All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Car olina 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 consid ered authoritative.

1.    Search and Seizure_Fourth Amendment_expectation of privacy_letters from prison inmate

    The trial court did not err in a capital first-degree murder prosecution by admitting a letter written by defendant while in the New Hanover jail which was read by jail personnel pursuant to an announced policy. Defendant did not have a subjective expectation of privacy in the unsealed envelope he handed to a deputy and, even if he did, that expectation was not objectively reasonable.

2.    Appeal and Error_juvenile adjudication_aggravating circumstance_motion for appropriate relief_ineffective assistance of counsel_claims not before Supreme Court

    The substance of a motion for appropriate relief presented in defendant's prior juvenile case, which resulted in an adjudication of delinquency used as an aggravating circumstance in defendant's capital sentencing proceeding, was not properly before the Supreme Court in an appeal from defendant's first- degree murder conviction and sentence of death where the Court had previously denied review of the trial court's ruling on that motion. Furthermore, defendant's ineffective assistance of counsel claim with regard to his attorney's handling of the motion for appropriate relief in the juvenile case was inappropriate in defendant's appeal from the murder conviction and death sentence but must be raised in a separate proceeding.

3.    Appeal and Error_preservation of issues_jury selection

    A defendant in a capital first-degree murder prosecution did not preserve for appeal the issue of whether the trial court erred by dividing prospective jurors into separate panels where defendant waived review on constitutional grounds by not challenging the organization of the jury panels at trial, waived his statutory allegations by failing to comply with the requirements of N.C.G.S. § 15A-1211(c), and did not preserve plain error review with a mere statement in a footnote.

4.    Jury_selection_views on death penalty

    The trial court in a capital prosecution for first-degree murder did not err by excusing a prospective juror for cause because of his views on the death penalty where the juror initially indicated his ability to vote for the death penalty and follow the judge's instructions, then stated that he would automatically vote for life imprisonment without parole.
5.    Jury_selection_capital punishment_stake-out questions

    The trial court did not err in a capital first-degree murder prosecution by not allowing defense counsel to ask prospective jurors improper stake-out questions concerning the kind of fact scenarios they would deem worthy of the death penalty or worthy of life imprisonment. Defendant was permitted to ask whether prospective jurors felt that the death penalty was the only appropriate punishment for premeditated and deliberate murder.

6.    Sentencing_capital_prosecutor's characterization of process

    The trial court did not err during jury selection in a capital first-degree murder prosecution by allowing the prosecutor to refer to the capital sentencing procedure with terms such as “highly structured,” “tightly structured,” and “rigid.” Defendant's failure to object to some characterizations waived his argument and it could not be resurrected by alleging plain error; the alleged error is not analogous to cases where structural error has been found to exist; and, as to the instances where defendant objected, the trial court's instructions to the jury cured any error.

7.    Constitutional Law_effective assistance of counsel_reference in opening argument to physical evidence_not an admission

    A capital first-degree murder defendant was not denied effective assistance of counsel where his attorney in her opening statement may have signaled that physical evidence would link defendant to the victim's car, but she made it clear that such evidence was of dubious validity. In context, her statements hardly constitute an admission; moreover, admitting a fact is not equivalent to an admission of guilt.

8.    Criminal Law_prosecutor's closing argument_description of evidence_not grossly improper

    There was no gross impropriety requiring the trial court to intervene ex mero motu in a capital first-degree murder prosecution where defendant contended that the State in its closing argument made statements not supported by the evidence. The purpose of the State's argument was to respond to defendant's attacks on its witness's inconsistent statements and was within the wide latitude afforded counsel in making arguments.

9.    Criminal Law_prosecutor's closing argument_credibility of witnesses

    The prosecutor did not improperly vouch for the credibility of the State's witnesses during the closing argument in a capital prosecution for first-degree murder where the prosecutor was merely giving the jury reasons to believe State's witnesses who had given prior inconsistent statements and who had at first been unwilling to cooperate with investigators.
10.    Appeal and Error_preservation of issues_mere allegation of plain error_insufficient

    Defendant did not preserve the issue of whether the trial court erred in a capital sentencing proceeding by not suppressing a juvenile delinquency adjudication based upon an admission of solicitation to murder on the ground that N.C.G.S. § 15A- 2000(e)(3) conflicted with former N.C.G.S. § 7A-638 where defendant failed to make this argument at trial; merely relying on the words “plain error” without explaining why the error rises to that level waives appellate review.

11.    Constitutional Law_ex post facto prohibition_use of juvenile plea in capital sentencing

    The submission of a prior juvenile adjudication in a capital sentencing proceeding did not violate the ex post facto prohibition, even though defendant's delinquency plea came before the amendment to N.C.G.S. § 15A-2000(e)(3) allowing juvenile adjudications to be submitted as aggravating circumstances. Defendant is being punished for the present offense of first- degree murder rather than receiving additional punishment for his 1992 delinquent conduct. U.S. Const. art. I, § 10; N.C. Const. art. I, § 16.

12.    Evidence_letter written by juvenile_from law enforcement files_admissible

    The trial court did not err in a capital sentencing proceeding by admitting a letter written by defendant when he was fourteen that formed the basis of his juvenile adjudication for solicitation to commit murder where the letter was introduced from Sheriff's Department files through the testimony of the investigating officer. Although there was statutory protection for juvenile court records, there is no prohibition against the use of law enforcement records and the State properly introduced the evidence to illustrate the circumstances surrounding the prior adjudication.

13.    Sentencing_capital_merging jury instructions_not an unrecorded charge conference

    There was no prejudicial error in an alleged unrecorded charge conference in a capital sentencing proceeding where, at the end of one day, the trial court directed the parties to submit their proposed aggravating and mitigating circumstances by the next morning, court resumed the next afternoon, when the court apologized for keeping the jury waiting and explained that they had been worked all morning on jury instructions, trying to merge two versions of word processing. Defendant did not argue that he was absent from court at any time or that his right to be present was violated and did not establish that what took place was an unrecorded charge conference rather than a clericalsession. N.C.G.S. § 15A-1231(b).

14.    Appeal and Error_preservation of issues_suggestion by judge_failure to assign error

    Defendant's unsupported argument that trial court erred in a capital sentencing proceeding by suggesting that the State look at the pattern jury instructions after the State submitted its proposed aggravating circumstances was not properly preserved for appellate review where defendant did not assign error. Moreover, the trial court did not err.

15.    Sentencing_capital_prosecutor's argument_disparagement of defendant's expert

    The trial court did not err by not intervening ex mero motu during the State's closing argument in a capital sentencing proceeding when the State disparaged defendant's expert witness. The State's argument was aimed at questioning the witness's ability to make a meaningful diagnosis after spending ninety minutes with defendant.

16.    Sentencing_capital_prosecutor's argument_proceeding tightly structured

    There was no error in a capital sentencing proceeding where the State in its closing argument characterized the proceeding as rigid and tightly structured. Although defendant argued that the comments invited the jury to disregard defendant's right to an individualized sentencing proceeding, viewed in context the prosecutor's argument proposed only that rules must be applied to capital sentencing and stressed that the jurors not base their decision on impermissible grounds.

17.    Sentencing_capital_aggravating circumstances-- evidence_double counting_limiting instruction_separate evidence

    The trial court did not permit the jury in a capital sentencing proceeding to rely upon the same evidence in finding the N.C.G.S. § 15A-2000(e)(9) aggravating circumstance that the murder was especially heinous, atrocious or cruel that it used to find either of the two aggravating circumstances submitted under N.C.G.S. § 15A-2000(e)(5) that the murder occurred during the commission of an armed robbery or a first-degree kidnapping where the court instructed the jury that the same evidence could not be used as a basis for finding more than one aggravating circumstance, and there was substantial evidence of the especially heinous, atrocious, or cruel nature of the killing apart from the evidence that the murder was committed during the commission of a kidnapping or an armed robbery.

18.    Sentencing_capital_instructions_life imprisonment without parole
    The trial court did not err in a capital sentencing proceeding in its instructions on life imprisonment. Nothing in N.C.G.S. § 15A-2002 requires the judges to say “life imprisonment without parole” every time they allude to or mention the alternative sentence and the court's instruction in this case met the statutory instruction.

19.    Sentencing_capital_death penalty not disproportionate

    A sentence of death for first- degree murder was not disproportionate where the jury found defendant guilty under the theory of premeditation and deliberation and under the felony murder rule, and the jury found five aggravating circumstances, including two circumstances submitted under N.C.G.S. § 15A- 2000(e)(5) that the murder was committed during the commission of first-degree kidnapping and during the commission of an armed robbery.

    Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Lanier, J., on 27 May 1999 in Superior Court, New Hanover County, upon a jury verdict finding defendant guilty of first-degree murder. On 10 May 2001, the Supreme Court allowed defendant's motion to bypass the Court of Appeals as to his appeal of additional judgments. Heard in the Supreme Court 12 February 2002.
    Roy Cooper, Attorney General, by Robert C. Montgomery, Assistant Attorney General, for the State.

    Margaret Creasy Ciardella for defendant-appellant.

    MARTIN, Justice.

    On 3 November 1997 Keith Dedrick Wiley (defendant) was indicted for the first-degree murder of George Richard “Richie” Futrelle, II (Futrelle or the victim). Defendant was tried capitally at the 10 May 1999 session of Superior Court, New Hanover County, and on 25 May 1999, the jury found defendant guilty of first-degree murder based on malice, premeditation, and deliberation and under the felony murder rule. Following acapital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction, and the trial court entered judgment in accordance with that recommendation. The trial court also entered consecutive sentences of 116 to 149 months for first-degree kidnapping and 103 to 133 months for robbery with a dangerous weapon. Defendant gave notice of appeal.
    The state's evidence at trial tended to show the following: On 18 October 1997, fourteen-year-old Alicia Doster ran away from home to live with defendant and another male named Justin Pallas in an abandoned house located at 440 Morning Glory Drive in Wilmington. On the morning of 20 October 1997, Doster heard defendant say he was going to kill Richie Futrelle because Futrelle owed him twenty or twenty-five dollars for cocaine snorted the previous night. Defendant later explained to Doster and Pallas that he planned to kill Futrelle whether or not Futrelle had the money owed to defendant. Doster testified that Pallas asked Futrelle to come to the abandoned house. Defendant told Doster that his plan to kill Futrelle was as follows: Defendant and Pallas were to beat Futrelle after he sat down on the bed in a back bedroom, and then Doster was to give defendant and Pallas some cables to tie Futrelle up.
    When the victim arrived at the abandoned house, defendant hit Futrelle in the head with a juice bottle. Futrelle fell to the floor, whereupon defendant and Pallas kicked and beat him. Defendant and Pallas took the victim's wallet, and defendant placed it in his jeans. Doster and Pallas then gagged the victimwith a bandanna and hog-tied his hands and feet with the cables.
    Defendant and Pallas then put the victim--still bound and gagged--into the trunk of the car in which he had arrived. The victim repeatedly banged on the trunk and called out for help. In response, Pallas turned up the radio, and defendant commented on the song playing, saying, “this is the shit.”
    They drove to a remote area off Murrayville Road. When they opened the trunk, they saw that Futrelle had freed himself from the cables and was trying to get up. They removed him from the trunk and forced him to his knees so they could tie him up again. Doster gagged Futrelle while defendant and Pallas tied his hands behind his back and bound his feet so he could barely walk. As Doster followed behind with the gun, defendant and Pallas led Futrelle to a ditch filled with water and laid him on his back. Futrelle freed himself and tried to run, screaming, “no, man, no, don't do it.” Defendant fired the gun at Futrelle, handed the gun to Pallas, and told him to “finish him off.” Pallas then shot Futrelle twice.
    Defendant, Pallas, and Doster then drove to the residence of John Mullins. En route, defendant and Pallas discussed how they shot Futrelle. Upon their arrival, defendant and Pallas told Mullins how they had killed Futrelle. Defendant told Doster to dispose of the victim's wallet, which Doster did. Defendant and Pallas returned to the victim's car and wiped it down to clean it. En route, they ran into friends Brian Jacobs and Jeremy Joesting, to whom they described the killing.
    Deputy Carlton Floyd and Detective Kevin Foss of the NewHanover County Sheriff's Department went to the abandoned h ouse around 3:00 p.m. the same day searching for Doster and Doster's car, which she had taken from her mother. They saw that the house was in disarray, and they found the car behind the house. Inside the house, they found a sawed-off .410 shotgun, a jacket, and some tools. The detectives, at that time unaware of Futrelle's murder, went to Mullins' house. When Mullins arrived at the door, Detective Floyd and other officers entered the residence and apprehended Doster and Pallas. Upon patting down Pallas, Detective Floyd found a box of .410 shotgun shells in his right pants pocket. Officers found a twelve-gauge shotgun, knives, and drug paraphernalia in the house. Defendant, Pallas, Doster, and Mullins were arrested, handcuffed, and transported to the Sheriff's Department for processing on various charges. During the booking process at the jail, Pallas took the victim's car keys out of his pocket and put them on the floor, where they were discovered by a jailer.
    On 21 October 1997, Futrelle's mother called the police to report that her son was missing. On 23 October 1997, hunters contacted police about a body in a ditch off Murrayville Road. Deputy B.E. Parker and other officers from the Sheriff's Department went to the scene and observed the body of a man face- down in shallow water with his feet bound. Crime scene investigator Larry Hines observed three wounds, two on the back and one in the arm. The victim's feet were bound with a belt and cord, but the hands were not tied. Hines found tied cord about seven feet from the body. Officers also found plastic waddingfrom a shotgun shell when the body was rolled over and found another piece of wadding nearby.
    Jim Gregory, special agent and forensic chemist with the State Bureau of Investigation (SBI), examined the cords and cables and determined that those found on Futrelle's body matched those recovered at the abandoned house.
    An autopsy of Futrelle's body, performed by Onslow Memorial Hospital pathologist Dr. John Almeida, revealed a large, gaping gunshot wound in the right arm above the elbow, with an entrance in the front and an exit in the back. Dr. Almeida testified that this wound would have been painful but not fatal. The body also had a shotgun wound on the left thigh, two pellet wounds to the chest, and shotgun wounds to the back and buttock area. The slug to the victim's thigh broke his hip and would have been very painful but only fatal if left untreated. The buckshot in the victim's back, which ripped through his left lung and ruptured his aorta, also would have been very painful and immediately fatal. The slug to the victim's buttock damaged his kidney and partially ruptured the left lobe of his liver, which would have been excruciatingly painful and would have caused death in five to ten minutes. Dr. Almeida testified that the cause of death was multiple shotgun wounds.
    On 23 October 1997, Deputy Floyd learned that Futrelle wore a white baseball cap and recalled that he had seen a white baseball cap at the abandoned house. Deputy Floyd went to visit Doster at her mother's home, but Doster said she knew nothing about Futrelle's death. On 26 October 1997, Doster went to theSheriff's Department for an interview. While at the Sheriff's Department, Doster told officers that she was the one who had tied up Futrelle, had put him in the trunk, and had driven to the Murrayville Road location. She said that she did not see who shot Futrelle and that she did not know where his car was taken. She later testified that she did not tell the truth at the Sheriff's Department because she was scared and wanted to protect defendant and Pallas, whom she believed would get into more trouble than she would as a juvenile.
    After Doster talked with officers at the Sheriff's Department on 26 October, Investigator Mike Sorg transported her to the juvenile service center. While en route to the center, Doster told Sorg that she felt bad about what had happened and that she had taken credit for something she did not do. Doster took Sorg to the area where defendant and Pallas had left Futrelle's car, and the next day, Sorg found the car in the woods. Deputy Hines examined the car and the surrounding area, and found a cord, a dishcloth, and an ashtray. No usable fingerprints were found on the car.
    Eugene Bishop, SBI special agent assigned to the firearm and tool mark section, performed tests on the twelve-gauge shotgun. The tests showed that the shotgun was fired less than two feet from Futrelle's back. The wound in Futrelle's arm was consistent with having been caused by a shot from less than two feet away.
    Charles Brown, an inmate housed in the same cell as defendant, informed investigators that defendant stated that he had killed a man because he was angry about a drug debt. Defendant said he shot the victim with a sawed-off shotgun once in the arm and once in the leg, causing the victim to fall into a ditch. Defendant said he handed the gun to another man, who went into the ditch and shot the victim.
    Defendant presented no evidence in the guilt phase of the trial. Additional facts are provided as necessary below.

        . . . Nothing else was found in the scene -- at the scene that belonged to Keith Wiley. None of Keith's fingerprints were found on the alleged murder weapon.

    Defendant contends these remarks constitute IAC because they amount to an admission of guilt to which he did not consent. In State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986), this Court held that an admission to the jury of defendant's guilt by defense counsel without the consent of the defendant constitutes ineffective assistance of counsel and a per se violation of the Sixth Amendment to the United States Constitution and Article I, Sections 19 and 23 of the North Carolina Constitution. Id. at 178-80, 337 S.E.2d at 506-08.
    Nowhere in defense counsel's remarks did she concede defendant was present at the scene. Although it is arguable that defense counsel signaled some physical evidence would be presented linking defendant to Futrelle's car, counsel made it clear that such evidence was of dubious validity because its origin was unknown. Placed in context, her statements hardly constitute an admission. See, e.g., State v. Hinson, 341 N.C. 66, 78, 459 S.E.2d 261, 268 (1995) (holding that there was no Harbison violation where the defendant took challenged statements out of context). Admitting a fact is not equivalent to an admission of guilt. State v. Strickland, 346 N.C. 443, 454, 488 S.E.2d 194, 200 (1997) (where defense counsel repeatedly mentioned during jury voir dire the uncontroverted evidence that the defendant was holding the gun when the victim was killed,such statements were not the equivalent of asking the jury to find the defendant guilty of any charge, and therefore, Harbison does not control), cert. denied, 522 U.S. 1078, 139 L. Ed. 2d 757 (1998). Accordingly, defendant's claim of IAC fails.
    [8]Defendant next argues the state improperly vouched for the credibility of its witnesses and made statements not supported by the evidence during closing argument in violation of defendant's constitutional rights to due process and a fair trial. Because defendant did not object to the state's arguments to which he now assigns error, defendant must show that the alleged impropriety was so gross that the trial court abused its discretion in not correcting the arguments ex mero motu. See Cummings, 353 N.C. at 296-97, 543 S.E.2d at 858-59. “Under this standard, 'only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.'” State v. Anthony, 354 N.C. 372, 427, 555 S.E.2d 557, 592 (2001) (quoting State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996)); see also State v. Smith, 351 N.C. 251, 269, 524 S.E.2d 28, 41 (“'[T]he trial court is not required to intervene ex mero motu unless the argument strays so far from the bounds of propriety as to impede defendant's right to a fair trial.'”) (quoting Atkins, 349 N.C. at 84, 505 S.E.2d at 111), cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000).
    As a general rule, counsel possesses wide latitude to arguefacts in evidence and all reasonable inferences arising from those facts. State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986). Counsel is prohibited, on the other hand, from arguing facts which are not supported by the evidence. See, e.g., State v. Lynch, 300 N.C. 534, 551, 268 S.E.2d 161, 171 (1980); State v. Monk, 291 N.C. 37, 53, 229 S.E.2d 163, 173 (1976). During closing argument, the state addressed the inconsistent statements made by Doster concerning the incident:
    But then she came forward and began to tell the truth and has told pretty much the truth, and we'll get into that in a minute. . . . But when it comes to the defendant Wiley being involved in it, she's always said he was.

        It happened at the house. He instructed her how to tie him up, how to tie Richie up. Wiley was there from the very beginning. The defendant was there from the very beginning, in her statement, constantly through it. Now, you can pick and you can say well, she didn't say this, that time, but she said this, this time. But she's always said Keith Wiley was there.

Defendant argues that because in her very first “statement” to the police, Doster denied any knowledge of the shooting, the state's argument that Doster “always said Keith Wiley was there” was not supported by the evidence.
    The purpose of the state's argument was to provide a response to defendant's attacks on Doster's inconsistent statements to investigators regarding details of the incident. The state simply emphasized Doster's consistency in placing defendant in her rendering of the crime, once she did come forward, in order to counter defendant's focus on any inconsistencies in Doster's subsequent statements. It was a fact in evidence that every time Doster gave an affirmative account ofthe incident, she implicated defendant. Therefore, the state's argument that Doster always said Keith Wiley was there falls within the range of “wide latitude” we afford counsel in making arguments to juries because the argument was supported by the evidence. See Williams, 317 N.C. at 481, 346 S.E.2d at 410.
    Even assuming for the sake of argument that Doster's first indication that she knew nothing about the murder was a “statement” and that the state's comment that Doster “always said Keith Wiley was there” was an inaccurate description of the evidence, such comment did not stray so far from the bounds of propriety as to impede defendant's right to a fair trial. We are not persuaded by defendant's characterization of the state's remark as grossly improper, especially in light of the fact that defense counsel did not think it prejudicial when spoken at trial, because there is no merit to the argument that the outcome of the trial would have been different had the court intervened ex mero motu to correct this alleged error.
    [9]Defendant also argues that the prosecutor improperly vouched for the credibility of the state's witnesses during closing argument. After mentioning prior statements made by Doster, the prosecutor stated, “then she came forward and began to tell the truth and has told pretty much the truth.” After describing Mullins' reticence to recounting what he knew about the incidents, the prosecutor stated, “he's come forward and he's told the truth.” When the prosecutor described how Jacobs had tried to avoid getting involved in the investigation, he said “he doesn't want to get thrust in the middle of this, and he tried tostay out of it, but he's come forward and he's told the truth.” Finally, after he commented that Jeremy Joesting never said he was told about the murder by defendant or Pallas, the prosecutor stated, “Now, if we have some type of control or some type of way to massage them and threaten people, don't you know he would have said the same thing? But he was just telling the truth.” Defendant argues that because the state's case rested primarily on the testimony of several witnesses who stated they either saw defendant commit the crimes or heard defendant describe his commission of the crimes, these comments during closing violated N.C.G.S. § 15A-1230(a), which provides that “[d]uring a closing argument to the jury an attorney may not . . . express his personal belief as to the truth or falsity of the evidence.” N.C.G.S. § 15A-1230(a) (2001).
    Defendant's characterization of this argument as one vouching for the state's witnesses is implausible. The prosecutor was merely giving the jury reasons to believe the state's witnesses who had given prior inconsistent statements and were previously unwilling to cooperate with investigators. See, e.g., State v. Burrus, 344 N.C. 79, 93-94, 472 S.E.2d 867, 877 (1996) (argument that accomplices who had entered plea agreement to testify against the defendant would have downplayed their own involvement if they had intended to lie on witness stand did not constitute improper vouching for the credibility of accomplices but was meant to give reasons why jury should believe state's evidence); State v. Bunning, 338 N.C. 483, 488-89, 450 S.E.2d 462, 464 (1994) (not improper vouching where prosecutor describedstate's witness as a “fine detective, this professional law- enforcement officer,” and argued that witness should be believed because “[he] isn't going to put his reputation and his career on the line”). Even if we assume, without deciding, that the prosecutor's argument did constitute improper vouching for state witnesses, the argument was not so grossly improper as to require the court to intervene ex mero motu. This argument is therefore without merit.