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.
CHRISTINA SHEA WALTERS
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from
judgments imposing sentences of death entered by Judge William C.
Gore on 6 July 2000 in Superior Court, Cumberland County, upon
jury verdicts finding defendant guilty of two counts of
first-degree murder. On 4 October 2001, the Supreme Court
allowed defendant's motion to bypass the Court of Appeals as to
her appeal of additional judgments. Heard in the Supreme Court
14 May 2002.
Roy Cooper, Attorney General, by Jill Ledford Cheek,
Special Deputy Attorney General, for the State.
Andrea Michelle FormyDuval and Steven E. Williford for
defendant-appellant.
ORR, Justice.
Defendant, Christina Shea Walters, was indicted on
4 January 1999 for two counts each of first-degree murder, first-
degree kidnapping, and robbery with a dangerous weapon, as well
as one count each of conspiracy to commit first-degree murder,
conspiracy to commit first-degree kidnapping, and conspiracy to
commit robbery with a dangerous weapon. In a second multicount
indictment issued 25 January 1999, defendant was also indictedfor attempted first-degree murder, conspiracy to commit first-
degree murder, assault with a deadly weapon with intent to kill
inflicting serious injury, first-degree kidnapping, and robbery
with a dangerous weapon. Defendant was tried capitally, and the
jury found her guilty of all charges, specifically finding her
guilty of both murders on the basis of premeditation and
deliberation and under the felony murder rule. Following a
capital sentencing proceeding, the jury recommended a sentence of
death for each of the murders, and the trial court entered
judgments accordingly. The trial court also sentenced defendant
to consecutive terms of imprisonment for each of the nine other
felony convictions.
The State's evidence at trial tended to show that
defendant was one of nine gang members who set out to steal a car
on the evening of 16 August 1998. The gang members included
defendant, Francisco Tirado, Eric Queen, John Juarbe, Ione Black,
Tameika Douglas, Carlos Frink, Carlos Nevills, and Darryl Tucker.
The gang members gathered at and then left from defendant's
residence, a trailer at 1386 Davis Street in Fayetteville, North
Carolina. All nine gang members were Crips but of varying
subgroups called sets.
The gang needed money, and the members decided they
would steal a car, drive it into the window of a pawn shop, and
steal the property in the pawn shop. Several gang members,
including defendant, went to the local Wal-Mart to steal some
toiletry items and clothing, and to buy bullets for the occasion.
The bullets were taken to the Davis Street trailer, where Tiradopainted the tips blue, the color identified with the Crips
gang, with fingernail polish from defendant's bedroom.
Soon thereafter, defendant and an unidentified deaf
black male who was not part of the gang drove Douglas, Black, and
Nevills to a neighborhood location and dropped them off with
instructions to find a victim to rob, to steal the victim's car,
to put the victim in the trunk of the car, and then to return to
defendant's trailer within an hour and a half. Defendant
provided Nevills with a gun, and then she and the deaf black male
drove away, leaving Douglas, Black, and Nevills.
The three gang members walked around looking for
someone to rob, and at about 12:30 a.m. on Monday, 17 August,
they spotted Debra Cheeseborough leaving the Bojangles where she
was the manager. Douglas, Black, and Nevills abducted
Cheeseborough at gunpoint and drove around in her car with her in
the backseat for a period of time before they stopped the car and
put her in the trunk, also robbing her of her jewelry and money.
They returned to defendant's trailer, where the remainder of the
gang gathered around the car while discussing what to do with
Cheeseborough.
Thereafter, with Cheeseborough still in the trunk,
defendant, Douglas, Frink, and Queen got into Cheeseborough's car
and drove her to Smith Lake, a location on the Fort Bragg
military base. Defendant told Cheeseborough to get down on one
knee. Defendant attempted to fire the gun at Cheeseborough, but
it jammed. Defendant said hold up and tried to unjam the gun.
Defendant then raised the gun again, this time to the level ofCheeseborough's waist, and fired the bullet into Cheeseborough's
right side. After the shot knocked Cheeseborough down onto her
stomach, defendant shot her seven more times. The final shot
went through Cheeseborough's glasses, grazed her eyelid, and hit
her thumb. Cheeseborough pretended to be dead. She was
discovered the next morning by a passerby and was subsequently
taken to a hospital.
Debra Cheeseborough testified that no one told
defendant to shoot her, the gun jammed before any shots were
fired, it was defendant who told her to go down on one knee,
there was no break in the firing of the bullets sufficient for
defendant to have handed the gun to any other person to shoot
her, and it was defendant who shot her.
After defendant shot Cheeseborough and left her for
dead, the gang members returned to defendant's trailer, where
they concluded that they needed a second car. Tucker, Black,
Queen, and defendant rode around in Cheeseborough's car,
ultimately targeting a car driven by Susan Moore in which Tracy
Lambert was a passenger. The gang trapped Moore's car at the end
of a dead-end road, and defendant handed a gun to Tucker, telling
him to go do what you got to do. Defendant, Frink, and Queen
then drove away in Cheeseborough's car after Queen directed
Black, Tucker, and Douglas to be back at defendant's trailer in
forty-five minutes.
Tucker and Douglas forced Moore and Lambert into the
trunk at gunpoint, and then Black, Tucker, and Douglas returned
to defendant's trailer with the women in the trunk. At one pointduring the drive, the car was stopped so that the gang members
could open the trunk and rob the women of their jewelry.
Upon the return to defendant's trailer, the entire gang
surrounded the car and discussed who would kill the women.
Despite the women's pleas for mercy, the entire gang, half in
Cheeseborough's car and half in Moore's car, drove to a location
in Linden where the women were forced out of the trunk and
executed, each by a blue-tipped bullet to the brain. Queen shot
one of the women, and Tirado shot the other. The gang members
once again returned to defendant's trailer.
After talking for awhile, the group split up, with
instructions from Tirado to return by 3:30 p.m. Sometime around
dawn, Frink called defendant with news that some bodies had been
found. Seven members of the gang, including defendant,
subsequently fled to Myrtle Beach using Moore's cell phone to
place calls to defendant's trailer. Black and Nevills did not
accompany the gang to Myrtle Beach.
On Tuesday, 18 August, Juarbe and Tucker were
apprehended in Cheeseborough's car by Myrtle Beach police
officers. On Wednesday, 19 August, defendant, Frink, Douglas,
Queen, and Tirado were apprehended and arrested at the Bon Villa
motel in Myrtle Beach in a room rented by defendant.
Additional facts will be presented as needed to discuss
specific issues.
In defendant's first question presented before this
Court, she contends that the trial court committed reversible
error, or in the alternative plain error, in failing to order achange of venue or in failing to order a special venire, thereby
depriving defendant of a fair and impartial trial in violation of
the Due Process Clause of the Fourteenth Amendment to the United
States Constitution.
First, defendant did not move for change of venue prior
to trial as required under N.C.G.S. § 15A-957. Pursuant to
N.C.G.S. § 15A-952, a motion for change of venue must be made
prior to trial, unless the trial court, in its discretion,
permits the motion to be filed at a later time. Since defendant
did not move for change of venue prior to trial, or at any
subsequent time, she has failed to properly preserve this
argument for appellate review. See N.C. R. App. P. 10(b)(1).
Next, defendant argues that the trial court erred by
not ordering a special venire ex mero motu. N.C.G.S. § 15A-958
provides: Upon motion of the defendant or the State, or on its
own motion, a court may issue an order for a special venire of
jurors from another county if in its discretion it determines the
action to be necessary to insure a fair trial. N.C.G.S. §
15A-958 (2001). For the following reasons, we conclude that the
trial court did not abuse its discretion by not ordering a
special venire.
Defendant claims that because of pretrial publicity,
she was not able to receive a fair and impartial trial. She
states that eight of the twelve jurors who were actually seated
on the jury had obtained information relative to the case through
the media. She also complains that jurors who were seated in the
case heard from other prospective jurors during voir dire factsabout the case and their feelings about the case based upon what
they heard in the media.
However, each juror about whom defendant complains
indicated that he or she would be fair and impartial and decide
the case on the evidence that was presented. Also, the jurors
indicated that they would disregard any information they heard or
read prior to the trial. Furthermore, with regard to two of the
jurors about whom defendant complains, defendant had no objection
and specifically stated that these jurors were acceptable. After
reading the transcripts and considering the arguments by the
State and defendant, we are not persuaded that the pretrial
publicity prevented defendant from receiving a fair trial from
jurors in the county in which the case was tried. We therefore
conclude that the trial court did not abuse its discretion by not
ordering a special venire in this case. This assignment of
error is overruled.
Defendant next contends that the short-form murder
indictment violated her constitutional rights on the grounds that
it failed to allege all the elements of first-degree murder. See
Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999).
However, this Court has repeatedly addressed and rejected this
argument. See, e.g., State v. Braxton, 352 N.C. 158, 173-75, 531
S.E.2d 428, 437-38 (2000), cert. denied, 531 U.S. 1130, 148 L.
Ed. 2d 797 (2001); State v. Wallace, 351 N.C. 481, 504-08, 528
S.E.2d 326, 341-43, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d
498 (2000). Defendant has presented no compelling reason forthis Court to reconsider the issue in the present case.
Accordingly, this assignment of error is overruled.
Next, defendant argues that the trial court erred by
granting the prosecutor's motion for joinder of the murders and
related charges regarding the victims Susan Moore and Tracy
Lambert and the charges regarding Debra Cheeseborough. However,
defendant has not cited to any place in the transcript or record
where he made a motion for severance, and this Court has not
found any such motion.
Pursuant to N.C.G.S. § 15A-927(a), a defendant must
make a motion for severance of offenses before trial unless the
basis for the motion is a ground not previously known. Under
such a situation, the defendant may move for severance during
trial but no later than the close of the State's evidence.
Defendant waives his right to severance if the motion is not
made at the appropriate time. N.C.G.S. § 15A-927(a)(1) (2001).
If a defendant's pretrial motion for severance is overruled, he
may renew the motion on the same grounds before or at the close
of all the evidence. Any right to severance is waived by failure
to renew the motion. N.C.G.S. § 15A-927(a)(2). Furthermore, as
this Court has previously stated,
[j]oinder is a decision which is made prior
to trial; the nature of the decision and its
timing indicate that the correctness of the
joinder must be determined as of the time of
the trial court's decision and not with the
benefit of hindsight. While this rule may
seem severe and, perhaps, highly prejudicial
to an accused, our statutes provide a method
by which an accused may protect against
prejudice to his defense.
State v. Silva, 304 N.C. 122, 127-28, 282 S.E.2d 449, 453 (1981)
(citation omitted).
In the instant case, not only did defendant fail to
renew a motion for severance, but she also failed to make a
motion for severance at any time before, during, or after the
trial. Therefore, defendant's assignment of error is without
merit.
Next, defendant argues that the trial court erred in
leaving the bench during a recess in jury selection proceedings.
Defendant contends that during the time the judge was off the
bench, a member of the media spoke with prospective juror Richard
Council, who eventually was seated on the jury, and therefore
deprived defendant of a fair trial. We disagree.
The court reporter recorded the following events which
form the basis of defendant's argument:
THE COURT: And, Madam Clerk, would you
go ahead and call another juror please for
number five.
THE CLERK: Richard Council.
THE COURT: Thank you.
Counsel, I have to make a phone call to
my district attorney. If you'll give me just
a moment, please.
(Judge left the courtroom.)
(Number five, Mr. Council, entered the
courtroom.)
THE BAILIFF: Sir, come on up and have a
seat in number five.
(A male media representative was talking
to the juror, Mr. Council, as the juror
walked by.)
THE REPORTER: Tell that guy to quit
talking to the juror, that media guy.
(Bailiff, Sgt. David Farrell, directed
number five, Mr. Council, in the box after
Sgt. Farrell spoke to the media
representative.)
(The judge returned to the courtroom.)
THE COURT: Remain seated.
THE BAILIFF: Come to order. Court's in
session.
Defendant contends that the juror's actions and those of the
media member were a direct violation of a 1 May 2000 order of the
trial court regarding media access.
However, defendant has cited no authority to this Court
that would lead us to conclude that the trial court erred in
leaving the bench. Furthermore, even assuming arguendo that it
was error, we hold that defendant has failed to show prejudice as
required by N.C.G.S. § 15A-1443(a), and we cannot conclude that a
different result would have been reached at trial.
Defendant has provided no evidence that the media
member said anything to prospective juror Council that would
prejudice her case. Also, defendant provided no evidence that
Council said anything in response to the media member's
comment. The transcript shows only that the bailiff
immediately interrupted any inappropriate contact between
prospective juror Council and the media member.
On a final note, defendant included plain error as an
alternative in her question presented. [T]his Court has held
that plain error analysis applies only to jury instructions and
evidentiary matters. State v. Wiley, 355 N.C. 592, 615, 565S.E.2d 22, 39-40 (2002), cert. denied, ___ U.S. ___, 154 L. Ed.
2d 795 (2003).
Therefore, we conclude that defendant has failed to
show prejudice as to this specific issue, and these assignments
of error are overruled.
Defendant next contends that the trial court erred by
denying defendant's challenge for cause of prospective juror
Kathrene Boxwell, thereby causing defendant to exercise a
peremptory challenge. Defendant argues that Boxwell, who had
previously managed an adult entertainment facility, was involved
in litigation in which the business was forced into receivership.
The defense attorney in the instant case, along with his wife,
were attorneys involved in this prior litigation. Boxwell
acknowledged remembering the defense attorney and his wife.
Defendant also contends that Boxwell knew Tracy Lambert when they
were employed at the same establishment. Furthermore, defendant
argues that Boxwell had knowledge of this case from the print
media.
However, we conclude from reading the transcripts that
defendant used only thirteen of her fourteen peremptory
challenges. N.C.G.S. § 15A-1214(h) provides:
(h) In order for a defendant to seek
reversal of the case on appeal on the ground
that the judge refused to allow a challenge
made for cause, he must have:
(1) Exhausted the peremptory challenges
available to him;
(2) Renewed his challenge as provided
in subsection (i) of this section;
and
(3) Had his renewal motion denied as to
the juror in question.
N.C.G.S. § 15A-1214(h) (2001); see also State v. Call, 349 N.C.
382, 402, 508 S.E.2d 496, 509 (1998). Also, '[t]he statutory
method for preserving a defendant's right to seek appellate
relief when a trial court refuses to allow a challenge for cause
is mandatory and is the only method by which such rulings may be
preserved for appellate review.' State v. Goode, 350 N.C. 247,
257, 512 S.E.2d 414, 420 (1999) (quoting State v. Sanders, 317
N.C. 602, 608, 346 S.E.2d 451, 456 (1986)).
In this case, the transcript reveals that defendant did
not exhaust all of her peremptory challenges, and defendant also
acknowledges that she did not seek additional peremptory
challenges. Therefore, defendant has not met the requirements of
N.C.G.S. § 15A-1214(h) in order to preserve this issue for
appellate review. Furthermore, once again, defendant included
plain error as an alternative in her question presented, but she
does not specifically argue or give support in her brief as to
why plain error is appropriate. Therefore, we will not address
this part of her argument. See Grooms, 353 N.C. at 66, 540
S.E.2d at 723; see also N.C. R. App. P. 10(c)(4).
Alternatively, defendant claims that her defense
counsel's failure to challenge the three remaining prospective
jurors for cause (Richard Council, Virginia Brazier, and Patricia
Geroux) or to assert an additional peremptory challenge rose to
the level of ineffective assistance of counsel. However,
defendant provided this Court with no authority or support for
this ineffective assistance of counsel claim. Assignments of
error not set out in the appellant's brief, or in support ofwhich no reason or argument is stated or authority cited, will be
taken as abandoned. N.C. R. App. P. 28(b)(6); see also State v.
Lloyd, 354 N.C. 76, 87, 552 S.E.2d 596, 607 (2001). Accordingly,
the assignments of error presented in this issue are overruled.
In defendant's next question presented, she argues that
the trial court erred in denying her motion for disclosure of
Rule 404(b) evidence to be introduced by the State and that the
trial court erred in allowing cross-examination of defendant
about certain prior bad acts.
First, there is no requirement that the State must
provide a defendant with Rule 404(b) evidence that it intends to
use at trial. Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C.G.S. § 8C-1, Rule 404(b) (2001). As this Court stated in
State v. Payne, [t]his rule addresses the admissibility of
evidence; it is not a discovery statute which requires the State
to disclose such evidence as it might introduce thereunder. 337
N.C. 505, 516, 448 S.E.2d 93, 99 (1994), cert. denied, 514 U.S.
1038, 131 L. Ed. 2d 292 (1995). Furthermore, in the instant
case, just as in Payne, the State did not directly introduce or
use evidence of prior crimes or bad acts committed by defendant;
rather, it cross-examined defendant about the act. Id. Thus,
defendant's motion was properly denied. As stated above, defendant also contends that the trial
court erred in allowing cross-examination of defendant about
certain prior bad acts. The following occurred during the
prosecutor's cross-examination of defendant:
Q. Did you say your dad almost killed a boy
that you stabbed?
A. I haven't stabbed no boy.
Q. Did you say that?
A. No, ma'am. I don't remember saying
anything like that.
Q. Do you remember saying the boy you
stabbed was 20-something at the time?
A. Unless the person who wrote this was
talking about when I had a boyfriend who was
trying to take my shirt off and I sliced him
with a box cutter but that's not stabbing.
The trial court then excused the jury in order to
question the prosecutor about the purpose of the preceding
questions. During this questioning, the court asked defense
counsel why he had not objected, and defense counsel stated the
following:
Well, because we didn't care at the point she
was at.
. . . .
. . . So far what she's asked her, she
said she doesn't remember saying it. As long
as she doesn't remember saying it, then -- I
mean I am assuming they can't prove it by
extrinsic evidence because she has denied
saying it until she tries to use those
records to prove something that she said by
extrinsic evidence, we really don't care. I
mean she is welcome to keep asking her these
things. If she remembers them, fine. If she
doesn't, fine. As long as she doesn't get
into saying, Well, didn't you say on such andsuch a date to Dr. So and So, then more power
to them.
At this point, the judge brought the jury back into the
courtroom, and the questioning resumed.
Rule 10(b)(1) of the North Carolina Rules of Appellate
Procedure provides that [i]n order to preserve a question for
appellate review, a party must have presented to the trial court
a timely request, objection or motion, stating the specific
grounds for the ruling the party desired the court to make.
N.C. R. App. P. 10(b)(1). In the instant case, the trial court
specifically asked defense counsel whether he wanted to object,
and defense counsel stated that he had no problem with the
questioning at that point in time. Thus, defendant has failed to
properly preserve this issue for appellate review. See, e.g.,
State v. Call, 353 N.C. 400, 426-27, 545 S.E.2d 190, 206-07,
cert. denied, 534 U.S. 1046, 151 L. Ed. 2d 548 (2001).
Defendant also contends that the trial court's alleged
error amounted to plain error. This Court has previously stated
that
the 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 fundamental error, 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 aprobable 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.) (footnotes omitted) (emphasis in original), cert. denied,
459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). Thus, in our review of
the record for plain error, defendant is entitled to a new trial
only if the error was so fundamental that, absent the error, the
jury probably would have reached a different result. State v.
Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002). After
reviewing the record and transcripts as a whole, we conclude that
defendant has not established any alleged prejudicial error on
the part of the trial court that was so fundamental that the jury
would have reached a different result absent the foregoing
testimony. Accordingly, we find no plain error.
Next, defendant argues that the trial court erred by
admitting evidence from the hotel room in Myrtle Beach, South
Carolina, where defendant was apprehended. Specifically,
defendant contends that the evidence was obtained through an
illegal search and seizure in violation of defendant's state and
federal constitutional rights.
However, we have not found, nor has defendant cited, to
any place in the transcript or record where she filed a motion to
suppress this evidence prior to trial. Moreover, defendant has
not cited to any place in the transcript where she objected to
the introduction of this evidence at trial. Thus, defendant has
failed to properly preserve this issue for appellate review. See
N.C. R. App. P. 10(b)(1). Furthermore, [c]onstitutional issuesnot raised and passed upon at trial will not be considered for
the first time on appeal. Lloyd, 354 N.C. at 86-87, 552 S.E.2d
at 607; see also State v. Anthony, 354 N.C. 372, 389, 555 S.E.2d
557, 571 (2001), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791
(2002).
Finally, defendant, in her question presented, asserts
plain error as an alternative. However, defendant has not
specifically argued or given support in her brief as to why plain
error is appropriate in this situation. Rule 28(b)(6) provides
that [a]ssignments of error not set out in the appellant's
brief, or in support of which no reason or argument is stated or
authority cited, will be taken as abandoned. N.C. R. App. P.
28(b)(6); see also Lloyd, 354 N.C. at 87, 552 S.E.2d at 607.
Thus, we will not address this aspect of defendant's contention.
Defendant next contends that the trial court erred when
it overruled defendant's objection to the prosecutor's cross-
examination of defendant about a statement made by defendant to
Detective Jo Autry.
During the State's case-in-chief, the prosecutor
presented evidence that, after defendant's arrest, she gave a
statement to Fayetteville Police Officer Chris Corcione. Officer
Corcione testified that defendant stated that she had shot Debra
Cheeseborough, that Eric Queen had shot Tracy Lambert, and that
Francisco Edgar Tirado had shot Susan Moore.
When defendant took the stand during her case-in-chief,
defense counsel asked her whether she had given another statement
after giving the statement to Officer Corcione. Defendantresponded that she had given another statement to Detective Jo
Autry in which defendant said that she had not shot Debra
Cheeseborough. Defendant testified that the statement given to
Detective Autry was false and that she made it because she was
scared and wanted to go home. Defense counsel subsequently
objected to the prosecutor's cross-examination of defendant about
the statement to Detective Autry. In response to this
questioning, defendant testified, as she did on direct
examination, that she had lied in her statement to Detective
Autry. She also stated that she did not remember exactly what
she had said in her statement to Detective Autry. Defendant
claims that the trial court erred by allowing this testimony
because the prosecutor's questioning was improper under N.C.G.S.
§ 8C-1, Rule 803(5), the recorded recollection exception to the
hearsay rule. We disagree.
It is clear from the transcript that defendant
testified during her own defense that she gave two statements
regarding the shooting of Debra Cheeseborough. In the first
statement, given to Officer Corcione, defendant said that she
shot Cheeseborough. In the second statement, given to Detective
Autry, defendant said that she did not shoot Cheeseborough.
Defendant then testified on direct examination by her own
attorney that the second statement was false. This was the exact
same testimony that the prosecution elicited on cross-
examination. Thus, defendant was the one who placed this
testimony into evidence. This Court has previously held that
the law wisely permits evidence not otherwise
admissible to be offered to explain or rebutevidence elicited by the defendant himself.
Where one party introduces evidence as to a
particular fact or transaction, the other
party is entitled to introduce evidence in
explanation or rebuttal thereof, even though
such latter evidence would be incompetent or
irrelevant had it been offered initially.
State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981);
see also State v. McKinney, 294 N.C. 432, 435, 241 S.E.2d 503,
505 (1978). While we make no judgment as to whether this
testimony would have been otherwise inadmissible, it is clear to
this Court that defendant introduced this evidence. Therefore,
since defendant opened the door to this testimony, the
prosecutor was entitled to question defendant about this
evidence. Thus, defendant's assignment of error is overruled.
In defendant's next question presented, she argues that
the trial court erred in overruling defendant's objection to the
admission of a portion of a prior statement by Ione Black made to
Detective Autry and portions of Black's telephone call to a 911
operator. Specifically, defendant contends that this evidence
was inadmissible hearsay under N.C.G.S. § 8C-1, Rule 801(d)(E);
the evidence was inadmissible 404(b) evidence; and the evidence
violated the rule of Bruton v. United States, 391 U.S. 123, 20 L.
Ed. 2d 476 (1968).
During the State's case-in-chief, Ione Black testified
to the events leading up to and surrounding the murders and
attempted murder. Black testified that when she returned home
after the murders and attempted murder, she was scared because
she knew that a couple of the people in the gang knew that she
did not want to be there when the crimes occurred, and therefore,Black was afraid that these people might be looking for her.
Next, when people in the gang actually did come to Black's
house looking for her, Black told Carol Morrison, with whom she
was living at the time, to tell them that she had gone to her
mother's house. Dennis Jordan, Morrison's boyfriend, told the
gang that Black had gone to her mother's house.
Next, Black testified that after the gang left her
house, she was really scared because she had never seen
anybody get shot, and she didn't really know any of the people
that were involved in this and [she] just felt like they might
try to do something to [her] because [she] didn't show up for the
meeting at defendant's trailer after the incidents. Later that
evening, Black called 911 and told the operator that she had
seen some people get shot, and she described a couple of the
people who were involved in the incidents. Defendant then
objected to the 911 tape being played to the jury on the grounds
that the tape was unduly prejudicial because it contained a
statement by Black that [t]hey might have killed them boys too.
Outside the presence of the jury, Black told the judge that she
asked Tameika Douglas why they had to kill the women. Douglas
responded by saying, [T]hat wasn't s--- because [Douglas] shot
somebody last week. Black stated that she had heard on the news
about a guy being shot a few days earlier, and she thought that
might be what Douglas was referring to. After hearing this, the
trial court overruled defendant's objection, stating that this
evidence is highly probative of the state of mind of thedeclarant, Ms. Black, at the time and also that the evidence was
corroborative of her earlier testimony.
Along with the 911 tape, defendant objected to a
portion of Detective Autry's testimony in which she testified to
a statement given to her by Black. Specifically, defendant
objected to that part of Black's statement where she asked
[Douglas] why they wanted to kill [the women]. [Black] state[d]
that [Douglas] said, 'This ain't s---. A few days ago, I shot a
man.' [Black] state[d] [Douglas] told her they had done this
before. In overruling defendant's objection to this portion of
the statement, the trial court stated that Black's statement to
Detective Autry was
substantially consistent, in the Court's
opinion, with the sworn testimony of Ione
Black given here in open court and that the
variations are such that they can be argued
to the jury. The jury can make its own
determination as to whether or not specific
aspects of the statement are consistent or in
conflict with Ms. Black's statement [sic] but
that there is not enough variation for the
Court to require a redaction in the interest
of fairness, in the Court's opinion.
Subsequently, Detective Autry was allowed to read Black's
statement to the jury. For the following reasons, we conclude
that defendant's objections are without merit.
As the trial court correctly noted, the foregoing 911
tape and the statement by Black to Detective Autry were
admissible for the purpose of corroborating Black's earlier
testimony at trial. It has been well established in this state
that [a] prior consistent statement of a witness is admissible
to corroborate the testimony of the witness whether or not thewitness has been impeached, even though the statement was
hearsay. State v. Jones, 329 N.C. 254, 257, 404 S.E.2d 835, 836
(1991); see also State v. Rose, 335 N.C. 301, 321, 439 S.E.2d
518, 529, cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 883 (1994),
and overruled on other grounds by State v. Buchanan, 353 N.C.
332, 543 S.E.2d 823 (2001). Furthermore, this Court has held
that:
In order to be admissible as
corroborative evidence, a witness' prior
consistent statements merely must tend to add
weight or credibility to the witness'
testimony. Further, it is well established
that such corroborative evidence may contain
new or additional facts when it tends to
strengthen and add credibility to the
testimony which it corroborates.
State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d 120, 131 (1993)
(citations omitted). Moreover, [i]f the previous statements are
generally consistent with the witness' testimony, slight
variations will not render the statements inadmissible, but such
variations . . . affect [only] the credibility of the statement.
State v. Martin, 309 N.C. 465, 476, 308 S.E.2d 277, 284 (1983).
Thus, we conclude that the 911 tape and Ione Black's statement to
Detective Autry were properly admitted to corroborate her earlier
testimony and that any variation goes to her credibility.
Therefore, the assignments of error presented under this issue
are overruled.
Defendant also alleges that this testimony violated
Bruton, 391 U.S. 123, 20 L. Ed. 2d 476. In Bruton[,] the United
States Supreme Court held that at a joint trial, admission of a
statement by a nontestifying codefendant that incriminated theother defendant violated that defendant's right of cross-
examination secured by the Confrontation Clause of the Sixth
Amendment. State v. Evans, 346 N.C. 221, 231, 485 S.E.2d 271,
277 (1997) (citing Bruton, 391 U.S. at 126, 20 L. Ed. 2d at 479),
cert. denied, 522 U.S. 1057, 139 L. Ed. 2d 653 (1998).
Furthermore,
[t]he principles set out in Bruton apply only
to the extrajudicial statements of a
declarant who is unavailable at trial for
full and effective cross-examination. Nelson
v. O'Neil, 402 U.S. 622, 29 L. Ed. 2d 222
(1971). Where the declarant takes the stand
and is subject to full and effective cross-
examination, a codefendant implicated by
extrajudicial statements has not been
deprived of his right to confrontation.
Evans, 346 N.C. at 232, 485 S.E.2d at 277.
In the instant case, defendant was tried alone, not
jointly. Also, the declarant, Ione Black, took the stand and was
available for a full and effective cross-examination. Thus,
the rule in Bruton has no applicability to the facts of this
case. Therefore, this argument is without merit.
Defendant also contends that the trial court committed
reversible error or, in the alternative, plain error, in its
instructions regarding mitigating and aggravating circumstances.
Specifically, defendant contends that the trial court's charge
and written instructions to the jury as to mitigating and
aggravating circumstances in the two cases were erroneous because
they contradicted the Issues and Recommendation as to
Punishment forms submitted. Furthermore, defendant argues that
the trial court's charge and instructions resulted in a
misleading conclusion as to mitigating and aggravatingcircumstances and supporting evidence, thereby denying defendant
due process, a fair trial, and legal and constitutional rights
guaranteed by the United States Constitution and the North
Carolina Constitution. We disagree.
Despite defendant's claim that the jury instructions
were erroneous, defendant made no objection. After the trial
court gave the jury its instructions, both parties were given an
opportunity to object.
THE COURT: . . . Before sending the
original issues and recommendation form to
the jury and allowing the jury to commence
their deliberations, I will now consider any
requests for corrections to the charge or any
additional matters any attorney feels is
necessary or appropriate to submit a proper
and accurate charge to the jury.
Are there any specific requests for
corrections or additions? What says the
state?
[PROSECUTOR]: Nothing, Judge.
THE COURT: What says the defense?
[DEFENSE COUNSEL]: None, your Honor.
After the jury began deliberations, it requested that
the judge give [it] the instructions specifically applying to
mitigating values for issue two, questions eight through 23,
versus mitigating circumstances in questions one through seven.
Outside the presence of the jury, and in the presence of counsel,
the judge proposed the following oral instructions:
I would propose to instruct the jury that it
is not for the court to instruct them as to
values. That if they find mitigating
circumstances one through seven exist, if any
one or more of them finds it that they are to
consider such statutory mitigating
circumstance and that they -- if they findthat any of the circumstances numbered eight
through 23 exist and find those to be
mitigating, that they are to consider those,
but that any value to be placed on any
particular circumstance is for the jury to
determine.
. . . .
THE COURT: . . . In regard to the
court's oral instructions, as I've just
stated, do you have any objection with the
wording of those instructions?
[DEFENSE COUNSEL]: No, your Honor.
Defendant had yet another chance to object to the
judge's instructions to the jury with regard to Issue Two.
Written copies of the judge's instruction relating only to Issue
Two on mitigating circumstances were given to the jury. Before
the written instructions on Issue Two were given to the jury, the
judge said, And with regard to the substance of the
instructions, I understand there's no objection. Is that
correct, counsel? Defendant's counsel answered, That's
correct, your Honor. Defendant had several opportunities to
object to the judge's instructions, but failed to do so.
Because defense counsel did not object to this
sentencing instruction at trial, this assignment of error is
barred by Rule 10(b)(2) of the North Carolina Rules of Appellate
Procedure. State v. Neal, 346 N.C. 608, 620, 487 S.E.2d 734, 742
(1997), cert. denied, 522 U.S. 1125, 140 L. Ed. 2d 131 (1998).
A party may not assign as error any portion of the jury charge
or omission therefrom unless he objects thereto before the jury
retires to consider its verdict . . . . N.C. R. App. P.
10(b)(2). Because defendant failed to properly preserve thisissue on appeal, we may review it only for plain error. See N.C.
R. App. P. 10(c)(4); State v. Hardy, 353 N.C. 122, 131, 540
S.E.2d 334, 342 (2000), cert. denied, 534 U.S. 840, 151 L. Ed. 2d
56 (2001). As noted previously, defendant is entitled to a new
trial only if the error was so fundamental that, absent the
error, the jury probably would have reached a different result.
Jones, 355 N.C. at 125, 558 S.E.2d at 103.
Defendant argues that the trial court's instructions
did not distinguish [the] difference in how the jury should
determine the mitigating value or weight of statutory versus non-
statutory mitigating circumstances. (Emphasis added.)
Defendant uses the terms value and weight interchangeably.
This Court has previously addressed the inappropriate
interchangeable use of value and weight. State v. Davis, 349
N.C. 1, 506 S.E.2d 455 (1998), cert. denied, 526 U.S. 1161, 144
L. Ed. 2d 219 (1999). We take this opportunity to reiterate the
distinction between value and weight. The term 'value' is
found only in the statutory catchall provision, N.C.G.S. .
15A-2000(f)(9), and has also only been applied to nonstatutory
mitigating circumstances. The term 'weight' or 'weighing' is
used only in N.C.G.S. . 15A-2000(b)(2) and [(c)(3)] referring to
the process of weighing the mitigating circumstances found
against the aggravating circumstances found. Id. at 51, 506
S.E.2d at 483.
First, we will deal with value. This Court in State
v. Jaynes, 342 N.C. 249, 285, 464 S.E.2d 448, 470 (1995), cert.
denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996), maintained thatby virtue of distinguishing between statutory and nonstatutory
mitigating circumstances, [t]he General Assembly has determined
as a matter of law that statutory mitigating circumstances have
mitigating value. (Emphasis added.) This simply means that
only one or more of the jurors have to find by a preponderance of
the evidence that one of the factual circumstances in N.C.G.S. §
15A-2000(f)(1) through (f)(8) exists. Once one or more of the
jurors find that one of the factual circumstances in N.C.G.S. §
15A-2000(f)(1) through (f)(8) exists, that circumstance has
mitigating value. In other words, the statutory mitigating
circumstance that the jury found lessens defendant's culpability
for committing the crime. Contrary to defendant's assertion, the
General Assembly's determination does not require jurors to find
value as to statutory mitigating circumstances, as in the case of
nonstatutory mitigating circumstances. Davis, 349 N.C. at 55,
506 S.E.2d at 485. (Emphasis added.) Value becomes a part of
the analysis only when the jury determines whether the statutory
catchall or nonstatutory mitigating circumstances exist. Id.
Upon submission of a nonstatutory mitigating circumstance, at
least one juror must find that the circumstance exists. Having
done so, the juror must also find that the circumstance has value
before it becomes part of the weighing process. Therefore, the
trial court is not required to instruct the jury that statutory
mitigating circumstances have value as a matter of law. As such,
value should not be a consideration when the jury is
considering statutory mitigating circumstances. Weight becomes relevant only once the jury has found
statutory and nonstatutory mitigating circumstances. See
N.C.G.S. § 15A-2000(c)(3) (2001). Jurors do not use or find
weight when considering whether a statutory or nonstatutory
mitigating circumstance exists. Once the jury has found a
statutory or nonstatutory mitigating circumstance, it weighs that
and any other mitigating circumstances found against the
aggravating circumstances found. See id. To summarize, value
deals only with nonstatutory and the statutory catchall
mitigating circumstances and applies to the process of
determining the existence of the submitted circumstance, whereas
weight is for balancing mitigating circumstances found against
aggravating circumstances found.
Having reiterated the distinction between value and
weight, we will now deal with these concepts in their proper
context with respect to the trial court's jury instructions as to
Issue Two. For each of the seven statutory mitigating
circumstances submitted, the trial court instructed the jury as
follows:
If one or more of you finds by a
preponderance of the evidence that this
circumstance exists, you would so indicate by
having your foreman write yes in the space
provided after this mitigating circumstance
on the issues and recommendation form.
If none of you find the circumstance to
exist, you would so indicate by having your
foreperson write no in that space.
Here, the trial court instructed the jurors to write
yes in the space provided if one or more of them found by a
preponderance of the evidence that a particular statutorymitigating circumstance existed. The trial court did not
specifically explain to the jury that the seven circumstances
applicable to the aforementioned instruction are statutory
mitigating circumstances. However, the trial court did not need
to do so because once the jury found that one or more statutory
mitigating circumstances existed, that circumstance indeed
mitigated the crime or lessened defendant's culpability for the
crime and would be weighed against the aggravating circumstances
found. By virtue of the process through which the trial court
guides the jury, if the jury finds that a statutory mitigating
circumstance exists, that circumstance by implication has to have
value because it lessens the defendant's culpability for the
commission of the crime. Thus, the jury did not have to give the
statutory mitigating circumstance value, and value was not a
consideration. The jury simply wrote yes below the statutory
mitigating circumstance listed on the form if the jury found it
to exist by a preponderance of the evidence.
For the nonstatutory mitigating circumstances, the
trial court instructed the jury as follows:
Now, ladies and gentlemen, you should
also consider the following circumstances
arising from the evidence which you find to
have mitigating value.
Now, if one or more of you finds by a
preponderance of the evidence that any of the
following circumstances exist and also are
deemed by you to have mitigating value, you
would so indicate by having your foreperson
write yes in the space provided.
(Emphasis added.) In contrast to the trial court's instructions for
statutory mitigating circumstances, the trial court's
instructions for nonstatutory mitigating circumstances required
an extra step. Once the jury found a nonstatutory mitigating
circumstance by a preponderance of the evidence, it then had to
determine if that nonstatutory mitigating circumstance had value.
With a nonstatutory mitigating circumstance, the jury's finding
of the facts supporting the existence of the circumstance does
not automatically give the circumstance value. The jury had to
further determine whether or not that nonstatutory mitigating
circumstance had value. Once again, the trial court's failure to
specifically mention the word nonstatutory in its instruction
is of no effect. The process the trial court's instructions
required the jury to follow comports with the two-step process
necessary to determine if a nonstatutory mitigating circumstance
should have been considered. For a nonstatutory mitigating
circumstance, even if a jury finds the factual basis for the
circumstance to exist by a preponderance of the evidence, the
jury must deem that circumstance to have mitigating value before
it lessens defendant's culpability for the commission of the
crime.
Distinguishing value with regard to statutory and
nonstatutory mitigating circumstances is inherent in the trial
court's instructions. Once the jury finds that a statutory
mitigating circumstance exists, it is automatically considered in
the weighing process by the jury writing yes on the issues and
recommendation form. However, once a nonstatutory mitigatingcircumstance is found, it is only considered in the weighing
process if the jury deems it to have mitigating value.
Therefore, there is no need for the trial court to specifically
state the distinction between statutory and nonstatutory
mitigating circumstances with respect to value.
Defendant argues that the trial court made no
distinction as to the weight to give statutory mitigating
circumstance[s] and non-statutory mitigating circumstances. It
is not necessary for the trial court to make a distinction
between statutory and nonstatutory mitigating circumstances when
referring to weight. Giving weight to statutory or
nonstatutory mitigating circumstances as distinct concepts is an
improper application of the law. N.C.G.S. . 15A-2000(c)(3)
provides that once a jury finds a mitigating circumstance or
circumstances, it must show that the mitigating circumstance or
circumstances [found] are insufficient to outweigh the
aggravating circumstance or circumstances found. This statute
does not make a distinction between statutory and nonstatutory
mitigating circumstances when weighing them against aggravating
circumstances. When the jury is considering weight, all
mitigating circumstances, whether statutory or nonstatutory, must
be weighed against all aggravating circumstances. Thus, the
trial court does not need to instruct the jury on how to weigh
statutory mitigating circumstances versus nonstatutory mitigating
circumstances because all mitigating circumstances are weighed
against all aggravating circumstances. After reviewing the record and transcripts, we conclude
that the trial court did not commit error, much less plain error.
This assignment of error is overruled.
Next, defendant argues that her trial attorney rendered
ineffective assistance of counsel at trial in violation of the
Sixth Amendment to the Constitution of the United States. We
disagree. Defendant failed to provide transcript references
under the assignment of error. N.C. R. App. P. 10(c)(1) provides
that [a]n assignment of error is sufficient if it directs the
attention of the appellate court to the particular error about
which the question is made, with clear and specific record or
transcript references. (Emphasis added.) Defendant identifies
the Entire Transcript as the basis for the assignment of error
alleging ineffective assistance of counsel, as contained in the
record on appeal. As there are 3,285 transcript pages in this
case, a reference to the entire transcript is not a reference to
a particular error, nor is it clear and specific. See id.
Given that defendant's assignment of error does not comport with
the mandate of N.C. R. App. P. 10(c)(1), the ineffective
assistance of counsel argument is not properly before this Court.
Therefore, this assignment of error is overruled.
In defendant's next question presented, she contends
that the trial court erred in denying her motion to exclude two
photographs, exhibit H1 and H8, depicting Susan Horne and Tracy
Lambert. We disagree and will discuss each photograph in turn.
Exhibit H1 is a close-up facial view of . . . Susan
Moore. The photograph shows some blood on the face and . . . afly on the left closed eyelid of the victim[.] . . . [U]nder the
victim's head appears to be tire tracks and the victim's left
hand appears to have blue fingernail polish. No other part of
the victim's body can be viewed except the left hand and the
front area of the head and face. Defendant argues that this
exhibit was unduly inflammatory specifically concerning the fly
on the victim's eyelid. In finding that exhibit H1 is highly
probative, material and relevant and that the danger of unfair
prejudice does not outweigh the high probative value, the trial
court stated:
[T]his photograph is highly probative, . . .
finding that the position of the body is a
material fact in the case and that the
location of the head on what appears to be a
tire track is consistent with testimony given
by one of the state's witnesses who was
allegedly present at the scene and witnessed
the alleged murder.
The court finds further that the amount
of blood present is not excessive; that this
is a fair and accurate representation based
upon previous testimony that the court has
witnessed of the body of the victim Susan
Moore as it was observed by investigators who
first arrived on the scene. That it is an
identification photograph allowing witnesses
who need to make an identification to do so.
Based upon their knowledge of the identi[t]y
of Susan Moore and their observation of the
person at the scene of the alleged murder.
[The court] finds that the presence in
and of itself of what appears to be a fly on
the left eyelid is not unduly prejudicial or
inflammatory, the court taking as a matter of
common sense and judicial notice that flies
do not only pitch or light upon bodies, but
that they are a constant irritant to people
who are alive as well and that there is no
significance to be attached to the presence
of the fly.
As a general rule, gory or gruesome photographs have
been held admissible so long as they are used for illustrative
purposes and are not introduced solely to arouse the passions of
the jury. State v. Warren, 348 N.C. 80, 110, 499 S.E.2d 431,
448, cert. denied, 525 U.S. 915, 142 L. Ed. 2d 216 (1998).
Furthermore, this Court has previously stated that [p]hotographs
'showing the condition of the body when found, its location
. . . , and the surrounding scene at the time . . . are not
rendered incompetent by the portrayal of the gruesome events
which the witness testifies they accurately portray.' State v.
Peterson, 337 N.C. 384, 393-94, 446 S.E.2d 43, 49 (1994) (quoting
State v. Elkerson, 304 N.C. 658, 665, 285 S.E.2d 784, 789
(1982)), overruled on other grounds by State v. Jackson, 348 N.C.
644, 503 S.E.2d 101 (1998). Furthermore, '[p]hotographs are
usually competent to be used by a witness to explain or
illustrate anything that it is competent for him to describe in
words.' State v. Watson, 310 N.C. 384, 397, 312 S.E.2d 448, 457
(1984) (quoting State v. Cutshall, 278 N.C. 334, 347, 180 S.E.2d
745, 753 (1971)).
The decision of whether to admit photographs under
N.C.G.S. § 8C-1, Rule 403 is within the sound discretion of the
trial court, and the trial court's ruling should not be
overturned on appeal unless the ruling was 'manifestly
unsupported by reason or [was] so arbitrary that it could not
have been the result of a reasoned decision.' State v. Hyde,
352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) (quoting State v.
Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)), cert.denied, 531 U.S. 1114, 148 L. Ed. 2d 775 (2001). In the instant
case, the trial court properly exercised its discretion in
admitting exhibit H1. This photograph was used to identify this
particular victim, and it was used during the testimony of
Officer Penny Goodwin to illustrate her testimony as to what she
observed on 17 August 1998. Furthermore, the photograph was not
so gruesome as to require its inadmissibility, and as the trial
court found, the presence of the fly on the victim's eyelid did
not change this outcome. Thus, applying the above principles and
the requirements of N.C.G.S. § 8C-1, Rule 403, we conclude that
the trial court properly admitted this evidence.
Next, with regard to exhibit H8, defendant argues that
this photograph should have been held inadmissible because it was
duplicative of exhibit H7. We disagree.
Exhibit H8 is a photograph of Susan Moore's and Tracy
Lambert's bodies lying in a field. In admitting exhibit H8 into
evidence, the trial court found that while it does duplicate to
some degree the state's exhibit H7, . . . H8 gives a different
perspective, and the court finds it could be probative and
valuable to the jury in determining . . . the relative positions
of the bodies one to another and the relative positions of the
bodies to a tree as a point of reference. The trial court also
found that there is nothing unduly prejudicial or gory about the
picture.
Repetitive photographs may be introduced, even if they
are revolting, as long as they are used for illustrative purposes
and are not aimed solely at prejudicing or arousing the passionsof the jury. Peterson, 337 N.C. at 394, 446 S.E.2d at 49. We
conclude, as the trial court did, that this photograph was not
unduly prejudicial or gruesome under N.C.G.S. § 8C-1, Rule 403,
and furthermore, this photograph offered a different perspective
than that which was offered by exhibit H7. Thus, the trial court
did not err in admitting exhibit H8 into evidence.
Next, defendant argues that the trial court erred in
submitting the aggravating circumstance that the murders were
especially heinous, atrocious, or cruel. See N.C.G.S. §
15A-2000(e)(9). We disagree.
Whether a trial court properly submitted
the (e)(9) aggravating circumstance depends
on the facts of the case. The capital
offense must not be merely heinous,
atrocious, or cruel; it must be especially
heinous, atrocious, or cruel. A murder is
especially heinous, atrocious, or cruel when
it is a conscienceless or pitiless crime
which is unnecessarily torturous to the
victim.
State v. Flippen, 349 N.C. 264, 270, 506 S.E.2d 702, 706 (1998),
(citations omitted), cert. denied, 526 U.S. 1135, 143 L. Ed. 2d
1015 (1999). This Court has
identified three types of murders that would
warrant the submission of the [especially
heinous, atrocious, or cruel] aggravating
circumstance. The first type consists of
those killings that are physically agonizing
for the victim or which are in some other way
dehumanizing. State v. Lloyd, 321 N.C. 301,
319, 364 S.E.2d 316, 328, sentence vacated on
other grounds, 488 U.S. 807, 102 L. Ed. 2d 18
(1988). The second type includes killings
that are less violent but involve infliction
of psychological torture by leaving the
victim in his or her last moments aware of
but helpless to prevent impending death,
State v. Hamlet, 312 N.C. [162,] 175, 321
S.E.2d [837,] 846 [(1984)], and thus may be
considered conscienceless, pitiless, orunnecessarily torturous to the victim, State
v. Brown, 315 N.C. 40, 65, 337 S.E.2d 808,
826-27 (1985), cert. denied, 476 U.S. 1164,
90 L. Ed. 2d 733 (1986), and overruled on
other grounds by State v. Vandiver, 321 N.C.
570, 364 S.E.2d 373 (1988). The third type
includes killings that demonstrate[] an
unusual depravity of mind on the part of the
defendant beyond that normally present in
first-degree murder[s]. Id. at 65, 337
S.E.2d at 827.
Lloyd, 354 N.C. at 122, 552 S.E.2d at 627-28 (citation omitted)
(fifth and sixth alterations in original). Furthermore, [i]n
determining whether the evidence is sufficient to support the
trial court's submission of the especially heinous, atrocious, or
cruel aggravating circumstance, we must consider the evidence 'in
the light most favorable to the State, and the State is entitled
to every reasonable inference to be drawn therefrom.' Flippen,
349 N.C. at 270, 506 S.E.2d at 706 (quoting Lloyd, 321 N.C. at
319, 364 S.E.2d at 328).
Applying the principles above, we conclude that the
evidence in this case was sufficient to support the submission of
the (e)(9) aggravating circumstance to the jury. The evidence at
trial tended to show that the two victims were forced into the
trunk of their car at gunpoint while screaming and trying to
escape. Then, for about an hour, defendant and others drove the
car around while the two victims cried for help, begged not to be
hurt, and asked their abductors what was going to be done to
them. At some point during the ride, the car was stopped, and
some of the other gang members took jewelry off of the victims at
gunpoint. Eventually, the gang arrived at defendant's trailer
with the two victims in the trunk. The trunk was opened again,and Susan Moore pled for their lives. She asked her abductors:
Well, what are you all going to do to us? Are you going to
kill us? We don't know what y'all look like. Just let us go.
One of the gang members then told her, Shut up, b----, and the
victims were then locked back in the trunk. The gang members
then went into defendant's trailer. Finally, the gang returned
outside and drove the victims to a dirt road that was about
twenty minutes away from defendant's trailer. The gang pulled
the victims out of the trunk. Queen held a gun to Tracy
Lambert's head and said, Well, I'm about to open this b----'s
third eye. Lambert started to cry, saying, Oh, my God, Susan.
We're going to die. We're going to die. I don't want to die.
Queen told Lambert to shut up and then shot her in the head.
Moore, who was being held with a knife to her throat, begged the
gang not to cut her in the throat, but to shoot her instead.
Subsequently, Francisco Tirado shot Moore in the head.
The victims were subjected to at least an hour and a
half of psychological torture by being trapped in the trunk of a
car while pleading for their lives. The victims were also
abducted at gunpoint and robbed of jewelry. Furthermore, Susan
Moore was forced to witness Tracy Lambert being shot in the head.
We thus conclude that the evidence more than warranted the trial
court's submission of the (e)(9) aggravating circumstance to the
jury for both murders. This assignment of error is overruled.
We turn once again to the all-too-familiar contention
by a defendant that counsel for the State engaged in improper
closing arguments. We note that this case was tried prior to ourdecision in State v. Jones, 355 N.C. 117, 558 S.E.2d 97.
However, Jones did not introduce into the parameters of proper
closing argument any new requirements, but instead reiterated
established principles long articulated by the laws of this state
and by this Court's decisions.
In this case, the State presented three separate
arguments to the jury at guilt-innocence and at sentencing. In
the first two arguments, the district attorney and one of his
assistants engaged in proper closing arguments focusing on the
evidence, the law, and the issues before the jury. This is a
compelling case based upon the evidence presented at trial, and
it is inconceivable why the third argument made by another
assistant district attorney was ever made. Little, if any,
argument was made about the evidence, law, or issues. Instead,
the argument consisted of a rambling, disjointed personal attack
on defendant, filled with irrelevant historical references and
name-calling. Examples of the prosecutor's name-calling follow:
Ladies and gentlemen, you mean to tell me
three people get shot in cold blood by a
bunch of no working, no school going,
heathen, murdering, low-lifes and nobody's
supposed to get emotional?
. . . .
. . . The whole low-life, no working,
unemployed group, every one of them is just
as guilty.
. . . .
. . . Ladies and gentlemen of the jury,
you got to learn how to recognize evil when
you see it. . . . You got to learn how to
stand up to evil, ladies and gentlemen of the
jury. You have to learn how to stand up to
evil.
And that girl and that whole gang of
them over there, just like this man said,
evil, wicked and mean.
. . . .
. . . You say she's not evil? You say
she's not evil? You don't think so. Well,
ladies and gentlemen of the jury, if you
can't recognize evil, you will never
recognize it.
See State v. Smith, 279 N.C. 163, 165-67, 181 S.E.2d 458, 459-60
(1971) (reversing defendant's rape conviction because of the
prosecutor's inflammatory and prejudicial closing argument
describing defendant as lower than the bone belly of a cur
dog); see also State v. Miller, 271 N.C. 646, 659-61, 157 S.E.2d
335, 344-47 (1967) (holding that the prosecutor committed
reversible error by, inter alia, calling defendants
storebreakers and expressing his opinion that a witness was
lying).
Furthermore, large portions of the argument consisted
of matters that were totally extraneous to the decision being
made by the jury and that violated several principles of closing
argument set out previously by this Court. The effect of this
argument is to take a case that appears rock solid on the
evidence and law and that was twice ably argued to the jury and
bring it perilously close to mandating reversal.
In reviewing this matter, however, we are constrained
by the lack of objections by the trial attorneys for defendant
(there was only one objection), the total lack of intervention by
the trial judge, the limited number of questions presented tothis Court on appeal, and defendant's failure to properly assign
error.
We now turn to the issues raised by defendant. Our
standard of review depends on whether there was a timely
objection made or overruled, or whether no objection was made and
defendant contends that the trial court should have intervened ex
mero motu. If there is an objection, this Court must determine
whether the trial court abused its discretion by failing to
sustain the objection. Jones, 355 N.C. at 131, 558 S.E.2d at
106. Application of the abuse of discretion standard to closing
argument requires this Court to first determine if the remarks
were improper. Id. Next, we determine if the remarks were of
such a magnitude that their inclusion prejudiced defendant, and
thus should have been excluded by the trial court. Id.
When defendant fails to object to an argument, this
Court must determine if the argument was so grossly improper
that the trial court erred in failing to intervene ex mero motu.
State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002).
In other words, the reviewing court must
determine whether the argument in question
strayed far enough from the parameters of
propriety that the trial court, in order to
protect the rights of the parties and the
sanctity of the proceedings, should have
intervened on its own accord and:
(1) precluded other similar remarks from the
offending attorney; and/or (2) instructed the
jury to disregard the improper comments
already made.
Jones, 355 N.C. at 133, 558 S.E.2d at 107.
Defendant raises two issues regarding closing
arguments, one in the guilt-innocence phase and one in thesentencing phase, respectively. When considering prejudice in a
capital case,
special attention must be focused on the
particular stage of the trial. Improper
argument at the guilt-innocence phase, while
warranting condemnation and potential
sanction by the trial court, may not be
prejudicial where the evidence of defendant's
guilt is virtually uncontested. However, at
the sentencing proceeding, a similar argument
may in many instances prove prejudicial by
its tendency to influence the jury's decision
to recommend life imprisonment or death. We
also point out that by its very nature, the
sentencing proceeding of a capital case
involves evidence specifically geared towards
the defendant's character, past behavior, and
personal qualities. Therefore, it is
certainly appropriate for closing argument at
the sentencing hearing to incorporate
reasonable inferences and conclusions about
the defendant that are drawn from the
evidence presented. However, mere conclusory
arguments that are not reasonable -- such as
name-calling -- or that are premised on
matters outside the record -- such as
comparing defendant's crime to infamous acts
-- do not qualify and thus cannot be
countenanced by this or any other court in
the state.
Id. at 134-35, 558 S.E.2d at 108.
We first address the one portion of the argument to
which there was an objection. Defendant argues that the trial
court erred in failing to intervene ex mero motu when the
prosecutor's grossly improper argument intended to invoke passion
into the jury by comparing defendant to Adolph Hitler. Defendant
improperly characterizes the argument here, as the trial court
does not intervene ex mero motu when an objection is made. We
reiterate that the proper standard of review when an objection is
made is whether the trial court abused its discretion by failing
to sustain the objection. Id. at 131, 558 S.E.2d at 106. During closing arguments in the guilt-innocence phase,
the prosecutor told the jury:
Over 50-some years ago, a man from
England went to Germany to meet a fellow at a
place called Berchtesgaden and he went over
there to sign a peace treaty, and this man
had a great big enormous picture window.
Now, the man from England that looked out the
window [was] named Neville Chamberlain, when
he looked out the window, he saw a world of
peace. He saw a world of harmony. And he
signed a little piece of paper, just like the
one that this defendant tried to pawn off on
this district attorney right here, signed a
little piece of paper with that man -- that
other man from Germany that looked out the
window. And he said we're at peace. The man
from England took a little piece of paper,
went back home waving it to his folks, We
have peace in our time. He had no idea that
he was talking to a man that, before it was
over, would be responsible for the deaths of
50 million people on every continent, every
sea. He would be responsible for the death
of over 50 million women and children. He
had no idea that Adolph Hitler was going to
turn out the way he did.
But, ladies and gentlemen of the jury,
oh, he met his match later on. Because
Neville Chamberlain didn't remain in office.
A fellow named Winston Churchill took over.
And you know what Winston Churchill told the
fuhrer? We will fight you on the beaches.
We will fight you in the air. We will fight
you on land. We will never surrender.
And if these people have their way --
they got up here political, economic, social
and all that stuff, if they have their way,
they will turn this county -- this state and
this country into a place of chaos.
[DEFENSE COUNSEL]: Your Honor, we
object.
THE COURT: Overruled.
[PROSECUTOR]: That's what they'll do.
Got 12 keys of life. The last few of which
are money, mac and murder. If they have
their way -- you know that man that lookedout that picture window, the German one, he
wrote a book. He had a little book he wrote
while he was in prison called Mein Kampf
and he had a twisted dream too just like
these folks right here. And he didn't, I
don't suppose, look evil to Mr. Chamberlain.
Mr. Chamberlain's head probably wasn't
screwed on right but Churchill's head was.
The State argues that defendant objected only to the portion of
the prosecutor's argument that defendant's gang would turn this
county -- this state and this country into a place of chaos and
did not object to the references to Adolph Hitler. It is
apparent that defendant followed the prosecutor's argument and
objected when the prosecutor tied his prior references to Hitler
to defendant. Therefore, we conclude that defendant's objection
was directed to the reference to Hitler as well as the statement
tying defendant to Hitler, and thus we will review the argument
based on an objection having been made.
The State further contends that this Court should apply
by analogy the rule relating to admission of evidence: '[T]he
admission of evidence without objection waives prior or
subsequent objection to the admission of evidence of a similar
character.' State v. Hudson, 331 N.C. 122, 151, 415 S.E.2d 732,
747-48 (1992) (quoting State v. Campbell, 296 N.C. 394, 399, 250
S.E.2d 228, 231 (1979)), cert. denied, 506 U.S. 1055, 122 L. Ed.
2d 136 (1993). In other words, the State argues that defendant's
objection that was overruled should be waived because defendant
did not object to subsequent portions of the prosecutor's
argument relating to Adolph Hitler. However, the rule relating
to the admission of evidence during the trial is not analogous to
arguments allowed during closing arguments. Whereas it iscustomary to make objections during trial, counsel are more
reluctant to make an objection during the course of closing
arguments for fear of incurring jury disfavor. Jones, 355 N.C.
at 129, 558 S.E.2d at 105. Defendant should not be penalized
twice (by the argument being allowed and by her proper objection
being waived) because counsel does not want to incur jury
disfavor. Therefore, defendant properly objected to the
prosecutor's argument, and no waiver occurred by defendant's
failure to object to later references to Hitler.
Because defendant properly objected to the closing
argument, this Court must determine if the trial court abused
its discretion by failing to sustain the objection. Id. at 131,
558 S.E.2d at 106. As previously noted, the application of the
abuse of discretion standard to closing arguments requires this
Court to first determine if the remarks were improper. Id.
Next, we determine if the remarks were of such a magnitude that
their inclusion prejudiced defendant, and thus should have been
excluded by the trial court. Id. Defendant contends that the
prosecutor's argument was improper. We agree. [I]mproper
remarks include statements of personal opinion, personal
conclusions, name-calling, and references to events and
circumstances outside the evidence, such as the infamous acts of
others. Id.
Defendant contends that the prosecutor made this
argument to compare her and the Crips to Hitler and the Nazis.
However, at the conclusion of the argument, the prosecutor's
reasoning for this argument appears to be different. Ladies andgentlemen of the jury, go back there and act with resolve. Go
back there. Do like Winston Churchill when he stood up to
Hitler. Do it like that. Stand up to evil. Go back there and
find this person guilty of every single charge on that
indictment. Thus, the purpose of the argument appears to be to
get the jury to stand up to evil like Winston Churchill did to
Hitler rather than to appease evil like Neville Chamberlain did.
While this Court in Jones stated that arguments
premised on matters outside the record during closing arguments
are inappropriate, id. at 135, 558 S.E.2d at 108, we do not
completely restrict closing arguments to matters that are only
within the province of the record, to the exclusion of any
historical references. However, despite the de facto historical
nature of any past event, this Court will not allow such
arguments designed to inflame the jury, either directly or
indirectly, by making inappropriate comparisons or analogies. In
this case, even if the prosecutor's argument about Neville
Chamberlain and Adolph Hitler and Winston Churchill was to
illustrate appeasement, using Hitler as the basis for the example
has the inherent potential to inflame and to invoke passion in
the jury, particularly when defendant is compared to Hitler in
the context of being evil. We conclude that the prosecutor's
argument in this case was improper.
Now we must determine if the remarks were of such a
magnitude that their inclusion prejudiced defendant, and thus
should have been excluded by the trial court. Id. at 131, 558
S.E.2d at 106. Although the prosecutor's argument was improper,given the overwhelming evidence of defendant's guilt, it can
hardly be said that the prosecutor's remarks were of such
magnitude that their inclusion prejudiced defendant. See id.
In fact, this argument, coming when it did after two proper
arguments by the district attorney and an assistant district
attorney, most likely had little, if any, impact on the jurors'
decision on the issue of guilt or innocence. Finally, in viewing
the argument in its totality, it appears far more
incomprehensible and disjointed than powerful and persuasive.
Thus, we must conclude that, although improper, the necessary
showing of prejudice was not met.
Next, defendant argues that the prosecutor made
improper statements during closing arguments in the sentencing
phase. Defendant failed to make any objections, so this Court
must determine if the prosecutor's arguments were so grossly
improper that the trial court erred in failing to intervene ex
mero motu. Barden, 356 N.C. at 358, 572 S.E.2d at 135.
Defendant points to seven portions of the prosecutor's
closing argument during the sentencing phase that defendant
contends were so grossly improper as to require intervention by
the trial court. Specifically, defendant argues that the
prosecutor tried to prejudice the jury by referring to the jury's
solemn duty to the victims to do justice and by referring to
the jurors confronting the victims in the hereafter. Contrary
to defendant's contention and having reviewed the argument in
context, we conclude that the prosecutor did not imply that the
jury's duty was to sentence defendant to death under God's law. This Court has disapproved of contentions that state law-
enforcement entities have been ordained by God and that resisting
those entities is resisting God. Call, 353 N.C. at 419, 545
S.E.2d at 202; State v. Cummings, 352 N.C. 600, 628, 536 S.E.2d
36, 56 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641
(2001). However, in this case, the prosecutor neither argued nor
implied that law-enforcement entities were ordained by God.
Furthermore, the remarks were not a biblical argument, nor were
they based improperly on religion. The statements constituted a
request to do justice and a hypothetical reference to
encountering the victims in the hereafter. While inappropriate,
these comments do not merit intervention by the trial court ex
mero motu. See Call, 353 N.C. at 419.
Furthermore, in making references to God, the
prosecutor challenged defendant's direct testimony in the guilt-
phase that she had found God. The prosecutor's reference to
God was also in response to social worker Joan Cynthia Brooks'
testimony about defendant's complaint about her grandmother's
religious emphasis. Defendant contends that the prosecutor
argued that defendant should be willing to die under God's laws.
We disagree. The prosecutor did not suggest or imply that the
jury should sentence defendant to death under God's laws. The
prosecutor's comments were in direct response to defendant's
testimony in the guilt-innocence phase that she had found God
and to the social worker's testimony in the sentencing phase.
See, e.g., State v. Robinson, 336 N.C. 78, 129-30, 443 S.E.2d
306, 332 (1994) (holding that the prosecutor's argument on drugsand race was in response to the defendant's expert, who testified
that defendant's inner-city background was partially responsible
for his criminal behavior), cert. denied, 513 U.S. 1089, 130 L.
Ed. 2d 650 (1995).
The prosecutor also argued that defendant's mitigating
circumstances were excuses for the murders committed and
challenged the weight of defendant's mitigating circumstances.
Defendant provides no support for her contention that the
prosecutor misled the jury from the law by making these
statements about defendant's mitigating circumstances. The
prosecutor simply contended that the jury should not give weight
to defendant's mitigating circumstances. See, e.g., id. at 129,
443 S.E.2d at 332 (holding that the prosecutor's remark that the
defendant's mitigation evidence constituted an evasion of
responsibility was directed toward the weight that the jury
should give to defendant's evidence). This Court has repeatedly
maintained that [a] prosecutor is permitted to legitimately
belittle the significance of . . . mitigating circumstances.
State v. Haselden, 357 N.C. 1, 20, 577 S.E.2d 594, 606 (2003);
accord State v. Billings, 348 N.C. 169, 186-87, 500 S.E.2d 423,
433-34 (quoting State v. Basden, 339 N.C. 288, 305, 451 S.E.2d
238, 247 (1994), cert. denied, 515 U.S. 1152, 132 L. Ed. 2d 845
(1995)), cert. denied, 525 U.S. 1005, 142 L. Ed. 2d 431 (1998).
In addition, the prosecutor argued to the jury during
the sentencing stage, You know what was once written about
people who harm children? 'And whosoever shall offend one of
these little ones that believe in me, it is better that amillstone be tied about his neck and he be drowned in the depths
of the sea.' Defendant contends that this was grossly improper
and that the trial court should have intervened ex mero motu.
However, the prosecutor did not argue that the Bible commanded
that defendant be put to death. Instead, he used the statement
in question to respond to defendant's testimony that she did not
want her children in the Davis Street environment. The
prosecutor appears to have used this colloquy to amplify
defendant's bad parenting and to attempt to eliminate any
sympathy the defense might try to invoke with the jury because
defendant had children. This is evidenced by the prosecutor's
following argument:
Do not delude yourself, ladies and
gentlemen of the jury. Counsel will get up
here and tell you how pitiful [defendant] is,
and how by letting her live, she'll be able
to see her children. They'll be able to see
-- come visit their mother. Ladies and
gentlemen of the jury, the last thing that
you ought to think of this person as is a
mother. That's the person that put her
children out of the house for this motley
crew.
This case does not involve the death of a child such that an
interpretation could be drawn from this argument that defendant
should die because she has harmed her children. Furthermore, the
prosecutor does not directly or indirectly state that defendant
should be executed for these crimes because the Bible says so.
Although [t]his Court has strongly cautioned against the use of
arguments based on religion, Barden, 356 N.C. at 358, 572 S.E.2d
at 135, we hold that the prosecutor's arguments in this case werenot grossly improper and that they do not constitute reversible
error by the trial court's failure to intervene ex mero motu.
As we have observed, this closing argument was made
prior to our decision in Jones. However, let there be no
mistake. It is the expressed intention of this Court to make
sure all parties stay within the proper bounds of the laws and
decisions of this Court relating to closing argument. The
federal courts have consistently restricted closing argument,
while our state jurisprudence has tended to give far greater
latitude to counsel. There is a proper balance, and in Jones, we
took great care to spell out the proper parameters. In this
case, at one point in his argument, the prosecutor said, I hope
the judge doesn't put me in jail for my language . . . . While
not inclined in this case to go that far, we once again remind
counsel for all parties that improper argument in flagrant
disregard of the limits placed on closing argument can and must
be enforced by the courts.
Defendant also contends that the trial court erred by
allowing the prosecutor to argue, during closing arguments at the
guilt-innocence phase of the trial, that defendant failed to call
John Juarbe, Tameika Douglas, and Francisco Tirado to the stand,
which thereby impermissibly shifted the burden of proof to
defendant to prove her case.
During closing arguments at the guilt-innocence phase
of the trial, defense counsel stated:
We didn't take one or two words out of
context. We didn't take a statement here and
a statement there and pull a couple words out
and try to confuse you and not show you thestatement. Heck, we even brought Eric Queen
in here, put him on the stand and tried to
get him to talk to you. He invoked his Fifth
Amendment right which is his perfect right to
do. End of story. We can't question him any
more about that. We brought Darryl Tucker in
here, put him on the stand and we asked him
questions and he invoked his Fifth Amendment
rights. Can't ask him questions any more.
We did -- we tried.
In sum, we've tried to be completely up
front with you. We tried to let you hear the
whole story of what happened in this
incident. We tried to let you hear it
without emotional tirades, without smoke in
[sic] mirrors. We tried to let you have the
bare, cold facts and let you decide what
happened. It's as simple as that.
During the prosecutor's closing argument in rebuttal,
the prosecutor responded to this argument by saying:
Now, the defense wants you to believe
that they called in Mr. Queen, they called in
Mr. Tucker because they were trying to show
you everything and give you a chance to hear
everything because they want to be real
truthful with you and make sure you know
everything. Well, were there any other
defendants in this case?
You've got to wonder, now, let's see,
what was this defendant's relationship to
those two defendants? Well, when she was
arrested, law enforcement tells you she comes
out of the bedroom with Queen. She says in
the statement you couldn't sleep with
somebody in your same set, so she didn't have
a relationship with Eric Queen. But she said
on the stand, yeah, we were boyfriend _ no,
we weren't boyfriend and girlfriend but we
had a sexual relationship. She comes out of
the back bedroom there -- by law enforcement,
those two were in the back bedroom. She is
so afraid of him. She is so afraid. She is
so afraid she keeps his picture right beside
her bed. She look like she is scared of
anybody in that picture? Looks like they are
on pretty good terms in that picture. Eric
Queen -- you reckon -- you reckon Eric Queen
is the boyfriend? He is the one that's
caught in the bedroom with her when lawenforcement catches her. You reckon there
wouldn't be a chance he wouldn't unload on
her if he did say anything if they put him on
the stand? Probably wouldn't, would he?
He's the boyfriend?
Now, who else on this chart would this
defendant be close to? Well, she kept saying
what? Couldn't throw Tucker out. His daddy
was my O.G. [original gangster], plus he's
fam. He's fam. Got to let him stay there.
Got to send the children away for days. I
cannot have the children here. I can't do
whatever. Can't throw out Tucker. Finally,
she did. When he questioned her, you got to
leave. Fam, brings him in. You reckon if he
says anything, you can take that chance
putting him on the stand, can't you, because
if he says anything, she's close enough that
he's not likely to hurt her, isn't he?
So why don't they put John Juarbe on the
stand? Why didn't they call Tameika Douglas?
Why didn't they call Paco [Tirado]? She was
plenty ready to unload on Paco all the way
through her testimony. If you put Paco up
there, I wonder what he would have said. Put
Carlos Frink, Carlos Nevills, think about it.
The defendant chose to call up there the two
people that, if they said anything, what?
Were closest to her. Most unlikely to do
what? Hurt her. Remember that. Remember
that. Because the defendant has said to you
how truthful she was, how she tried to show
you everything.
Defendant first contends that the trial court committed
plain error in this case by not intervening during this closing
argument. However, this Court has stated that plain error review
is appropriate only when the issue involves either errors in the
trial judge's instructions to the jury or rulings on the
admissibility of evidence. State v. Cummings, 346 N.C. 291,
314, 488 S.E.2d 550, 563 (1997), cert. denied, 522 U.S. 1092, 139
L. Ed. 2d 873 (1998). Since defendant failed to object to these
allegedly improper statements during the closing arguments, [she]'must demonstrate that the prosecutor's closing arguments
amounted to gross impropriety.' State v. May, 354 N.C. 172,
178, 552 S.E.2d 151, 155 (2001) (quoting State v. Rouse, 339 N.C.
59, 91, 451 S.E.2d 543, 560 (1994), cert. denied, 516 U.S. 832,
133 L. Ed. 2d 60 (1995)), cert. denied, 535 U.S. 1060, 152 L. Ed.
2d 830 (2002). 'To establish such an abuse, defendant must show
the prosecutor's comments so infected the trial with unfairness
that it rendered the conviction fundamentally unfair.' Hyde,
352 N.C. at 56, 530 S.E.2d at 294 (quoting State v. Robinson, 346
N.C. 586, 607, 488 S.E.2d 174, 187 (1997)). Furthermore,
'[t]rial counsel is allowed wide latitude in argument to the
jury and may argue all of the evidence which has been presented
as well as reasonable inferences which arise therefrom.' Id.
(quoting State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721
(1998), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999)).
Also, [w]hile a prosecutor may not comment on the
failure of the accused to testify, he may 'comment on a
defendant's failure to produce witnesses or exculpatory evidence
to contradict or refute evidence presented by the State.' State
v. Skeels, 346 N.C. 147, 153, 484 S.E.2d 390, 393 (1997) (quoting
State v. Reid, 334 N.C. 551, 555, 434 S.E.2d 193, 196 (1993));
see also State v. Ward, 354 N.C. 231, 261-62, 555 S.E.2d 251, 271
(2001); State v. Fletcher, 348 N.C. 292, 322, 500 S.E.2d 668, 685
(1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 113 (1999);
State v. Morston, 336 N.C. 381, 406, 445 S.E.2d 1, 15 (1994).
'[T]he jury, in weighing the credibility of the evidence offered
by the State[] may consider the fact that it is uncontradicted. . . or unrebutted by evidence available to defendant.' State
v. Tilley, 292 N.C. 132, 143, 232 S.E.2d 433, 441 (1977) (quoting
State v. Bryant, 236 N.C. 745, 747, 73 S.E.2d 791, 792 (1953))
(third alteration in original).
In the present case, we conclude that the prosecutor
was merely arguing that defendant had witnesses available who
could have offered exculpatory evidence but that defendant had
refused to call those witnesses. Furthermore, we conclude that
the prosecutor was also responding to defendant's assertion in
which her attorney said to the jury, We tried to let you hear
the whole story of what happened in this incident. Therefore,
we hold that the prosecutor's closing argument did not amount to
gross impropriety, and thus, the trial court did not err by not
intervening ex mero motu.
Defendant raises four additional issues that she
concedes have been previously decided contrary to her position by
this Court: (1) the trial court erred in allowing death
qualification of the jury; (2) the N.C.G.S. § 15A-2000 (e)(9)
aggravating circumstance that a murder is especially heinous,
atrocious, or cruel is unconstitutionally vague and overbroad;
(3) the trial court erred by instructing the jury during the
capital sentencing proceeding that the answers to Issues One,
Three, and Four on the Issues and Recommendation as to
Punishment form for each case must be unanimous; (4) the trial
court erred by failing to change the wording of Issue Three on
the Issues and Recommendation as to Punishment form for each
case to avoid a recommendation of death if the jury found theaggravating and mitigating circumstances to be of equal weight
and value.
Defendant raises these issues in order to urge this
Court to reexamine its prior holdings with regard to these
issues. We have considered defendant's arguments, and we find no
compelling reason to reverse our prior holdings. Therefore, the
assignments of error presented under these issues are overruled.
Having found no prejudicial error in defendant's trial
or capital sentencing proceeding, we must now review and decide
three issues: (1) whether the record supports the jury's
findings of any aggravating circumstance or circumstances upon
which the sentencing court based its sentence of death;
(2) whether the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary factor;
or (3) whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant. N.C.G.S. §
15A-2000(d)(2). If this Court finds the existence of one of
these factors, [t]he sentence of death shall be overturned and a
sentence of life imprisonment imposed in lieu thereof. Id.
After a thorough review of the record, transcript,
briefs, and oral arguments, we hold that the record provides
ample support for the jury's finding of all four aggravating
circumstances submitted as to each murder: (1) the murder was
committed while defendant was engaged in the commission of a
first-degree kidnapping, N.C.G.S. § 15A-2000(e)(5); (2) the
murder was committed for pecuniary gain, N.C.G.S. §15A-2000(e)(6); (3) the murder was especially heinous, atrocious,
or cruel, N.C.G.S. § 15A-2000(e)(9); and (4) the murders for
which defendant was convicted were part of a course of conduct in
which defendant engaged and which included the commission by
defendant of other crimes of violence against other persons,
N.C.G.S. § 15A-2000(e)(11). We also conclude that nothing in the
record suggests that defendant's death sentence was imposed under
the influence of passion, prejudice, or any other arbitrary
factor.
We now turn to our final statutory duty of
proportionality review. In conducting our proportionality
review, we consider whether the sentence of death in the present
case is excessive or disproportionate to the penalty imposed in
similar cases considering both the crime and the defendant.
State v. Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 355, cert.
denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983). [I]t is proper
to compare the present case with other cases in which this Court
has concluded that the death penalty was disproportionate.
State v. Williams, 355 N.C. 501, 590, 565 S.E.2d 609, 660 (2002),
cert. denied, ___ U.S. ___, 154 L. Ed. 2d 808 (2003). This Court
has found a death sentence disproportionate in eight cases.
State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002); State v.
Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319
N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341
S.E.2d 713 (1986), overruled on other grounds by State v. Gaines,
345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 139 L.
Ed. 2d 177 (1997), and by State v. Vandiver, 321 N.C. 570, 364S.E.2d 373; State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985);
State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v.
Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson,
309 N.C. 26, 305 S.E.2d 703 (1983).
We conclude that this case is not substantially similar
to any of the cases in which this Court has found the death
sentence disproportionate. Defendant was convicted of two counts
of first-degree murder both on the basis of premeditation and
deliberation and under the felony murder rule with two underlying
felonies -- kidnapping and robbery with a firearm. This Court
has recognized that a finding of premeditation and deliberation
indicates 'a more calculated and cold-blooded crime.' State v.
Harris, 338 N.C. 129, 161, 449 S.E.2d 371, 387 (1994) (quoting
State v. Lee, 335 N.C. 244, 297, 439 S.E.2d 547, 575, cert.
denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994)), cert. denied,
514 U.S. 1100, 131 L. Ed. 2d 752 (1995). Additionally, the
largest number of aggravating circumstances found by the juries
in the cases held disproportionate was two. However, in the case
at bar, the jury found the existence of four aggravating
circumstances.
The facts in the case at bar are similar, if not more
egregious than the facts in State v. Call, 353 N.C. 400, 545
S.E.2d 190. In Call, defendant lured one murder victim into a
remote cornfield and killed the victim by hitting him in the head
with a shovel and a tire iron. Defendant assaulted another
victim by hitting him in the head with an aluminum bat and
leaving him in the field all night. In the case at bar, both ofthe victims were violently kidnapped and were forced to ride in
the trunk of their car, listening to plans to kill them. One of
the two murder victims watched as her friend was fatally shot in
her presence. The other begged to be shot versus having her
throat cut before she was shot in the head. The surviving victim
was kidnapped at gunpoint. She was thereafter robbed and was
forced to get into the trunk of her car. She was in the trunk
when gang members gathered around the car and discussed what to
do with her. Defendant and three others drove her to a remote
area, where defendant shot her multiple times and then left her
in a field to die. All three victims in this case endured an
extended period of terror.
This Court in Call found defendant's death sentence
proportionate where the jury found the same four aggravating
circumstances as in this case: (1) the murders were committed
while defendant was engaged in the commission of a kidnapping,
N.C.G.S. § 15A-2000(e)(5); (2) the murders were committed for
pecuniary gain, N.C.G.S. § 15A-2000(e)(6); (3) the murders were
especially heinous, atrocious, or cruel, N.C.G.S. §
15A-2000(e)(9); and (4) the murder was part of a course of
conduct in which defendant engaged and which included the
commission by defendant of other crimes of violence against
another person or persons, N.C.G.S. § 15A-2000(e)(11). See id.
Accordingly, after reviewing the facts of this case and
the treatment of other similar cases, we find the death sentence
in this case to be proportionate.
NO ERROR. Justice BRADY did not participate in the consideration
or decision of this case.
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