Appeal by defendant from judgments entered 24 May 2005 by
Judge Beverly T. Beal in Caldwell County Superior Court. Heard in
the Court of Appeals 18 October 2007.
Attorney General Roy Cooper, by Assistant Attorney General Amy
C. Kunstling, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel Shatz, for defendant-appellant.
Janet Hall (defendant) appeals from judgments entered after
a jury found her to be guilty of first-degree murder and attempted
first-degree murder. We find no error.
A. State's Evidence
Defendant lived in Granite Falls with her husband, James Hall
(Mr. Hall), their sixteen-year-old daughter, Ashley (Ashley),
and their eleven-year-old son, Eric (Eric). On 26 February 2004,
the children's school was canceled due to snow. At approximately
10:00 a.m., Ashley awoke after defendant started to beat her on the
head with a baseball bat. Defendant then shot Ashley twice: once
in the collar bone and once in the chest. Eric came running downthe hall towards Ashley's room. Defendant turned around and shot
him in the abdomen and in the back of the neck.
Ashley struggled with defendant for control of the baseball
bat and attempted to run away. Ashley ran into the living room
where defendant followed her and continued to hit her with the
baseball bat. Defendant shot at Ashley a third time, but missed.
Defendant kept asking Ashley why [she] wouldn't die, why [she]
couldn't go in peace like her brother did.
Defendant entered the master bedroom and Ashley crawled down
the hall into the bathroom. Ashley got into the bathtub and filled
it with hot water to stay warm. Ashley remained in the bathtub for
several hours until her father arrived home from work at
approximately 3:15 p.m..
Mr. Hall entered the residence, walked through the living
room, and into the master bedroom. He discovered Eric lying on the
floor dead. Defendant was lying on the bed under the covers, with
two plastic bags over her head. Mr. Hall asked defendant what had
happened. Defendant did not respond. Mr. Hall ripped the bags off
of defendant's head and repeatedly asked her what happened and
where the telephone was located. Defendant eventually told Mr.
Hall where she had hidden the telephone, but asked him not to call
911 because she did not want to go to jail. When Mr. Hall called
911, defendant left the house, entered her vehicle, and drove away.
After Mr. Hall called 911, he found Ashley laying, bleeding, and
dying in the bathtub. Mr. Hall picked Ashley up, brought her tothe living room, laid her on the couch and covered her with a
Law enforcement officers arrived at the Hall residence shortly
thereafter. Officers observed blood present in the kitchen, on the
living room carpet, and on the floor and walls of the hallway. In
the master bedroom, officers found a silver Phoenix Arms .25
caliber semiautomatic pistol on a dresser. The safety on the
pistol was turned off and two live rounds were present in the
pistol's magazine. Officers recovered three fired projectiles from
inside the Hall residence. Additionally, two fired projectiles
were recovered from Ashley's body and one from Eric's body.
Testimony tended to show that a total of six projectiles were fired
at the crime scene.
Caldwell County Sherrif's Lieutenant Michael Longo (Officer
Longo) arrived and found Ashley lying on the couch. Ashley was
pale, shaken, and very frightened. Ashley told Officer Longo
defendant had flipped out and went crazy and had committed
these crimes. Ashley described the attack to Officer Longo but
could not remember all of the details. Mr. Hall told officers at
the scene he believed defendant had committed these crimes and
described what he observed after he arrived home from work and
entered the residence.
A half-mile down the road, defendant's vehicle rear-ended
Barry and Monica Shook's vehicle. Defendant fled the scene of the
collision. State Trooper Kevin Milligan (Trooper Milligan)
responded to the call reporting the hit-and-run accident. TrooperMilligan received a description of defendant's car and its license
plate number. At approximately 8:30 p.m., Trooper Milligan spotted
defendant's vehicle and followed her. Trooper Milligan requested
back-up and attempted to stop defendant's vehicle.
A high speed chase ensued. Trooper Milligan and other
officers pursued defendant at speeds exceeding 110 miles an hour.
The chase ended when defendant crashed head-on into oncoming
traffic. Trooper Milligan testified defendant appeared to be
extremely impaired and was unaware of what was going on around
Defendant was transported to Catawba Memorial Hospital.
Defendant was subsequently arrested and transported to Caldwell
County Sheriff's Office. Defendant was charged with and tried
capitally for the murder of Eric and for the attempted murder of
At trial, Ashley testified defendant had threatened to kill
her on two prior occasions. Approximately a year and a half prior
to 26 February 2004, defendant told Ashley to follow her outside
into the yard. Defendant fired her gun in the air and told Ashley
if she didn't act better defendant was going to shoot her. A
second incident occurred approximately one year prior to 26
February 2004. While Ashley was standing in the kitchen after
dinner, defendant came up behind her, put a knife to her throat,
and told Ashley if she did not act better [defendant] wouldn't
think twice about doing it. Ashley testified she was scared afterboth threats. Defendant had hurt her before and Ashley believed
defendant would probably do it again.
SBI Special Agent Shane Green (Agent Green) testified that
based on the number of fired projectiles found at the crime scene
and the number of live rounds remaining in the pistol's magazine,
defendant had to reload her pistol while committing these crimes.
Agent Green also testified that reloading the pistol's magazine
could take up to twenty-five seconds.
B. Defendant's Evidence
Defendant's evidence tended to show the relationship between
defendant and Eric was loving, while her relationship with Ashley
was more complex. Defendant disapproved of Ashley's friends and
became highly upset when she discovered Ashley had intentionally
cut herself. Defendant sought therapy for Ashley, who refused to
attend. Ashley acknowledged that she had previously lied to DSS,
falsely alleging her father had abused her so she could leave the
house. Ashley believed her parents were overly restrictive. Mr.
Hall had broken up physical fights between defendant and Ashley on
more than one occasion. Despite these conflicts, defendant was
described as an excellent mother who loved her daughter by family
Defendant produced evidence of a long history of depression.
Defendant first sought treatment in 1996, after her father's death.
In 1998, Dr. Guttler, defendant's family physician, prescribed
Zoloft to treat defendant's depression. Dr. Guttler prescribed a
different medication when Zoloft reportedly made defendantjittery. Defendant continued to suffer from depression and
experienced suicidal thoughts. In November 1998, defendant was
admitted to the psychiatric unit at Frye Memorial Hospital to be
evaluated by a psychiatrist. Defendant stayed in the hospital for
a day and a half. Defendant was treated in the hospital and post-
release by Dr. Kim. Upon Dr. Kim's retirement, defendant's care
was turned over to Dr. Synn.
In November 2003, defendant experienced complications with her
medication, including tremors, anxiety, insomnia, and depression.
During this time, Dr. Synn significantly changed defendant's
medication. In February 2004, defendant complained she was again
depressed. During the month of February 2004, Dr. Synn adjusted
and changed defendant's medication a total of four times, the last
time being on 25 February 2004, the day before the crimes were
Defendant retained two mental health experts, Dr. James
Bellard (Dr. Bellard) and Dr. John Warren (Dr. Warren), to
examine her and to testify to their opinion of her mental state at
the time the crimes were committed. Dr. Bellard qualified as an
expert in forensic psychiatry and testified defendant suffered from
depression with psychotic features and from substance induced mood
disorder on 26 February 2004. Dr. Bellard testified defendant
developed a delusion that she had to die and her children could not
live without her. Dr. Bellard opined defendant did not know the
nature and quality of her actions, could not tell right from wrong,
and was unable to form the specific intent to kill. Dr. Warren, a clinical psychologist, examined defendant in
jail on 2 March 2004. Dr. Warren testified that on 26 February
2006, defendant suffered from major depression with psychotic
features and from substance induced mood disorder. Dr. Warren also
opined that defendant did not know the nature and quality of her
acts and could not appreciate the wrongfulness of her conduct. Dr.
Warren opined defendant was unable to form a specific intent to
kill due to her delusional beliefs. Dr. Warren stated the
medication effects on this woman worsened and were [the] proximate
cause of the episode that she had on February 26th
Dr. Nicole Wolfe (Dr. Wolfe), a forensic psychiatrist at
Dorothea Dix Hospital, examined defendant at the request of the
State. Dr. Wolfe agreed with Dr. Bellard's and Dr. Warren's
diagnoses. Dr. Wolfe opined that defendant was so severely
depressed and her mind was so clouded by medication, that she could
not appreciate the difference between right and wrong and was
unable to form the specific intent to kill.
Dr. Richard Kapit (Dr. Kapit) testified as a non-examining
expert in psychiatry and adverse drug reactions. Dr. Kapit
testified that Zoloft, a medication defendant had taken, could
flip a person into a . . . manic state where they can become
psychotic, [experience] false beliefs, and be very rash, impulsive
and dangerous. . . . There is an increased risk of mania causing
suicide and homicide. Dr. Kapit conceded that reports of
homicidal reactions from the drug were extremely rare. On 18 April 2005, defendant was tried capitally in Caldwell
County Superior Court. On 19 May 2005, the jury found defendant to
be guilty of the attempted murder of Ashley and guilty of first-
degree murder of Eric under the felony murder rule. On 24 May
2005, following a capital sentencing hearing, the jury recommended
life imprisonment without the possibility of parole. The trial
court sentenced defendant to life imprisonment without parole for
the conviction of first-degree murder and imposed a consecutive
sentence of a minimum of 155 and a maximum of 195 months
imprisonment for defendant's conviction of attempted first-degree
murder. Defendant appeals.
Defendant argues the trial court erred by: (1) excluding Dr.
Bellard's testimony regarding the post-conviction consequences of
finding defendant not guilty by reason of insanity; (2) overruling
defendant's objection to the pattern jury instruction and refusing
to give her proposed modified instruction; (3) instructing the jury
that evidence of witnesses' out-of-court statements could only be
considered for the purpose of impeaching or corroborating trial
testimony; (4) overruling defendant's objection to the prosecutor's
closing argument describing her as having a disposition towards
murder; (5) denying her motion for reciprocal disclosure of the
State's theory of the case; and (6) refusing to provide
discoverable items following the court's in camera
III. Excluding Expert Testimony
 Defendant argues the trial court erred by using Rule 403
to exclude Dr. Bellard's offered testimony regarding the post-
conviction consequences of the jury finding defendant not guilty by
reason of insanity. We disagree.
A. Standard of Review
Whether to exclude expert testimony under Rule 403 is within
the sound discretion of the trial court and will only be reversed
on appeal for abuse of discretion. Howerton v. Arai Helmet, Ltd
358 N.C. 440, 463, 597 S.E.2d 674, 689 (2004). An abuse of
discretion occurs when a trial judge's ruling is manifestly
unsupported by reason. State v. Summers
, 177 N.C. App. 691, 697,
629 S.E.2d 902, 907 (internal citations and quotations omitted),
disc. rev. denied
, 360 N.C. 653, 637 S.E.2d 192 (2006).
Expert testimony is admissible [i]f scientific, technical or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue
, a witness
qualified as an expert . . . may testify thereto in the form of an
opinion. N.C. Gen. Stat. § 8C-1, Rule 702(a) (2005) (emphasis
supplied). In determining the admissibility of expert testimony,
[t]he trial court must always be satisfied that the  testimony
is relevant. Howerton,
358 N.C. at 462,
597 S.E.2d at 688. The
trial court has inherent authority to limit the admissibility . .
. [of] expert testimony, under North Carolina Rule of Evidence 403.
. . . Id
. at 462, 597 S.E.2d at 689. N.C. Gen. Stat. § 8C-1, Rule 403 (2005) provides, [a]lthough
relevant, evidence may be excluded 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. (Emphasis supplied). This
Court has stated, [We] will not intervene where the trial court
has properly weighed both the probative and prejudicial value of
evidence before it. Tomika Invs., Inc. v. Macedonia True Vine
Pent. Holiness Ch. of God
, 136 N.C. App. 493, 498, 524 S.E.2d 591,
Defense counsel sought to have Dr. Bellard offer his opinion
to the jury of the likelihood of defendant's release from
involuntary commitment at Dorothea Dix Hospital if she were to be
found not guilty by reason of insanity. During voir dire
Bellard opined defendant would not be released from involuntary
commitment for decades. The trial court found:
such information is [ir]relevant to this case
in that it will not help the jury understand
the evidence or determine a fact in issue. . .
. Assuming arguendo that it has some probative
value the Court would apply [the N.C.G.S. .
8C-1, Rule] 403 valuation and find that the
probative value is far outweighed by the
confusion of the issues.
The trial court cited State v. Mancuso
as the basis of its ruling.
321 N.C. 464, 364 S.E.2d 359 (1988).
, defense counsel sought to offer testimony from an
Assistant Attorney General on the State's procedures for treating
people involuntarily committed to the State's mental healthfacilities. 321 N.C. at 468, 364 S.E.2d at 362. The State
objected and the trial court sustained the objection based on the
subject matter about which [the expert] planned to testify. Id
at 468-69, 364 S.E.2d at 362. Our Supreme Court upheld the trial
court's ruling stating, defendant . . . made no showing that [the
expert] testimony on involuntary commitment procedures would help
the jury understand the evidence, or determine a fact in issue.
. at 469, 364 S.E.2d at 363.
Here, the trial court properly weighed both the probative and
prejudicial value of evidence before it. Tomika Invs., Inc.
N.C. App. at 498, 524 S.E.2d at 595. The trial court found Dr.
Bellard's testimony could confuse the issues of the case with the
possible consequences and his testimony would not assist the jury
in regard to any matter in issue or fact.
Defendant has presented
no evidence tending to show Dr. Bellard's testimony would help the
jury understand evidence, or determine a fact in issue. Mancuso
321 N.C. 469, 364 S.E.2d 363. The trial court properly excluded
Dr. Bellard's testimony under Rules 403 and 702(a) of the North
Carolina Rules of Evidence. Defendant has failed to show an abuse
of discretion in the trial court's ruling. This assignment of
error is overruled.
IV. Involuntary Commitment Procedure Instructions
 Defendant argues the trial court erred by overruling her
objection to the pattern jury instructions and refusing to give her
proposed modified instruction of the post-conviction commitmentprocedures following a verdict of not guilty by reason of insanity.
A. Standard of Review
We review jury instructions:
contextually and in its entirety. The charge
will be held to be sufficient if it presents
the law of the case in such manner as to
leave no reasonable cause to believe the jury
was misled or misinformed . . . . The party
asserting error bears the burden of showing
that the jury was misled or that the verdict
was affected by [the] instruction. Under such
a standard of review, it is not enough for the
appealing party to show that error occurred in
the jury instructions; rather, it must be
demonstrated that such error was likely, in
light of the entire charge, to mislead the
State v. Blizzard
, 169 N.C. App. 285, 296-97, 610 S.E.2d 245, 253
(2005) (emphasis supplied) (internal citations and quotations
[U]pon request, a defendant who interposes a defense of
insanity to a criminal charge is entitled to an instruction by the
trial judge setting out in substance
the commitment procedures
outlined in G.S. 122-84.1, [repealed and replaced by N.C. Gen.
Stat. § 122C], applicable to acquittal by reason of mental
illness. State v. Hammonds
, 290 N.C. 1, 15, 224 S.E.2d 595, 604
(1976) (emphasis supplied). [F]ailure to give such instructions
[is] prejudicial because the jury might tend to return a verdict of
guilty so as to ensure that the accused would be incarcerated for
the safety of the public and for his own safety. State v.
, 294 N.C. 45, 53, 239 S.E.2d 811, 817 (1978) (citingHammonds
, 290 N.C. 1, 224 S.E.2d 595 (1978)). Our Supreme Court in
did not set forth the precise jury instructions to be
given for post-conviction involuntary commitment procedures under
the statute. State v. Harris
, 306 N.C. 724, 727, 295 S.E.2d 391,
393 (1982). The appellate court must undertake a case by case
determination of whether the trial court
with this rule. Id
Our Supreme Court has held when a trial court instructs the
the central meaning of the statute: that if
defendant was acquitted by reason of insanity,
he would not be released but would be held in
custody until a hearing could be held to
determine whether he should be confined to a
state hospital. . . . [is] sufficient to
remove any hesitancy of the jury in returning
a verdict of not guilty by reason of insanity,
engendered by a fear that by so doing they
would be releasing the defendant at large in
Here, defendant requested a modified jury instruction
regarding post-verdict commitment procedures after a verdict of not
guilty by reason of insanity. The trial court instructed on
involuntary commitment procedures as follows:
A defendant found not guilty by reason of
insanity shall immediately be committed to a
state mental facility. After the defendant
has been automatically committed, the
defendant shall be provided a hearing in [sic]
within fifty days. At this hearing the
defendant shall have the burden of proving by
preponderance of the evidence that the
defendant no longer has a mental illness, or
is no longer dangerous to others. If the
Court is so satisfied it shall order the
defendant discharged and released. If theCourt finds that the defendant has not met the
burden of proof upon the defendant, then it
shall order that in patient commitment
continue for a period not to exceed ninety
days. This involuntary commitment will
continue subject to periodic review until the
Court finds that the defendant no longer has a
mental illness or is no longer dangerous to
(Emphasis supplied). Defendant's proposed modified instruction
deleted the language italicized above from the pattern jury
instruction. Defendant argues the pattern jury instruction was
ambiguous and mislead the jury to believe if defendant was found
not guilty by reason of insanity, she would be released no more
than ninety days after the initial hearing. We disagree.
A trial court is not required to give requested instructions
verbatim. State v. Allen, 322 N.C. 176, 197, 367 S.E.2d 626, 637
(1988) (citation omitted). The trial court gave the pattern jury
instruction regarding involuntary commitment procedures pursuant to
N.C.P.I. -- Crim. 304.10. These instructions sufficiently informed
the jury of the commitment hearing procedures in N.C. Gen. Stat. §
§ 15A-1321 and N.C. Gen. Stat. § 122C. Id. at 198-99, 367 S.E.2d
at 638. We find the trial court properly instructed the jury on
the central meaning of the statute and its instruction
substantially complied with defendant's request. Harris, 306 N.C.
at 727, 295 S.E.2d at 393. This assignment of error is overruled.
C. Cumulative Effect of Alleged Errors
 Defendant asserted during oral argument that the
cumulative effect of the preceding alleged errors deprived
defendant of a fair trial. We disagree. [A] defendant has the burden of demonstrating not only error,
but also that the error[s] complained of [were] prejudicial, i.e.,
that there is a reasonable possibility that a different verdict
would have been reached had the errors not been committed. State
, 74 N.C. App. 106, 109-10, 327 S.E.2d 266, 268
(citations omitted), disc. rev. denied
, 314 N.C. 121, 332 S.E.2d
489 (1985). The State presented evidence that defendant: (1) had
threatened to kill Ashley on two prior occasions more than a year
prior to these crimes; (2) contemplated death before the crimes
occurred; (3) had to reload her gun while shooting both Ashley and
Eric; (4) while attempting to murder Ashley, stated why [will you
not] die . . . and go in peace like [your] brother did; (5) hid
the telephone so Ashley and Mr. Hall were unable to call 911; (6)
asked Mr. Hall not to call 911 because she did not want to go to
jail; (7) fled the crime scene after Mr. Hall called 911; (8)
rear-ended another vehicle and fled the scene of the accident; and
(9) engaged in a high speed chase with police, only stopping when
she crashed head on into oncoming traffic.
We find the evidence presented on the record is sufficient to
support the jury's verdicts. The jury rejected premeditation and
deliberation and chose felony murder as the basis to support
defendant's first-degree murder conviction. The above evidence
supports the jury's: (1) rejection of defendant's evidence and
defense of insanity and (2) finding that defendant knew right from
wrong and understood the nature and quality of her actions when she
committed the crimes. We hold there is no reasonable possibilitythe jury would have reached a different verdict had the trial court
admitted Dr. Bellard's testimony and given defendant's modified
jury instruction on post-conviction involuntary commitment
V. Prior Statements Instruction
 Defendant argues the trial court's instruction that
evidence of out-of-court statements by witnesses could only be
considered for impeachment or corroboration constitutes plain
error. We disagree.
A. Standard of Review
[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done, or where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,
or the error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
State v. Odom
, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill
, 676 F.2d 995, 1002 (4th Cir.
1982)) (emphasis original).
Defendant argues Ashley's statements to Officer Longo that
defendant had flipped out and went crazy and Mr. Hall'sstatement to a 911 operator that defendant's nerves were shot
were admissible for substantive purposes. We disagree.
Defendant correctly states that both Ashley's and Mr. Hall's
out-of-court statements were admitted into evidence without
objection. Subsequently, the trial court gave the jury
instructions regarding witnesses' prior statements pursuant to
N.C.P.I. - Crim. 105.20. The trial court stated:
Members of the jury, when evidence has been
received tending to show that at an earlier
time a witness made a statement, either spoken
or in writing, which may be consistent or may
conflict with that witness [sic] testimony,
you should not consider such earlier statement
as evidence of the truth of what was said at
that earlier time, because it was not made
under oath at this trial. If you believe that
such earlier statement was made, and that it
is consistent, or that it does conflict with
the testimony of the witness at this trial,
then you may consider this together with all
other facts and circumstances bearing upon the
witness [sic] truthfulness in deciding whether
you believe or disbelieve the witness
testimony at this trial.
(Emphasis supplied). Defendant concedes that she neither objected
to this instruction nor requested additional instructions.
N.C.P.I. - Crim. 105.20 is a correct statement of the law
regarding prior inconsistent statements. Prior inconsistent
statements are not admissible as substantive evidence. State v.
, 355 N.C. 501, 533, 565 S.E.2d 609, 628 (2002) (citations
omitted), cert. denied
, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003).
On cross-examination, Ashley denied telling Officer Longo
defendant had flipped out and went crazy when he arrived at the
crime scene. Subsequently, defense counsel asked Officer Longo howAshley responded when he asked her what occurred that morning.
Officer Longo testified, I had asked Ashley what happened and she
stated, 'My mom just flipped out; she went crazy.' Defense
counsel properly impeached Ashley's trial testimony with proof of
a prior inconsistent statement. State v. Whitley
, 311 N.C. 656,
663, 319 S.E.2d 584, 589 (1984). Defendant's argument that
Ashley's statement was admissible as substantive evidence is
without merit. The trial court properly instructed the jury that
prior inconsistent statements could only be used for impeachment
Further, at trial, Mr. Hall did not testify to what he stated
to the operator when he called 911. Therefore, Mr. Hall's
statement that defendant's nerves were shot was neither a prior
consistent nor inconsistent statement. The jury instruction was
therefore not applicable to Mr. Hall's statement.
, Ashley's and Mr. Hall's statements could
be admissible as substantive evidence under some theory, defendant
has failed to show that the trial court's pattern jury instruction
constitutes plain error. Odom
, 307 N.C. at 660, 300 S.E.2d at
378. Defendant presented extensive opinion testimony from four
mental health expert witnesses concerning her mental state at the
time of the crime. Additionally, the jury heard the following
evidence: (1) Mr. Hall's and Ashley's testimony regarding
defendant's behavior leading up to 26 February 2004; (2)
defendant's comment to Ashley about dying together; (3) Ashley's
testimony regarding defendant's behavior at the time of the crime;(4) Mr. Hall's testimony describing defendant's behavior after the
crime had occurred; and (5) Trooper Milligan's testimony that
defendant was extremely impaired and unaware of what was going
on around her.
The State presented overwhelming evidence to support the
jury's guilty verdict. Under plain error review, defendant has
failed to show the alleged instructional mistake had a probable
impact on the jury's finding that the defendant was guilty. Odom
307 N.C. at 660, 300 S.E.2d at 378. This assignment of error is
VI. Prosecutor's Closing Argument
 Defendant argues the trial court erred by overruling
defendant's objection to the portion of the prosecutor's closing
argument describing defendant as a person with a disposition
towards murder. We disagree.
A. Standard of Review
The standard of review for improper closing
arguments that provoke timely objection from
opposing counsel is whether the trial court
abused its discretion by failing to sustain
the objection. In order to assess whether a
trial court has abused its discretion when
deciding a particular matter, this Court must
determine if the ruling could not have been
the result of a reasoned decision.
State v. Jones
, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002)
(internal citations and quotations omitted).
During closing arguments, an attorney may . . . on the basis
of his analysis of the evidence, argue any position or conclusionwith respect to a matter in issue. N.C. Gen. Stat. § 15A-1230
(2005). Counsel are given wide latitude in arguments to the jury
and are permitted to argue the evidence that has been presented and
all reasonable inferences that can be drawn from that evidence.
State v. Richardson
, 342 N.C. 772, 792-93, 467 S.E.2d 685, 697,
, 519 U.S. 890, 136 L. Ed. 2d 160 (1996).
A prosecutor's closing remarks are to be viewed in the
context in which they are made and in light of the overall factual
circumstances to which they refer. State v. Davis
, 349 N.C. 1,
44, 506 S.E.2d 455, 479 (1998), cert. denied
, 526 U.S. 1161, 144 L.
Ed. 2d 219 (1999). To justify a new trial, an inappropriate
prosecutorial comment must be sufficiently grave to constitute
prejudicial error. State v. Britt
, 291 N.C. 528, 537, 231 S.E.2d
644, 651 (1977). [T]o reach the level of prejudicial error in
this regard . . . the prosecutor's comments must have so infected
the trial with unfairness as to make the resulting conviction a
denial of due process. State v. Worthy
, 341 N.C. 707, 709-10, 462
S.E.2d 482, 483 (1995) (citation omitted).
During the prosecutor's closing argument, he stated if one
has a disposition toward murder . . . . We review the
prosecutor's closing argument as a whole and must determine in what
context the statement was being made. Prior to the challenged
statement, the prosecutor argued defendant: (1) had a motive for
killing her family; (2) contemplated death; and (3) was not having
delusions but was thinking of killing her family. Viewed in the
context of these arguments, it appears by making the challengedstatement, the prosecutor was arguing defendant should be found
guilty of first-degree murder based on defendant's premeditated and
deliberate murder of Eric and attempted murder of Ashley.
The trial court has a duty, upon objection, to censor remarks
not warranted by either the evidence or the law, or remarks
calculated to mislead or prejudice the jury. State v. Britt
N.C. 699, 712, 220 S.E.2d 283, 291 (1975). The trial court
overruled defendant's objection to the challenged statement and
concluded, the argument of counsel is supported by some evidence.
The trial court based this ruling on evidence presented tending to
show defendant had threatened to kill Ashley on two occasions prior
to 26 February 2004. The prosecutor properly argued the evidence
that [was]  presented and all reasonable inferences that c[ould]
be drawn from that evidence. Richardson
, 342 N.C. at 792-93, 467
S.E.2d at 697. Defendant has failed to show the trial court abused
its discretion by overruling defendant's objection to a portion of
the prosecutor's statement.
the statement was improper, the
prosecutor's statement did not so infect the trial with
unfairness as to make the resulting conviction a denial of due
, 341 N.C. at 709-10, 462 S.E.2d at 483 (1995).
The jury found defendant guilty of first-degree murder under the
theory of felony murder, not on the basis of premeditation and
deliberation. The State presented overwhelming evidence that
defendant had shot and killed Eric while she was attempting tomurder Ashley. This evidence supports the jury's verdicts on both
convictions. This assignment of error is overruled.
VII. Reciprocal Disclosure
 Defendant argues the trial court erred by denying
defendant's motion for reciprocal disclosure of the State's theory
of the case and by instructing the jury on a theory of felony
murder for which the defense had no notice. We disagree.
Defendant filed a pre-trial motion for reciprocal disclosure
concerning the theory upon which the State sought a conviction of
first-degree murder, including the disclosure of the felonies which
supported felony murder. The trial court denied defendant's
motion. Defendant argues the denial of this motion violates
defendant's constitutional rights to due process and prior notice
of the charges against her. Based on existing North Carolina law,
defendant's argument is without merit.
Our Supreme Court has repeatedly held a short-form murder
indictment is sufficient to charge first-degree murder on the basis
of any theory
set forth in N.C. Gen. Stat. § 14-17, including
felony murder. State v. Garcia
, 358 N.C. 382, 388, 597 S.E.2d 724,
731-32 (2004), cert. denied
, 543 U.S. 1156, 161 L. Ed. 2d 122
(2005); State v. Braxton
, 352 N.C. 158, 174, 531 S.E.2d 428, 437
(2000), cert. denied
, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001);
State v. King
, 311 N.C. 603, 608, 320 S.E.2d 1, 5 (1984).
The State is not required at any time to elect a theory upon
which it will proceed against the defendant on the charge of first
degree murder. State v. Clark
, 325 N.C. 677, 684, 386 S.E.2d 191,195 (1989). Further, [b]y requesting . . . the State [to]
identify which predicate felony it intended to prove at trial,
defendant essentially sought disclosure of the State's legal
theory. . . . The State is not required to choose its theory of
prosecution prior to trial. Garcia
358 N.C. at 389-90, 597
S.E.2d at 732.
If defendant seeks further disclosure of the facts that
support the charge alleged in the indictment, defendant may file a
motion for a bill of particulars. N.C. Gen. Stat. § 15A-925(b)
(2005); State v. Randolph
, 312 N.C. 198, 210, 321 S.E.2d 864, 872
(1984). This assignment of error is overruled.
 Defendant argues the trial court erred by refusing to
provide discoverable items following its in camera review. We
dismiss this assignment of error.
A. Standard of Review
A trial court's order regarding matters of discovery are
generally reviewed under an abuse of discretion standard. Morin
v. Sharp, 144 N.C. App. 369, 374, 549 S.E.2d 871, 874 (citation
omitted), disc. rev. denied, 354 N.C. 219, 557 S.E.2d 531 (2001).
An abuse of discretion occurs when a trial judge's ruling is
manifestly unsupported by reason. Summers, 177 N.C. App. at 697,
629 S.E.2d at 907.
At trial, defendant requested a copy of the prosecutor's file
under N.C. Gen. Stat. § 15A-903(a)(1). The State compiled a workproduct inventory of materials it argued were protected from
disclosure as attorney work product pursuant to N.C. Gen. Stat. §
15A-904. After in camera review, the trial court ruled that some
materials defendant had requested were non-discoverable and would
be placed under seal for appellate review. These materials are not
included as part of the record on appeal.
It is the duty of the appellant to see that the record is
properly [prepared] and transmitted. Hill v. Hill, 13 N.C. App.
641, 642, 186 S.E.2d 665, 666 (1972). The appellant also has the
duty to ensure that the record is complete and contains the
materials asserted to contain error. Pharr v. Worley, 125 N.C.
App. 136, 139, 479 S.E.2d 32, 34 (1997). Rule 9 of the North
Carolina Rules of Appellate Procedure requires that exhibit[s]
offered in evidence and required for understanding of errors
assigned shall be filed in the appellate court. N.C.R. App. P.
9(d)(2) (2008) (emphasis supplied).
Here, the record on appeal does not contain the non-
discoverable materials the trial court placed under seal. This
omission prevents this Court from determining whether the trial
court erred in classifying certain State documents as non-
discoverable pursuant to N.C. Gen. Stat. § 15A-904. This
assignment of error is dismissed.
Defendant failed to show the trial court abused its discretion
by properly weigh[ing] both the probative and prejudicial value of
evidence before it and excluding Dr. Bellard's testimony from thejury, regarding the likelihood of defendant's release from Dorothea
Dix Hospital if the jury found her to be not guilty by reason of
insanity. Tomika Invs., Inc., 136 N.C. App. at 498, 524 S.E.2d at
595. The trial court's jury instruction explained the central
meaning of the statute and substantially complied with defendant's
request for a jury instruction regarding post-verdict commitment
procedures if defendant were to be found not guilty by reason of
insanity. Harris, 306 N.C. at 727, 295 S.E.2d at 393.
The trial court properly instructed the jury regarding
witnesses' prior statements. The trial court properly overruled
defendant's objection to a portion of the prosecution's closing
argument because the prosecutor's statement was warranted by the
evidence presented at trial. Britt, 288 N.C. at 712, 220 S.E.2d
Based on existing North Carolina law, the trial court was not
required to order the State to disclose to defendant the underlying
theory to support the charge of first-degree murder prior to trial.
Garcia, 358 N.C. at 389-90, 597 S.E.2d at 732. Finally, the record
is devoid of sealed documents reviewed by the trial court in
camera. We cannot determine whether the trial court erred in
classifying documents in the State's file as non-discoverable
pursuant to N.C. Gen. Stat. § 15A-904.
Defendant received a fair trial, free from the prejudicial
errors she preserved, assigned, and argued. Under plain error
review, the absence of all or any of the alleged plain errors wouldnot have had a probable impact on the jury's finding that defendant
was guilty. We find no error.
Judges MCCULLOUGH and STROUD concur.
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