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Full Opinion
STATE of North Carolina
v.
Reche SMITH.
Supreme Court of North Carolina.
Roy Cooper, Attorney General, by Joan M. Cunningham, Assistant Attorney General, for the State.
M. Gordon Widenhouse, Jr., Chapel Hill, for defendant-appellant.
*612 WAINWRIGHT, Justice.
On 8 March 2002, defendant Reche Smith was convicted of first-degree murder and felony larceny. The jury found defendant guilty of first-degree murder on the basis of malice, premeditation, and deliberation and under the felony murder rule. Following a capital sentencing hearing, the jury recommended a sentence of death for the murder. The trial court accordingly imposed a sentence of death for the murder and further imposed a sentence of fifteen to eighteen months imprisonment for the felony larceny.
The evidence at trial showed the following: At 6:00 a.m. on 10 March 2001, the victim, Charles King (King), was at his home in Plymouth, North Carolina, when defendant knocked on his door. King, wearing a bathrobe and thermal shirt and pants, answered the door, and defendant asked him for a glass of water. King invited defendant into his home and headed toward his kitchen to get the water. However, before King reached the kitchen, defendant grabbed King around his neck and choked him until he became unconscious. Defendant then bound King's wrists with clear packaging tape, went to another room in King's house, found a clock, and used the clock's extension cord first to bind King's wrists and then his ankles. Next defendant covered King's entire face, including his nose and mouth, with clear packaging tape and pushed King under a hospital bed. Defendant left King under the bed to die of asphyxiation while he searched King's house for something to steal. As King lay suffocating under his bed, defendant took $250 from an envelope in King's bedroom, $20 from King's wallet, King's cell phone, bank card, and car keys. After thirty minutes of searching King's house and stealing these items, defendant took King's car, drove to Williamston, North Carolina, rented a room at a motel, and bought crack cocaine.
The next day defendant drove King's car to a local Burger King, where he stole a woman's purse and drove away. A man at the restaurant saw the license plate number on King's car as defendant fled the restaurant. A Burger King cashier relayed the license plate number to a police officer.
A short while later, Corporal Scott McDougal of the Williamston Police Department spotted the car defendant was driving. Several officers, including Deputy Jason Branch of the Martin County Sheriff's Department, pursued defendant. Eventually, defendant stopped his car and fled into the woods, where Deputy Branch overtook him on foot and arrested him.
*613 When Corporal McDougal arrived at the scene of the arrest, he examined the car defendant had been driving. Inside he found the purse defendant had just stolen, a set of keys, a cell phone, a knife, a homemade crack pipe, and a bank card bearing the name Charles King. Corporal McDougal also confirmed that the car defendant drove during the chase belonged to Charles King. The officers took defendant to the Martin County Sheriff's Department for questioning and later transported him to the Bertie-Martin Regional Jail.
Later on 11 March 2001, defendant called his wife, Rita Smith (Rita), from whom he was separated, and claimed he was in jail for snatching a purse. Defendant then began to cry and told his wife he would never get out of jail because he killed someone in Plymouth. Rita then asked defendant to let her speak to the sheriff. She asked the sheriff why defendant was in jail. The sheriff replied that defendant had stolen a woman's purse and fled in a car registered to Charles King. After talking with defendant and the sheriff, Rita relayed the story to her mother and speculated that defendant killed King. Rita knew King because she had bought cologne from him in the past. Rita and her mother attempted to call King at his home, but no one answered.
Two days after the murder, Rita relayed the contents of her conversation with defendant to her friend, Brenda Jackson. Rita and Jackson again called King's home, but no one answered. After receiving no reply from King, Rita and Jackson called Detective John Floyd, Chief of Police in Plymouth, North Carolina. Jackson relayed information to Chief Floyd about defendant's conversation with Rita. Jackson asked Floyd to go by King's house to check on King's whereabouts.
When Chief Floyd and Officer Heather Thompkins arrived at King's house, they knocked on the doors and received no answer. One officer gained entry to the house through a window and let the other one in through a door. Once inside, they noticed a bedroom had been ransacked. The officers discovered King's body under a hospital bed.
On 13 March 2001, Dr. Paul Spence, M.D., conducted an autopsy on King at Pitt County Memorial Hospital. The autopsy revealed only one significant external injury, a scratch on King's left shin. Internal injuries were consistent with manual choking: bruises and bleeding into the muscles surrounding the voice box and bits of hemorrhage inside the structure of the thyroid cartilage. King's hands were swollen and purple-red in color, indicating King was alive at the time defendant bound him with the tape and electrical cord. Dr. Spence stated that King's death was caused by asphyxia resulting from blockage of the nose and mouth due to tape bound around the head. In Dr. Spence's estimation, once defendant placed tape on King's nose and mouth, King became brain dead in two to three minutes and his heart stopped after ten to twenty minutes. Dr. Spence also determined that King could have remained conscious for a portion of that time. Finally, Dr. Spence testified King could have regained consciousness after defendant choked him and been aware of his condition, but because of his lack of oxygen, King would have been unable to move.
Additional relevant facts will be presented when necessary to resolve specific assignments of error raised by defendant.
JURY SELECTION
Defendant first argues the trial court erred by denying his challenge for cause to prospective juror Charles Hassell. During voir dire, Hassell indicated he was strictly against drug use. Defense counsel then asked Hassell the following question:
[Y]our position is such concerning drug use and abuse that in the event evidence came out in this trial that drug use was involved, it would affect or impair substantially impair your ability to be fair and impartial; is that correct?
Hassell replied "yes" to this question. Defendant then challenged Hassell for cause.
In response, the trial court engaged in the following colloquy with Hassell:
THE COURT: Well let me Mr. Hassell, let me ask you ... just a couple of questions if I could. I don't mean to embarrass *614 you. There are no right or wrong answers, and I want to make sure I understand what you're saying, and I'm trying to frame the question in a way that are you saying to me, sir, that your personal feelings about the use or use [sic] of or possession of drugs is such that it would interfere or prevent you from following the law in this as I would instruct you as it relates to this case?
MR. HASSELL: Well, I could follow the law.
THE COURT: All right. Now and so I want to make sure what you're saying you know, many people don't like drugs, don't approve of drugs, and I don't believe that's the question that [the defense attorney] was asking you, and that may have been how that may have been what you are saying. I don't know one way or the other.
I'm not trying to put words in your mouth, butI I'm just making sure I understand that's what you were saying or whether what you were saying is you didn't like drugs or are you saying to me that your feeling is such I'm asking you as to whether or not your personal feelings about particular crimes or particular types of conduct are such that it would overwhelm your reason and common sense and your ability to follow the law as I would instruct you on should we reach some aspect of the case that may relate to the consumption or use or possession of drugs?
MR. HASSELL: No. It wouldn't do that.
THE COURT: You would be able and could and would follow the law as I would instruct you on regardless of what your own personal feelings would be as it relates to the use or possession of or consumption of drugs; is that correct?
MR. HASSELL: Yes.
THE COURT: Are you sure of that answer, sir?
MR. HASSELL: Yeah.
THE COURT: All right. The Challenge for cause is denied.
Defendant properly preserved error by exhausting the peremptory challenges available to him, renewing his challenge to prospective juror Hassell, and having his renewed challenge denied. N.C.G.S. § 15A-1214(h) (2003). However, in addition to preserving error, defendant must show error by (1) demonstrating that the trial court abused its discretion in denying the challenge, and (2) showing defendant was prejudiced by this abuse of discretion. State v. Grooms, 353 N.C. 50, 68, 540 S.E.2d 713, 725 (2000), cert. denied, 534 U.S. 838, 122 S.Ct. 93, 151 L.Ed.2d 54 (2001).
Defendant contends the trial court improperly rehabilitated Hassell with leading questions, despite the prohibition against reducing determinations of juror bias "to question-and-answer sessions which obtain results in the manner of a catechism." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 852 (1985). However, we conclude that the trial court did not lead Hassell to answer that he would follow the law. Rather, the trial court questioned Hassell in an effort to determine whether, despite Hassell's feelings about drug use, he could follow the law.
We further conclude that the trial court did not abuse its discretion by denying defendant's challenge for cause. As the United States Supreme Court further stated in Wainwright:
What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.... [T]his is why deference must be paid to the trial judge who sees and hears the juror.
Id. at 424-26, 105 S.Ct. at 852-53, 83 L.Ed.2d at 852-53 (footnote omitted). Thus, we must give substantial weight to the trial court's determination that Hassell was not biased. *615 We defer to the trial court who could see and hear Hassell, and we conclude that the trial court did not abuse its discretion by denying defendant's challenge for cause. Defendant's assignment of error is overruled.
Next, defendant contends the trial court erred by failing to give him an additional peremptory challenge. Defendant claims he was entitled to an additional peremptory challenge because the trial court removed a seated juror for cause before the end of jury selection and after defendant had used all but one of his remaining peremptory challenges.
After both defendant and the prosecution accepted prospective juror Gloria Cox, Cox brought the trial court a note from her doctor recommending that she be excused from jury duty because serving as a juror would be too stressful for her. The trial court dismissed Cox for cause. Defendant then requested an additional peremptory challenge, stating that he had undergone a substantial portion of jury selection believing that Cox would be a juror. The trial court denied defendant's request.
Defendant contends the trial court erred by failing to use its inherent authority to restore a peremptory challenge to remedy a prejudicial development in jury selection. However, we disagree. Although a trial court must grant a defendant an additional peremptory challenge if, upon reconsideration of the defendant's previously denied challenge for cause, "the judge determines that the juror should have been excused for cause," N.C.G.S. § 15A-1214(i) (2003), trial courts generally have no authority to grant additional peremptory challenges. See, e.g., State v. Barnes, 345 N.C. 184, 208, 481 S.E.2d 44, 57 ("[T]he trial court ha[s] no authority to grant any additional peremptory challenges...."), cert. denied, 522 U.S. 876, 118 S.Ct. 196, 139 L.Ed.2d 134 (1997), and, cert. denied, 523 U.S. 1024, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998), and State v. Hunt, 325 N.C. 187, 198, 381 S.E.2d 453, 460 (1989) ("[T]he trial court ha[s] no authority to increase the number of peremptory challenges...."). In fact, trial courts are "precluded from authorizing any party to exercise more peremptory challenges than specified by statute." State v. Dickens, 346 N.C. 26, 41, 484 S.E.2d 553, 561 (1997) (holding that the trial court did not err by refusing to grant the defendant an additional peremptory challenge following the reexamination and excusal for cause of a juror). Because the trial court had no authority to provide defendant with additional peremptory challenges, defendant's argument is without merit and we overrule this assignment of error.
Next, defendant contends the trial court failed to comply with the N.C.G.S. § 15A-1214(a) requirement for random jury selection when it placed a prospective juror in a specific seat after that juror was randomly called to fill another seat. Prospective juror Jonas Simpson, who had been summoned in the initial group of venire members to be examined for fitness to serve, was not present when the clerk called his name. The trial court called another prospective juror in Simpson's place. The trial court then examined this prospective juror and two other prospective jurors. Following a recess, Simpson arrived at the courtroom. The trial court placed him in panel A, seat twelve, the panel and seat for which he was originally called. After the trial court and the prosecutor questioned Simpson, the trial court allowed the prosecutor's request to challenge Simpson for cause, finding that Simpson was unequivocally opposed to the death penalty.
Defendant contends the trial court violated the § 15A-1214(a) requirement for random jury selection when it placed Simpson in a specific seat. However, defendant has waived review of this issue for two reasons. First, defendant failed to object to Simpson's placement in a non-random seat on constitutional grounds. "Constitutional questions that are not raised and passed upon in the trial court will not ordinarily be considered on appeal." State v. Cummings, 353 N.C. 281, 292, 543 S.E.2d 849, 856, cert. denied, 534 U.S. 965, 122 S.Ct. 375, 151 L.Ed.2d 286 (2001). Therefore, defendant has waived review of any constitutional issues. Second, defendant failed to preserve his alleged statutory violation for review because he failed to follow the N.C.G.S. § 15A-1211(c) procedure for challenging the randomness *616 of jury selection. Subsection 15A-1211(c) states that all such challenges "[m]ust be in writing," "[m]ust specify the facts constituting the ground of challenge," and "[m]ust be made and decided before any juror is examined." N.C.G.S. § 15A-1211(c)(2)-(4) (2003). These challenges must be made at the trial court level. Id. § 15A-1211(b) (2003). Defendant did not object to the trial court's placement of Simpson in a specific seat. Therefore, defendant has failed to preserve this issue for review, and we overrule his assignment of error.
GUILT-INNOCENCE PHASE
Defendant contends the trial court violated his constitutional right to present evidence by excluding the bases for his expert witness's opinion that he lacked the specific intent and the requisite mental state to commit murder. Dr. Holly Rogers, M.D., a staff psychiatrist at Duke University, testified that she diagnosed defendant as having cocaine dependence. She further testified that defendant's dependency on cocaine impaired his ability to reason, plan, and think.
The trial court ruled that Dr. Rogers could not testify that she based her opinion partly on statements defendant made to her and statements defendant made to his family members about his drug use on the day of the murder. The trial court based its decision to exclude this testimony on Rule of Evidence 403, which allows a court to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C.G.S. § 8C-1, Rule 403 (2003). The trial court found defendant's hearsay statements to Dr. Rogers and his family self-serving. Because the statements were the only evidence that defendant used cocaine the day of the murder, the trial court further found the jury would have difficulty following a limiting instruction and understanding that the statements were not offered for the truth of the matter. The court excluded the statements, finding that, pursuant to Rule 403, the danger of unfair prejudice, confusion of the issues, or misleading the jury outweighed the statements' probative value.
Defendant argues that this Court has consistently held that experts must be allowed to testify about the basis of their opinions. See, e.g., State v. Wade, 296 N.C. 454, 458, 251 S.E.2d 407, 409 (1979) (holding that the trial erred by failing to admit the basis for an expert's opinion). However, as we have repeatedly stated, the bases for an expert's opinion are not automatically admissible. See, e.g., State v. Workman, 344 N.C. 482, 495, 476 S.E.2d 301, 308 (1996) (stating that the bases for an expert's opinion are not automatically admissible); and State v. Baldwin, 330 N.C. 446, 456-57, 412 S.E.2d 31, 37-38 (1992) (affirming the trial court's exclusion of defendant's self-serving hearsay statements to his psychologist, even though those statements were the basis for the psychologist's expert opinion). As in Baldwin, the trial court in this case found defendant's statements relevant to show the basis for an expert opinion, but that those statements were likely to confuse the jury. We conclude that the trial court properly applied Rule 403 to find that although relevant, the danger of the statements prejudicing, confusing, or misleading the jury outweighed the statements' probative value. Therefore, the trial court did not abuse its discretion by excluding the statements and we overrule defendant's assignment of error.
Defendant next argues that the trial court erred in failing to intervene during the prosecutor's guilt-innocence phase closing argument when the prosecutor interjected opinions concerning information outside the record.
As a preliminary matter, we note that closing argument should not include the personal knowledge or beliefs of the arguing attorney, especially when the knowledge or beliefs involve matters not based on the evidence. See State v. Flowers, 347 N.C. 1, 36-37, 489 S.E.2d 391, 412 (1997), cert. denied, 522 U.S. 1135, 118 S.Ct. 1094, 140 L.Ed.2d 150 (1998); and State v. Solomon, 340 N.C. 212, 218, 456 S.E.2d 778, 783, cert. denied, 516 U.S. 996, 116 S.Ct. 533, 133 L.Ed.2d 438 (1995). However, a prosecutor in a capital *617 case has a duty to argue all the facts in evidence as well as all reasonable inferences stemming from these facts. State v. McCollum, 334 N.C. 208, 223 and 227, 433 S.E.2d 144, 152 and 154 (1993), cert. denied, 512 U.S. 1254, 114 S.Ct. 2784, 129 L.Ed.2d 895 (1994). While effectuating this duty, prosecutors should be granted wide latitude in their closing arguments. Solomon, 340 N.C. at 218, 456 S.E.2d at 783.
Defendant contends the prosecutor improperly insinuated that defendant obtained a different psychologist because his first court-appointed psychologist, Dr. Matthews, did not "say the right things." In fact, defendant only obtained a different psychologist after Dr. Matthews' license was suspended.
During the prosecutor's guilt-innocence phase closing argument, he stated:
There's not one shred of evidence oh yes you have a Dr. Dr. Rogers who came in at $200 an hour that says that he's got a cocaine dependency based on some information that she received from from talking to the defendant, talking to some family members, and looking over some records....
The prosecutor also told the jury that Dr. Rogers, defendant's expert, had first seen defendant nearly a year after the crime. Next, the prosecutor asked the jury, "[W]hat happened to Matthew, Dr. Matthew the one one that saw him in September? Where's he? Didn't he say the right things?" The trial court sustained defendant's objection to the comment, "Didn't he say the right things?"
Hence, the trial court sustained defendant's objection to the problematic remark which suggested that defendant's first expert may not have provided a favorable opinion to the defense. Although defendant failed to request a curative instruction, the trial court had instructed the jury at the beginning of the trial that, "[w]hen [the trial court] sustain[s] an objection to a question, you as a juror must disregard the question and answer, if one has been given, and draw no inference from the question or answer."
Defendant further argues that the prosecutor's entire argument concerning Dr. Matthews was grossly improper. However, defendant's closing argument focused largely on Dr. Rogers' testimony that defendant's cocaine dependence and consumption on the day of the murder impeded defendant's ability to reason, plan, and think. Accordingly, the prosecutor was entitled to some latitude in responding to this argument. In any event, after thoroughly reviewing the prosecutor's argument, we conclude that the prosecutor was properly challenging the credibility of the opinion of defendant's expert. We thus find no error here and we overrule defendant's assignment of error.
CAPITAL SENTENCING PROCEEDING
Defendant argues that the trial court erred in allowing the jury to find as aggravating circumstances that the murder was committed during a kidnapping and that the murder was committed during a robbery. See N.C.G.S. § 15A-2000(e)(5) (2003). Defendant argues that these aggravating circumstances were based on the same evidence and were thus duplicative.
The following are the relevant aggravating circumstances submitted to the jury:
(1) Was this murder committed while the defendant was engaged in the commission of robbery?
(2) Was this murder committed while the defendant was engaged in the commission of kidnapping?
See id. ("The capital felony was committed while the defendant was engaged, or was an aider or abettor, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any homicide, robbery, rape or a sex offense, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.").
Every aggravating circumstance submitted by the trial court in a capital sentencing proceeding must be supported by independent evidence. State v. Quesinberry, 319 N.C. 228, 239, 354 S.E.2d 446, 452-53 (1987), judgment vacated on other grounds, 494 U.S. 1022, 110 S.Ct. 1465, 108 L.Ed.2d *618 603 (1990). However, if there is separate substantial evidence to support each submitted aggravating circumstance, it is not error for some evidence supporting the aggravating circumstances to overlap. State v. White, 355 N.C. 696, 709, 565 S.E.2d 55, 64 (2002), cert. denied, 537 U.S. 1163, 123 S.Ct. 972, 154 L.Ed.2d 900 (2003); State v. Conaway, 339 N.C. 487, 530, 453 S.E.2d 824, 851, cert. denied, 516 U.S. 884, 116 S.Ct. 223, 133 L.Ed.2d 153 (1995). More specific to the present case, when separate and distinct evidence supports two aggravating circumstances within the same statutory subsection, submission of each aggravating circumstance is proper. State v. Cheek, 351 N.C. 48, 76, 520 S.E.2d 545, 561 (1999) (finding no error in the trial court's submission of separate aggravating circumstances under N.C.G.S. § 15A-2000 (e)(5) based on defendant's commission of a robbery and a kidnapping during the course of the murder), cert. denied, 530 U.S. 1245, 120 S.Ct. 2694, 147 L.Ed.2d 965 (2000); State v. Bond, 345 N.C. 1, 34-35, 478 S.E.2d 163, 181 (1996), cert. denied, 521 U.S. 1124, 117 S.Ct. 2521, 138 L.Ed.2d 1022 (1997) (same); see also State v. Trull, 349 N.C. 428, 454, 509 S.E.2d 178, 195 (1998) (no error to submit both rape and kidnapping as aggravating circumstances under subsection (e)(5)), cert. denied, 528 U.S. 835, 120 S.Ct. 95, 145 L.Ed.2d 80 (1999). In short, aggravating circumstances may be submitted unless the supporting evidence completely overlaps. State v. Miller, 357 N.C. 583, 595, 588 S.E.2d 857, 866 (2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2914, 159 L.Ed.2d 819 (2004); State v. Moseley, 338 N.C. 1, 54, 449 S.E.2d 412, 444 (1994), cert. denied, 514 U.S. 1091, 115 S.Ct. 1815, 131 L.Ed.2d 738 (1995). Accordingly, our analysis in the present case must begin with consideration of whether distinct evidence was presented to support a finding that defendant committed a robbery and a kidnapping during the course of the murder.
A robbery occurs when a defendant feloniously takes money or goods of any value from the person of another against that person's will, by violence or by putting that person in fear. State v. Daniels, 337 N.C. 243, 267, 446 S.E.2d 298, 313 (1994), cert. denied, 513 U.S. 1135, 115 S.Ct. 953, 130 L.Ed.2d 895 (1995).
A kidnapping occurs when a defendant unlawfully confines, restrains, or removes from one place to another, any other person sixteen years of age or over without the person's consent, "for the purpose of ... [f]acilitating the commission of any felony." N.C.G.S. § 14-39(a)(2) (2003). However, a defendant is not guilty of kidnapping if the only evidence of restraint is that restraint which is an inherent, inevitable feature of another felony. State v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 369 (1998). The defendant is guilty of kidnapping if the defendant takes acts that cause additional restraint of the victim or increase the victim's helplessness and vulnerability. Id. at 559, 495 S.E.2d at 370.
In the present case, separate evidence supported the kidnapping and the robbery. Defendant robbed the victim by grabbing the victim around the neck and rendering him unconscious. At this point, defendant was free to steal the items he wanted and leave. However, defendant took the additional steps of binding the victim's wrists and ankles and taping his mouth. This binding and taping was not an inherent, inevitable part of the robbery. Rather, these forms of restraint exposed the victim to a greater danger than that inherent in the robbery and constituted a kidnapping. Accordingly, separate and distinct evidence supported the existence of both aggravating circumstances. See Cheek, 351 N.C. at 54-55 and 76, 520 S.E.2d at 549-50 and 561 (finding no error in submission of two (e)(5) aggravating circumstances based on both robbery and kidnapping during murder when co-defendants forced victim out of her car with a gun, struck her in the head, tied her up and placed her in the backseat or trunk, drove the car to Wilmington, and burned the vehicle with the victim in the trunk); Beatty, 347 N.C. at 559, 495 S.E.2d at 370 (finding defendant's acts of putting duct tape on the victim's wrists, forcing him to lie on the floor, and kicking him in the back twice were not inherent, inevitable parts of the robbery and thus constituted evidence supporting defendant's kidnapping conviction); Bond, 345 N.C. at 13 and 34-35, 478 S.E.2d at 168 and 181 (finding no error *619 in submission of three (e)(5) aggravating circumstances based on a robbery and two kidnappings where defendants kidnapped two victims and forced them to drive around for hours while defendants forced one victim to assist them in several attempted robberies).
We also note that defendant alludes to the trial court's failure to instruct the jury specifically that it should not use the same evidence to support a finding of both (e)(5) aggravating circumstances submitted. Indeed, a trial court's instructions should ensure that jurors will not use the same evidence to find more than one aggravating circumstance. State v. Gay, 334 N.C. 467, 495, 434 S.E.2d 840, 856 (1993). In the present case, the trial court's jury instruction, given pursuant to 1 N.C.P.I. Crim. 210.25 (2001), provided that: "[K]idnapping is the unlawful restraint of another person without without their consent for the purpose of facilitating the commission of robbery, which restraint was a separate complete act independent of and apart from the robbery." (Emphasis added). We must assume that the jury obeyed this instruction and identified evidence of separate restraint separate from the robbery. See State v. Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208 (stating that jurors are assumed to follow a trial court's instructions in a criminal case), cert. denied, 510 U.S. 1028, 114 S.Ct. 644, 126 L.Ed.2d 602 (1993). In any event, the trial court's jury instructions did not constitute prejudicial error.
We conclude this assignment of error is without merit.
Next, defendant argues that the trial court erred in excluding the following mitigating evidence: defendant's expression of remorse that was offered via testimony from defendant's mother and a minister; defendant's adjustment to incarceration that was shown by defendant's behavior compared to other inmates and by defendant's willingness to take on responsibilities not given to other inmates; and defendant's practice of religion in a manner that helped other inmates; and defendant's support if given a life sentence via the expectation that various people would make regular visits to see defendant in prison.
While a trial court should allow the jury to consider any mitigating evidence related to a defendant's character and record or the circumstances of the crime, the feelings, actions, and conduct of third parties have no mitigating value as to defendant and are irrelevant in capital sentencing proceedings. State v. Locklear, 349 N.C. 118, 160-61, 505 S.E.2d 277, 302 (1998), cert. denied, 526 U.S. 1075, 119 S.Ct. 1475, 143 L.Ed.2d 559 (1999). For example, Locklear held that the trial court properly excluded mitigating evidence attacking the character of the victim of one of the defendant's prior assaults because the evidence did not "shed[] light on defendant's age, character, education, environment, habits, mentality, propensities, or criminal record, or on the circumstances of the offense for which defendant was being sentenced." Id. at 159, 505 S.E.2d at 301.
We turn first to defendant's proposed evidence revealing his remorse for the killings. In the present case, the trial court submitted a non-statutory mitigating circumstance that "the defendant has expressed remorse for the crime." Defendant argues that the trial court erred in refusing to allow presentation of certain evidence supporting this mitigating circumstance.
Defendant references the following exchange during the testimony of defendant's mother:
[DEFENSE COUNSEL]: What have you actually observed and heard from him concerning this matter.
[MOTHER]: He's very sorry.
I know if it had not been for the crack
[PROSECUTOR]: Objection, if Your Honor please.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Now don't tell me what you know, okay.
[MOTHER]: Okay.
[PROSECUTOR]: But you say he was he's very sorry.
[MOTHER]: Yes.
The trial court sustained an objection to defendant's mother's statement as to what she "know[s]." This testimony was clearly *620 an irrelevant statement of a third party's feelings concerning punishment. See Locklear, 349 N.C. at 161,