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.

1.    Constitutional Law; Evidence_right of confrontation_S.B.I. reports_preparer unavailable for cross-examination_business records_no Crawford violation

    Defendant's right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004), was not violated by the admission of S.B.I. reports, containing both analysis results and chain of custody information, prepared by an S.B.I. agent who did not testify at trial and was unavailable for cross-examination by defendant because the reports are not testimonial statements that are inadmissible under Crawford but are purely ministerial observations that do not offend the public records exception of N.C.G.S. § 8C-1, Rule 803(8) and were properly admitted under the business records exception to the hearsay rule set forth in N.C.G.S. § 8C-1, Rule 803(6).

2.    Confessions and Incriminating Statements_custodial interrogation _no unequivocal invocation of right to silence

    Defendant did not unequivocally invoke his right to silence during custodial interrogation, and his written statement was properly admitted in his capital trial, where defendant unexpectedly answered “no” when asked if he wanted to answer any more questions at that time, an officer asked defendant what he meant, defendant responded that he was tired and would answer more questions after he had a chance to sleep, and after sleeping for several hours, defendant affirmed his willingness to continue and reviewed and signed the written statement. Under these circumstances, defendant's “no” was ambiguous and the officer did not violate defendant's constitutional rights by asking for amplification.

3.    Sentencing_capital--mitigating circumstances--lack of significant prior history of criminal activity--subsequent behavior--harmless error

    Although the trial court erred in a capital sentencing proceeding by considering defendant's criminal behavior subsequent to the murders in its determination not to submit the N.C.G.S. § 15A-2000(f)(1) mitigating circumstance of defendant's lack of significant prior history of criminal activity, this error was harmless because the events and behavior cited by the court that occurred before the murders by themselves adequately support its decision not to submit the circumstance.

4.    Sentencing_capital--mitigating circumstances--mental or emotional disturbance_impaired capacity_peremptory instructions not required

    The trial court did not err in a capital sentencing proceeding by refusing to give the requested peremptory instructions on the statutory mitigating circumstances under N.C.G.S. § 15A-2000(f)(2) that the murders were committed while defendant was under the influence of a mental or emotional disturbance and under N.C.G.S. § 15A-2000(f)(6) that the capacity of defendant to conform his conduct to the requirements of the law was impaired, because: (1) although defendant relied on the testimony of a psychologist and two psychiatrists as evidence supporting these two statutory mitigating circumstances, the testimony of an expert witness who has prepared an analysis of a defendant in preparation for trial lacks the indicia of reliability based on the self-interest inherent in obtaining appropriate medical treatment and, since it is not manifestly credible, does not support a peremptory instruction; and (2) the evidence supporting the submission of the (f)(2) and (f)(6) mitigating circumstances was not uncontroverted.
5.    Criminal Law; Evidence--cross-examination-_prosecutor's argument-- amenities of prison life--no gross impropriety

    The trial court did not commit plain error in a capital sentencing proceeding by allowing one of defendant's witnesses to be cross-examined about the amenities of prison life or by not intervening ex mero motu when the State argued that these amenities made life without parole an inappropriate sentence.

6.    Sentencing_capital--aggravating factors--failure to submit to jury_Blakely error

    The trial court erred by increasing defendant's sentence for noncapital offenses beyond the presumptive range by finding the aggravating factor that the victim was physically infirm without submitting this aggravating factor to the jury for proof beyond a reasonable doubt.

7.    Sentencing--death penalty--proportionate

    The trial court did not err in a triple first-degree murder case by sentencing defendant to death, because: (1) there were multiple murder victims and multiple aggravating circumstances; (2) defendant killed elderly and defenseless victims in their own homes; (3) this Court has found that each of the N.C.G.S. § 15A-2000(e)(5), (e)(9), and (e)(11) aggravating circumstances is, standing alone, sufficient to justify the imposition of the death penalty.

    Justice MARTIN concurring in a separate opinion.

    Justice NEWBY joining in the concurring opinion.

    Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from judgments imposing consecutive death sentences entered by Judge Thomas D. Haigwood on 8 October 2003 in Superior Court, Wayne County, upon jury verdicts finding defendant guilty of three counts of first-degree murder. On 21 December 2004, the Supreme Court allowed defendant's motion to bypass the Court of Appeals as to his appeal of additional judgments. Heard in the Supreme Court 14 November 2005.
    Roy Cooper, Attorney General, by William B. Crumpler and Amy C. Kunstling, Assistant Attorneys General, for the State.

    Thomas K. Maher for defendant-appellant.

    EDMUNDS, Justice.

    Defendant Linwood Earl Forte was indicted for three counts of first-degree murder, three counts of first-degree rape,three counts of first-degree burglary, attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, first-degree arson, and burning of personal property. The charges were consolidated for trial, which began on 8 September 2003. At the close of the evidence, the charges of attempted first-degree murder and burning of personal property were dismissed.
    On 30 September 2003, defendant was convicted of three counts of first-degree murder. The jury recommended a sentence of death for each conviction and the trial court entered judgment accordingly. The jury also found defendant guilty of three counts of first-degree burglary and three counts of first-degree rape. The court arrested judgment on two of the first-degree burglary counts and sentenced defendant to four consecutive life sentences for the remaining burglary and rape convictions. Finally, the jury found defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury, for which he received a twenty-year consecutive sentence, and first-degree arson, on which the court arrested judgment.
    Defendant appealed his capital convictions to this Court and we allowed his motion to bypass the Court of Appeals as to his other convictions. We conclude that defendant's trial and capital sentencing proceeding were free from prejudicial error and that defendant's sentences of death were not disproportionate. However, we vacate the trial court's sentencing on the non-capital charges and remand for a new sentencing hearing.
    The State's evidence showed that defendant committed three sets of offenses in Goldsboro. As to the first, in theearly morning of 26 May 1990, seventy-year-old Eliza Jones was found in her bed, bruised, scratched, and struggling to breathe. She was suffering from oxygen deprivation as a result of strangulation and later recalled being choked and fondled by a man who had awakened her. Trauma to both her vagina and rectum indicated that she had been sexually assaulted after losing consciousness during the attack. Sperm was detected in vaginal and rectal smears and on the fitted sheet on Ms. Jones' bed. No perpetrator was identified at the time, so the evidence containing the sperm was placed in frozen storage at the State Bureau of Investigation (SBI) for possible future use.     As to the second offense, on the morning of 14 July 1990, police found the body of seventy-nine-year-old Hattie Bonner in her bed. She had died as a result of being both manually strangled and suffocated with a pillow. Vaginal swabs revealed the presence of sperm, and hairs and fibers were collected from the body. As in the Jones case, the evidence was retained by the SBI because investigators did not have a suspect.
    Finally, on 6 October 1990, the Goldsboro Fire Department responded to the home of seventy-eight-year-old Alvin Bowen and seventy-five-year-old Thelma Bowen. The house and an automobile in an adjoining carport were burning. Firefighters discovered Mr. Bowen's body on a bed and Mrs. Bowen's naked body lying face down on the floor nearby. Although both bodies were burned, an autopsy indicated that each had been killed before the fire started. Mr. Bowen died from stab wounds to his neck and chest, while Mrs. Bowen died from strangulation. Evidence suggested that Mrs. Bowen had been raped, and sperm was present in a vaginal smear. Firefighters discovered a trail ofaccelerant leading from the Bowens' bedroom through the house and out to the burning vehicle, where a gasoline can was found on the front seat. Again, the evidence was preserved in the absence of a suspect.
    Analysis of the DNA samples obtained in each of these incidents indicated that one person was responsible for all three attacks. During the 1990s, defendant was incarcerated on other unrelated charges and his DNA was recorded in the SBI database. In 2001, after defendant had been released, his DNA was matched with the DNA recovered from the unsolved cases.
    On 30 April 2001, defendant was working at a poultry processing plant. Several SBI agents and Goldsboro police officers approached defendant at work and asked if he would accompany them to the police station for an interview. Defendant was told that he was not under arrest and could return to work after the interview was completed. When defendant agreed, the officers gave him a ride to the police department. Defendant was not advised of his Miranda rights.     Once at the police station, the officers informed defendant that his DNA had been matched to the evidence in some unsolved cases and asked him to explain his involvement in the crimes. Defendant told police that during the late 1980s through 1990 he used crack cocaine heavily. He recalled going to a house he thought was his own, kicking in the door, and having “sex with the woman inside.” Defendant also stated that one night in 1990, he went into a residence near a school in Goldsboro where he drank beer and smoked cigarettes. He said he did not recall having sexual intercourse with anyone or any confrontation inside the house, but he could not remember what happened because he washigh on crack and had blacked out while inside the house. He added that he may have dropped a lit match on his way out, and he remembered noticing the following day that the house had burned.
    Defendant then agreed to ride with several of the investigators and point out the locations he had just discussed. Defendant first directed them to Eliza Jones' former address. Once there, defendant said that this was the place where “the woman was not killed.” He next took them to a vacant lot where the Bowens' home had stood before it burned and told the officers that this was where he drank beer and smoked cigarettes in the house. Finally, defendant led the officers to another vacant lot where Hattie Bonner's home had been. He explained that at this location, he entered the residence, had sexual intercourse with the lady inside, and choked her until she became unconscious. He recalled seeing yellow crime scene tape at the residence the next day.
    The police returned with defendant to the police station, where defendant agreed to provide blood and hair samples. For the first time, defendant was advised of his Miranda rights. One of the officers who was giving the Miranda warnings asked defendant if he wanted to answer any more questions at that time. When defendant answered “no,” the officer asked defendant what he meant. Defendant responded that he was tired and would answer more questions after he had a chance to sleep.
    While defendant slept for several hours at the police station, one of the officers typed a statement based on the information defendant had already provided. When defendant awoke, he said he “felt like talking some more.” Theinvestigators re-advised defendant of his rights, and defendant affirmed his willingness to continue. He reviewed the typed statement and signed it. Defendant then answered several additional questions asked by the officers, indicating that he knew right from wrong and that he had not been under duress at the time of the crimes, although he added that he had not been in “the right frame of mind” and “was under the influence of drugs.” The blood drawn from defendant on 30 April 2001 was analyzed by the SBI laboratory and found to match the DNA from the three 1990 crime scenes.
    Additional evidence will be discussed below as necessary to address specific issues.

        Apparently the prospects of prison don't sadden this defendant. I mean, it is a place he has spent a good portion of his adult life in. He's made choices to go back again and again and again. Ask yourself is life in prison punishment that fits these crimes?

    We have held that it is not improper for the State to argue that “the defendant deserved the penalty of death rather than a comfortable life in prison.” State v. Alston, 341 N.C.198, 252, 461 S.E.2d 687, 717 (1995), cert. denied, 516 U.S. 1148, 134 L. Ed. 2d 100 (1996); accord State v. May, 354 N.C. 172, 179, 552 S.E.2d 151, 156 (2001), cert. denied, 535 U.S. 1060, 152 L. Ed. 2d 830 (2002). The prosecutor's remarks are consistent with these prior holdings. This assignment of error is overruled.
    Defendant further argues that the trial court erred in not acting to prevent the State from making other improper closing arguments during the sentencing proceeding. Specifically, defendant claims that it was improper for the State to argue that Mrs. Bowen's awareness of her husband's murder before her own death made her murder especially heinous, atrocious, or cruel. Defendant also contends that a portion of the State's argument was intended to make the jurors feel personally responsible for any injury defendant might cause if he were sentenced to life in prison instead of death. Defendant did not object to these arguments at trial.
    We begin by addressing the State's comments about Mrs. Bowen. The trial court submitted to the jury various aggravating circumstances for each of the three murders at issue. In the case of Mrs. Bowen, one of the aggravating circumstances was that the murder was especially heinous, atrocious, or cruel. In support of that circumstance, the State argued that the jury should:
        [t]hink about the evidence you saw at that scene. Think about where you saw Thelma Bowen on the floor. Think about the fact that Alvin Bowen had been murdered in the bed, the way he was. He never had a chance. He was struck and struck and struck with that knife in the bed, barely able to get his hands up to defend himself. Where did this blind lady go? She didn't go right out the door, her bed right there at the door, rightnext to the door. She went after Linwood Forte to try to save her husband, to try to save him from the knife plunging into his body. She was blind, elderly. She's aware of what is going on to her husband. She might not know every detail but she knows he's being attacked. She can hear muffled screams with the pillow put over his face. She knows something horrible is going on. She's fully aware of impending doom that was going to be suffered by her husband and she's got to be aware of what is coming for her.

Because defendant did not object to this portion of the closing argument, we review for gross impropriety. Jones, 355 N.C. at 133, 558 S.E.2d at 107.
    During closing arguments, “[a]n attorney may, . . . on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.” N.C.G.S. § 15A-1230(a) (2005). “[C]ounsel are given wide latitude in arguments to the jury and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence.” State v. Richardson, 342 N.C. 772, 792-93, 467 S.E.2d 685, 697, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996). “Prosecutors may, in closing arguments, create a scenario of the crime committed as long as the record contains sufficient evidence from which the scenario is reasonably inferable.” Frye, 341 N.C. at 498, 461 S.E.2d at 678.
    Here, the State drew reasonable inferences from the evidence and presented to the jury a plausible scenario supported by that evidence. The fact that Mr. Bowen was killed in his bed suggests that he was attacked first. Apparent defensive wounds to his hands indicated that he struggled with his assailant. Mrs. Bowen's body was found on the bedroom floor. This evidence reasonably implies that, although she was blind, Mrs. Bowen heard the attack on her husband and left her bed in a doomed attempt tohelp him. Consequently, the argument was not improper. This assignment of error is overruled.
    We now turn to the final challenged portion of the State's closing argument. The prosecutor told the jury:
        Your responsibility is a solemn one. Your decision will take strength. You know what your duties are. Some time down the road, some time in the future, you may pick up a newspaper and may see on TV or hear some radio broadcast that today Linwood Forte, the triple murderer, serial murderer from Goldsboro, North Carolina, that killed three elderly victims in 1990 was executed in the prison system of the state of North Carolina. When you hear it, you're going to have to deal with it. You have to live with it.

        Let me tell you something else. By the same token, you may hear on TV or may read in the newspaper, hear it on the radio that today Linwood Forte, triple murderer, serial killer from Goldsboro, North Carolina, killed a correctional officer in the Department of Correction, killed a doctor, killed a nurse, killed a secretary, murdered an administrator. And if you hear that, you're going to have to live with that, too.

    As before, defendant did not object to this argument, and we review it now only to determine if the argument was so grossly improper that the trial court erred by not intervening ex mero motu. Read in context, we find nothing improper about the State's argument. The prosecutor stressed to the jurors that there would be consequences no matter what they decided in this case and that they had a duty to reflect on their decision and take their responsibilities seriously. This argument did not violate the limitations of N.C.G.S. § 15A-1230(a) and did not necessitate the trial court's intervention. This assignment of error is overruled.
    [6] Finally, defendant argues that, in sentencing him on the non-capital offenses, the trial court erred in consideringa factor in aggravation that was not found by the jury. Specifically, defendant was convicted of burglary and assault with a deadly weapon with intent to kill inflicting serious injury in the Eliza Jones case. Sentence was imposed under the Fair Sentencing Act, which applied because the offenses were committed in 1990. The trial court found two aggravating factors, that defendant had prior convictions punishable by more than sixty days confinement and that the victim was physically infirm. The only mitigating factor found by the court was that, prior to arrest, defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer. The court found that the aggravating factors outweighed the mitigating factors and imposed aggravated sentences for each crime.
    Although the trial court properly could consider defendant's prior criminal history, we conclude that it erred by increasing defendant's sentence beyond the presumptive range by finding that the victim was physically infirm. See Blakely v. Washington, 542 U.S. 296, 301, 159 L. Ed. 2d 403, 412 (2004) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed maximum must be submitted to the jury and proved beyond a reasonable doubt.” (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435 (2000))). A Blakely error is a structural error requiring a new sentencing hearing. State v. Allen, 359 N.C. 425, 449, 615 S.E.2d 256, 272 (2005). Accordingly, we remand for a new sentencing hearing on the non-capital convictions of burglary and assault with a deadly weapon with intent to kill inflicting serious injury.

    Justice MARTIN, concurring.

    I concur in the majority's holding that the trial court erred under Blakely by increasing defendant's statutory sentence based upon facts which were not found by the jury beyond a reasonable doubt. Furthermore, I acknowledge that State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005) (holding Blakely errors are structural errors and not harmless beyond a reasonable doubt), requires remand of this case for resentencing. I dissented from the majority opinion in Allen and maintain that the reasoning of the concurring and dissenting opinion was correct. Id. at 452-73, 615 S.E.2d at 274-88 (Martin, J., Lake, C.J., and Newby, J., concurring in part and dissenting in part) (stating that Blakely errors are subject to harmless error analysis). Nonetheless, in light of the doctrine of stare decisis, I accept Allen as controlling and concur in the decision of the majority in the instant case. See State v. Camacho, 337 N.C. 224, 235, 446 S.E.2d 8, 14 (1994) (Mitchell, J. (later C.J.), concurring).
    Justice NEWBY joins in this concurring opinion.

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