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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ANTIONE DENARD ALLEN
Filed: 17 February 2004
1. Homicide_premeditation and deliberation_evidence sufficient
There was sufficient evidence for a jury to find premeditation and deliberation in a first-
degree murder prosecution where defendant played a critical role in developing a robbery plan;
armed himself with an assault rifle as part of that plan; provided transportation and directions for
others to the victim's apartment; entered the apartment with no attempt to conceal his weapon;
and was in the apartment only a brief time before the victim was shot.
2. Evidence_hearsay_excited utterance exception
Testimony relating statements made to an officer by two witnesses to a robbery and
shooting were admissible as excited utterance exceptions to the hearsay rule. The statements
were made twenty minutes after the shooting, both witnesses were upset, and the arrival of the
Spanish-speaking officer gave the witnesses their first opportunity to tell what they had seen.
N.C.G.S. § 8C-1, Rule 803(2).
3. Evidence_hearsay_unavailable witness
The trial court correctly deemed unavailable a witness who would not return from
Mexico, and the six prongs of the inquiry required by N.C.G.S. § 8C-1, Rule 804(b)(5) were
4. Constitutional Law_Confrontation Clause_unavailable witness_independent
assessment of trustworthiness
The Court of Appeals conducted an independent assessment of the trustworthiness of a
statement by an unavailable witness and concluded that admission of the statement was
consistent with the Confrontation Clause.
5. Evidence_character of victims_not placed in issue by defendant_evidence not
Admission of testimony about the character of homicide victims before defendant called
their character into issue was not prejudicial in light of the overwhelming evidence against
6. Appeal and Error_preservation of issues--constitutional issue not raised at trial_no
offer of proof
Defendant waived appeal of limits on his cross-examination of witnesses by not raising
constitutional issues at trial and or making an offer of proof.
7. Criminal Law_flight_evidence sufficient
There was sufficient evidence for an instruction on flight where defendant fled the scene
of a robbery and shooting, going first to the apartment of an acquaintance, then calling a cab to
go to a cousin's home and later to his home; he stayed there overnight, but left for a friend's
home in a near-by town after hearing that a child had died; and he remained at the friend's homefor two days before returning to speak with police.
8. Appeal and Error_prosecutor's argument_no objection or plain error assertion
A defendant waived appeal of the State's argument about his exercise of his right to
remain silent by not specifying grounds for his sole objection, raising his constitutional concerns
at the trial court, or asserting plain error.
9. Criminal Law_prosecutor's argument_plea bargain with accomplices
There was no plain error in the prosecutor's argument about its plea bargain with a first-
degree murder defendant's accomplices. The argument did not intimate an opinion on the
witness's credibility by the trial court or the Supreme Court.
10. Homicide_first-degree murder_
The short-form indictment for first-degree murder is constitutional.
Appeal by defendant from judgment dated 1 March 2002 by Judge
Melzer A. Morgan, Jr. in Superior Court, Forsyth County. Heard in
the Court of Appeals 9 October 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Steven F. Bryant, for the State.
Reita P. Pendry for defendant.
Antione Denard Allen (defendant) appeals from a judgment
sentencing him to life imprisonment without parole, entered after
a jury found him guilty of the first degree murder of Feliciano
(See footnote 1)
The State's evidence tended to show that during the afternoon
of 27 January 1998, Marshall Gillespie (Gillespie) visited Stephen
Hairston (Hairston) at Hairston's home. Gillespie asked Hairstonto help him rob "some Mexicans" living at 1231-B Gholson Street,
Winston-Salem, North Carolina. Hairston agreed, retrieved his gun,
and got into a car with Gillespie. Steven Gaines (Gaines) and
defendant were already seated in the car. Defendant was armed with
an assault rifle. While the four men rode in the car to the home
of defendant's aunt, they planned the robbery.
At the home of defendant's aunt, they switched cars, getting
into defendant's aunt's car and driving to Old North Village to
pick up Kenyon Grooms (Grooms). Grooms got into the driver's seat
of the car and defendant directed him to the apartment complex on
When the five men reached the apartment complex on Gholson
Street, Hairston, Gaines and defendant got out of the car. Gaines
went to the rear of the apartment at 1231-B. Hairston and
defendant, who was carrying an assault rifle, walked toward the
apartment. Gillespie also exited the car and approached the
apartment. Hairston then walked away from the apartment complex,
abandoning the robbery. Gillespie and defendant entered the
apartment. Defendant shot Feliciano Noyola (Feliciano) and
Gillespie shot Esmeralda Noyola (Esmeralda), a six-year-old child.
Gaines also entered the apartment. Grooms drove away from the
Officer T.G. Brown (Officer Brown) of the Winston-Salem Police
Department responded to a call reporting gunfire. Officer Brown
found two Hispanic women, Maria Santos (Santos) and Justina
Dominguez (Dominguez), in the apartment. The two women were crying
and were unable to speak English. Officer Brown found Feliciano still breathing, on the floor in the kitchen in a pool of blood.
He found Esmeralda's body on the floor near the entrance to a
bedroom. Officer Brown requested backup officers and emergency
medical services (EMS). Before the EMS arrived, Feliciano stopped
Officer Rafael Barros (Officer Barros) of the Winston-Salem
Police Department arrived approximately ten minutes after Officer
Brown. Officer Barros spoke fluent Spanish. He found Santos and
Dominguez in one of the bedrooms. Santos, who was the mother of
Esmeralda, reported that three black men had entered the apartment
through the front door and demanded money. Dominguez, who was
Feliciano's wife, said that she had been in a bedroom with her baby
when one of the intruders kicked the door open and ripped a gold
chain from her neck. She heard gunshots but she never left the
Officer Barros showed a photographic lineup to Santos and
Dominguez on 28 January 1998. Officer Barros testified that Santos
identified Gillespie as the man who shot Esmeralda, but admitted
that Santos was not positive in her selection. Dominguez did not
identify Gillespie, and neither woman identified defendant.
At trial, Hairston and Grooms testified as witnesses for the
State. Both men admitted their participation in the robbery. They
testified that defendant, armed with an assault rifle, had entered
the apartment at 1231-B Gholson Street, along with Gillespie.
Defendant testified at trial that he had gone with the others
to the apartment at 1231-B Gholson Street with the intent to sell
Feliciano guns as payment for drugs. When defendant entered theapartment, Feliciano pulled a gun. Feliciano fired a shot toward
defendant's head and defendant accidently pulled the trigger on the
gun he was holding. Shots were fired and defendant and Gillespie
fled the apartment. Defendant testified that when he heard the
following day that a child had been killed in the apartment, he
went to Kernersville. He remained in Kernersville with friends for
 Defendant first argues that the evidence at trial was
insufficient to prove the elements of premeditation and
deliberation for first degree murder. The trial court denied
defendant's motions to dismiss at the close of the State's evidence
and again at the close of all the evidence. In order to submit the
charge of first degree murder to the jury, the State must have
presented substantial evidence from which the jury could conclude
that defendant shot and killed Feliciano with malice,
premeditation, and deliberation.
When a trial court considers a motion to dismiss on the ground
of insufficiency of the evidence, the trial court must determine
"whether there is substantial evidence of each essential element of
the offense charged and of the defendant being the perpetrator of
the offense." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920,
925 (1996). "The existence of substantial evidence is a question
of law for the trial court, which must determine whether there is
relevant evidence that a reasonable mind might accept as adequate
to support a conclusion." State v. Barden, 356 N.C. 316, 351, 572
S.E.2d 108, 131 (2002), cert. denied, ___ U.S. ___, 155 L. Ed. 2d1074 (2003). The trial court may consider evidence that is direct,
circumstantial, or both. Id. Furthermore, the trial court must
consider the evidence in the light most favorable to the State and
the State is given the benefit of all reasonable inferences
therefrom. State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721
(2001). In reviewing a motion to dismiss, "[t]he defendant's
evidence is not considered unless favorable to the State." Id.
"First degree murder is the unlawful killing of a human being
with malice, premeditation, and deliberation." State v. Vause, 328
N.C. 231, 238, 400 S.E.2d 57, 62 (1991) (citations omitted); N.C.
Gen. Stat. § 14-17 (2003). The intentional use of a deadly weapon
which proximately causes death raises the presumption that the
killing was unlawful and performed with malice. State v. Myers,
299 N.C. 671, 677, 263 S.E.2d 768, 772 (1980). Premeditation and
deliberation are generally established by circumstantial evidence,
"because they ordinarily are not susceptible to proof by direct
evidence." State v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154
(1991). Premeditation means a defendant formed the specific intent
to kill the victim some time beforehand, however brief the period
of time may have been before the killing. Id. "Deliberation does
not require brooding or reflection for any appreciable length of
time, but imports the execution of an intent to kill in a cool
state of blood without legal provocation, and in furtherance of a
fixed design." Myers, 299 N.C. at 677, 263 S.E.2d at 772.
Circumstances from which premeditation and deliberation can be
(1) absence of provocation on the part of the
deceased, (2) the statements and conduct ofthe defendant before and after the killing,
(3) threats and declarations of the defendant
before and during the occurrence giving rise
to the death of the deceased, (4) ill will or
previous difficulties between the parties, (5)
the dealing of lethal blows after the deceased
has been felled and rendered helpless, (6)
evidence that the killing was done in a brutal
manner, and (7) the nature and number of the
State v. Olson, 330 N.C. 557, 565, 411 S.E.2d 592, 596 (1992).
Considering the evidence in the light most favorable to the
State, the evidence tended to show that on 27 January 1998,
defendant armed himself with a loaded assault rifle as part of a
plan to rob Feliciano. Defendant played a critical role in
developing that plan. Defendant provided transportation and
directions to the apartment at 1231-B Gholson Street. Once in the
apartment parking lot, defendant approached and entered the
apartment without any attempt to conceal his weapon. Only a very
brief time passed between the time defendant entered the apartment
and the time Feliciano was shot. This was substantial evidence
which a jury could accept as adequate to conclude that defendant
intentionally killed Feliciano with premeditation and deliberation.
See State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986) (the
defendant was found guilty of murder in the first degree based on
premeditation and deliberation where the defendant planned to rob
a store and shot the cashier with a gun he had been told was
inoperable). Defendant's assignments of error two, three, and four
are without merit.
 Defendant next argues that the trial court erred in
admitting hearsay statements made by Dominguez and Santos conveyedthrough the testimony of Officer Barros. Defendant contends that
the statements of Santos and Dominguez do not meet any exception to
the hearsay rule. At issue are the statements of Santos and
Dominguez on the evening of the shootings and Santos'
identification of Gillespie as Esmeralda's killer.
"Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1,
Rule 801(c) (2003). Hearsay is only admissible as provided by
statute or under the Rules of Evidence. N.C.G.S. § 8C-1, Rule 802.
"[E]ven if an out-of-court statement falls within an exception to
the hearsay rule, it nonetheless must be excluded at a criminal
trial if it infringes upon the defendant's constitutional right to
confrontation." State v. Rogers, 109 N.C. App. 491, 499, 428
S.E.2d 220, 224-225, cert. denied, 334 N.C. 625, 435 S.E.2d 348
(1993), cert. denied, 511 U.S. 1008, 128 L. Ed. 2d 54 (1994).
However, "Rule 803 provides that certain statements are not
excluded as hearsay regardless of the availability of the declarant
for purposes of testifying." State v. Pickens, 346 N.C. 628, 644,
488 S.E.2d 162, 171 (1997). One such exception is an excited
utterance. Id.; see N.C. Gen. Stat. § 8C-1, Rule 803(2) (2003).
Defendant objected to the admission of the statements of
Santos and Dominguez on the evening of the shootings as excited
utterances, pursuant to N.C. Gen. Stat. § 8C-1, Rule 803(2). The
trial court, in an extensive written ruling, detailed its decision
to admit the statements. An excited utterance is a "statement
relating to a startling event or condition made while the declarantwas under the stress of excitement caused by the event or
condition." N.C. Gen. Stat. § 8C-1, Rule 803(2). For a statement
to properly fall within this exception, there must be "'(1) a
sufficiently startling experience suspending reflective thought and
(2) a spontaneous reaction, not one resulting from reflection or
fabrication.'" Pickens, 346 N.C. at 644, 488 S.E.2d at 171
(quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841
(1985)). The trial court noted that both witnesses were under
extreme stress when they spoke with Officer Barros approximately
twenty minutes after the shooting. Because Officer Barros spoke
Spanish, his arrival at the scene offered the women their first
opportunity to convey the events of the shootings. Officer Barros
testified that it appeared that Santos had been crying and that
Dominguez stopped crying when speaking with Officer Barros. We
conclude that because Santos' and Dominguez's statements were made
only twenty minutes after the shootings and the statements related
to the startling events at issue, the testimony was properly
admitted pursuant to N.C.G.S. § 8C-1, Rule 803(2).
 Defendant further argues the trial court erred in
admitting Santos' identification of Gillespie in a photographic
line-up on 28 January 1998. The trial court concluded that no
specific hearsay exception applied under either N.C. Gen. Stat. §
8C-1, Rule 803(1) or Rule 804(b)(1)-(4). After finding Santos to
be unavailable and then methodically utilizing a six-part inquiry,
the trial court made findings of fact and conclusions of law that
Santos' statement was relevant and admissible under N.C. Gen. Stat.
§ 8C-1, Rule 804(b)(5). In order to admit hearsay testimony under Rule 804(b)(5), the
trial court must first find the declarant to be unavailable. After
reviewing the State's evidence detailing its repeated attempts to
obtain the attendance of Santos and Dominguez for defendant's first
trial in July 1999 and his retrial in 2002, the trial court found
the witnesses to be unavailable for purposes of testifying.
Officer Barros, then working for the U.S. Department of Treasury,
contacted Santos and Dominguez by telephone on numerous occasions
in a remote location in Mexico, promising to pay all expenses and
to arrange for transportation for the women to return to testify.
Both women refused to return to Forsyth County for the first trial.
As to the second trial, Officer Barros was unable to locate Santos
and Dominguez was uncooperative.
Rule 804(a)(5) provides that unavailability as a witness
includes a situation where the declarant "[i]s absent from the
hearing and the proponent of his statement has been unable to
procure his attendance . . . by process or other reasonable means."
N.C. Gen. Stat. § 8C-1, Rule 804(a)(5) (2003). After a thorough
review of the record, we find no error in the trial court's
conclusion that Santos and Dominguez were unavailable to testify.
The second step in assessing the admissibility of hearsay
statements under Rule 804(b)(5) is to conduct a six-prong inquiry.
The trial court is to consider:
(1) Whether the proponent of the hearsay
provided proper notice to the adverse party of
his intent to offer it and of its particulars;
(2) That the statement is not covered by any
of the exceptions listed in Rule
(3) That the statement possesses "equivalent
circumstantial guarantees of trustworthiness";
(4) That the proffered statement is offered as
evidence of a material fact;
(5) Whether the hearsay is "more probative on
the point for which it is offered than any
other evidence which the proponent can produce
through reasonable means"; and
(6) Whether "the general purposes of [the]
rules [of evidence] and the interests of
justice will best be served by admission of
the statement into evidence."
State v. Fowler, 353 N.C. 599, 609, 548 S.E.2d 684, 693 (2001)
(citations omitted), cert. denied, 535 U.S. 939, 152 L. Ed. 2d 230
(2002); see N.C.G.S. § 8C-1, Rule 804(b)(5).
The trial court must first determine whether the State, as
proponent of the hearsay testimony, provided adequate written
notice to defendant, the adverse party, regarding its intent to
offer the hearsay testimony and the particulars of the testimony.
N.C.G.S. § 8C-1, Rule 804(b)(5). The purpose of such notice is to
provide the adverse party with a fair opportunity to prepare to
address the evidence. N.C.G.S. § 8C-1, Rule 804 (b)(5). Defendant
does not contend notice was inadequate; therefore, we proceed with
our review of the necessary inquiry.
The trial court next considered whether Santos' identification
of Gillespie fell within any other hearsay exception listed in Rule
804(b)(1)-(4). See Fowler, 353 N.C. at 609, 548 S.E.2d at 693.
The trial court concluded the identification was not covered by any
other hearsay exception. Defendant does not challenge the trial
Under the third prong, the trial court considered whether thestatement at issue possessed "guarantees of trustworthiness" that
are equivalent to other exceptions contained in Rule 804(b). Id.
Factors to be considered in assessing whether the hearsay
statements possess sufficient indicia of trustworthiness are:
(1) assurance of personal knowledge of the
declarant of the underlying event; (2) the
declarant's motivation to speak the truth or
otherwise; (3) whether the declarant ever
recanted the testimony; and (4) the practical
availability of the declarant at trial for
State v. Castor, 150 N.C. App. 17, 26, 562 S.E.2d 574, 580 (2002)
(citations omitted), cert. denied, 357 N.C. 508, 587 S.E.2d 885
In the case before us, the trial court found that Santos'
identification possessed sufficient guarantees of trustworthiness.
The trial court based its conclusion on the following findings of
fact: (1) Santos was an eyewitness to the shooting and thus had
personal knowledge of the event; (2) Santos was motivated to speak
the truth to Officer Barros in order to aid in the apprehension of
her daughter's killer; (3) Santos never recanted her identification
of Gillespie as the individual who shot her daughter; and (4)
Santos was extremely difficult to contact in Mexico and her address
was unknown at the time of the second trial. She was resolute in
her resistance to return to the United States for defendant's trial
despite the State's offer to provide for her expenses and to make
all necessary arrangements. Accordingly, these findings support
the trial court's conclusion that the identification was
Under the inquiry's fourth prong, the trial court found thatthe identification by Santos was relevant. The evidence pertained
to the material facts at issue. Santos' statement identified one
of the killers and provided details of the crime, satisfying the
The fifth prong mandates that the trial court consider whether
Santos' statement was more probative on the point for which it was
offered than any other evidence the proponent could produce through
reasonable means. Fowler, 353 N.C. at 613, 548 S.E.2d at 695.
"Th[is] requirement imposes the obligation of a dual inquiry: were
the proponent's efforts to procure more probative evidence
diligent, and [was] the statement more probative on the point than
other evidence that the proponent could reasonably procure?"
Smith, 315 N.C. at 95, 337 S.E.2d at 846. At the outset, the trial
court found that Santos was the only person in the apartment
capable of identifying any of the intruders who possessed guns.
She alone was able to identify Gillespie as the individual who shot
Esmeralda. The trial court also concluded that the State had been
diligent in its attempt to obtain Santos' presence for trial, but
Santos refused to return for the trial and later her precise
whereabouts in Mexico were unknown. Santos' identification is as
probative on the issue of the identification of Esmeralda's shooter
as any other evidence the State could procure through reasonable
efforts. Based on these conclusions, the two-part inquiry outlined
in Smith was met by the State.
The trial court finally considered whether, under the sixth
prong, the admission of the hearsay statements of Santos served the
interest of justice and the general purpose of the rules ofevidence. Fowler, 353 N.C. at 614, 548 S.E.2d at 696. The trial
court determined that the admission of Santos' identification would
serve the interest of justice. The trial court noted that
defendant was free to raise inconsistencies in Santos' statements
during cross-examination of Officer Barros. Defendant has failed
to show any error in the trial court's analysis.
The trial court correctly deemed Santos to be unavailable and
satisfied all six prongs of the necessary inquiry. We find no
error in the admission of Santos' identification of Gillespie.
 Defendant lastly argues that this Court, in analyzing
"whether the admission of the declarant's out-of-court statements
violate the Confrontation Clause, . . . should independently review
whether the government's proffered guarantees of trustworthiness
satisfy the demands of the Clause." Lilly v. Virginia, 527 U.S.
116, 137, 144 L. Ed. 2d 117, 134 (1999). We have therefore
conducted an independent assessment to determine whether Santos'
statement possesses sufficient "particularized guarantees of
trustworthiness" in compliance with the mandate of the
Confrontation Clause. Id. at 125, 144 L. Ed. 2d at 127; see also,
Fowler, 353 N.C. at 616, 548 S.E.2d at 697. After a careful
review, we conclude that the admission of Santos' statement is
consistent with the Confrontation Clause. Santos received no
benefit in exchange for her statement, nor was it made in order to
avoid prosecution. She was the sole eyewitness to the murder of
her daughter by Gillespie and never recanted her statement. There
is no evidence she bore any ill will towards Gillespie. Finally,
defendant was free to discredit Santos' identification based on anyinconsistencies in her statement. Therefore, we reject defendant's
contention that the admission of Santos' identification of
Gillespie in the photographic line-up violated the Confrontation
Clause. Accordingly, defendant's assignments of error five and
seven are overruled.
 By defendant's assignments of error six and nine,
defendant argues that the trial court erred in admitting certain
testimony that depicted the character of decedents, Feliciano and
Esmeralda. Defendant asserts that the character evidence was
admitted even though defendant had not placed the character of
either victim at issue.
At trial, Susan Moretz (Moretz), Esmeralda's English As A
Second Language (ESL) teacher, described Esmeralda as having
overcome an initial language barrier. According to Moretz,
Esmeralda enjoyed school and sharing with her fellow students.
Moretz testified that she saw Esmeralda in the school cafeteria on
27 January 1998 washing tables. Esmeralda smiled and greeted
Moretz and appeared to be in good health.
James Lambert (Lambert), Feliciano's supervisor at the K-Mart
Distribution Center, testified at trial about Feliciano's language
difficulties and his ability to get along well with his co-workers.
Lambert remarked that Feliciano was a good worker and that he
appeared happy in a photograph introduced for identification
The admissibility of evidence concerning a victim's character
is set forth in N.C. Gen. Stat. § 8C-1, Rule 404(a)(2)(2003): Evidence of a person's character or a trait of
his character is not admissible for the
purpose of proving that he acted in conformity
therewith on a particular occasion, except:
. . . .
(2) Character of victim._ Evidence of a
pertinent trait of character of the
victim of the crime offered by an
accused, or by the prosecution to
rebut the same, or evidence of a
character trait of peacefulness of
the victim offered by the
prosecution in a homicide case to
rebut evidence that the victim was
the first aggressor[.]
The rule thus permits the State to introduce evidence of a victim's
character solely "to rebut defendant's evidence calling it into
question." State v. Quick, 329 N.C. 1, 26, 405 S.E.2d 179, 194
(1991). In the case before us, at the time of the testimony of
Moretz and Lambert, defendant had not challenged the character of
Esmeralda or Feliciano, nor had he presented evidence that either
was the aggressor. Therefore, the admission of testimony as to
character was in error.
However, "the admission of evidence which is technically
inadmissible will be treated as harmless unless prejudice is shown
such that a different result likely would have ensued had the
evidence been excluded." State v. Gappins, 320 N.C. 64, 68, 357
S.E.2d 654, 657 (1987). The State presented overwhelming evidence
of defendant's guilt and defendant has failed to show that the
exclusion of the character testimony would have impacted the jury's
 Defendant further contends that the trial court's decisionto limit defendant's cross-examination of Moretz and Lambert was in
error. Defendant wanted to ask Moretz whether she was aware of any
illegal drug activity at 1231-B Gholson Street and to ask Lambert
whether he was aware of Feliciano's conviction for possession of
marijuana. Defendant argued at trial that these questions were
relevant to Santos' fear of returning to testify and were relevant
to address the extent of Lambert's knowledge of Feliciano's
character. The trial court sustained the State's objection to this
line of cross-examination.
First we note that our Supreme Court has clearly announced
that constitutional issues not raised and passed upon at trial will
not be considered for the first time on appeal. State v. Benson,
323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988); N.C.R. App. P.
10(b)(1). Therefore, we will not address defendant's assertion
upon appeal that the trial court violated his right to cross-
examine witnesses as guaranteed by the Sixth Amendment to the
United States Constitution and Article I, Section 23 of the North
Furthermore, "[i]t is well established that an exception to
the exclusion of evidence cannot be sustained where the record
fails to show what the witness' testimony would have been had he
been permitted to testify." State v. Simpson, 314 N.C. 359, 370,
334 S.E.2d 53, 60 (1985). In order to preserve for appellate
review the exclusion of evidence, the "significance of the excluded
evidence must be made to appear in the record and a specific offer
of proof is required unless the significance of the evidence is
obvious from the record." Id. Our Supreme Court has held that inorder to conclude that prejudicial error has occurred, the
essential content or substance of the witness's testimony must be
In this case, the trial court expressly asked defendant
whether he wished to make an offer of proof or reserve the right to
make an offer of proof regarding the excluded line of questioning.
Defendant made no such offer of proof, and thus defendant has
waived this argument on appeal. Defendant's assignments of error
eight and ten are overruled.
 By his assignment of error eleven, defendant argues that
the trial court erred in instructing the jury on defendant's
flight. Defendant argues the instruction was inappropriate in the
absence of evidence supporting the instruction.
The trial court gave the State's requested instruction on
The State in this case contends and the
defendant . . . denies that the defendant
. . . fled. Evidence of flight may be
considered by you together with all other
facts and circumstances in these cases in
determining whether the combined circumstances
amount to an admission or show a consciousness
of guilt. However, proof of this circumstance
is not sufficient in itself to establish . . .
Further, this circumstance has no bearing on
the question of whether defendant . . . acted
with premeditation and deliberation.
Therefore, it must not be considered by you as
evidence of premeditation and deliberation.
An instruction on flight is appropriate where "'there is
some evidence in the record reasonably supporting the theory that
defendant fled after commission of the crime[.]'" State v.Kornegay, 149 N.C. App. 390, 397, 562 S.E.2d 541, 546 (quoting
State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)),
disc. review denied, 355 N.C. 497, 564 S.E.2d 51 (2002). "'[M]ere
evidence that defendant left the scene of the crime is not enough
to support an instruction on flight. There must also be some
evidence that defendant took steps to avoid apprehension.'" State
v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d 596, 625-26 (2001) (quoting
State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991)).
The evidence is undisputed that defendant fled the scene of
the crime following the shooting and ran to the apartment of an
acquaintance, where defendant called a cab to take him to his
cousin's house. Defendant later returned home where he remained
overnight. Defendant heard the following morning that a child had
been killed during the robbery and he then left Winston-Salem for
a friend's home in Kernersville. He remained there for two days
before returning to Winston-Salem to speak with the police about
the events of 27 January 1998.
Under these facts, we conclude the trial court did not err in
its instruction to the jury. See State v. Eubanks, 151 N.C. App.
499, 565 S.E.2d 738 (2002) (flight instruction was appropriate
where the defendant left the scene of the crime without providing
assistance to the victim, disposed of the gun, and did not turn
himself into police). There is sufficient evidence to support an
inference that defendant sought to escape apprehension.
Defendant's assignment of error eleven is without merit.
 In defendant's assignment of error fifteen, he contendsthat the State improperly commented on defendant's invocation of
his right to silence during closing arguments. The State, on four
occasions during its closing argument, referred to defendant as
waiting four years to tell his account of the events on the night
of 27 January 1998. Defendant asserts that the State's comments
can only be construed to refer to defendant's failure to testify at
his first trial in June 1999.
Defendant objected only once to such remarks by the State
during closing argument and the objection was overruled. Defendant
fails to argue plain error upon appeal as to those instances where
defendant raised no objection at trial. The Rules of Appellate
Procedure provide that in a criminal case, a defendant may raise a
question, not properly preserved by rule or law for appellate
review, by specifically and distinctly arguing plain error. N.C.R.
App. P. 10(c)(4). Because defendant has failed to argue plain
error, this Court will not review the merits of his argument as to
the remarks made by the State without objection by defendant.
In the instance of defendant's sole objection to the State's
comment, defendant did not state the specific grounds for the
requested ruling. Upon appeal, defendant asserts the State
violated his right to silence as guaranteed by the Fifth Amendment
to the United States Constitution.
Defendant failed to raise his constitutional concerns before
the trial court. As we noted previously, because defendant did not
raise the constitutional issue before the trial court, defendant is
barred from presenting the issue on appeal. N.C.R. App. P.
10(b)(1); State v. Wiley, 355 N.C. 592, 624, 565 S.E.2d 22, 44(2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003).
Thus, although troubled by the State's remarks, we conclude that
defendant has waived the issue upon appeal. Defendant's assignment
of error is dismissed.
 In defendant's assignment of error sixteen, he contends
that the trial court erred in failing to intervene ex mero motu
during the State's closing argument regarding the testimony of the
State's two immunized witnesses, Hairston and Grooms. Defendant
failed to object at trial to any of the remarks he now claims are
improper. Upon appeal, he contends that the State's argument was
outside the record in violation of N.C. Gen. Stat. § 15A-1230.
"Where a defendant fails to object to the closing arguments at
trial, defendant must establish that the remarks were so grossly
improper that the trial court abused its discretion by failing to
intervene ex mero motu." State v. Mitchell, 353 N.C. 309, 324, 543
S.E.2d 830, 839, cert. denied, 534 U.S. 1000, 151 L. Ed. 2d 389
(2001). "To establish such an abuse, defendant must show that the
prosecutor's comments so infected the trial with unfairness that
they rendered the conviction fundamentally unfair." State v.
Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998), cert. denied,
526 U.S. 1161, 144 L. Ed. 2d 219 (1999). "[T]he appellate courts
ordinarily will not review the exercise of the trial judge's
discretion in this regard unless the impropriety of counsel's
remarks is extreme and is clearly calculated to prejudice the jury
in its deliberations." State v. Johnson, 298 N.C. 355, 369, 259
S.E.2d 752, 761 (1979). In this case, the State explained to the jury that the State
had entered into a plea agreement with Hairston and Grooms in order
to obtain their testimony at defendant's trial. The State
explicitly referred to Hairston and Grooms as "thugs." Citing our
Supreme Court's holding in State v. Woodson, 287 N.C. 578, 215
S.E.2d 607 (1975) , the State explained that based on public policy,
it is the common and accepted practice that a State may contract
with a criminal for his exemption from prosecution if by so
bargaining, the State obtains the honest and fair testimony as to
the crime in the case. Defendant contends that the State's tactic
serves to inform the jury that the trial court has already made a
positive determination as to the credibility of the two witnesses.
Trial counsel is provided wide latitude in presenting jury
arguments and thus counsel is "entitled to argue the law, the
facts, and all reasonable inferences therefrom." State v. Rose,
339 N.C. 172, 203, 451 S.E.2d 211, 229 (1994), cert. denied, 515
U.S. 1135, 132 L. Ed. 2d 818 (1995). Contrary to defendant's
argument, this Court does not interpret the State's remarks at
issue to present an intimation as to the trial court's opinion or
our Supreme Court's opinion as to the credibility of either
witness. Accordingly, we conclude that defendant has failed to
show error or an abuse of discretion by the trial court.
Defendant's assignment of error sixteen is overruled.
 In defendant's final assignment of error, he argues that
the trial court lacked jurisdiction to try defendant on the
indictment for first degree murder because the indictment failed toallege all the elements of the offense. He maintains the trial
court violated his federal and State constitutional rights.
As defendant acknowledges, this issue has been decided by our
Supreme Court which has consistently held that the "short-form
indictment is sufficient to charge a defendant with first-degree
, 356 N.C. at 384, 572 S.E.2d at 150. "The short-
form murder indictment authorized by N.C. Gen. Stat. § 15-144
(2001) gives a defendant notice that he is charged with first-
degree murder and that the maximum penalty to which he could be
subject is death." State v. Smith
, 152 N.C. App. 29, 34, 566
S.E.2d 793, 797, cert. denied
, 356 N.C. 311, 571 S.E.2d 208 (2002).
This Court is bound by the decisions of our Supreme Court;
therefore, this assignment of error is overruled.
After a careful review of defendant's remaining assignments of
error, we find each to be without merit. As for those assignments
of error for which defendant failed to present any supporting
argument, they are deemed abandoned. N.C.R. App. P. 28(b)(6).
No prejudicial error.
Judges HUNTER and CALABRIA concur.
In State v. Allen
, 353 N.C. 504, 546 S.E.2d 372 (2001), our
Supreme Court reversed defendant's convictions on two counts of
first degree murder. Defendant was awarded a new trial. The
subsequent trial is the subject of this appeal.
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