                          2
         Dr. John Bolinsky testified that he reviewed the complete record of Mr. Daniels' hospitalization at

Dorothea Dix Hospital. Dr. Bolinsky said that the absence of a direct examination of a person by a psychiatrist

would compromise the reliability of the psychiatrist's evaluation of the person.            While reviewing other

psychiatrists' records is helpful, diagnosis involves the generation of a clinical hypothesis and that an in-person

examination is important for testing such a hypothesis. (Tpp. 2471-72, 2474, 2476)


         Dr. Bolinsky disagreed with Dr. White's opinions about Mr. Daniels. He agreed with her general

statements about tolerance of alcohol or drugs by chronic substance abusers, but he disagreed with her

application of that concept to Mr. Daniels. He explained that chronic daily use produces a different kind of

tolerance from chronic episodic use during binges that are separated by days or weeks.               Dr. Bolinsky's

evaluation of Mr. Daniels and his records indicated that Mr. Daniels' substance abuse was episodic. The

absence of physical withdrawal symptoms after Mr. Daniels' arrest supports that conclusion. Dr. Bolinsky also

noted that Mr. Daniels had ingested a significantly greater amount of impairing substances on the day of the

crime than Dr. White knew about: a large quantity of beer in the morning and crack cocaine, as well as the fifth

of wine. (Tpp. 2472-74)


         Dr. Bolinsky disagreed with Dr. White's diagnosis of antisocial personality disorder. He also criticized

her diagnostic method as circular: she had found features of his history that match an antisocial personality

disorder and other conditions as well, and then concluded that Mr. Daniels therefore has an antisocial

personality disorder. Moreover, she also did not examine Mr. Daniels in person to test her hypothesis, to help

determine which condition actually fit him. (Tp. 2474)


         Dr. Bolinsky said that even if Mr. Daniels has an antisocial personality disorder, current research

indicates that this disorder is caused by a brain disfunction. The organic nature of the disorder probably is a

factor in the poor prognosis for treatment. Bolinsky also pointed out that the symptoms of antisocial personality




         2
             Dr. Bolinsky was incorrectly identified in this portion of the transcript as Dr. "Wolenski."
                                                        -25-




disorder usually subside by the time a person reaches the mid-forties, with or without treatment. (Tpp. 2474-

75)


         Dr. Bolinsky also disagreed with Dr. White's testimony about "suicide gestures." He pointed out that

Mr. Daniels has a long history of depression, including episodes of depression throughout adolescence and

adulthood. He also has a history of suicide attempts. Mr. Daniels reported that he had tried to shoot himself

with a shotgun in 1979, but that the gun misfired. Another time he ingested gasoline to try to kill himself. Dr.

Bolinsky maintained that lighting a mixture of alcohol and kerosene and lying down in a burning building was a

suicide attempt, not just a suicide gesture. (Tpp. 2475-76)


         Dr. Bolinsky further observed that Mr. Daniels did not have a normal mental status typical for

antisocial personality disorder. Rather, his mental status is consistent with chronic depression -- a diagnosis Dr.

White could have missed by not examining Mr. Daniels himself. Dr. Bolinsky noted that depression is

treatable, even if it is chronic, and that substance abuse is treatable. (Tpp. 2476-77)


         Dr. Bolinsky testified that there is a link betweem Mr. Daniels' emotional problems and the offenses.

In Bolinsky's opinion, Mr. Daniels' use of alcohol and cocaine on January 17 impaired his capacity to plan his

behavior. Even without such impairment, his chronic depression, personality disorder, and chronic alcohol and

cocaine abuse were causally related to the crimes. They did not force him to kill his aunt, but it is improbable

that he would have killed her without those disorders. (Tp. 2477)


         Dr. Bolinsky testified that Mr. Daniels expressed remorse in a variety of ways. He repeatedly told

Bolinsky that he could not make sense out of what had happened, that he wished that it had not happened, that

he was sorry it had happened, and that he would not have committed the crimes absent his alcohol and crack

cocaine use. When he wrote his letter to the Governor, he thought he had killed his wife and he had failed in

two suicide attempts. He wrote it to ensure that he would join her in death. (Tp. 2478)
                                                      -26-




         As a result of his depression and personality, Mr. Daniels is withdrawn and avoids facial expression

and eye contact. He has low-average intellectual ability, in the bottom 10% to 20%, which makes if difficult for

him to deal with stressful situations. His problems are very treatable. (Tpp. 2478-79)


         Dr. Bolinsky acknowledged that he had not interviewed Diane Daniels, Mr. Daniels' military

collegues, his high school classmates, or his coworkers. He did not review Mr. Daniels' military records.

However, he did review Mr. Daniels' records from Dorothea Dix Hospital, which included reports about

interviews with some of those people and reports about interviews with Diane Daniels in 1986 about appellant's

substance abuse and conduct. Dr. Bolinsky acknowledged that appellant told Dr. Groce at Dorothea Dix that he

had never attempted suicide before. (Tpp. 2471-85)


         James Albert Daniels, appellant's older brother, testified that appellant was the youngest of three

brothers and the second youngest of six children. James had known their aunt, Ms. Crawford, all of his life. He

was in the military in Vietnam while appellant was in high school, so he first noticed appellant using alcohol

when appellant was in the military. Appellant is quiet when he is not using drugs or alcohol. He is "not

himself" when he uses cocaine. Appellant went to the Randolph Center and to the Black Mountain Alcohol

Rehabilitation Center for alcohol treatment. James still considers Diane to be part of the family and he still

talks to Diane and Maurice. (Tpp. 2485-90)


         Mary Daniels Thompson, appellant's older sister, testified that appellant is very likable when he is not

drinking. She noticed that he had changed when he returned home from serving in the Marines. When he drank

alcohol, he would enter into arguments with Diane; Diane would call appellant's mother, who would discipline

him. (Tpp. 2490-92)


         Viola Smith Daniels, appellant's mother, testified that Mr. Daniels is a nice, calm person when he is

not drinking. He had "real good" relationship with his son, Maurice. Viola knew about one incident in which

appellant hit Maurice with a switch for punishment; Diane called the police and appellant was arrested but the

charges were dropped. He began drinking when he left the Marines and Diane sometimes had to call Viola to
                                                       -27-




take appellant away from an argument. Viola Daniels said that she spoke to appellant in jail pending the trial

and that appellant had said he was sorry for what he had done (including his attack against Ms. Crawford) and

sorry that he had hurt his mother and the family. (Tpp. 2492-95)


 ARGUMENTGUILT/INNOCENCE PHASE ISSUES   I.    THE TRIAL COURT'S EX PARTE
          COMMUNICATION    WITH    A  PROSECUTOR    VIOLATED
          APPELLANT'S RIGHT TO BE PRESENT AT EVERY STAGE OF
          THE TRIAL.


                  Assignment of Error No. 4 (Rp. 187)



         The Confrontation Clause of the Sixth Amendment and Article I, º23 of the North Carolina

Constitution guarantee the nonwaivable right of a defendant in a capital trial to be present at every stage of the

proceeding. State v. Monroe, No. 252A86 (N.C. January 31, 1992); State v. Payne (Payne I) 320 N.C. 138, 357

S.E.2d 612 (1987). Enforcement of that right serves several fundamental public interests: the state's interest in

perserving human life, the state's interest in protecting the integrity of the criminal justice system by preserving

the appearance of fairness, and the state's interest in optimizing the conditions for finding the truth. State v.

Huff, 325 N.C. 1, 30, 381 S.E.2d 635, 651 (1989); death sentence vacated, 111 L.Ed.2d 777 (1990);

resentencing ordered, 328 N.C. 532, 402 S.E.2d 577 (1991). This sound rule has a long pedigree in North

Carolina law. See State v. Blackwelder, 61 N.C. (Phil. Law) 38 (1866), overruled on other grounds, State v.

Huff, supra; State v. Jacobs, 107 N.C. 772, 11 S.E. 962 (1890).


         In this case, the record shows that on Sunday, September 16, 1990, the trial judge made separate

telephone calls to counsel for the state and counsel for Mr. Daniels to discuss the case. Mr. Daniels was not

present at, and did not participate in, either of these telephone conversations. These conversations were not

transcribed by a court reporter. (Tpp. 1916; Rp. 21) The full context of these conversations is as follows: The

trial court heard evidence on appellant's suppression motion on August 31, 1990, before jury selection. (Tpp.

71, 75) It heard arguments on the suppression motion on Friday, September 14, 1990, after jury selection. (Tpp.

1855-56) The trial court then took the motion under advisement and, in open court in appellant's presence, told
                                                            -28-




counsel for both parties that it would try to rule on the suppression motion that afternoon. The trial court also

said that if it did not issue its ruling that day, it would do so before opening statements and that it would

telephone counsel about its ruling during the coming weekend. Counsel for appellant (Mr. Williams) and for

the state (Ms. Shappert) told the trial court that it could reach them in their offices. On Monday, September 17,

the trial court heard brief additional argument by one of the prosecutors. (Tpp. 1911-16) Then the trial court

said as follows:


                                THE COURT:                Okay. On the motion to suppress,
                       which was heard on -- evidence was presented on August 31 and
                       arguments were heard on September 14 -- I notified counsel by
                       telephone yesterday about a ruling. With regard to my ruling, as I
                       indicated to counsel yesterday, the Court had denied the
                       defendant's motion to suppress with regard to the statement that
                       was given en route to the police station on January 17 or 18. The
                       Court is denying the defendant's motion to suppress with regard to
                       the letter to the governor. The Court is also denying the
                       defendant's motion to suppress with regard to the written statement
                       that was taken by Investigator Holl on January 18. The Court has
                       indicated that its ruling is that the Court would grant the motion to
                       suppress with regard to the statement that was taken on February 1.
                       Ms. Shappert, with regard to your argument, I will consider those
                       cases.


(Tp. 1916)


         Appellant submits that the trial court's unrecorded ex parte telephone conversation with counsel for the

state, outside the presence of Mr. Daniels, his attorney, and a court reporter violated his constitutional right to
                                                3
presence at every stage of his capital trial.       The facts in this case are analogous to these in Payne I, supra. In

Payne I, the trial court said in open court, in the presence of the defendant and all counsel, that he was about to

speak to the jurors to give them "my admonitions." Id. at 612, 357 S.E.2d at 612. Neither the defendant nor

any of the attorneys were present during that communication and no record was made of it. Indeed, this Court


         3
           Appellant is not challenging the ex parte telephone conversation between the trial court and his own
attorneys or the unrecorded charge conferences the trial court conducted with all counsel outside appellant's
presence. See Assignments of Error No. 34 and 44, Rpp. 193, 195) Although these contacts were erroneous,
they did not amount to reversible error. See State v. Buchanan, 330 N.C. 202, 410 S.E.2d 832 (1991); State v.
Brogden, 329 N.C. 534, 407 S.E.2d 158 (1991).
                                                           -29-




stated, "As there is no indication of record to the contrary, we must assume that the trial court caused the record

to speak the complete truth in this regard, and that the trial court actually took the steps indicated." Id. at 139,

357 S.E.2d at 612. In this case, the record leaves no doubt that the trial court engaged in the conversations at

issue: the trial court expressly mentioned those conversations in open court the next day, Monday, September

17, 1990. (Tp. 1916) The fact that Mr, Daniels was present in the courtroom and did not object when the trial

court announced its intent to call counsel over the weekend does not constitute a waiver of his right to presence.

As already noted, this right cannot be waived. Moreover, the defendant in Payne I also was present in the

courtroom when the trial judge announced his intention to speak to the jury. This Court correctly did not find

that defendant's failure to object to constitute a waiver.


         This Court's decision in State v. Brogden, 329 N.C. 534, 407 S.E.2d 158 (1991), also supports

appellant's position that the trial court violated his right to presence. In Brogden, the Court held that a trial

court violated the defendant's right to presence by conducting an unrecorded charge conference in chambers

with counsel for both parties in the absence of the defendant. As discussed below, the Court ultimately ruled
                                            4
that the error was harmless in that case.       However, it is clear and significant that the Court ruled that the trial

court had erred by holding the charge conference in the defendant's absence. In this case, too, the telephone

conversation with counsel for the state occurred outside appellant's presence and it was unrecorded. Moreover,

unlike the charge conference in Brogden, appellant's attorneys did not participate in the conversation. The

absence of Mr. Daniels' attorneys from the conversation, therefore, also violated his right to counsel under the

Sixth Amendment to the United States Constitution and Art. I, º23 of the North Carolina Constitution and

amounts to per se reversible error. State v. Colbert, 311 N.C. 283, 316 S.E.2d 79 (1984); State v. Luker, 65

N.C. App. 644, 649, 310 S.E.2d 63, 66 (1983), aff'd by order as to error, rev'd for new trial as to harmlessness

of error, 311 N.C. 301, 316 S.E.2d 309 (1984); see also United States v. Cronic, 466 U.S. 648, 659 n.25, 80

L.Ed.2d 657, 668 n.25 (1984).




         4
             As appellant argues below, the error here was not harmless.
                                                       -30-




         Brogden also establishes that communications between a trial court and attorneys -- as well as between

a trial court and jurors -- outside a capital defendant's presence violates the defendant's right to presence.

Moreover, the fact that the telephone conversations were conducted separately with counsel for each party also

resulted in a violation of North Carolina Code of Judicial Conduct, Canon 3A(4), 283 N.C. 771, 772 (1973).


         Appellant acknowledges that this Court has ruled that unrecorded bench conferences between a trial

court and counsel for both parties outside a capital defendant's presence do not violate the defendant's right to

presence. State v. Buchanan, 330 N.C. 202, 410 S.E.2d 832 (1991). However, a vital fact distinguishes this

case from Buchanan: neither appellant nor his attorneys participated in the telephone conversation between the

trial court and counsel for the state. In Buchanan, this Court held that an unrecorded bench conference with

counsel for both parties in a capital case between a trial court and counsel for both parties does not violate a

defendant's right to presence unless the subject matter of the conference (1) "implicates the defendant's

confrontation rights," or (2) "is such that the defendant's presence would have reasonably substantial relation to

his opportunity to defend . . . ." Id. at 224, 410 S.E.2d at 845. In explaining this holding, the Court stressed two

factors: that a defendant's presence in the courtroom enables him or her "to observe the context of each

conference and inquire of his attorneys at any time regarding it substance;" (330 N.C. at 223, 410 S.E.2d at

844); and that through defense counsel, a defendant has "constructive knowledge" of the substance of a bench

conference and, after a conference, the chance to take exception on the record to any matter discussed during

the conference. Id. In short, in regard to such bench conferences, a defendant has at all times "a first-hand
                                                                              _
source of information as to the matters discussed during a conference." Id.


         By contrast, in this case, Mr. Daniels' attorneys did not participate in the telephone conversation

between the trial court and counsel for the state. Thus, Mr. Daniels was neither actually nor "constructively"

present during that conversation.



         5
            In Kentucky v. Stincer, 482 U.S. 730, 96 L.Ed.2d 631 (187), cited with approval by this Court in
Buchanan, the Supreme Court of the United States also commented about the importance of defense counsel's
participation in a proceeding conducted outside the defendant's presence.
                                                       -31-




         In addition, Mr. Daniels' participation in that conversation would have had "a reasonably substantial

relation to his opportunity to defend" himself. The trial court's suppression ruling relied upon findings of fact as

well as conclusions of law. Those factual findings concerned the circumstances in which Mr. Daniels made

custodial statements to police officers. Since it was Mr. Daniels himself who made those statements and since

he witnessed both those circumstances and the evidence introduced during the suppression hearing, his

participation in the telephone conversation would have had a reasonably substantial relationship to his

opportunity to defend himself. He could have assisted his attorneys' efforts to interpret those facts favorably to

his position.


         As a final note on the occurrence of error, it should be noted that by violating appellant's right to

presence under the North Carolina Constitution, the conversation between the trial court and counsel for the

state thereby also violated his right to due process under the Fourteenth Amendment to the United States

Constitution; Hopt v. Utah, 110 U.S. 619, 28 L.Ed. 262 (1884).


         Since the trial court's telephone conversation with counsel for the state violated Mr. Daniels'

constitutional right to presence, the error is reversible unless the state proves beyond a reasonable doubt that the

error was harmless. State v. Monroe, supra; Payne I, supra; State v. Smith, 326 N.C. 792, 392 S.E.2d 362

(1990). The Court has stressed that the key to determining whether such error is harmless is whether a

contemporaneous record of the improper contact exists so as to permit appellate review of potential harm. State

v. Monroe, supra; State v. McCarver, 329 N.C. 259, 404 S.E.2d 821 (1991); State v. Smith, supra; Payne I,

supra. In every case in which the Court has concluded that such error was harmless beyond a reasonable doubt,

it has done so only when a contemporaneous record enabled the Court to determine upon appellate review that

an ex parte contact in a given case could not have prejudiced the defendant.


         In State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991) (Payne II), the trial court erred by conducting

preliminary questioning of prospective jurors outside the defendant's presence. However, the Court held that

the error was harmless because defense counsel and a court reporter were present and the trial transcript
                                                       -32-




revealed "all that was said." Id. at 389, 402 S.E.2d at 589. Here, neither counsel nor a court reporter were

present and the conversation was not recorded.


         In State v. Huff, supra, the Court found that the error in permitting the defendant to leave the

courtroom during the trial was harmless because, inter alia, a transcript of the proceedings permitted full

appellate review and defense counsel were present to protect the defendant's interests. As discussed, no

transcript exists of the trial court's conversation with counsel for the state and defense counsel did not

participate in that conversation.


         In State v. Allen, 323 N.C. 208, 372 S.E.2d 855 (1988), death sentence vacated, 108 L.Ed.2d 601

(1990), the trial judge conducted ex parte in chambers interviews with all jurors and alternates after a

potentially tainting mid-trial news broadcast about the case. The judge provided counsel with transcripts of the

interviews. One juror in her interview reported that during a trial recess, she had gone to the scene of an

automobile accident in which her husband was involved and that highway patrolmen were present. The victim

in Allen was a highway patrolman. The juror reported that her husband had warned the patrolmen not to talk to

his wife and that she had been careful not to talk to them. This Court held that any error committed was

harmless beyond a reasonable doubt.


                       The defendant has not shown us and we can think of no facts
                       which would shed additional light on the question of the influence
                       of the patrolman on the juror. It is clear that the juror had no real
                       contact with the patrolman.


Id. at 222-23, 372 S.E.2d at 864. There is no similar clarity in the case at bar concerning the substance of the

telephone conversation.


         In State v. Laws, 325 N.C. 81, 381 S.E.2d 609 (1989), death sentence vacated, 108 L.Ed.2d 603

(1990), sentence affirmed on remand, 328 N.C. 550, 402 S.E.2d 573, cert. denied, 112 S.Ct. 216 (1991), the

trial judge noted, upon the resumption of the proceedings on the morning of the fifth day of trial after a brief
                                                        -33-




delay that morning, that "when I was back earlier that each of you told me you were having no problems this

morning." Id. at 96, 381 S.E.2d at 618. This Court held that on the facts of the case, no error had occurred.


                       In the present case, the trial court's reference to the incident
                       complained of appears in the context of a record clearly showing
                       that the trial court had routinely inquired about any problems
                       individual jurors might have that the court needed to know about.
                       Furthermore, the trial court's statement itself indicates that no such
                       problems were either expressed by the jurors or discussed with
                       them by the trial court.          We conclude that no ex parte
                       "communications" in the sense argued for by the defendant
                       actually took place[.]


Id. at 97, 381 S.E.2d at 618 (emphasis added). In the instant case, it is clear that an ex parte communication did

take place.


         In State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), death sentence vacated, 108 L.Ed.2d 604

(1990), the defendant asserted error in his absence from an in-chambers examination of a juror during jury

selection. After the ex parte encounter, the judge conducted a recorded hearing in chambers with counsel

present; at this hearing counsel learned that the juror had apparently come to have second thoughts about her

previous responses concerning capital punishment. This Court held the error harmless, both because of the

availability of the transcript of the recorded hearing for appellate review and because the juror "was thereafter

promptly and properly removed for cause," obviating the possibility that anything said to her privately by the

trial court might infect the jury as a whole. Id. at 297, 384 S.E.2d at 480.


         In State v. Davis, 325 N.C. 607, 386 S.E.2d 418 (1989), cert. denied, 110 L.Ed.2d 268 (1990), a juror

phoned the courtroom clerk before court on the morning between the previous day's arguments of counsel and

the court's charge in the guilt phase of a capital trial. The juror reported to the clerk that her child's illness and

lack of daycare for him prevented her attendance at the trial.           After consulting with counsel, the judge

telephoned the juror in the presence of counsel, asked her to continue to arrange daycare; he told her that he

would call back shortly and did so in the presence of counsel. The judge subsequently replaced her with an

alternate. This Court held that any error inhering in this procedure was harmless beyond a reasonable doubt,
                                                        -34-




noting inter alia the presence of counsel during the calls and the replacement of the juror, which, as in Artis,

eliminated the possibility of prejudice either from the juror herself or from others with whom she

communicated.


         Finally, in State v. Brogden, supra, the Court ruled that the trial court's error in conducting an

unrecorded charge conference in chambers outside the defendant's presence was harmless where counsel for

both parties participated; where, immediately after that conference, the parties returned to the courtroom and the

request for jury instructions and possible verdicts were put into the record; and where the trial court asked both

parties whether they wanted to add anything to the record. In this case, it was not until the next day that the trial

court discussed the substance of the weekend telephone conversations in the record. Even then, the trial court

merely gave a brief, conclusory summary of its four conclusions of law, without stating whether it had said

more about those issues to counsel for the state, whether it had discussed its finding of fact with counsel for the

state, or whether it had discussed other issues with counsel for the state. This sketchy summary is analogous to

the trial court's brief advance indication in Payne I that it would give the jury "my admonitions." There, even

though the Court assumed that the trial court "caused the record to speak the complete truth in this regard, and

that the trial court actually took the steps indicated" (320 N.C. at 139, 357 S.E.2d at 612), this Court ruled that

the state had not proved that the error was harmless beyond a reasonable doubt. In addition, it is again of

crucial significance that defense counsel did not participate in the conversation between the trial court and

counsel for the state. In Brogden, the participation of defense counsel in the challenged conference gave
                                                                                                                   6
defense counsel the opportunity to supplement the record concerning the substance of the charge conference.

In contrast, the absence of appellant and his attorneys from that telephone conversation precluded them from

supplementing the record about the substance of the conversation.


         In sum, the trial court's conversation with counsel for the state violated Mr. Daniels' right to presence

and the record does not contain sufficient information to show the substance of the conversation and to

         6
            As noted above, it is the parallel between the charge conference procedure in Brogden and the
charge conference procedure in this case that has prompted appellant not to argue that the trial court's erroneous
charge conference procedure here constituted reversible error.
                                                       -35-




demonstrate that it was harmless. As in Payne I, this Court cannot reliably conduct appellate review of the

possible prejudice resulting from the conversation. Appellant recognizes that the trial court decided to speak to

the attorneys over the weekend in order to accommodate their need to know the court's suppression ruling

before making opening statements. However, the trial court's good faith decision to give counsel such notice of

its suppression ruling does not cure the error or render it harmless. The trial court could have used other ways

to communicate with counsel, including conducting a conference call, tape recording the conversations, meeting

briefly with counsel in chambers, or announcing the suppression ruling on Monday and giving counsel a short

continuance to plan their opening statements in light of the ruling. While these feasible alternatives might have

been less convenient than holding separate telephone conversations, appellant's constitutional right to presence

in a death penalty case outweighs any concerns about convenience. Also, despite the good faith in the trial

court's effort to accommodate counsel, the state cannot prove beyond a reasonable doubt that neither the trial

court nor the prosecutor said nothing prejudicial during the conversation. When neither appellant nor his

counsel participated in the conversation, there can be no confidence that "the conditions for finding the truth

were not prejudicially affected." State v. Huff, supra, 325 N.C. at 30, 381 S.E.2d at 651.




       II.           THE TRIAL COURT'S CONFERENCE IN CHAMBERS WITH ALL
                     COUNSEL, BUT OUT OF APPELLANT'S PRESENCE,
                     CONCERNING THE REQUEST TO BE EXCUSED BY A JUROR
                     ALREADY SELECTED VIOLATED APPELLANT'S RIGHT TO
                     PRESENCE.


                     Assignment of Error No. 16 (Rp. 190)



             Shelly Richardson initially was chosen as a juror. (Tpp. 910-12) During her voir-dire examination,

Ms. Richardson said that the only constraint on her jury service was that she had purchased an airline ticket for

a short, planned vacation in mid-September and that she did not know whether the ticket was refundable. She

said that she would be concerned if the ticket was not refundable, but that she could still be fair. (Tpp. 889-91)

However, after she was selected, she found out that she could not obtain a refund for the ticket or use it for
                                                       -36-




another date feasible for her schedule. She also learned that the accommodations booked for her were not

refundable. Ms. Richardson said that her concerns about the nonrefundable travel expenses and about the

emotional impact on her family of cancelling the vacation would prevent her from being fair and impartial.

(Tpp. 1208-17) After this discussion between the trial court and Ms. Richardson, the following occurred:


                      THE COURT:               Let me see counsel in the back.


                      (Conference In-Chambers)


                      THE COURT:             Ms. Richardson, what I'm going to do is take
                      what you have said under consideration and not make a decision
                      right now but I will notify you prior to the 13th. I will notify you.
                      You may leave.


                      (The juror is excused)


(Tp. 1217)
                                                      -37-




         Subsequently, on September 12, after selection of the regular jurors was otherwise complete (Tpp.

1425-27), the trial court made the following announcement:


                      THE COURT: Madame Reporter, if you could take this for the
                      record. It's a matter involving Shelly Richardson. That she was
                      selected as a juror, designated Juror No. 7. That subsequent to her
                      selection as a juror and being informed of her duties as a juror, she
                      contacted the clerk in this courtroom and indicated that she was
                      having some personal problems and that she needed to come back
                      into court. That the court permitted her to reappear on Monday at
                      approximately 4:30 P.M. That Ms. Richardson stated that she
                      found out some additional information about her plane ticket that
                      she indicated she had already paid for, and that she indicated it
                      would not be a problem if she could get a refund. She also
                      indicated she found out certain accommodations had been made
                      for a trip and she was beginning to feel resentful and did not feel at
                      that point that she would be fair and impartial. That based on that
                      information and after consultation with counsel for the State and
                      for the defendant, the Court has excused her from service as a
                      juror, and we need to replace her. Okay.


         The unrecorded conference in chambers between the trial court and counsel for both parties is

conceptually equivalent to a bench conference between a trial court and all counsel. Accordingly, this Court's

analysis in State v. Buchanan, 330 N.C. 202, 410 S.E.2d 832 (1991), discussed above in Section I, governs this

issue. Appellant submits that since the topic of the conference was whether to excuse Ms. Richardson from jury

service, the second exception to the Buchanan holding applies. That is, the trial court erred by conducting a

conference with counsel outside Mr. Daniels' presence because excusal of a juror is an issue for which "the

defendant's presence would have a reasonably substantial relation to his opportunity to defend." Id. at 224, 410

S.E.2d at 845.


         In State v. Ali, 329 N.C. 394, 404, 407 S.E.2d 183, 189 (1991), the Court ruled that while an attorney

normally makes the tactical decision about which jurors to accept or strike,


                      when counsel and a fully informed criminal defendant client reach
                      an absolute impasse as to such tactical decisions, the client's
                      wishes must control; this rule is in accord with the principal-agent
                      nature of the attorney-client relationship.
                                                       -38-




(emphasis added) Under Ali, then, Mr. Daniels had the right to state the defense's final word concerning Ms.

Richardson's service or excusal. However, his exclusion from the conference deprived him of a proper chance

to participate in that decision by depriving him of full information about he issue. Accordingly, his absence

from the conference satisfies the second exception under Buchanan, since his presence would have had a

substantial relation to his opportunity to defend himself by participating in the selection of the jury that would

decide his fate.


         The state cannot satisfy its burden of proving that the conference was harmless beyond a reasonable

doubt because the conference was not recorded and neither the trial court nor any of the attorneys put any

statements into the record about the conference. For example, the record does not show whether the trial court

made its own decision to excuse Ms. Richardson for cause or whether the trial court ultimately decided to

excuse her because all counsel stipulated to her excusal during that conference. The state cannot show beyond a

reasonable doubt that defense counsel did not announce during the conference that they would stipulate to Ms.

Richardson's excusal against Mr. Daniels' wishes.


         This Court's decision in State v. Brogden, 329 N.C. 534, 407 S.E.2d 158 (1991) does not render this

error harmless. As discussed in Section I, the decision in Brogden rested on two factors: (1) the charge

conferences at issue were summarized on the record and counsel were given a chance to make objections on the

record, and (2) counsel were able to speak on behalf of the defendant on matters of law. In contrast, the record

here contains no information about what was said during the conference (other than the topic itself) and the

topic at issue was a fact-bound matter about which appellant had the right to the final word on his own behalf.


         A violation of a defendant's right to presence during jury selection that results in a potentially improper

excusal of a juror is reversible if, as here, the state cannot prove beyond a reasonable doubt that the error was

harmless. State v. McCarver, 329 N.C. 259, 404 S.E.2d 821 (1991); State v. Smith, 326 N.C. 792, 392 S.E.2d

362 (1990). Since the state cannot prove that the error was harmless, the Court should reverse appellant's

conviction and order a new trial.
                                                          -39-




      III.            THE TRIAL COURT ERRED BY DENYING DEFENDANT'S
                      MOTION TO DISMISS EVIDENCE ABOUT HIS LETTER TO THE
                      GOVERNOR.


                      Assignment of Error No. 5 (Rpp. 187-88)



             Appellant's letter to the Governor -- in which he denied that he was "crazy" and said his conduct was

premeditated -- was an important piece of state's evidence. Unfortunately, Officer Griffith and Investigator Holl

committed a serious violation of appellant's state statutory rights in obtaining the letter. This violation renders
                                                                                                                  7
erroneous the trial court's denial of appellant's suppression motion and to the letter and compels a new trial.


             On appeal, a trial court's findings of fact relevant to a defendant's motion to suppress a statement are

deemed conclusive if supported by competent evidence in the record. However, this Court willfully review a

trial court's conclusions of law. State v. Smith, 328 N.C. 99, 114, 400 S.E.2d 712, 720 (1991). Also, the Court

may consider additional evidence in the record that is not mentioned in the trial court's findings of fact. See

Arizona v. Fulminante, 113 L.Ed.2d 302, 316 n.2 (1991). Appellant accepts the trial court's findings of fact on

the suppression motion for the purpose of this appeal. However, a review of those facts and of additional,

uncontroverted facts in the record shows that the trial court wrongly concluded that appellant's rights under state

and federal law had not been violated with respect to appellant's letter to the Governor.


             A brief summary of the trial court's findings of fact will set this issue in its factual context. Officer

Griffith arrested appellant at 12:45 a.m. on January 18, 1990, after appellant was taken out of his burning house.

Appellant was wearing only sweatpants on a January night. En route to the Law Enforcement Center, appellant

volunteered that they should go to Mint Street. When Officer Griffith asked why they should go there,

appellant said that he might have killed his aunt. Appellant then directed Griffith to his aunt's house. Griffith

later took appellant to the Law Enforcement Center after discovering Ms. Crawford's body. At the Law

Enforcement Center, Griffith put appellant in an interview room. Appellant asked for a paper and pen in order

             7
             Appellant is not here challenging the trial court's suppression ruling with respect to the oral
statements appellant made en route to the Law Enforcement Center or his oral and written statements to
Investigators Holl and Davis.
                                                        -40-




to write a letter to the Governor. Griffith complied and appellant wrote a short letter and gave it to Griffith.

Appellant tried to hang himself from a filing cabinet with the drawstring from his sweatpants. Investigators

Holl and Davis began to interrogate appellant at 4:45 a.m. At that time, they advised him of his rights under

Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966). That was the first time any officer had advised

appellant of any rights that night. (Findings of Fact, Rpp. 55-59)


         Officer Griffith and Investigator Holl violated his rights concerning his custodial statements by

deliberately refraining from advising appellant of his rights under N.C. Gen. Stat. º15A-501(5). Griffith and

Holl testified that by not advising appellant about those statutory rights or about his Miranda rights, Griffith

was following the official policy of the Charlotte Police Department and was complying with Holl's specific

request that night.    The trial court's findings note that Officer Griffith did not advise appellant of his

constitutional rights, that he did not question appellant, and that Holl specifically requested that he not advise

appellant of his rights because Holl would do so. (Findings of Fact 31 and 46, Rpp. 57-58; see also Tpp. 105-

07, 108-10, 112, 114-15, 120, 128-30, 170-71) These findings are correct. The record of the suppression

hearing also contains additional, important, and uncontroverted facts. Holl testified that Charlotte Police

Department policy provides that arresting and transporting officers should not advise defendants of their rights,

that only an officer who is going to question a defendant should advise the defendant about his or her rights.

(Tpp. 170-71) Griffith's testimony on this point is striking: "I don't read their rights because I don't want to

complicate the conversation in communicating with the individual when I don't have anything to ask them."

(Tp. 107) He then said, "I don't want to ask him questions about the case, so there's no reason to read him his

rights. If I have enough information to go before a magistrate and make a case, I'm not going to read him his

rights." (Tp. 107) In addition, it was not until Holl began his interview of appellant at 4:45 a.m. -- four hours

after Officer Griffith had arrested defendant at 12:45 a.m. -- that any officer advised appellant of any rights.


         Appellant acknowledges that a defendant is entitled to advice about his Miranda rights only at some

point before interrogation, and that Miranda warnings need not be given until the time of interrogation.

However, North Carolina law contains an additional requirement that goes beyond the conditional mandate of
                                                         -41-




Miranda: N.C. Gen. Stat. º15A-501(5) provides that upon the arrest of a person, a law enforcement officer

"[m]ust without unnecessary delay advise the person arrested of his right to communicate with counsel and

friends and must allow him reasonable time and reasonable opportunity to do so" (emphasis added). Unlike a

defendant's right to Miranda warnings, the statutory right to this advice is not conditional. That is, a defendant

is entitled, without unnecessary delay, to advice about his right to communicate with counsel and friends

regardless of whether or when the arresting officer intends to interrogate the defendant. Despite the clear

requirement of º15A-501(5), Officer Griffith spent four hours with appellant, or guarding him nearby, without

ever advising him of his rights under the statute. He deliberately refrained from advising appellant about any

rights, including these statutory rights because -- and only because -- officical departmental policy directed him

not to give such advice and because Investigator Holl, pursuant to that policy, had asked him not to advise

appellant of his rights. Since the record proves that Griffith's conduct resulted from Holl's request and from

official policy, and not from any emergency that might reasonably have precluded Griffith from taking time out

to advise appellant of his statutory rights, the state cannot argue that the four-hour delay in advising appellant of

his right to communicate was reasonable.


         The officers' willful violation of º15A-501(5) requires suppression of appellant's letter to the Governor.

N.C. Gen. Stat. º15A-974(2) requires suppression of evidence obtained as a result of a substantial violation of

Chapter 15A. State v. Payne, 328 N.C. 377, 402 S.E.2d 582 (1991); State v. Allen, 323 N.C. 208, 372 S.E.2d

855 (1988), death sentence vacated, 108 L.Ed.2d 601 (1990); State v. Richardson, 295 N.C. 309, 245 S.E.2d

754 (1978). º15A-974(2) lists four factors to be considered in determining whether a violation is substantial:

the importance of the interest violated, the extent of deviation from lawful conduct, the extent to which the

violation was willful, and the extent to which exclusion will deter future violations. The violation by Officer

Griffith and Investigator Holl satisfied all four factors.


         First, the interests protected by º15A-501(5) are of fundamental importance. In State v. Hill, 277 N.C.

547, 178 S.E.2d 462 (1971), the Court explained (with respect to the predecessor of this statute, N.C. Gen. Stat.

º15-47) that the General Assembly established a defendant's rights to communicate with counsel and friends and
                                                        -42-




to be advised of that right in order to implement the right to counsel and the right to obtain witnesses under the

state and federal constitutions and in order to permit a defendant to consult with friends and relatives. The

Court stressed the importance of these rights in Hill by reversing a conviction because of a violation of these

rights.


          It is also clear that the conduct of Officer Griffith and Investigator Holl greatly deviated from lawful

conduct. They deliberately ensured that appellant would not be advised of his rights for four hours, during

which time he attempted suicide and made two inculpatory statements. Furthermore, their testimony proved

beyond dispute that their violation was willful. They did not forget to advise appellant of his rights and no

emergency so preoccupied them that they could not have taken a few moments to comply with the statute.

Rather, they deliberately refrained from advising appellant of his rights in compliance with a departmental

policy that violates state law.


          The record also shows that suppression is necessary to deter future violations. It is significant that the

violation in this case did not represent isolated conduct by individual officers. Rather, it represented the official

policy of the Charlotte Police Department. Investigator Holl even testified that officers are trained to follow

this policy. (Tp. 170) When the official policy of the police department of the largest city in the state

commands its officers to violate a clear statutory mandate, this Court must take firm measures to deter future

violations. Suppression is an appropriate deterrent measure in such a case. As this Court observed in State v.

Carter, 322 N.C. 709, 720, 370 S.E.2d 553, 560 (1988), "One of the great purposes of the exclusionary rule is to

impose the template of the constitution on police training and practices."


          Appellant urges this Court to consider an additional reason for suppression, one implied by the first

three factors: when officers deliberately commit a serious violation of an important right, the use of evidence

obtained pursuant to that conduct undermines the integrity of our judicial system. Permitting the use of such

evidence would communicate a message that the courts will condone serious violations of basic rights, thereby
                                                        -43-




undermining the very respect for law that the courts seek to promote. State v. Carter, supra, 322 N.C. at 719,

370 S.E.2d at 559.


            As noted above, evidence obtained in substantial violation of Chapter 15A must be suppressed if it was

obtained as a result of that violation. That is, such evidence must be suppressed if the state would not have

obtained it "but for" the violation. State v. Payne, supra; State v. Allen, supra; State v. Richardson, supra. The

record shows that appellant's letter to the Governor was obtained as a result of the violation of º15A-501(5).

Appellant acknowledges that the violation arguably had no impact on his right to communicate with family and

friends, since appellant wrote that he did not want to be with his family. However, appellant contends that but

for the officers' deliberate failure to advise him of his right to talk to an attorney, he would not have written the

letter to the Governor. The evidence shows that at the time he wrote the letter, appellant was mentally unstable

due to his underlying psychological problems and/or cocaine and alcohol intoxication. His bizarre conduct that

night confirms this point: his crimes against his family and neighbor, his two suicide attempts, and the letter to

the Governor itself. Quite apart from the question of whether appellant was legally insane at the time of the

offenses or even competent to waive his Miranda rights some hours later, his conduct at the times of the

offenses and shortly after his arrest demonstrates his mental instability at the time he wrote the letter. His very

desire to write to the Governor showed his desperate need to communicate about the case with an outsider, with

a person other than family members, friends, or police officers. In his unbalanced mental condition, and in the

absence of advice about his statutory rights, he irrationally chose to communicate with the Governor. Yet

Officer Griffith already should have advised appellant of his statutory right to speak to another such person: an

attorney.


            State v. Curmon, 295 N.C. 453, 245 S.E.2d 503 (1978), is distinguishable. In Curmon, this Court

found no prejudice where the defendant alleged that timely Miranda warnings ommitted advice that appellant

had a right to talk to friends. Here, no timely warnings were given, under either Miranda or º15A-501(5).
                                                       -44-




            Finally, the record also shows that appellant was prejudiced by the introduction of the letter to the

Governor. Appellant raised a voluntary intoxication defense during the guilt-innocence phase, a defense

through which he sought to negate the element of specific intent formed after premeditation and deliberation.

He also submitted mitigating circumstances based upon his mental condition and intoxication at the time of the

murder. His statements in the letter that he was not "crazy" and that his conduct was premeditated gave the

state helpful ammunition to rebut his defense and to rebut the proffered mitigation. See, e.g., Tp. 2342 (closing

argument of one prosecutor, Ms. Shappert). The jury's answers of "yes" to most of the mitigating factors based

upon his mental condition and intoxication do not render the introduction of the letter harmless in regard to his

sentence. Those answers show only that at least one juror found each such factor; they do not show how many

jurors found a given factor. Also, the letter could well have influenced a juror's consideration of those factors in

Issues Three and Four. Consequently, admission of the letter into evidence was prejudicial.




      IV.           THE TRIAL COURT ERRED BY EXCLUDING FROM THE
                    SUPPRESSION  HEARING  TESTIMONY  BY  A   LAW
                    ENFORCEMENT OFFICER ABOUT APPELLANT'S MENTAL
                    STATE NEAR THE TIME APPELLANT MADE CUSTODIAL
                    STATEMENTS.


                    Assignment of Error No. 3 (Rp. 187)



            Under North Carolina law, a nonexpert witness competent to give opinion testimony about a

defendant's mental state if the witness had a reasonable opportunity to observe the defendant and to form an

opinion based upon such observation. State v. McKoy, 323 N.C. 1, 24, 372 S.E.12, 24 (1988), sentence vacated,

494 U.S. 433, 108 L.Ed.2d 369 (1989); State v. Evangelista, 319 N.C. 152, 162, 353 S.E.2d 375, 382-83 (1987).

This rule applies to nonexpert opinions about a defendant's mental capacity to waive Miranda rights. State v.

McKoy, supra. As noted in the previous section, appellant moved to suppress evidence of his custodial

statements and evidence obtained as a result of those statements. During the suppression hearing, appellant

called Lt. G.W. Bradshaw of the Mecklenburg County Sheriff's Department to testify about appellant's mental
                                                              -45-




condition at the time he was brought to the intake center of the jail, less than two hours after Investigators Holl

and Davis had completed their interrogation. Lt. Bradshaw was permitted to describe Mr. Daniels' appearance

and behavior at the intake center. However, the trial court repeatedly sustained the state's objections based upon

relevancy to questions by defense counsel seeking Bradshaw's opinion, as an experienced law enforcement

officer, about Mr. Daniels' mental capacity to waive his Miranda rights voluntarily, knowingly, and

intelligently. (Tp. 224, line 18; Tp. 225, lines 16 and 25; Tp. 226, line 4; Tp. 226, line 18 - Tp. 226, line 3)

Defense counsel then made an offer of proof, which included the following testimony:


                           Q.      Did you form an opinion as to whether or not he could
                           understand those rights on that form?


                           A.       Yes, I did.


                           Q.       What was that opinion?


                           A.      I don't think he at any point in time from the point I saw
                           him, basing my opinion on that, he probably did not understand
                           anything that was going on, basically.


                           Q.       Did you form an opinion whether or not he could
                           voluntarily and intelligently and knowingly waive his rights on that
                           form?


                           A.       I don't think he could.


(Tp. 227).


         The trial court erred by excluding Lt. Bradshaw's opinion testimony about appellant's capacity to under
              8
his rights.       The only stated basis of the prosecutor's objections was relevancy. Yet in State v. McKoy, supra,

this Court relied heavily on the testimony of a law enforcement officer in affirming the trial court's conclusion

that the defendant's Miranda waiver was voluntary. Although Lt. Bradshaw did not see or talk to appellant until

         8
           As will be discussed fully, appellant does not challenge the trial court's ruling with respect to Lt.
Bradshaw's testimony about the legal issue of appellant's capacity to waive his rights.
                                                       -46-




after the interrogation by Investigators Holl and Davis, his contact with appellant occurred so close in time to

the interrogation that it would have shed helpful light on appellant's mental condition at the time of the

interrogation. Moreover, our courts routinely accept testimony by mental health experts about defendants'

mental condition at the time of a custodial statement or at the time of an offense, even though such experts

typically do not see defendants until hours or days after the time of the statement or offense. See, e.g., State v.

Sanchez, 328 N.C. 247, 400 S.E.2d 421 (1991); State v. McKoy, supra; State v. Allen, 322 N.C. 176, 282 S.E.2d

791 (1988). See also Blackburn v. Alabama, 361 U.S. 199, 4 L.Ed.2d 242 (1960). In State v. Misenheimer, 304

N.C. 108, 116, 282 S.E.2d 791, 797 (1981), this Court cited testimony about a defendant's conduct and

psychiatric condition "in the weeks prior to the killing and the confession," and the defendant's statements made

after the interrogation, in affirming the trial court's competency to waive his Miranda rights. In State v. Ross,

297 N.C. 137, 254 S.E.2d 10 (1979), lay witnesses testified about the defendant's conduct and mental condition

a few days before and nearly a full day before his statement. Mental health experts testified about the

defendant's mental condition three days before and three days after the defendant made the statement. The

Court relied on the testimony of those witnesses in ruling that he was incompetent to waive his Miranda rights.

See also State v. Simpson, 314 N.C. 359, 334 S.E.2d 53 (1985) (testimony by lay witnesses about defendant's

behavior 49 hours after offense may have been material to defendant's insanity defense). Thus, state and federal

precedent establish the relevance of Lt. Bradshaw's testimony to the issue of appellant's mental capacity to

waive his Miranda rights.


         Appellant acknowledges that those portions of defense counsel's questions and Lt. Bradshaw's answers

that pertained to appellant's capacity to make a voluntary, knowing, and intelligent waiver of his Miranda rights

were improper because they concerned his opinion about whether a legal standard had been satisfied. However,

the portions of defense counsel's questions and Lt. Bradshaw's answers that expressly pertained to appellant's

capacity to understand his rights were proper because they did not concern an opinion about a legal standard.

This Court's decision in State v. Sanchez, supra, governs this matter. In Sanchez, defense counsel on voir dire

asked a psychologist for his expert opinions about whether the defendant understood his Miranda rights and
                                                     -47-




about whether the defendant could voluntarily, knowingly, and intelligently waive those rights. The witness

answered that the defendant was unable to understand his rights. This Court stated,


                                The State argues that the opinion testimony was
                      inadmissible as a conclusion that a legal standard had not been
                      met, in violation of State v. Rose, 323 N.C. 455, 373 S.E.2d 426
                      (1988). That argument has merit as to the part of the question
                      concerning whether defendant could voluntarily, knowingly, and
                      intelligently waive his Miranda rights. This, of course, did involve
                      a legal standard and if the witness had replied to this part of the
                      question, it would have been properly excluded. However, he
                      confined his answer to defendant's understanding of his Miranda
                      rights and gave certain specific examples such as defendant's
                      ability to understand "right" and "attorney." Therefore, the part of
                      the question dealing with voluntariness is not at issue in this
                      appeal. The testimony at issue involved an opinion as to
                      defendant's mental ability to understand the questions to him
                      during his interrogation and therefore was competent as going to
                      the weight and credit the jury should give to his confession.


Id. at 251, 400 S.E.2d at 424. While Lt. Bradshaw's testimony about appellant's capacity to waive his rights was

inadmissible, his testimony that appellant "probably did not understand anything that was going on . . ." was
                         9
admissible under Sanchez.


         The trial court's refusal to consider Lt. Bradshaw's testimony was erroneous.        Since the ruling

prevented appellant from introducing important evidence about his capacity to understand his rights, this Court

should reverse appellant's conviction.




         9
            Since the dispute over Lt. Bradshaw's testimony arose during the suppression hearing (unlike
Sanchez, where the dispute concerned testimony proffered for introduction before the jury), the trial court
readily could have sifted through the proffered testimony to ignore the inadmissible portions. State v. Davis,
290 N.C. 511, 541, 227 S.E.2d 97, 115 (1976)
                                                         -48-




      V.           THE TRIAL COURT ERRED BY SUSTAINING THE STATE'S
                   OBJECTION TO APPELLANT'S PROPER EFFORT TO REFRESH
                   THE RECOLLECTION OF A KEY STATE'S WITNESS ABOUT HIS
                   PRIOR, PARTIALLY EXCULPATORY STATEMENT.


                   Assignment of Error No. 19 (Rp. 190)



           Officer Thomas Wayne Griffith was a vital prosecution witness. He was the arresting officer who saw

Mr. Daniels at the scene of the fire at 914 Clanton Road, who heard Mr. Daniels' inculpatory statement in the

police car, who discovered the killing of Ms. Crawford, and who received Mr. Daniels' inculpatory letter to the

Governor. During cross-examination of Officer Griffith, defense counsel inquired about Mr. Daniels' mental

state at the time of the arrest. The transcript of that portion of the cross-examination reads as follows:


                       Q.       And after you arrested Mr. Daniels and put him in the car,
                       you talked with your sergeant, who was Sgt. DeLuca. Correct? Or
                       did you?


                       A.       I was instructed by Sgt. DeLuca prior to putting him in
                       my car to take him down.


                       Q.       But you remember talking to Sgt. DeLuca?


                       A.       That's correct, I did.


                       Q.       And you told Sgt. DeLuca that the defendant, Mr.
                       Daniels, was all coked up, didn't you?


                       A.       No, sir, I did not.


                       Q.       You don't remember that conversation?


                       A.      I do not recall saying anything about Mr. Daniels having
                       any coke.


                       Q.      Have you referred to a 911 tape that we were provided
                       from the district attorney's office with regard to statements that
                                                      -49-




                     were recorded between the dispatcher of 911 emergency and the
                     officers who were on the radio that night? Have you reviewed that
                     document?


                     A.        I saw it briefly in the D.A.'s office one day last week.


                     Q.       Let me ask you to look down to this part of the 911 tape,
                     Page 14, and ask you to read that.


                               MR. SHAPPERT:          Objection.


                     Q.      And see if it refreshes your recollection about what I just
                     asked you.


                               THE COURT:             Let me see that.


                               (Paper writing examined by the Court)


                               THE COURT:             Sustained.


                     Q.      Well, are you saying, Officer Griffith, that you never told
                     Sgt. DeLuca that Daniels was all coked up?


                               MR. SHAPPERT:          Objection. Asked and answered.


                               THE COURT:             You may answer.


                     A.       I do not recall ever telling Sgt. DeLuca that the man was
                     all coked up.


(Tpp. 1966-67).


        The relevant portion of the transcript of the 911 tape reads as follows:


                     The time now is 0113.13.


                     OFFICER:      Captain, this is DeLuca.
                                                        -50-




                      DUTY CAPT.:               DeLuca, this is Captain Martin, what can I
                      do for you.


                      OFFICER: Alright [sic], let me tell you what happened. Tommy
                      Griffith had the suspect in the ADW on Clanton, he refused
                      treatment after stating he was losing conscious [sic] and a little bit
                      combative, nothing out of the ordinary and he is coked up, okay.
                      On the way to the jail he told Tommy Griffith he says that he need
                      [sic] to swing by West Blvd., somewhere over by West Blvd. he
                      said . . . .


                                                10
(911 tape transcript, p. 14) (emphasis added)


         Appellant submits that the trial court erred by sustaining the state's objection to defense counsel's

proper effort to refresh Officer Griffith's recollection. Our law provides that if a witness cannot recall a fact

about which he is questioned, the witness' memory can be refreshed by showing him or her an item, including a

document, that might refresh such memory. State v. Corn, 307 N.C. 79, 296 S.E.2d 261 (1982); State v. Royal,

300 N.C. 515, 268 S.E.2d 517 (1980); State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977). If the stimulus

succeeds in refreshing the witness' memory, the testimony then comes from the witness' memory, not from the

stimulus itself. State v. Corn, supra. See generally 1 Brandis on North Carolina Evidence º32 (3rd ed. 1988).

A party may use a writing made by someone other than the witness to refresh the witness' recollection. State v.

Royal, supra; State v. Smith, supra; 1 Brandis on North Carolina Evidence, supra º32 at 155.


         In this case, defense counsel's effort to use the transcript of the 911 tape to refresh Officer Griffith's

recollection came squarely within the rule permitting a party to refresh a witness' recollection. Officer Griffith

did not deny that he had told Sgt. DeLuca that Mr. Daniels was "coked up" at the time of his arrest. Rather, he

said that he did not "recall" saying that to Sgt. DeLuca. As shown above, the transcript of the 911 tape includes

a conversation in which Sgt. DeLuca reported facts told to him by Officer Griffith. The context of DeLuca's

report demonstrated that it most probably was Officer Griffith who told DeLuca that Mr. Daniels was "coked




         10
             Appellant has filed and served a Motion to Amend the Record on Appeal to include this portion of
the 911 tape transcript -- from the page shown to the trial court -- in the Record on Appeal.
                                                        -51-




up." Since Griffith did not recall a fact about which the 911 tape transcript provided evidence, it was entirely
                                                                                                  11
proper for defense counsel to try to refresh his recollection by showing the transcript to him.


           The importance of Officer Griffith's testimony renders the trial court's error prejudicial. Mr. Daniels'

mental state at the time of the offenses was a crucial issue during both the guilt-innocence phase and the penalty

phase of the trial. Testimony based on the 911 transcript could have been helpful in the jury's consideration of

the circumstances of appellant's waiver of Miranda rights and in the jury's consideration of the reliability and

weight of appellant's inculpatory statements to police officers. See State v. Hester, 330 N.C. 547, 411 S.E.2d

610 (1992); State v. Sanchez, 328 N.C. 247, 400 S.E.2d 421 (1991). Voluntary intoxication from alcohol or

drugs was a mitigating defense during the guilt-innocence phase, as the trial court instructed the jury. (Tp. 2373;

Rp. 86) The jury's verdict on premeditated and deliberate first-degree murder (Rp. 125) shows at a minimum

that the evidence that was introduced about Mr. Daniels' intoxication did not suffice to negate the element of

specific intent in this jury's eyes. If the 911 transcript had refreshed Officer Griffith's memory, his testimony

might well have tipped the scales in appellant's favor on voluntary intoxication. Testimony by Officer Griffith

that Mr. Daniels seemed to be "coked up" at the time of his arrest would have added strong support to Mr.

Daniels' claim of voluntary drug intoxication. None of the arresting or investigating officers testified that Mr.

Daniels seemed to be intoxicated. Diane and Maurice Daniels and Glenn Funderburke testified that Mr. Daniels

was acting oddly when he assaulted them, but none of them expressly said that he acted under the influence of
           12
cocaine.        Testimony by an experienced law enforcement officer that Mr. Daniels appeared to be "coked up" at

the time of his arrest would have given substantial credence to Mr. Daniels' claim of voluntary cocaine and

alcohol intoxication at the time of the killing (only a short time earlier) and at the time of his statements to

police officers.




           11
              Even if Griffith's testimony that he did not recall making the statement to DeLuca is deemed to be a
denial rather than a failure to remember, it was proper for defense counsel to show Griffith the relevant portion
of the transcript as a step in impeaching Griffith with the use of a prior inconsistent statement.
          12
              Diane Daniels testified that appellant used cocaine shortly before he assaulted her, but she did not
explicitly say that he was acting under the influence of cocaine when he assaulted her.
                                                         -52-




            Voluntary drug intoxication also was relevant to the mitigating circumstance that Mr. Daniels had

impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the law. (Rp. 159)

Although at least one juror found this mitigating circumstance, the record does not show how many jurors found

it. (Rp. 159) Moreover, the evidence of intoxication that was introduced did not alter the jury's findings under

Issues Three and Four in the penalty phase. (Rp. 163)              The jury's findings and consideration of that

circumstance could well have changed in appellant's favor if Griffith had been permitted to testify in light of a

refreshed memory.


            In sum, the trial court erred by prohibiting defense counsel from refreshing Officer Griffith's

recollection about whether he had reported that appellant was "coked up" at the time of the arrest. Since that

error was prejudicial, appellant's convictions for first-degree murder and assault against Diane Daniels with a

deadly weapon with intent to kill inflicting serious injury should be reversed and his sentence should be
            13
reversed.




      VI.           THE TRIAL COURT ERRED BY GRANTING THE STATE'S
                    MOTION TO EXCLUDE TESTIMONY BY AN ATTORNEY WHO
                    PRACTICED IN THE SAME OFFICE AS ONE OF APPELLANT'S
                    ATTORNEYS AND BY DENYING DEFENSE COUNSEL'S MOTION
                    TO WITHDRAW, WHERE NO OTHER WITNESS COULD HAVE
                    TESTIFIED ABOUT THE SAME IMPORTANT MATTER.


                    Assignment of Error No. 27 (Rp. 192)
                    Assignment of Error No. 28 (Rp. 192)



            Rule 5.2 of the Rules of Professional Conduct of the North Carolina State Bar provides that a party's

attorney generally may not testify as a witness. This disqualification applies to the attorney and to other


            13
              Since specific intent to kill is an element of this assault offense as well as an element of first-degree
murder after premeditation and deliberation, the voluntary intoxication mitigating "defense" applies to the
assault offense, too. Accordingly, the error is also prejudicial as to that charge. Also, since specific intent to
steal is an element of common law robbery, which was the predicate felony for first-degree murder (Tp. 2374;
Rp. 87), voluntary intoxication applies to that charge and the error is prejudicial as to that charge, too.
                                                       -53-




members of the attorney's firm or office. Although Rule 5.2 lists certain exceptions to this prohibition, none of

the listed exceptions applies to this case. However, in State v. Simpson, 314 N.C. 359, 334 S.E.2d 53 (1985),

this Court established an additional exception: an attorney may testify as a witness if the attorney is the only

person available who can testify about the information in question. This exception is vital for protecting a

criminal defendant's right under the North Carolina and United States Constitutions to present witnesses on his

or her behalf. North Carolina Constitution, Art. I, º23; United States Constitution, Amendments VI and XIV

(Compulsory Process and Due Process Clauses). See also Washington v. Texas, 388 U.S. 14, 18 L.Ed.2d 1019

(1967) (exclusion of evidence, under state statute rendering evidence incompetent, held to violate Compulsory

Process Clause). Moreover, the Simpson exception is particularly important in a capital case, where the Eighth

Amendment requires enhanced reliability (Johnson v. Mississippi, 486 U.S. 578, 100 L.Ed.2d 575 (1988); Zant

v. Stephens, 462 U.S. 862, 77 L.Ed.2d 235 (1983)), and where the Due Process Clause of the Fourteenth

Amendment entitles a capital defendant to introduce reliable evidence otherwise barred by state law rules of

evidence. See Green v. Georgia, 442 U.S. 95, 60 L.Ed.2d 738 (1979) (per curiam); State v. Barts, 321 N.C.

170, 362 S.E.2d 235 (1987).


         The Simpson exception applies to this case. As the record shows, one of Mr. Daniels' attorneys at trial

was Grady Jessup, an Assistant Public Defender in the Office of the Public Defender of Mecklenburg County.
                                                                                                         14
The witness in question, Isabel Scott Day, was (and is) the Public Defender of Mecklenburg County.            As

shown by the offer of proof, Ms. Day would have testified that she first saw Mr. Daniels on January 18, 1990 at

8:15 or 8:20 a.m. in the intake center of the jail. She tried to talk to him. However, she said,




         14
              Appellant agrees that under the principle of imputed disqualification -- and apart from the
application of the Simpson exception and the question of Mr. Jessup's authority to withdraw as counsel -- any
prohibition as to testimony by Assistant Public Defender Jessup under Rule 5.2 would apply to Mr. Jessup's
supervisor, Public Defender Day.
                                                      -54-




                       "[h]e was unresponsive to most of my questions. He was shaking
                       very much, very visibly. He -- I don't remember his ever having
                       eye contact with me. He looked at the ground most of the time.
                       He looked at a distance; he looked at the ceiling."


(Tp. 2253) Ms. Day added,


                       He didn't respond to my questions. I had to ask him questions
                       several times. Very little of the time that I was talking to him did
                       he ever respond to me with words. Sometimes with gestures.
                       Very few times did he directly answer any questions.


(Tp. 2254)


         Ms. Day said that Mr. Daniels did not appear to know what was happening or what he was charged

with. She continued,


                       . . . I asked him kind of what -- and I'm not sure of my exact words
                       -- but kind of what had happened. He didn't respond. I asked him
                       if anyone had been hurt, and he said, "I think my wife was hurt." I
                       asked him whether anyone else had been hurt. I had to ask those
                       questions several times, but I got from him that no one else had
                       been hurt. That he thought his wife had been hurt.


(Tp. 2254) Ms. Day then prepared and submitted with a judge a motion to commit Mr. Daniels immediately to

Dorothea Dix Hospital for a psychiatric evaluation concerning his capacity to proceed. (Tpp. 2254-55)


         Ms. Day also contrasted Mr. Daniels' demeanor at trial with his demeanor when she saw him after his

arrest on January 18. She saw him for several hours and spoke to him in court during the trial and noticed that

he responded to her, that he looked her in the eye, and that he was alert. (Tp. 2253)


         In Simpson, this court upheld a trial court's refusal to permit a defendant to call as witnesses a

prosecutor who represented the state at the defendant's intital appearance and the district court judge who

presided over the initial appearance. The defendant had raised an insanity defense and sought to examine the

prosecutor and the judge about their observations of his behavior during the initial appearance, which was

conducted about two days after the alleged offense. This Court explained that the defendant did not show that
                                                     -55-




there were no other available witnesses who noticed his behavior in the courtroom during the initial appearance,

such as the deputy clerk or the bailiff.


         This case is distinguishable from Simpson. The offer of proof shows that Ms. Day had a unique

perspective on Mr. Daniels' mental state on the morning of January 18 and a unique opportunity to compare his

mental state that day with the mental state the jury could observe at trial. Although Lt. Bradshaw gave some

testimony that was consistent with Ms. Day's testimony, he had only brief contact with appellant and did not

speak with appellant at any length. Ms. Day spent an extended period of time with Mr. Daniels on January 18,

she spoke with him at great length, and her description of his mental state was more detailed. In addition, Lt.

Bradshaw merely followed orders and policy in seeking Ms. Day's cooperation. The independent decision of

Ms. Day, an experienced public defender, to seek a competency evaluation after her interview of Mr. Daniels

would have added substantial weight and credibility to the defense claim that he was suffering from a serious

psychiatric disturbance on the morning of January 18. Her testimony also illustrated and corroborated Dr.

Bolinsky's testimony about the withdrawal and depression that occur in the final stage of cocaine intoxication

and, therefore, would have supported the defense claim of voluntary cocaine intoxication.          Finally, her

testimony could have given the jury valuable information about Mr. Daniels' mental state close to the time of

his inculpatory statements and, as defense counsel noted, it would have rebutted prosecution testimony that Mr.

Daniels' demeanor at trial was the same as his demeanor at the time of his arrest and statements. Lt. Bradshaw

did not observe Mr. Daniels in the courtroom at trial for any significant period of time, so he lacked Ms. Day's

opportunity to compare Mr. Daniels' condition on January 18 with his condition at trial. Thus, in barring Ms.

Day's testimony, the trial court prevented the jury from hearing a key perspective on Mr. Daniels' mental state

near the time of his offense, arrest, and statements. The trial court erred by ruling that the Simpson exception

did not apply.


         Assuming arguendo that the Simpson exception was not applicable, the trial court nevertheless erred

by denying Mr. Jessup's motion to withdraw as counsel. (Tp. 2257-58, 2261) Since Mr. Daniels was an

indigent capital defendant, two attorneys -- Mr. Williams and Mr. Jessup -- were appointed to represent him
                                                        -56-




pursuant to N.C. Gen. Stat. º7A-450(b1). A faithful reading of the entire transcript shows that Mr. Williams

was lead counsel. When Mr. Jessup moved to withdraw, the trial court did not consult either Mr. Daniels or Mr.

Williams about their position on Mr. Jessup's motion. The trial court simply denied the motion, without

explanation. If the trial court had granted the motion, Ms. Day would have been able to testify. By denying the

motion, the trial court prevented the defense from avoiding the disqualification of Ms. Day as a witness.


         The trial court's denial of the motion to withdraw was erroneous. Ordinarily, a motion to withdraw as

counsel is committed to the trial court's sound discretion, subject to review only for abuse of discretion. State v.

Hutchins, 303 N.C. 321, 336, 279 S.E.2d 788, 798 (1981). However, in Hutchins, this Court also ruled that a

trial court's ruling is subject to appellate review as a matter of law upon a showing of a violation of a

defendant's Sixth Amendment right to effective assistance of counsel. Id. Appellant submits that the situation

in this case is analogous to that exception noted in Hutchins: Mr. Jessup explained that he was moving to

withdraw solely because of the trial court's exclusion of Ms. Day's testimony; he asked to withdraw only to

avoid her disqualifications as a witness and, thereby, to permit her to testify on appellant's behalf. Just as a trial

court's denial of a motion to withdraw is fully reviewable on appeal as a matter of law if it violates a defendant's

constitutional right to effective assistance of counsel, so a denial of a motion to withdraw should be fully

reviewable if it conflicts with a defendant's constitutional right to present evidence on his own behalf.


         The trial court's denial of the motion to withdraw was erroneous as a matter of law. It is significant

that if the trial court had granted the motion, Mr. Daniels still would have had one attorney; as noted above, lead

counsel, Mr. Williams, would have remained as his attorney. Thus, this case is not controlled by decisions

affirming a trial court's denial of a motion to withdraw in which the purpose of the motion was to seek

replacement counsel. See, e.g., State v. Hutchins, supra. Also, as this Court suggested in State v. Hicks, 323

N.C. 574, 580, 374 S.E.2d 240, 244 (1988), a defendant has a Sixth Amendment right to waive representation of

counsel (see Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562 (1975) and similarly, should have the right to

waive the statutory benefit of assistant counsel under N.C. Gen. Stat. º7A-450(b1). Cf. State v. Brown, 325

N.C. 427, 428, 383 S.E.2d 910 (1989) ("Assuming, without deciding, that a defendant in a capital trial may
                                                       -57-




waive the right to assistant counsel, he may do so only 'if the waiver is made knowingly and intelligently'").

This case is distinguishable from State v. Brady, 16 N.C. App. 555, 192 S.E.2d 640 (1972), cert. denied and

appeal dismissed, 282 N.C. 582, 193 S.E.2d 745 (1973), where the Court of Appeals upheld a trial court's denial

of an attorney's motion to withdraw to permit him to testify on his client's behalf. In Brady, the withdrawal of

the defendant's only attorney (Id. at Rp. 2) clearly would have disrupted the trial, possibly requiring a mistrial.

Here, if Mr. Daniels had consented to Mr. Jessup's withdrawal after inquiry by the trial court, no disruption

need have occurred.


         This case is not governed by decisions affirming a trial court's denial of a motion to withdraw in which

a defendant has failed to show any problem that would hinder counsel from providing an adequate and proper

defense. See, e.g., State v. Kuplen, 316 N.C. 387, 343 S.E.2d 793 (1986). In this case, Mr. Jessup mentioned a

clear, specific reason for the motion: his continued representation of appellant would (and did) prevent

appellant from introducing testimony that appellant considered to be of vital importance to his own defense.

The importance of Ms. Day's testimony distinguishes this case from State v. Howell, 59 N.C. App. 184, 296

S.E.2d 321, review denied, 307 N.C. 271, 299 S.E.2d 218 (1982), in which the Court of Appeals upheld a trial

court's denial of an attorney's motion to withdraw, explaining that the proposed subject of the attorney's

testimony was collateral.


         Even if this Court decides to review the trial court's action as a discretionary matter, the record shows

that the trial court's decision amounted to an abuse of discretion. In light of the conflict between Mr. Jessup's

continued representation of appellant and appellant's constitutional right to present evidence, the trial court

erred by denying the motion to withdraw summarily, without even asking appellant whether he knowingly and

intelligently wished to waive his statutory right to assistant counsel. See State v. Kuplen, supra; State v.

Hutchins, supra (trial court has duty to conduct hearing about basis of motion to withdraw). The trial court also

did not state any reasons for denying the motion. It is further significant that Mr. Jessup's motion to withdraw

was readily foreseeable. Ms. Day was listed as a potential witness on the witness list submitted before trial by

the defense. Indeed, Ms. Day testified as a defense witness during the suppression hearing. In addition, the
                                                         -58-




state filed a written motion in limine to bar Ms. Day's testimony. Thus, the trial court had ample advance notice

of a likely conflict between Rule 5.2 and appellant's constitutional right to present evidence. The trial court

could have ruled on the admissibility of Ms. Day's testimony earlier, thereby facilitating an earlier resolution of

Mr. Jessup's status.


            In summary, the trial court erred or, in the alternative, abused its discretion by granting the state's

motion in limine and by denying Mr. Jessup's motion to withdraw. In view of the importance of Ms. Day's

proffered testimony, this error entitles appellant to a new trial.




     VII.           THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE
                    JURY THAT A KILLING COMMITTED DURING A QUARREL IS
                    NOT   COMMITTED     AFTER   DELIBERATION,  DESPITE
                    APPELLANT'S TIMELY REQUEST FOR SUCH AN INSTRUCTION
                    AND THE TRIAL COURT'S AGREEMENT TO GIVE SUCH AN
                    INSTRUCTION.


                    Assignment of Error No. 35 (Rp. 193)



            In State v. Misenheimer, 304 N.C. 108, 114, 282 S.E.2d 791, 795-96 (1981), this Court stated that if a

defendant forms the specific intent to kill during and under the influence of a quarrel or struggle, then such

specific intent is not formed after deliberation. In such a case, then, the element of deliberation is not present.

See also State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981). The record in this case shows that appellant

submitted a written request for a jury instruction to explain this principle to the jury. (Rp. 76) Appellant

requested such an instruction even more specifically during the guilt/innocence phase charge conference. (Tpp.

2328-29) The trial court agreed to give an instruction incorporating the substance of that principle. (Tp. 2329)

However, a review of the guilt/innocence phase jury instructions on first-degree murder shows that the trial

court did not so instruct the jury. (Tpp. 2370-74, Rpp. 83-87) Defense counsel objected to the instructions on

deliberation after the trial court completed its guilt-innocence phase instructions. (Tp. 2390)
                                                       -59-




         The trial court's failure to give the requested and promised instruction on deliberation was erroneous.

As this Court has ruled, a defendant is entitled to have a trial court give a requested instruction that correctly

states the applicable law if it is factually supported by the record. State v. Fullwood, 323 N.C. 371, 373 S.E.2d

518 (1988), death sentence vacated, 108 L.Ed.2d 602 (1990). While the trial court need not use the identical

language proposed by a defendant, it must give the substance of such a requested instruction. State v. Allen,

322 N.C. 176, 367 S.E.2d 626 (1988). As explained above, the requested instruction correctly stated the law

under Misenheimer and Corn. Further, the only evidence about the circumstances of the killing -- Mr. Daniels'

statement to Investigators Holl and Davis -- established that Mr. Daniels killed his aunt during a dispute over

his request to have his wife and son stay with her and specifically after she said she was going to telephone Ms.

Daniels' mother. As Investigator Davis admitted, nothing in Mr. Daniels' statement indicated that Mr. Daniels

intended to commit any crime against his aunt when he went to her house. Thus, the only evidence about the

circumstances in which Mr. Daniels killed his aunt proved that if he did form the specific intent to kill her, he

did so during a dispute and not after deliberation. Accordingly, the evidence plainly supported appellant's

request for an instruction to explain the Misenheimer/Corn principle.


         Although the trial court promised to give an instruction incorporating the substance of appellant's

requested Misenheimer/Corn instruction, it did not give such an instruction.            The only instruction on

deliberation that was remotely similar to the Misenheimer principle was the standard instruction on deliberation

that


                       [i]f the intent to kill was formed with a fixed purpose, not under
                       the influence of some suddenly aroused violent passion, it is
                       immaterial that the defendant was in a state of passion or excited
                       when the intent was carried into effect.


(Tp. 2373, Rp. 86; Tp. 2406, Rp. 119) The trial court's reference to "some suddenly aroused violent passion"

was far less specific and far less clear than the requested instruction that deliberation does not include specific

intent formed during a quarrel or struggle. The phrase "suddenly aroused violent passion" is unsuitably vague,

especially in comparison to the Misenheimer language that was directly and precisely relevant to the
                                                         -60-




prosecution's own evidence about the circumstances of the killing. That is, only the requested instruction would

direct the jury's attention to the relevant factual context for considering the timing of the formation of specific

intent. Cf. State v. Groves, 324 N.C. 360, 373, 378 S.E.2d 763, 771 (1989).


         In considering the prejudice resulting from the error, it is important to appreciate that one part of the

first-degree murder instruction given by the trial court aggravated the failure to give a Misenheimer/Corn

instruction. In defining premeditation and deliberation, the trial court told the jury that these elements "may be

proved by proof or circumstances from which they may be inferred such as lack of provocation by the victim. . .

." (Tp. 2373, Rp. 86; Tp. 2407, Rp. 120) (emphasis added) This portion of the first-degree murder instruction
                       15
was itself erroneous        and amplified the harm resulting from the trial court's failure to give a

Misenheimer/Corn instruction. As noted above, the only evidence about the circumstances of the killing came

from appellant's statements to police officers, and evidence showed that Mr. Daniels attacked his aunt only

when she said she was going to telephone his mother about his request to have his wife and son stay with Ms.

Crawford. Although her conduct does not constitute "adequate provocation" sufficient to support a verdict of

voluntary manslaughter, it nevertheless was provocative. In other words, no evidence supported the instruction

about lack of provocation. As this Court has stated, it is erroneous for a trial court to give an instruction not

supported by the record. .i.State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975);. Moreover, by giving the

unfounded "lack of provocation" instruction, the trial court compounded its failure to give a

.i.Misenheimer/Corn; instruction: instead of instructing the jury not to find deliberation if the jury found that

the specific intent to kill arose during appellant's quarrel with his aunt, the trial court instructed the jury to find

deliberation if it found a lack of provocation. The trial court, then, substituted a prejudicially suggestive

instruction not based on the record for a proper instruction that would have been based on the record.


         In light of the trial court's failure to give appellant's requested instruction on deliberation this Court

should reverse appellant's conviction for first-degree murder based on premeditation and deliberation.

         15
             Since appellant did not object to the instruction on "lack of provocation," the error in giving that
instruction would be reviewed under the plain error standard. Appellant will not separately argue that that
instruction was plain error.
                                                        -61-




    VIII.           THE TRIAL COURT ERRED BY INSTRUCTING THE JURY ON
                    THE THEORY OF FELONY-MURDER, WHERE THE EVIDENCE
                    OF THE PREDICATE FELONY OF COMMON LAW ROBBERY
                    WAS INSUFFICIENT.


                    Assignment of Error No. 24 (Rp. 191)



            Evidence is sufficient to support a conviction if a rational juror could have found defendant guilty

beyond a reasonable doubt. State v. Sumpter, 318 N.C. 102, 347 S.E.2d 396 (1986). In reviewing the

sufficiency of evidence of guilt, the Court will consider the evidence in the light most favorable to the state and

the state is entitled to the benefit of every factual inference that can reasonably be drawn from the evidence.

State v. Leroux, 326 N.C. 368, 390 S.E.2d 314 (1990). However, the state's evidence on an essential element of

an offense must be real and substantial, not just speculative. Moreover, evidence does not satisfy the standard

of substantiality if it merely arouses suspicion or conjecture about an element, even strong suspicion. State v.

Reese, 319 N.C. 110, 353 S.E.2d 362 (1987) (evidence insufficient where it created only suspicion of

premeditation and deliberation); State v. Moore, 312 N.C. 607, 324 S.E.2d 229 (1985) (evidence insufficient

where it created only suspicion of defendant's identity as thief of wallet stolen during or after defendant's sexual

assault on victim); State v. Byrd, 309 N.C. 133, 305 S.E.2d 724 (1983) (evidence insufficient where it created

only suspicion of defendant's identity as assailant); State v. Scott, 296 N.C. 519, 251 S.E.2d 414 (1979)

(evidence insufficient where it created only suspicion of defendant's identity as murderer). In this case the

evidence of the predicate felony of common law robbery, and therefore, of felony-murder, was insufficient

because no evidence showed that appellant took the wallet or money from Ms. Crawford's person or presence

and the evidence showed that the theft was a mere afterthought. In this case, the evidence of common law

robbery was merely speculative and, therefore, the evidence was insufficient to support a guilty verdict on that

charge or on the felony-murder charge.


            As set forth above in the Statement of the Facts, the evidence, seen in the light most favorable to the

state, shows as follows: On January 17, 1990, Mr. Daniels was having difficulty paying bills and he was afraid

that he and his family would lose their house. He visited his aunt that day to ask her to allow Diane and
                                                       -62-




Maurice to stay with her. He also intended to ask his aunt for money. Appellant's statement to Investigators

Davis and Holl was the only direct evidence of his reason for visiting his aunt that day. Investigator Davis

admitted that nothing in that statement showed that appellant intended to commit any crime against his aunt

when he went to her house that day. (Tpp. 2023-24)


         After he arrived at Ms. Crawford's house, he asked her to let Diane and Maurice stay with her and he

asked her for money. However, Ms. Crawford said she was going to call her mother. Appellant did not begin

his assault against his aunt until, in response to his request to allow Diane and Maurice to stay with her, she said

she was going to telephone appellant's mother and until she denied his request not to call his mother. Only then

did he begin his fatal attack.


         At some unspecified point after he had killed his aunt, appellant picked up her pocketbook from an

unspecified location in the house and removed a wallet with $70 to $80. He left the house, disposed of the

wallet near a fence, and bought cocaine at a nearby motel. Appellant told Investigators Holl and Davis, "'I don't

know why I killed her. Bills set me off. My old lady has got bills. I tried to kill my lady.'" (Tp. 2001)

(emphasis added) Appellant also said, "'I should have killed [Diane]. I don't know why I took it out on my

aunt.'" (Tp. 2006) (emphasis added) The house was neat, not ransacked, and no other items were reported

missing. The police later found the pocketbook near the dining room.


          The evidence also does not show where the pocketbook was when appellant removed the wallet and

money or how long after the killing he removed those items from the pocketbook. Thus, the evidence does not

show that the wallet and money were taken from Ms. Crawford's person or presence. The evidence also shows

that appellant took the wallet and money only as an afterthought after he had killed his aunt. Even Investigator

Holl admitted that no evidence showed when appellant took the wallet and money and that appellant could have

taken the wallet and money as an afterthought. (Tp. 2177) Appellant attacked and killed his aunt only because

his frustration and anger about his financial problems and his wife reached a violent flash point when Ms.

Crawford said she was going to call his mother about his request to let Diane and Maurice stay with her. He
                                                        -63-




killed her out of frustration and anger, not to steal her wallet or money. This understanding of appellant's

homicidal conduct is confirmed by his assaults against Diane, Maurice, and his neighbor, Glenn Funderburke,

later that night. He clearly committed those assaults out of anger and frustration -- the same reason he killed his

aunt -- not to steal property.


         The evidence that appellant asked his aunt for money does not give rise to a rational inference that he

killed her to obtain money. The evidence shows that he killed her out of irrational and displaced rage. Any

conclusion that his request for money shows that he killed her to obtain money amounts to mere speculation

rather than upon a rational inference from the evidence. His decision to take his aunt's wallet and money, then,

was an afterthought and not a reason for killing her.


         In State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980), the defendant was convicted of first-degree

murder in the perpetration of first-degree rape and armed robbery. The evidence showed that the defendant

possessed the victim's television set and car after the killing. This Court held that there was insufficient

evidence to support submission of the armed robbery charge. The Court explained that the evidence did not

show that the defendant had taken the property from the victim's presence and that the evidence showed "only

that the defendant took the objects as an afterthought once the victim had died." Id. at 102, 261 S.E.2d at 119.


         Powell governs this case.      Here, too, there was no evidence of the pocketbook's location when

appellant removed the wallet and money. Accordingly, the evidence was insufficient to show that appellant

took the wallet or money from his aunt's person or presence. Here, too, the evidence shows that the theft was an
                                                 16
afterthought and not a reason for the killing.


         Appellant notes that the Court's decisions in State v. Faison, 330 N.C. 347, 411 S.E.2d 143 (1991) and

State v. Green, 321 N.C. 594, 365 S.E.2d 587, cert. denied, 488 U.S. 900, 102 L.Ed.2d 235 (1988), are

distinguishable. In both of those cases, the Court held that in assessing the sufficiency of robbery committed


         16
             Appellant does not contend that after the killing, Ms. Crawford was no longer a person under the
robbery statute. See State v. Pakulski, 319 N.C. 562, 356 S.E.2d 319 (1987).
                                                         -64-




after a killing, it is immaterial whether the defendant decided to steal property before or after killing the victim

as long as the theft and force are aspects of a single transaction. In this case, as in Powell, however, appellant

does not rest his sufficiency argument solely on the claim that the theft was an afterthought. Rather, here, as in

Powell, the evidence that the property was taken from the victim's person or presence is insufficient because the

evidence did not show that the property was taken from the victim's person or presence and because the theft

was an afterthought. That is, the timing of a defendant's intent to steal is relevant in considering whether

property was taken from a victim's person or presence.


         Since the evidence of common law robbery was insufficient, the evidence of felony-murder relying

upon common law robbery as the predicate felony was also insufficient. Consequently, the Court should
                                                    17
reverse appellant's conviction for felony-murder.


       PENALTY PHASE ISSUES    IX.   THE TRIAL COURT ERRED BY OVERRULING
              APPELLANT'S   OBJECTION    TO    TESTIMONY   BY   A
              PROSECUTION PSYCHIATRIC EXPERT ABOUT APPELLANT'S
              MENTAL STATE AT THE TIME OF THE OFFENSES, WHERE THE
              WITNESS ADMITTED THAT SHE HAD NOT INTERVIEWED
              APPELLANT HIMSELF.


                  Assignment of Error No. 40 (Rp. 194)



         The first prosecution witness during the penalty phase was Dr. Cynthia White. White is a psychiatrist

from Washington, D.C. whose courtroom experience as a psychiatric expert witness had been limited to a few

cases involving evaluations of airline pilots for the Federal Aviation Administration. White admitted that she

had prepared her evaluation of Mr. Daniels without ever speaking to Mr. Daniels himself. She said that she

based her evaluation entirely on her review of his hospital records and conversations with Dr. Groce, Diane

Daniels, a military supervisor, and a fellow employee (or an employer) of Mr. Daniels. In this case, the

testimony of Dr. White was beyond even the expansive pale of Rule 703 and was unfairly prejudicial under


         17
             As noted above in the State of the Case, the trial court arrested judgment on the common law
robbery charge.
                                                        -65-




Rule 403. The information on which she relied to make a detailed diagnosis of appellant was not of the type

reasonably used by psychiatrists to make reliable diagnoses. The trial court erred, therefore, by overruling

appellant's objections to her testimony.


         Appellant acknowledges that under N.C. Gen. Stat. º8C-1, Rule 703, an expert may base an opinion on

inadmissible facts if they are "of a type reasonably relied upon by experts in the particular field in forming

opinions or inferences upon the subject. . . ." Pursuant to Rule 703, this Court has permitted expert witnesses to

base their opinions on inadmissible hearsay information. See generally Donovant v. Hudspeth, 318 N.C. 1, 26,

347 S.E.2d 797, 812 (1986); State v. Smith, 315 N.C. 285, 337 S.E.2d 833, 849 (1985). However, Rule 703

does not permit an expert to base an opinion on inadmissible facts if the record does not show that experts in the

particular field reasonably rely on such facts (Hamilton v. Hamilton, 93 N.C. App. 639, 644, 379 S.E.2d 93, 95

(1989)), or if the source of the facts is not reliable. Donovant v. Hudspeth, supra, 318 N.C. at 26, 347 S.E.2d at

812.


         This Court has properly permitted psychiatrists to give opinion testimony in criminal cases about a

defendant's state of mind based upon the witness' personal interviews with the defendant plus otherwise

inadmissible hearsay information. See, e.g., State v. Mize, 315 N.C. 285, 337 S.E.2d 562 (1985); State v.

DeGregory, 285 N.C. 122, 203 S.E.2d 794 (1974). However, appellant has not found any criminal case in

which this Court or the Court of Appeals has permitted a psychiatrist to give an opinion about a defendant's

mental state based solely on otherwise inadmissible hearsay, without ever having interviewed the defendant.


         In light of the nature of psychiatric evaluation and the importance of ensuring reliable psychiatric

evaluations in criminal cases -- especially in capital cases -- appellant urges this Court to hold that a psychiatrist

in a criminal case (or at least in a capital case) may not rely solely on hearsay information to form an opinion,

about a defendant's mental state, without personally interviewing the defendant, because such reliance does not

constitute "reasonable reliance" under Rule 703. A psychiatric evaluation is unique. Unlike the medical

evaluations at issue in Donovant and Smith, it does not stem from observable, objectively verifiable physical
                                                       -66-




conditions. Rather, a psychiatric evaluation entails a thorough, partly subjective probing of the complex, inner

operation of the human mind and heart. As Dr. Bolinsky testified, it is not reasonable for a psychiatrist to make

a psychiatric diagnosis of a person without ever interviewing the person.


         The American Psychiatric Association (APA) has also strongly criticized the offering of a psychiatric

opinion without conducting a personal interview of the patient or defendant. As the APA explained, in

criticizing the related practice of offering diagnoses based upon hypothetical questions,


                       [S]uch a diagnosis simply cannot be made on the basis of a
                       hypothetical question. Absent an in-depth examination and
                       evaluation, the psychiatrist cannot exclude alternative diagnoses;
                       nor can he assure that the necessary criteria for making the
                       diagnosis in question are met. As a result, he is unable to render a
                       medical opinion with a reasonable degree of certainty.


                                                       ...


                       It is inconceivable that the record in a criminal case can contain the
                       type of diagnostic data needed to construct a hypothetical that
                       would allow rendering of a valid psychiatric opinion concerning
                       antisocial personality disorder or related illnesses.


Amicus Curiae Brief for the American Psychiatric Association at 9, 25, Barefoot v. Estelle, 463 U.S. 880, 77

L.Ed.2d 1090 (1983) (quoted in American Bar Association, Criminal Justice Mental Health Standards º7-3.11,

at 137 n.12); accord American Psychiatric Association, Principles of Medical Ethics with Annotations

Especially Applicable to Psychiatry, º7, annotations 3 and 4 (1981) (discussed in American Bar Association,

Criminal Justice Mental Health Standards, supra, º7-3.11, at 137 n.10)


         The American Bar Association's Criminal Justice Mental Health Standards also condemn the practice

of offering psychiatric opinions in a criminal case without having interviewed a defendant. Standard 7-

3.11(a)(iii) provides that


                       no witness should be qualified by the court to present expert
                       opinion testimony on a person's mental condition unless the court
                                                         -67-




                       determines that the witness . . . has performed an adequate
                       evaluation, including a personal interview with the individual
                       whose mental condition is in question, relevant to the legal and
                       clinical matter[s] upon which the witness is being called to testify.


American Bar Association, Criminal Justice Mental Health Standards, supra, º7-3.11 at 131-22 (emphasis

added). As the ABA has explained, "The position of the Association expressed in subparagraph (a)(iii) is that a

personal interview with the subject of expert testimony must be a prerequisite to qualification as a mental health

or mental retardation expert witness." Id. at 136. See also Hyler, Williams & Spitzer, Reliability in the DSM-

III Field Trials, 39 ARCHIVES GEN. PSYCHIATRY 1275 (1982) (study showing that reliability of major

diagnostic classes of DSM-III was higher when diagnoses were made from live interviews than when they were

based on case summaries) (cited in American Bar Association, Criminal Justice Mental Health Standards,

supra, º7-3.1, at 138 n.16); Diamond & Louisell, The Psychiatrist as an Expert Witness: Some Ruminations

and Speculations, 63 MICH. L. REV. 1335, 1347 (1965).


         Other courts have agreed with the position of taken by the ABA and APA that such testimony is

unreliable. United States v. Albright, 388 F.2d 719, 725 (4th Cir. 1968); Rollerson v. United States, 343 F.2d

269, 274 (D.C. Cir. 1964); People v. Bassett, 69 Cal. 2d 122, 70 Cal. Rptr. 193, 443 P.2d 777 (1968); State v.

Kim, 64 Haw. 598, 645 P.2d 1330 (1982); Zirt v. Pollock, 25 A.D.2d 920, 270 N.Y.S.2d 85 (1966); State v.

Edmon, 28 Wash. App. 98, 621 P.2d 1310 (1981). The very terms of Rule 703 provide that expert opinion

testimony can be based upon substantially inadmissible evidence only if such evidence is "of a type reasonably

relied upon by experts in the particular field in forming opinions or inferences on the subject." The above

discussion of psychiatric and legal authorities and commentary demonstrates that forming a psychiatric

diagnosis of a defendant without interviewing the defendant is not accepted as a proper professional practice by

psychiatrists and that any reliance on hearsay alone in forming a diagnosis is not reasonable by psychiatric or

legal criteria. In light of this persuasive, sound authority, this Court should rule that a psychiatrist may not give

opinion testimony about a criminal defendant's mental condition without having conducted a personal interview

with the defendant. Since introduction of such unreliable evidence would present a great danger of misleading

the jury, the Court should also bar it under Rule 403.
                                                        -68-




          With specific reference to capital cases, appellant acknowledges that the United States Supreme Court

has stated that the federal constitution does not bar expert testimony in a capital case by a psychiatrist who has

not personally interviewed the defendant. However, North Carolina's own constitutional prohibition against

cruel or unusual punishment should be read to require enhanced reliability in a capital case. North Carolina

Constitution, Art. I, º27; see generally Medley v. North Carolina Department of Correction, No. 360PA90, slip

op. at 10 (N.C. Jan. 31, 1992), Corum v. University of North Carolina, No. 163PA90, slip op. at 27 (N.C., Jan.

31, 1992). The need for enhanced reliability in capital cases should at least bar the use of such testimony in

capital cases in this state.


          In the alternative, the Court should adopt a case-by-case approach and, in this case, should rule that Dr.

White's exclusive reliance on hearsay did not constitute "reasonable reliance" under Rule 703 and was unfairly

prejudicial under Rule 403. The record in this case shows that the state did not satisfy its burden under Rule

703, as the proponent of Dr. White's testimony, of establishing such reasonable reliance. As discussed above in

the Statement of the Facts, Dr. White said that she had testified in court about her psychiatric evaluations of

airline pilots on about three occasions without having interviewed the pilots. However, she had never before

prepared psychiatric evaluations of criminal defendants -- let alone capital defendants. Also, she did not state

that it is a generally accepted practice among psychiatrists to evaluate a person without interviewing the person

and she did not cite examples of other psychiatrists who use that practice. Thus, no evidence indicated that

psychiatrists generally accept reliance on hearsay as the sole source of information for an evaluation.


          In contrast, Dr. John Bolinsky explained in detail why the failure to interview a person would

undermine the reliability of a psychiatric evaluation of the person. He explained that the process of evaluation

entails forming hypotheses -- tentative diagnoses -- and that interviewing the patient is a vital method for testing

the reliability of a diagnosis. Thus, the only evidence of generally accepted psychiatric practice showed that

psychiatrists do not reasonably rely solely on hearsay information to prepare evaluations.
                                                      -69-




         Dr. Bolinsky's detailed criticisms of Dr. White's diagnosis also highlight the pitfalls of psychiatric

evaluations based solely on hearsay. By not interviewing Mr. Daniels, Dr. White failed to learn the significant

fact that his chronic substance abuse was episodic, not daily -- a fact that rendered her "expectancy theory" of

substance abuse inapplicable to Mr. Daniels. She also failed to learn that Mr. Daniels might well have ingested

cocaine and a large quantity of beer, as well as wine, before the offenses. Dr. White did not learn about Mr.

Daniels' two reported, serious, previous suicide attempts -- information that would have been important in

assessing the seriousness of his suicide attempts shortly after the offenses. Finally, by not interviewing Mr.

Daniels, Dr. White lacked a reliable way to test her opinion that he lacked remorse; in contrast, during his

personal interviews of Mr. Dainels, Mr. Daniels repeatedly told Dr. Bolinsky that he was sorry for what he had

done.


         Dr. White's speculative opinions, assessed on their own terms, also show the dangers of psychiatric

evaluations based solely on hearsay. For example, without explanation, she characterized Mr. Daniels' attempt

to burn down his house as a mere "suicide gesture" rather than as a genuine suicide attempt -- surely an odd

opinion, to say the least, when the state's own evidence showed that Mr. Daniels set a serious fire to his own

house, forced Mr. Funderburke to leave the house, blocked the front and rear doors from the inside, lay down on

a bed, lost consciousness, and survived (despite smoke inhalation) only because of a fortuitous rescue by

firefighters searching in a dark and smoke-filled house. Even Officer Griffith -- a prosecution witness who,

unlike Dr. White, had spent considerable time with appellant -- testified that appellant at least had intended to

set fire to his house and to stay in the house (Tp. 1965) and that appellant "appeared to be trying to asphyxiate

himself, yes sir" by using the drawstring of his pants to hang himself in the police station. (Tp. 1972) As

another example, Dr. White interpreted appellant's bizarre and pathetic letter to the Governor as "quite cunning"

and as showing a lack of remorse.       The letter itself does not show lack of remorse, but rather asserts

responsibility. If she had interviewed Mr. Daniels, she could have tested her unfounded hypothesis by asking

him why he wrote the letter. As a third example, Dr. White testified about the "expectancy theory" of drug and

alcohol tolerance and then concluded, without any proof, that it applied to Dr. Daniels. If she had interviewed
                                                       -70-




Mr. Daniels, she could have tested that hypothesis by finding out whether he used alcohol and drugs on a daily

or episodic basis.


         Dr. Bolinsky identified the basic flaw in Dr. White's diagnostic method: she found features of Mr.

Daniels' history that suggested hypotheses and then transformed her hypotheses into a diagnosis by fiat without

taking the crucial step of testing her hypotheses through an interview of Mr. Daniels himself. As Dr. Bolinsky

testified, her method is not accepted psychiatric practice. It rests on circular reasoning, not valid scientific

procedure. As this Court itself has repeatedly observed, with respect to psychiatric testimony, "conversation

with one alleged to be insane is, of course, one of the best evidences of the present state of his mind." State v.

Alexander, 179 N.C. 759, 765, 103 S.E. 383, 386 (1920); quoted with approval in State v. Allison, 307 N.C.

411, 419, 298 S.E.2d 365, 370 (1983) and State v. Wade, 296 N.C. 454, 459, 251 S.E.2d 407, 410 (1979).


         In considering whether Dr. White's diagnostic procedure constituted "reasonable reliance," it is

important to consider two other facts. First, it is curious that the state chose not to call an expert who did

interview appellant, namely, Dr. Groce of Dorothea Dix Hospital. Second, although counsel for the state voiced

her concern about whether appellant would consent to an interview by Dr. White (Tpp. 2444-45), this very

comment shows that the state had not requested such an interview. See State v. Huff, 325 N.C. 1, 381 S.E.2d

635 (1989), death sentence vacated, 111 L.Ed.2d 777 (1990); State v. Jackson, 77 N.C. App. 491, 335 S.E.2d

903 (1985). The state's failure to pursue these options lends additional support to the position that the state's

introduction of White's testimony did not comply with Rule 703 and also violated Rule 403.


         Appellant anticipates that the state might argue that Dr. White's failure to interview appellant should

bear on the weight of her testimony, not its admissibility. However, as noted above, Rule 703 expressly refutes

this position. Rule 703 permits the introduction of expert testimony based solely upon hearsay information only

if the information is "of a type reasonably relied upon by experts in the particular field in forming opinions or

inferences on the subject . . . ." In other words, Rule 703 explicitly provides that whether an expert's testimony

constitutes reasonable reliance on such information is a threshold legal matter to be decided by the trial court in
                                                       -71-




ruling on the admissibility of testimony. Hamilton v. Hamilton, supra. The trial court's express statutory role

as gatekeeper of the threshold of admissibility is particularly important in a capital case, in which unreliable

psychiatric testimony could improperly influence lay jurors to sentence defendant to death.            Where the

proponent of such expert testimony does not show the requisite reasonable reliance -- and, indeed, where the

record and the great weight of authority demonstrate that such reliance was unreasonable -- Rule 703 bars

expert testimony.


         Since the record shows that Dr. White's reliance on hearsay is not a generally accepted psychiatric

practice, Rule 703 does not apply and Dr. White's testimony was inadmissible.


         With respect to prejudice, the jury's unanimous rejection of mitigating circumstance (6), "Defendant

has shown remorse," shows that Dr. White's testimony probably influenced the jury. (Rp. 160) It should also

be noted that the jury's answers of "yes" on the Issues and Recommendations as to Punishment Form to most of

the psychiatric mitigating circumstances does not render this error harmless. (Rp. 159-61) First, a "yes" answer

only shows that at least one juror found a given circumstance. It does not show that all 12 jurors found it or that

even more than one juror found it. Second, even if all 12 jurors found all of the proffered psychiatric mitigating

circumstances, Dr. White's unreliable testimony might have influenced their consideration of mitigation under

Issues Three and Four. As noted above, the error here resulted in constitutional violations and, therefore, that

the state has the burden of proving harmlessness beyond a reasonable doubt. N.C. Gen. Stat. º15A-1443(b).

Even assuming arguendo that the error is not constitutional in nature, it is likely that Dr. White's vigorous

testimony influenced the sentencing decision of at least one juror and that her testimony about lack of remorse

probably influenced all of the jurors. During closing arguments, one of the prosecutors urged the jury to rely

upon her testimony. (Tp. 2511) The error, therefore, is also prejudicial under N.C. Gen. Stat. º15A-1443(a).
                                                       -72-




      X.           THE TRIAL COURT ERRED, IN ITS JURY INSTRUCTIONS
                   ABOUT APPELLANT'S HISTORY OF PRIOR CRIMINAL
                   CONDUCT, BY LIMITING THE JURY'S CONSIDERATION TO
                   CONVICTIONS IN THE PREVIOUS TEN YEARS AND TO THE
                   ABSENCE OF ANY FELONY CONVICTIONS;.


                   AAssignment of Error No. 49 (Rp. 196)



           This Court has held that a capital sentencing jury must be instructed on every statutory factor -- both

aggravating and mitigating -- raised by the evidence. This is so even if a defendant objects to the submission of

a mitigating circumstance, believing that its submission is ultimately more harmful than helpful to his case.

State v. Lloyd, 321 N.C. 301, 364 S.E.2d 316, death sentence vacated and remanded on other grounds, 488 U.S.

807, 102 L.Ed.2d 18 (1988); State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985), cert. denied, 476 U.S. 1165,

90 L.Ed.2d 733 (1986). A trial court must instruct a jury on a mitigating factor even if it is the state that

introduces the evidence (State v. Stokes, 308 N.C. 634, 652, 304 S.E.2d 184, 195-96 (1983)), and even if the

evidence could also support an aggravating circumstance. State v. McNeil, 327 N.C. 388, 395 S.E.2d 106

(1990); State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988). Once a trial court decides that a jury could

reasonably find a particular mitigating factor, "the statute affords the trial court no discretion in submitting the

mitigating circumstance . . . . It is clear that the legislature did not intend that the State or the defendant be

allowed to limit in any way the jury's consideration of these statutorily established . . . mitigating

circumstances." State v. Lloyd, supra, 321 N.C. at 312, 364 S.E.2d at 323 (emphasis added). As this Court has

explained, this rule is necessary "to ensure that juries distinguish cases in which the death penalty may be

imposed from those in which it may not be imposed. Id. at 312, 364 S.E.2d at 324; accord, State v. Wilson,

supra, 322 N.C. at 142-43, 367 S.E.2d at 604. See also State v. Case, 330 N.C. 161, 410 S.E.2d 57 (1991) (all

aggravating circumstances supported by evidence must be submitted to jury in order to prevent capital

sentencing procedure from being unconstitutionally arbitrary).


           The test for whether (f)(1) must be submitted is "whether a rational jury could conclude that defendant

had no significant history of prior criminal activity." State v. Wilson, supra at 143, 367 S.E.2d at 604 (emphasis
                                                        -73-




in original). This Court has held that the evidence required submission of (f)(1) in the following cases: State v.

Wilson, supra (felony conviction for second-degree kidnapping, evidence of storage of illegal drugs on

defendant's premises, and involvement in a felonious breaking or entering and larceny); State v. Lloyd, supra

(felony conviction for assault with intent to rob, felony conviction for breaking or entering, seven alcohol-

related misdemeanors); State v. Brown, supra, (convictions for six counts of felonious breaking or entering, six

counts of felonious larceny, five counts of armed robbery, one count of felonious assault); and State v. McNeil

(conviction for voluntary manslaughter). Evidence of unadjudicated criminal conduct is admissible to support

or rebut (f)(1). State v. Wilson, supra.


         The trial court did not instruct the jury to consider appellant's complete criminal history in this case.

Rather, the trial court broke (f)(1) down into two components that, even taken together, do not add up to the full

scope of (f)(1): "(1) The defendant has no significant history of prior criminal convictions in the last ten (10)

years," and "(13) The defendant has never been convicted of a felony." (Tpp. 2549, 2557; Rpp. 140, 148, 159,

161) This limitation of (f)(1) was reversible error.


         In this case, the parties stipulated that Mr. Daniels, who was 32 years old at the time of the offenses,

had the following convictions in the previous two years: communicating threats, simple assault, misdemeanor

breaking and entering, and driving while impaired. (Tp. 2468) Without explanation, however, the trial court

later directed the jury, in its penalty phase instructions, not to consider the conviction for misdemeanor breaking
                                   18
or entering. (Tp. 2549, Rp. 140)        The court's instruction that this offense "is not a conviction on the part of

the defendant" (id.) does not explain whether the offense amounted to uncharged criminal conduct, a charge that

was dismissed, a charge for which appellant was acquitted, or a total record-keeping mistake with no basis in

fact. Thus, the trial court's instruction does not clearly remove this offense from the scope of (f)(1). The record



         18
            It seems likely that the trial court decided during the penalty phase charge conference to instruct
the jury not to consider this conviction. Since the charge conferences for both phases of the trial were
conducted off the reocrd, in chambers, it is impossible to know what might have been said during that
conference to prompt the court to instruct the jury to ignore that conviction. This incident illustrates the
problem of conducting charge conferences off the record. See Issue I, n.3, supra.
                                                        -74-




also contains uncontroverted evidence of unadjudicated cocaine possession by appellant, marijuana possession

beginning when appellant was 15 years old, and evidence of an unadjudicated assault against his son, Maurice.


         The major problem with the trial court's instructions is that they limited the jury's consideration of

appellant's history of criminal activity to convictions within the previous 10 years and to the absence of any

felony convictions. That is, the instruction prevented the jury from considering whether Mr. Daniels had

committed any other criminal acts for which he had not been convicted. It also prevented the jury from

considering whether he had been convicted of any misdemeanors more than 10 years earlier; since Mr. Daniels

was 32 years old at the time of the offense, that limitation prevented the jury from considering his adult conduct

for six years, between the ages of 16 and 22 years old. Significantly, the prosecutor did not try to rebut (f)(1) by

introducing evidence of any criminal conduct outside the improper limitations in the instructions, though it had

every right and opportunity to do so under the already-established precedent of State v. Artis, 325 N.C. 278, 384

S.E.2d 470 (1989), death sentence vacated, 108 L.Ed.2d 604 (1990); State v. Laws, 325 N.C. 81, 381 S.E.2d

609 (1989), death sentence vacated, 108 L.Ed.2d 603 (1990), sentence affirmed on remand, 328 N.C. 550, 402

S.E.2d 573, cert. denied, 112 S.Ct. 216 (1991); Wilson, supra; Lloyd, supra; and Brown, supra. The point is

this: if, as must be assumed from the record, the conduct noted above constituted appellant's only criminal

conduct during the 16 years of his adult criminal life, the jury -- if properly instructed -- might have found that

such a relatively light record of all adult criminal conduct would weigh more heavily in appellant's favor than

the limited record of his misdemeanor convictions within the previous 10 years and the absence of felony

convictions. In other words, the complete adult record of appellant's relatively insignificant criminal activity

could have had greater mitigating value than the improperly truncated record to which the trial court limited the

jury's consideration. The full picture of appellant's adult criminal history would have made a more persuasive

case in mitigation about appellant's potential for rehabilitation and his reduced culpability for a tragic episode of

uncharacteristic violence.


         Appellant notes that the evidence of appellant's cocaine possession and his previous assault against

Maurice show that the record contained evidence of criminal activity beyond the limitation imposed by the trial
                                                         -75-




court's instruction. Thus, the case is distinguishable from State v. Laws, supra, where this Court upheld a trial

court's refusal to instruct the jury about (f)(1) because the record contained no evidence to support the factor. It

is also distinguishable from State v. Artis, supra, where the trial court was aware of numerous convictions not

introduced into evidence and declined to submit (f)(1) on the basis of "a deceptively incomplete record." Id. at

316, 384 S.E.2d at 491. In this case, both parties had a full opportunity to present evidence of appellant's

history of criminal activity and the record does not contain any evidence of criminal activity that was withheld

from the jury.


         In sum, once some evidence of a defendant's prior criminal activity is introduced into the record, a trial

court must instruct the jury on the full scope of (f)(1) if substantial evidence supports the submission of that

mitigating factor. Moreover, if the state knows of evidence of additional activity, it has a full opportunity to

introduce such evidence to rebut the defendant's evidence of (f)(1). Once substantial evidence supports the

introduction of (f)(1), the state's failure to present additional rebuttal evidence should be interpreted as showing

that no such additional evidence exists. Although defense counsel requested the erroneous instructions in this

case, Wilson, Lloyd, Brown, and Case make it clear that neither party may relieve or limit a trial court's duty to

give correct instructions about a statutory aggravating or statutory mitigating circumstance. Although the jury

answered "yes" to this circumstance, that answer signifies merely that at least one juror found it to exist. It does

not show how many jurors found it. Also, as already discussed, the trial court's incorrect limitation of the jury's

consideration of (f)(1) weakened the factor's mitigating value by preventing the jury from considering the full

weight of appellant's relatively light history of criminal activity.


         With regard to prejudice, this Court held in Wilson that the standard of review set forth in N.C. Gen.

Stat. º15A-1443(b) for constitutional violations governs the consideration of prejudice for the erroneous failure

to submit (f)(1) because the error implicates a defendant's due process rights. Under that standard, the error

here is prejudicial unless the state proves that it is harmless beyond a reasonable doubt. The state cannot satisfy

that burden in this case because it cannot prove that no juror would have considered the full scope of appellant's

criminal activity to have greater mitigating value than the limited scope actually presented.
                                                           -76-




         This case is distinguishable from State v. Laws, supra, where the Court held that even if the trial court's

failure to submit (f)(1) was erroneous, the error was not prejudicial. In Laws, the Court rested its decision about

prejudice on a combination of three facts unique to that case: the state was prevented from introducing

evidence of a prior conviction for a violent misdemeanor, no substantial evidence of the defendant's criminal

history was presented, and the trial court erroneously instructed the jury on a nonstatutory mitigating

circumstance of no prior convictions for prior violent felonies. The Court held that in those circumstances, the

defendant received virtually the same benefit he would have received the jury had found (f)(1). In contrast, in

this case, substantial evidence supporting the full scope of (f)(1) was presented and the state presented no

rebuttal evidence. Where the evidence in the record does present a complete picture of defendant's criminal

history, the failure to instruct on the full scope of (f)(1) is prejudicial.


         As a final note concerning prejudice, the fact that the jury found three aggravating circumstances does

not render the error harmless. In State v. Wilson, supra, this Court found that the trial court had committed

reversible error by failing to instruct the jury on (f)(1), despite the fact that the jury found four aggravating

circumstances. In this case, the state cannot prove that no juror would have returned a life sentence after

balancing this mitigating circumstance -- strengthened through proper instructions -- against three aggravating

circumstances.


         In light of the trial court's prejudicial error concerning the jury instructions on (f)(1), appellant is

entitled to a new sentencing proceeding.
                                                          -77-




      XI.            THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT
                     IT COULD REFUSE TO CONSIDER SOME NONSTATUTORY
                     MITIGATING EVIDENCE IF IT DEEMED THE EVIDENCE TO HAVE
                     NO MITIGATING VALUE AND BY FAILING TO INSTRUCT THE
                     JURY THAT STATUTORY MITIGATING FACTORS AND SOME
                     NONSTATUTORY MITIGATING FACTORS HAVE MITIGATING
                     VALUE IF FOUND TO EXIST.


                     Assignment of Error No. 52 (Rp. 197)



            The trial court instructed the jury in oral instructions that it could consider five specified nonstatutory

mitigating circumstances if the jury found that such circumstances existed and if the jury found that such

circumstances had mitigating value. Tp. 2552, lines 14-17; Tp. 2553, lines 8-15; Tp. 2553, lines 25 - Tp. 2554,

line 8; Tp. 2554, lines 12-19; Tp. 2554, line 23 - Tp. 2555, line 5; Tp. 2555, lines 6-17. Those circumstances

were: (5) (long history of alcohol and drug dependency), (6) (remorse), (7) (two suicide attempts as direct

results of defendant realizing what he had done), (8) (potential for rehabilitation), and (12) (defendant's

suffering from mental and verbal abuse, alienation of affection, and as family scapegoat). With respect to three

statutory mitigating circumstances submitted, the trial court did not give the jury any guidance about mitigating

value. In its instructions on five other nonstatutory circumstances, the trial court stated that the evidence of

these factors were uncontradicted and that the jury should answer "yes" if one or more jurors believed the

evidence, but the court did not instruct that these factors had mitigating value if found. Those factors were: (4)

(appellant's confession to the murder immediately after his arrest on unrelated charges, (9) (appellant's

conforming to jail life without aggressive behavior), (10) (appellant's peaceful and quiet character when he does

not use drugs or alcohol), and (13) (the fact that appellant had not been convicted of a felony. (Tp. 2555, line

18 - Tp. 2556, line 1; Tp. 2556, lines 2-17; Tp. 2556, line 18 - Tp. 2557, line 1; Tp. 2557, lines 2-11). While the

trial court did not instruct the jury that the jury had to decide whether the statutory circumstances and the

uncontroverted nonstatutory factors had mitigating value, it failed to instruct the jury that the statutory factors

had mitigating value if found. The trial court's express instructions about five nonstatutory mitigating factors

were unconstitutionally incorrect. The trial court's failure to instruct the jury about the mitigating value of the

statutory factors and the uncontroverted nonstatutory factors was unconstitutionally ambiguous. Appellant
                                                      -78-




notes that his proposed instructions on mitigating circumstances, if given by the trial court, would have

instructed the jury that all mitigating circumstances had mitigating value if found to exist. (Rpp. 77-78) The

trial court stated (after the in-chambers, off-the-record charge conference) that it would not give appellant's

proposed instructions verbatim, but it promised to "give equivalent instructions." (Tp. 2500)




                  A.       Five Nonstatutory Mitigating CircumstancesThe Eighth

and Fourteenth Amendments of the United States Constitution require that the sentencer in a capital case be

permitted to consider any relevant mitigating factor. Lockett v. Ohio, 438 U.S. 536, 57 L.Ed.2d 973 (1978).

The Supreme Court extended this principle in Eddings v. Oklahoma, 455 U.S. 104, 71 L.Ed.2d 1 (1982), to

preclude a sentencer from refusing to consider relevant mitigating evidence on the grounds that it did not deem

the evidence to have mitigating value. As the Supreme Court explained in Penry v. Lynaugh, 492 U.S. 302,

318, 106 L.Ed.2d 256, 277 (1989), the Court in Eddings "reaffirmed that a sentencer may not be precluded from

considering, and may not refuse to consider, any relevant mitigating evidence offered by the defendant as the

basis for a sentence less than death." (emphasis added) The Supreme Court further explained in Penry that

"Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the

sentencer. The sentencer must be able to consider and give effect to that evidence in imposing sentence." Id. at

319, 106 L.Ed.2d at 278 (emphasis added); cf., Hitchcock v. Dugger, 481 U.S. 393, 95 L.Ed.2d 347 (1987).

Only if the sentencer considers this evidence and gives it some effect can this Court confidently be assured that

the defendant was treated as a unique human being in light of his individualized circumstances, as the Eighth

Amendment requires. Penry v. Lynaugh, supra, 492 U.S. at 319, 106 L.Ed.2d at 278-79.


         This Court has previously considered this question and answered it against appellant's position. The

Court has held that the Eighth and Fourteenth Amendments are satisfied if the sentencer "considers" a

nonstatutory mitigating circumstance in Issue Two and determines that it does "not have mitigating value."

State v. Fullwood, 323 N.C. 371, 395-97, 373 S.E.2d 518, 533 (1988), sentence vacated on other grounds, 108

L.Ed.2d 602 (1990); State v. Huff, 325 N.C. 1, 60-61, 381 S.E.2d 635, 669 (1989).
                                                       -79-




         However, this view of Lockett and Eddings is no longer available after Penry v. Lynaugh, supra,

McKoy v. North Carolina, 494 U.S. 433, 108 L.Ed.2d 369 (1990). As discussed above, Penry requires that the

sentencer be able to "consider and give effect to" relevant mitigating evidence. Permitting the sentencer not to

find relevant mitigating evidence as a mitigating circumstance solely because the jury does not deem it to have

mitigating value violates Eddings. Moreover, in McKoy the Supreme Court pointed out that constitutional

consideration of mitigating evidence occurs in Issues Three and Four, not Issue Two. As the Supreme Court

ruled, the Eighth Amendment


                       requires that each juror be permitted to consider and give effect to
                       mitigating evidence when deciding the ultimate question whether
                       or not to vote for a sentence of death. This requirement means
                       that, in North Carolina's system, each juror must be allowed to
                       consider all mitigating evidence in deciding Issues Three and Four
                       . . . ."


494 U.S. at ____, 108 L.Ed.2d at 381. Furthermore, [a]ny barrier to such consideration must therefore fall" (id.

at ____, 108 L.Ed.2d at 380), and "[i]t is no answer, of course, that the jury is permitted to 'consider' mitigating

evidence when it decided collectively, under Issue Two, whether any mitigating circumstance exists." Id. at

____, 108 L.Ed.2d at 380-81.


         The issue of whether a proposed mitigating circumstance exists is a question of fact for the sentencer.

But the issue of whether a mitigating circumstance, if provided, "has mitigating value" is a question of law. A

sentencer may find that a particular mitigating circumstance does not exist as a factual matter, but the sentencer

may not "refuse to consider, as a matter of law, any relevant mitigating evidence." Eddings v. Oklahoma, supra

at 114, 71 L.Ed.2d at 11 (plurality opinion) (emphasis in original). In addition "[t]he sentencer . . . may

determine the weight to be given relevant mitigating evidence. But [it] may not give it no weight by excluding

such evidence from their consideration." Id. at 114-15, 71 L.Ed.2d at 11. The instructions in this case

permitted the sentencer to do exactly what Eddings says the sentencer may not do -- give relevant mitigating

evidence no weight by finding that it was not mitigating or by finding that it did not "significantly" reduce the

defendant's culpability. The instructions permitted the jury to decide on a sentence that does not "reflect a
                                                      -80-




reasoned moral response to defendant's character, background, and crime." California v. Brown, 479 U.S. 538,

545, 93 L.Ed.2d 934, 942 (1987) (O'Connor, J., concurring) (emphasis in original).


         This Court has recognized that the sentencing jury may not give "no weight" to statutory mitigating

circumstances factually found by the jury. State v. Fullwood, supra; see also State v. Pinch, 306 N.C. 1, 292

S.E.2d 203 (1982), cert. denied, 459 U.S. 1056 (1982), overruled in part on other grounds, State v. Wilson, 322

N.C. 117, 367 S.E.2d 589 (1988). There is no constitutionally valid basis for treating nonstatutory relevant

mitigating circumstances any differently.     Under the Constitution, evidence is either relevant mitigating

evidence or it is not. The test for relevance is whether "the sentencer could reasonably find that it warrants a

sentence less than death." McKoy v. North Carolina, supra, 476 U.S. 1, 90 L.Ed.2d 1 (1986) (defendant's good

prison adjustment after conviction); Eddings v. Oklahoma, supra (troubled childhood of youthful defendant).


         The Ninth Circuit has recently addressed this issue. Smith v. McCormick, 914 F.2d 1153, 1163-69 (9th

Cir. 1990). In Smith, the sentencer refused to consider evidence of good character and desire for rehabilitation.

These factors were rejected, not for an absence of evidential support, but for their lack of mitigating character

since they "did not excuse defendant's conduct." Id. at 1164. The constitutional defect in this process involved

the failure to give consideration to relevant "mitigating evidence simply because it fell down below a certain

weight." Id. at 1165. The sentencer simply cannot, consistent with the Eighth Amendment, "exclud[e] from

consideration any relevant mitigating evidence." Id. at 1169.


         Substantial evidence supported the five mitigating factors in question here. The jury answered "yes" to

four of them, but "no" to Number (6), "Defendant has shown remorse." Thus, as far as the record shows, the

jury sentenced appellant to die without considering and giving effect to Number (6). Even as to the other four

factors, the answer "yes" means only that at least one juror found that those factors existed and had mitigating

value. That answer does not show how many jurors found that those factors existed and had mitigating value.

Of particular significance is the jury's rejection of Number (6), that appellant had shown remorse. In State v.

Daniel, 319 N.C. 313, 354 S.E.2d 216 (1987) and State v. Graham, 309 N.C. 587, 308 S.E.2d 311 (1983), this
                                                      -81-




Court stated that in assessing the weight of a defendant's acknowledgement of wrongdoing as a statutory

mitigating factor under the Fair Sentencing Act (N.C. Gen. Stat. º15A-1340.4(a)(2)(l)), a sentencing court

should consider whether the defendant's acknowledgement shows remorse. It would be inconsistent and

arbitrary to permit a capital jury to determine that remorse has no mitigating value while directing a sentencing

judge in a noncapital case to consider remorse as weighing in a defendant's favor.


         In sum, it is clear that relevant mitigating evidence was presented to the jury. Under McKoy, Penry,

and Eddings, the jury had a duty to consider and give effect to that evidence. However, the jury, by following

the trial court's instructions, might not have fulfilled that duty. The trial court's unconstitutionally erroneous

instructions provided a mechanism through which the jury could avoid considering and giving effect to these

factors in the sentencing decision in Issues Three and Four. Given the relationship between these factors and

appellant's character and crime, the state cannot show that this constitutional error was harmless beyond a

reasonable doubt. As the Supreme Court ruled in McKoy, "'[b]ecause the [sentencer's] failure to consider all of

the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our

duty to remand this case for resentencing.'" McKoy v. North Carolina, supra 494 at ____, 108 L.Ed.2d at 380

(quoting Eddings v. Oklahoma, (O'Connor, J., concurring)).
                                                       -82-




                  B.       Statutory Mitigating Circumstances And Five

                           Uncontroverted Nonstatutory Mitigating CircumstancesIn

light of the trial court's repeated instructions that the jury must determine whether five nonstatutory mitigating

circumstances, the court erred by failing to give the jury clear guidance about the legally presumed mitigating

value of the statutory mitigating circumstances and the five uncontroverted nonstatutory mitigating

circumstances. To be sure, the court did not tell the jury to determine whether the statutory factors had

mitigating value and the Court instructed the jury to find these factors if it found that they existed. (Tp. 2549,

line 1 - Tp. 2550, line 3; Tp. 2550, line 4 - Tp. 2551, line 2; Tp. 2551, line 3 - Tp. 2552, line 11; Tp. 2555, line

18 - Tp. 2556, line 1; Tp. 2556, lines 2-17; Tp. 2556, line 18 - Tp. 2557, line 1; Tp. 2557, lines 2-11; Tp. 2557,

lines 12-16) However, the court's error lay in the prejudicial ambiguity resulting from its failure to instruct the

jury explicitly that statutory mitigating factors are deemed to have mitigating value. The constitutional question

is whether the trial court's failure to explain that distinction created a reasonable likelihood that the jury

erroneously interpreted the instructions to require the jury to determine the mitigating value of the statutory

mitigating circumstances. Boyde v. California, 108 L.Ed.2d 316 (1990). As shown above, the trial court

directed the jury six times to determine whether five contested nonstatutory circumstances had mitigating value.

In the absence of instructions that clearly distinguish between the jury's consideration of those five nonstatutory

factors and the statutory and uncontroverted nonstatutory circumstances, the court's instructions that the jury

must determine whether five nonstatutory mitigating circumstances had mitigating value make it reasonably

likely that the jury would have interpreted those instructions as also applying to the statutory circumstances and

to the uncontroverted nonstatutory circumstances. See State v. McNeil, 327 N.C. 388, 395 S.E.2d 106 (1990).




     XII.         THE TRIAL COURT ERRED BY FAILING TO PROHIBIT ONE OF
                  THE PROSECUTORS FROM MINIMIZING THE JURY'S
                  SENTENCING RESPONSIBILITY DURING CLOSING ARGUMENT
                  AND FROM ARGUING THAT THE BIBLE REQUIRED THE JURY
                  TO SENTENCE APPELLANT TO DEATH .


                  Assignment of Error No. 46 (Rp. 196)
                  Assignment of Error No. 48 (Rp. 196)
                                                       -83-




         During closing arguments, the prosecutors used two lines of argument calculated to mislead the jury

about its role as sentencer in a capital proceeding: (1) an argument that the trial court, not the jury, would make

the actual decision about whether to impose the death penalty on Mr. Daniels, and (2) an argument based on

extended Biblical quotations that the jury and state officials are divinely ordained as God's agents in enforcing

the divinely sanctioned death penalty. Appellant tried unsuccessfully to prevent the prosecutors from making

these arguments through a motion in limine. The trial court's error in failing to prohibit these arguments

requires reversal of appellant's death sentence.



                  A.       Argument Miminizing The Jury's Sentencing

                           ResponsibilityIn Caldwell v. Mississippi, 472 U.S. 320, 86

L.Ed.2d 231 (1985), the United States Supreme Court held that a state prosecutor's capital sentencing argument

that informed the jury that their decision was automatically subject to appellate review violated the Eighth

Amendment.


                       [I]t is constitutionally impermissible to rest a death sentence on a
                       determination made by a sentencer who has been led to believe
                       that the responsibility for determining the appropriateness of the
                       defendant's death rests elsewhere.


Id. at 328-29, 86 L.Ed.2d at 239. Although the focus in Caldwell was the mention of appellate review, the

opinion explicitly voiced deeper concerns for the integrity of the capital sentencing process.
                                                      -84-




                      [W]e must also recognize that the argument offers jurors a view of
                      their role which might frequently be highly attractive. A capital
                      sentencing jury is made up of individuals placed in a very
                      unfamiliar situation and called on to make a very difficult and
                      uncomfortable choice. They are confronted with evidence and
                      argument on the issue of whether another should die, and they are
                      asked to decide that issue on behalf of the community.


                      ...


                      Given such a situation, the uncorrected suggestion that the
                      responsibility for any ultimate determination of death will rest with
                      others represents an intolerable danger that the jury will in fact
                      choose to minimize the importance of its role.


Id. at 332-33, 86 L.Ed.2d at 242 (emphasis added).


        Six years before Caldwell was decided, this Court presaged its teaching in State v. Jones, 296 N.C.

495, 251 S.E.2d 425 (1979). Basing its decision on firmly established North Carolina precedent, the Court held

that a prosecutor may not argue the statutory provisions governing capital appeals to the sentencing jury in a

capital trial. The Court's fundamental concern was, however, the same as in Caldwell:


                      We are of the opinion that in the sentencing phase of a bifucated
                      trial, a reference to any statutory provision, which would have the
                      effect of minimizing in the jurors' minds their role in
                      recommending the sentence to be imposed, is precluded.


Id. at 501, 251 S.E.2d at 429 (emphasis added).


        In this case, one of the prosecutors violated Caldwell and Jones by minimizing the gravity of the jury's

role during closing argument. The pertinent portion of his argument is as follows:


                               You said you would follow the law. Of course, every
                      time that the death penalty is an option to be considered by the jury
                      under the law, it could be considered by any individual juror as a
                      referendum, but it is not. It is not. You are experienced jurors in
                      that you have rendered a verdict of guilty beyond a reasonable
                      doubt in numerous crimes in this case. You have heard Judge
                      Fulton explain the details of this case to you yesterday before the
                      guilt phase was over; you heard it during the voir dire about the
                                                      -85-




                     procedure; you were very well educated in how this works. But
                     there is always some reluctance. To say that that is not so is to say
                     the citizens are making a recommendation that someone die, and
                     they are not. Some people, when they sit on a jury, think or tell the
                     lawyers, "Who am I to decide whether someone lives or dies?"
                     That subject can come up in any atmosphere, and particularly in
                     the courtroom, and I want to address it directly.


                               If you are going to follow the law, and we know you will,
                     you are not making that decision. You are saying that the factors
                     that we have found outweigh -- aggravating factors we have found
                     -- outweigh the mitigating factors. You're saying yes. You're
                     saying that this case is sufficiently substantial to warrant the death
                     penalty. You're saying yes. And your job is over, the Court will
                     sentence the defendant. That is what you are doing. You are not
                     making a personal moral decision. You are not debating the death
                     penalty. You are not taking out a vendetta. You're not bringing
                     politics into this court. You're following the law. The things that
                     you do everyday, everyone on this jury does everyday, the jury as a
                     whole. They either enjoy their retirement or they go to work or
                     they're attempting to raise a family of the future. They push trucks
                     down the road, they work on computers, they work at hospitals,
                     they work in their own businesses, they build buildings, they work
                     in schools. But there is one thing that is not here, and it's
                     symbolic. The government is not here.


                                You are the citizens. Right now, right now, just this
                     minute, you are Mecklenburg County, and the State is here. Ladies
                     and gentlemen, at the end of this case, when you walk out, the law
                     of the case is written. You have already written the law. He is
                     guilty beyond a reasonable doubt of numbers of crimes. When you
                     came through that door, you knew you would be hearing the words
                     you're hearing now. You know that the prosecutor would look
                     right at you and say, "We're asking you to recommend death." The
                     lives that you live, the jobs that you hold or held at one time, or the
                     occupations you're in now, you must think your way through these
                     things. Who am I to decide is almost like who am I to live. You
                     all are living by your own hands and your own minds. We ask not
                     for your heart in this case. We ask for your minds to follow the
                     law, and we know you will.


(Tpp. 2515-17) (emphasis added)


        This excerpt from the transcript shows that the prosecutor sought to mislead the jury about its role,

expressly telling them that "[y]ou are not making that decision" about "whether someone lives or dies" (Tp.

2515) and that after they answer Issues Three and Four during their deliberations, "your job is over, and the
                                                      -86-




Court will sentence the defendant." These statements misled the jury about a key point: it was indeed the jury

that would soon decide (based on the evidence and applicable law) whether Mr. Daniels would live or die, and

the jury's recommendation would indeed be binding on the trial court. The prosecutor's argument, then,

wrongly portrayed the jury's sentencing answers and recommendations as a nonbinding advisory opinion and

asserted that only the trial court would decide whether Mr. Daniels would live or die. Moreover, the prosecutor

also wrongly told the jury that its sentencing decision was "not a personal moral decision." (Tp. 2516) See

Penry v. Lynaugh, 492 U.S. 302, 319, 106 L.Ed.2d 256, 279 (1989) (capital sentencing decision must be a

"reasoned moral response") (emphasis in original).


         In State v. McKoy, 323 N.C. 1, 372 S.E.2d 12 (1988), sentence vacated, 494 U.S. 433, 108 L.Ed.2d

369 (1990), this Court summarized the law governing prosecutors statements about the jury's responsibility in

capital sentencing proceedings. The Court stated,


                                 These cases stand for the proposition that statements by
                       the trial or prosecutor that tend to dilute the jury's sense of
                       responsibility for its determinations by suggesting that its verdict
                       will be reviewed, or that the punishment imposed will be withheld,
                       are impermissible and prejudicial. See 75 Am. Jur. 2d Trial º230
                       (1974) ("[c]omments . . . on the power of the court to suspend
                       sentence or to set the jury's verdict aside, or statements that a
                       higher court has the power to review the finding of the jury on the
                       weight of the evidence, are calculated to induce the jury to
                       disregard their responsibility, and are improper.").


Id. at 11, 372 S.E.2d at 17.


         In this case, the prosecutor's comments were calculated precisely to tell the jury that its

recommendation would not be final or binding. Moreover, as noted above, the prosecutor's statement that the

jury was "not making a personal moral decision" flies in the face of the basic tenets of modern capital

punishment jurisprudence that require a capital sentencer to make a reasoned moral decision.          Penry v.

Lynaugh, supra.
                                                        -87-




         It is significant that well advance of this trial, appellant sought to prevent this very argument. In its

Motion to Restrict District Attorney's Argument, filed on August 1, 1990, appellant asked the trial court to order

the prosecutors not to make an argument, inter alia, "that implies that the jury's verdict of the death penalty

would not be real, would not be carried out, or is subject to appellate review." (Rp. 74)


         Appellate anticipates that the state might contend that the prosecutor was not trying to minimize the

jury's responsibility, but rather was trying to say that the jurors' role was to make a sentencing recommendation

based upon their answers to Issues Three and Four instead of a recommendation based upon personal feelings.

Any such contention is seriously flawed for two reasons. First, while some of the prosecutors' language

contrasted "following the law" with making a decision based upon personal opinions or "politics," it simply

cannot be denied, and should not be ignored, that the prosecutor also expressly told the jurors that "you are not

making that decision" about "whether someone lives or dies," that they are not "making a recommendation that

someone die," that after they answer Issues Three and Four "your job is over and the Court will sentence the

defendant," and that they "are not making a personal moral decision."


         Second, even if the prosecutor was trying to contrast a decision based upon the law with a decision

based upon personal moral judgment, any such argument relied upon a fundamentally false dichotomy. As

discussed above, modern American capital punishment law rests on the principle that a sentencing jury must

make a decision that represents a "reasoned moral response" to the law and the evidence. Penry v. Lynaugh,

supra. A prosecutor certainly does not cure Caldwell error by arguing to the jury that it can reach its sentencing

decision by a mechanical application of the law. Capital sentencing is a process of guided discretion by a jury.

The law does not dictate a particular decision, but rather guides the jurors' personal judgment in making a

decision. The jury itself, not the law, is fully responsible for that decision. Thus, the prosecutor's argument in

this case cannot be saved by an interpretation (an interpretation not faithful to the text of the argument) that still

distorts and minimizes that jurors' full responsibility for their sentencing decision.
                                                         -88-




         With respect to prejudice, the state cannot satisfy its burden, under Caldwell, of proving beyond a

reasonable doubt that the prosecutor's comments had no effect on the jury's sentencing decision. The trial court

did not cure the error by giving a curative instruction during or immediately after the argument. Although the

court later instructed the jury that its decision was binding (Tpp. 2541-42, Rpp. 131-32), it did not tell the jury

that the prosecutor's statements were wrong. The state cannot show that this brief subsequent instruction,

significantly separated in time from the lengthy argument and not announced as a curative instruction, cured the

error. The state cannot show that no juror reasonably would have relied on the prosecutor's argument to relieve
                                                                     19
the jury of full responsibility for sentencing appellant to death.


         Appellant urges this Court to use this case as an appropriate opportunity to instruct prosecutors to stop

a long-standing practice of making closing arguments that are calculated to minimize a capital juries' sense of

their sentencing responsibility. See, e.g., State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), death sentence

vacated, 108 L.Ed.2d 604 (1990); State v. McNeil, 324 N.C. 33, 375 S.E.2d 909 (1989), death sentence vacated,

108 L.Ed.2d 756 (1990); State v. Jones, 296 N.C. 495, 251 S.E.2d 425 (1979); State v. White, 286 N.C. 395,

211 S.E.2d 445 (1975). These citations represent a sad tradition in North Carolina, a tradition this Court could -

- and should stop -- with a clear holding on this issue in this case. It is a disturbing commentary on the death

penalty that some prosecutors believe they must mislead jurors about their responsibility in order to persuade

jurors to vote for death. Only a firm decision by this Court will put a halt to such overly clever, calculated

efforts to distort the full responsibility of North Carolina capital sentencing juries.




         19
              In preparing the assignment of error concerning this issue, counsel inadvertently categorized the
error as plain error. However, as noted above, appellant properly objected in advance to this argument. The
record does not contain a ruling by the trial court on appellant's motion in limine, though it cannot be
determined whether the court ruled on it during the unrecorded penalty phase charge conference. In light of
appellant's objection, this error should be reviewed under N.C. Gen. Stat. º15A-1443(b).
                                                      -89-




                 B.       Argument That The Bible Requires
                          The Death Sentence In This Case



        In the first prosecution closing argument during the penalty phase, one of the prosecutors wasted no

time in summoning the Bible to support imposing the death penalty on appellant. In the very first moments of

her argument, she launched into the following, extended comments:


                               In this phase of the case, the State does not have an
                      opportunity to argue to you last, and therefore we will have to
                      anticipate the arguments that you will be hearing from the defense,
                      and I am going to try to do that. One thing that we anticipate you
                      are going to hear is because this is a matter of life and death, some
                      references to the Bible and scripture and whether or not the death
                      penalty is appropriate. Ladies and gentlemen, I am no theologian
                      but when you are listening to the references that Mr. Williams will
                      be giving to you, I want you to think about a few others.


                                He is going to tell you, I believe, that the ten
                      commandments tell you thou shalt not kill, and Bible scholars tell
                      us that correctly translated, that means thou shalt not murder, and
                      you have already found that that is exactly what that defendant did.
                      Ladies and gentlemen, in the third chapter of the book of Genesis,
                      the word says that there are only four people in the world, Adam
                      and Eve and Cain and Abel. And Cain slew Abel. Four people in
                      the word, and we already have the crime of murder. It's one of the
                      oldest crimes in all of history.


                               And in the third book Leviticus, in Chapter 24, when the
                      Lord is discussing the law that He is giving his people, he says,
                      "He who kills a man shall be put to death," and it says it twice.
                      And when you get to the fourth book of Numbers, it says, "But if
                      he struck him down with an instrument of iron so that he die, he is
                      a murderer. The murderer shall be put to death. And if he struck
                      him down by a stone in the hand, by which a man may die, he is a
                      murderer. And a murderer shall be put to death. Or if he struck
                      him down with a weapon of wood in the hand by which a man may
                      die, and he die, he is a murderer. And a murderer shall be put to
                      death."


                               Now, Mr. Williams will probably turn you to the New
                      Testament, and he'll talk to you about turning the other cheek and
                      talk to you about the Sermon on the Mount. When he does that,
                      ladies and gentlemen, I ask you to remember the closing passage of
                      the Sermon on the Mount, because in that closing passage it says,
                                                       -90-




                       "For truly I say to you, though heaven and earth pass away, not an
                       iota, not a dot, will pass from the law until all is accomplished.
                       Whoever then relaxes one of the least of these commandments and
                       teaches men to do so, shall be called the least in the kingdom of
                       heaven." In other words, the Lord is saying that he came to
                       complete the law, not to change it.


                                 In the book of Romans, Chapter 13, when St. Paul is
                       talking about the responsibility of citizens, he says, "Let every
                       person be subject to the governing authority, for there is no
                       authority except from God, and those that exist have been
                       instituted by God. Therefore, he who resists the authorities resists
                       what God has appointed, and those who resist will incur judgment,
                       for rulers are not a terror to good conduct, but to bad."


                                 So when Mr. Williams starts talking to you about the
                       Bible, remember that here are two sides of that story, and when
                       Mr. Williams starts talking to you about mercy in a few minutes,
                       remember that. And ladies and gentlemen, I respectfully submit to
                       you that even though we are called to be merciful in our personal
                       lives, right now you do not have the right to be merciful. When we
                       are told to forgive our trespasses as we forgive those who trespass
                       against us, I submit that does not apply to a jury in the State of
                       North Carolina. Your job is not to do mercy; it is to do justice.


(Tpp. 2501-03)


         In State v. Artis, supra, 325 N.C. at 331, 384 S.E.2d at 500, this Court explained that since Biblical

passages are neither law nor facts in evidence, "it is improper for a party either to base or to color his arguments

with such extraneous material." The Court also stated that it has given counsel "wide latitude . . . in arguing

hotly contested cases . . . and it had found Biblical arguments to fall within permissible margins more often than

not." Id. However, the Court further stressed that it has expressly disapproved of arguments that state law is

divinely inspired or that law officers are ordained by God, citing State v. Oliver, 309 N.C. 326, 307 S.E.2d 304

(1983); and State v. Moose, 310 N.C. 482, 313 S.E.2d 507 (1984).


         In this case, the prosecutor's argument ran afoul of both Moose and Artis. Turning first to Moose, it is

significant that the prosecutor's quotation from Romans, Chapter XIII was precisely the conduct expressly

criticized as improper by this Court in Moose. As the Court stated there,
                                                      -91-




                               Finally defendant argues that the State inappropriately
                      cited passages from the Bible and argued in effect that the powers
                      of public officials, including the police, prosecutors and judges are
                      ordained by God as his representatives on earth and that to resist
                      these powers is to resist God. The passage quoted was taken from
                      Romans, Chapter XIII. A similar jury argument was made in State
                      v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975), but it was not
                      assigned as error or brought forward on appeal before this Court.
                      On petition for federal habeas corpus the Fourth Circuit Court of
                      Appeals in Miller v. North Carolina, 583 F.2d 701 (4th Cir. 1978),
                      noted this argument with disapproval. We likewise disapprove of
                      this argument. The prosecutor is cautioned to avoid it at
                      resentencing.


Id. at 501, 313 S.E.2d at 519-20. Despite this Court's clear warning in Moose, the prosecutor in this case

brazenly quoted from that very passage. As in Moose, the prosecutor's use of the quotation from Romans was a

heavy-handed warning not to resist the decisions of divinely appointed government officials.


         With respect to the error identified in Oliver, the prosecutor combined quotations from Leviticus and

Numbers to argue that the death penalty is divinely mandated and then, in a startling display of proof-text

sleight of hand, used a quotation from the Sermon on the Mount to tell the jurors that it was Jesus' job and their

job to impose capital punishment in order to enforce God's law. This use of Biblical passages to tell jurors that

they were God's agents in the enforcement of capital punishment violates this Court's warning in Oliver and

Artis. This error also aggravated the error of arguing on the basis of Romans, Chapter XIII. It not only told the

jurors that they were God's agents in enforcing capital punishment, but, when combined with the quotation from

Romans, it also warned them not to resist the state's policy of enforcing capital punishment.


         Defense counsel's conduct puts this issue in perspective. In his Motion to Restrict District Attorney's

Argument, appellant asked the trial court to prohibit the prosecutors, inter alia from arguing "in favor of the

death penalty for any reasons not specifically listed as aggravating circumstances in N.C.G.S. 15A-2000(e)" and

from arguing "that the jury should return a death penalty for any reason or circumstances common to all
                                                                                                   20
homicides . . . ." These requested prohibitions encompassed the prosecutor's Biblical arguments.        In addition,


         20
             As noted in Section XIV, (A) supra, the record does not contain any ruling by the trial court on
appellant's motion.
                                                        -92-




the prosecutor's tactical pretext for using Biblical arguments -- to anticipate defense counsel's predicted use of

Biblical arguments to plead for forgiveness and mercy -- was unfounded. Despite the prosecutor's extended

Biblical argument, one defense attorney (Mr. Jessup) made no mention of the bible. (Tpp. 2520-35) The other

defense attorney (Mr. Williams) made only two brief, undramatic Biblical references (Tpp. 2536-37), neither of

which concerned a plea for forgiveness and mercy based upon the New Testament. Indeed, he urged the jury to

do justice. Thus, this case is distinguishable from State v. Oliver, supra, in which the Court observed that the

prosecutor's Biblical arguments were not reversible in light of defense counsel's anticipated arguments about

forgiveness and mercy.


           As is the case with prosecutors' arguments seeking to minimize the responsibility of capital sentencing

juries (Section XIV, supra), there is a long and sad tradition among North Carolina prosecutors of using

Biblical arguments to argue in favor of imposing death in a particular case. See the cases cited in State v. Artis,

supra, 325 N.C. at 331, 384 S.E.2d at 500. North Carolina is graced with being a state in which religious faith

plays a significant role in the daily lives of citizens. However, the use of Biblical references to argue in favor of

the death penalty in a particular case represents an abuse of the Bible by wrenching passages out of context and

using them as substitutes for law and evidence. Such abuse reflects neither reverence for God nor respect for

the law.


           Appellant urges the court to stop this misuse of the Bible by adopting the position of the Pennsylvania

Supreme Court in Commonwealth v. Chambers, ____ Pa. ____, 599 A.2d 630 (1991). In that case, the court

held that such Biblical arguments were per se reversible error. As the court observed,


                        More than allegorical reference, this argument by the prosecutor
                        advocates to the jury that an independent source of law exists for
                        the conclusion that the death penalty is the appropriate punishment
                        for Appellant. By arguing that the Bible dogmatically commands
                        that "the murderer shall be put to death," the prosecutor interjected
                        religious law as an additional factor for the jury's consideration
                        which neither flows from the evidence or any legitimate inference
                        to be drawn therefrom. We believe that such an argument is a
                        deliberate attempt to destroy the objectivity and impartiality of the
                        jury which cannot be cured and which we will not countenance.
                                                      -93-




                      Our courts are not ecclesiastical courts and therefore, there is no
                      reason to refer to religious rules or commandments to support the
                      imposition of a death penalty.


Id. at 644. Noting the tradition of such arguments in Pennsylvania, the court added,


                               [i]n the past we have narrowly tolerated references to the
                      Bible and have characterized such references as on the limits of
                      "oratorical flair" and have cautioned that such references are a
                      dangerous practice which we strongly discourage . . . . We now
                      admonish all prosecutors that reliance in any manner upon the
                      Bible or any other religious writing in support of the imposition of
                      a penalty of death is reversible error per se and may subject
                      violators to disciplinary action.


Id. at 644.


         Appellant submits that the Pennsylvania Supreme Court's firm position is a prudent and necessary way

to prevent improper Biblical arguments. At the very least, the prosecutor's blatant violation of this Court's

warning in Moose about the same passage quoted in Moose should prompt reversal of appellant's sentence.

When a prosecutor ignores such a clear warning, only reversal of a death sentence will suffice as an effective

deterrent.
                                                         -94-




                         Appellant contends that the prosecutor's argument violated the
                         state and federal constitutional provisions prohibiting the
                         establishment of religion. Since the argument portrays jurors as
                         mere agents of divine law, it also violates the federal and state
                         constitutional prohibitions against cruel and/or unusual punishment
                         and the guarantees of due process by suggesting that the decision
                         to sentence appellant to death is a matter of divine mandate rather
                         than the reasoned moral judgments of the jurors. Since the trial
                         court's failure to prohibit this argument was a constitutional error,
                         the state has the burden of proving that the error was harmless
                         beyond a reasonable doubt. Even if this Court does not find the
                         error to be reversible per se, the state cannot prove that the error
                         was harmless beyond a reasonable doubt. Consequently, this
                         Court should reverse appellant's death sentence.




    XIII.           THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY AS A
                    POSSIBLE AGGRAVATING FACTOR THAT THE KILLNG WAS
                    COMMITTED FOR PECUNIARY GAIN, SINCE THE EVIDENCE
                    WAS INSUFFICIENT TO SUPPORT THIS FACTOR.


                    Assignment of Error No. 45 (Rp. 195)



            The trial court instructed the jury to consider, as one of three potential aggravating circumstances,

whether appellant killed Ms. Crawford for pecuniary gain.             (Tpp. 2544-45, Rpp. 135-36, 158)         In its

instructions, the trial court instructed the jury that a murder is committed for pecuniary gain "if the defendant,

when he commits it, obtained or intends to or expects to obtain money or some other thing which can be valued

as money, either as compensation for committing it or as a result of the death of the victim." (Tp. 2544, Rp.

135)


            The state must prove aggravating circumstances beyond a reasonable doubt. N.C. Gen. Stat. º15A-

2000(c)(1). In reviewing the sufficiency of evidence of an aggravating circumstance, the court will consider the

evidence in the light most favorable to the state and the state is entitled to the benefit of every factual inference

that can reasonably be drawn from the evidence. State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985), cert.

denied, 476 U.S. 1135, 90 L.Ed.2d 733 (1986). The trial court's submission of this circumstance was erroneous

because the evidence was not sufficient to prove the circumstance beyond a reasonable doubt.
                                                       -95-




         As set forth above in the Statement of the Facts and as discussed in Section VIII, the evidence, seen in

the light most favorable to the state, shows as follows: Mr. Daniels was having problems with bills and he

feared that his family would lose its house. He went to his aunt's house on January 17, 1990 to ask her whether

Diane and Maurice could stay with her. He also intended to ask her to lend him money. Appellant's statement

to Investigators Davis and Holl was the only direct evidence of his purpose in going to Ms. Crawford's house on

January 17. Even Davis admitted that nothing in that statement showed that Mr. Daniels planned to commit any

crime against his aunt when he went to her house that night. (Tpp. 2023-24) Appellant asked his aunt to let

Diane and Maurice stay with her and he asked her to lend him some money. Ms. Crawford said she was going

to call his mother. Appellant did not begin his assault against Ms. Crawford until, in response to his request to

let Diane and Maurice stay with her, she said she was going to telephone appellant's mother and until she

refused his request not to call his mother. Only then did he begin the fatal attack. At some unspecified point

after he had killed Ms. Crawford, appellant picked up her pocketbook from an unspecified place in the house

and removed a wallet containing $70 to $80. Appellant left the house, discarded the wallet near a fence, and

bought cocaine at a motel. Appellant told Investigators Holl and Davis "'I don't know why I killed her. Bills set

me off. My lady has got bills. I tried to kill my lady.'" (Tp. 2001) He also said, "'I should have killed [Diane].

I don't know why "'I took it out on my aunt.'" (Tp. 2006)


         Even taken in the light most favorable to the state, the evidence shows that Mr. Daniels took the wallet

and money as an afterthought after he killed Ms. Crawford. The only reason he attacked and killed his aunt is

that his frustration about bills boiled over when she said she was going to call his mother about his request to let

Diane and Maurice stay with Ms. Crawford. He killed her out of frustration, not for pecuniary gain. This

motivation is confirmed by his subsequent attacks against Diane and Maurice and against Glenn Funderburke,

which he plainly committed out of irrational anger and frustration rather than for pecuniary gain.


         Although the record contains evidence that one of appellant's reasons for visiting his aunt was to ask

her for money and that he did ask her for money, those facts do not create a rational inference that he killed her

to obtain money. A faithful review of the evidence shows instead that he killed his aunt only over displaced
                                                      -96-




anger and frustration. Any conclusion that his request for money shows that he killed her to obtain money rests
                                                               21
upon mere speculation rather than upon a rational inference.        Since proof of this circumstance requires proof

that appellant's motive for killing his aunt was pecuniary gain (State v. Quesinberry, 319 N.C. 228, 354 S.E.2d

446 (1987)), the evidence was insufficient to prove the circumstance.




    XIV.           THE TRIAL COURT ERRED BY FAILING TO DIRECT JURORS TO
                   CONSIDER AND GIVE APPROPRIATE EFFECT TO MITIGATING
                   EVIDENCE.


                   Assignment of Error No. 50 (Rpp. 196-97)



           In Penry v. Lynaugh, 492 U.S. 302, 106 L.Ed.2d 256 (1989) and Eddings v. Oklahoma, 455 U.S. 104,

71 L.Ed.2d 1 (1982), the Supreme Court of the United States stated that the sentencer in a capital case "may not

refuse to consider, any relevant mitigating evidence offered by the defendant as the basis for a sentencer less

than death." Penry v. Lynaugh, supra, 492 U.S. at 318, 106 L.Ed.2d at 277 (emphasis added); Eddings v.

Oklahoma, supra, 455 U.S. at 114, 71 L.Ed.2d at 11 (plurality opinion) (capital sentencer may not refuse to

consider, as a matter of law, any relevant mitigating evidence).


           In this case, the trial court's instructions on Issues Three and Four provided that each jury "may"

consider mitigating circumstances that juror found to exist in Issue Two. (Tp. 2558, lines 19-22; Tp. 2559, line

24 - Tp. 2560, line 1; Rpp. 149, 150-51) By making optional the jurors' consideration in Issues Three and Four

of mitigation found in Issue Two, the trial court violated the requirements of the Eighth and Fourteenth

Amendments as explained in Penry and Eddings. This violation should also be deemed erroneous under the




           21
             Appellant has found no cases that address the sufficiency of this aggravating factor when the
evidence shows that a theft was an afterthought. However, it is noteworthy that in State v. Green, 321 N.C.
594, 365 S.E.2d 587, cert. denied, 488 U.S. 900, 102 L.Ed.2d 235 (1988), where the defendant argued that
thefts were committed as an afterthought following the killings, this circumstance was either not submitted or
not found.
                                                       -97-




North Carolina Constitution's prohibition against cruel or unusual punishment. In light of this error, appellant is

entitled to a new sentencing proceeding.




     XV.           THE NORTH CAROLINA DEATH PENALTY STATUTE, N.C. GEN.
                   STAT. º15A-2000, IS UNCONSTITUTIONAL AND THE DEATH
                   SENTENCE IN       THIS CASE WAS     IMPOSED  IN  A
                   DISCRIMINATORY MANNER.


                                                22
                   Assignment of Error No. 54



           Appellant contends that the death penalty is inherently cruel and unusual and that the North Carolina

death penalty statute, N.C. Gen. Stat. º15A-2000, is vague and overbroad. Appellant further contends that the

statute permits juries to make excessively subjective sentencing determinations and that the statute is applied

arbitrarily and pursuant to a pattern of discrimination and victims and on the basis of defendants' property.




           22
             Appellant inadvertently omitted this preservation assignment of error from the record on appeal
and has requested permission to add it to the record in his Motion to Amend the Record on Appeal.
                                                                       -98-




  CONCLUSIONFor errors in the guilt/innocence phase, appellant respectfully submits that he is entitled to a

new trial. Both for errors in the guilt/innocence phase and for errors in the penalty phase, appellant respectfully

submits that he is entitled to a new sentencing hearing.


           Respectfully submitted this the 5th day of March, 1992.




                                                                 __________________________________________
                                                                 Benjamin Sendor
                                                                 Assistant Appellate Defender

                                                                 Malcolm Ray Hunter, Jr.
                                                                 Appellate Defender
                                                                 Office of the Appellate Defender
                                                                 Post Office Box 1070
                                                                 Raleigh, North Carolina 27602
                                                                 (919) 733-9490

                                                                 ATTORNEYS FOR DEFENDANT-APPELLANT


 CERTIFICATE OF SERVICEI hereby certify that a copy of the above and foregoing Defendant-Appellant's
Brief has been duly served upon Steven F. Bryant, Special Deputy Attorney General, North Carolina
Department of Justice, P. O. Box 629, Raleigh, North Carolina 27602-0629 by the United States Postal Service.

           This the 5th day of March, 1992.




                                                                 ______________________________________
                                                                 Benjamin Sendor
                                                                 Assistant Appellate Defender


                                           DEFENDANT-APPELLANT'S APPENDIX



                                                                     INDEX


Letter to the Governor ...........................................................................................................   1
-99-

				
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