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. LINWOOD EARL FORTE
FILED: 5 MAY 2006
1. Constitutional Law; Evidence_right of confrontation_S.B.I.
reports_preparer unavailable for cross-examination_business records_no
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,
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
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
Thomas K. Maher for defendant-appellant.
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
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
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
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
Additional evidence will be discussed below as
necessary to address specific issues.
 Defendant first contends that the trial court erred
in allowing the State to introduce certain SBI reports as
substantive evidence because the law enforcement investigator who
prepared the reports did not testify. The investigator in
question, SBI Special Agent D.J. Spittle, did not participate in
the investigation of the assault on victim Eliza Jones. However,
as to victim Hattie Bonner, the evidence showed that Deborah
Radisch, M.D. conducted an autopsy on 15 July 1990. Dr. Radisch
provided vaginal swabs and smears to Officer Karen Laboard, who
submitted the evidence to the SBI laboratory. As a serologist at
the SBI laboratory in 1990, Agent Spittle would receive samples
of blood and bodily fluids sent to the laboratory for analysis,
examine the samples and identify the fluids, and then refer the
material to other investigators in the laboratory for further
analysis. His records reflected both the results of his
investigation and his disposition of the evidence. Afterreceiving and analyzing the serological evidence in the Bonner
case, Agent Spittle on 27 November 1990 passed along to SBI
Special Agent Michael Budzynski the evidence relating to sperm
from the vaginal swabs and smears. Agent Budzynski determined
that the DNA in the samples matched the DNA recovered in the
Jones case, then preserved the evidence.
As to victim Thelma Bowen, an autopsy was conducted on
6 October 1990 by Frances Owl-Smith, M.D., who collected rectal
and vaginal swabs that she provided to the police. The police
submitted these samples to the SBI laboratory. Agent Spittle
received and examined this evidence, then turned it over to Agent
Budzynski on 27 November 1990. Agent Budzynski tested this
material for DNA, noted that it matched the DNA in the samples
recovered in the Jones and Bonner investigations, then preserved
the evidence. In 2000, Agent Budzynski conducted a new DNA
analysis of the evidence in all three cases and entered the
updated results in the SBI computer.
On 30 April 2001, the blood sample obtained from
defendant by the Goldsboro police investigators was delivered to
Agent Budzynski by SBI Agent Mark Nelson, who had been present
when the sample was taken. Agent Budzynski determined that the
DNA in defendant's blood matched to near certainty the DNA
recovered from the Jones, Bonner, and Bowen crime scenes.
Agent Spittle left his employment with the SBI in 2001
and did not testify at defendant's trial. His reports were
introduced into evidence through Agent Nelson, who had been Agent
Spittle's supervisor in the 1990s. The court admitted the
reports into evidence under the business records exception to the
hearsay rule, N.C.G.S. § 8C-1, Rule 803(6). Defendant arguesthat the introduction of the reports, containing both analysis
results and chain of custody information, violated his
constitutional right of confrontation.
At trial, defendant argued only that the evidence was
inadmissible under the rules relating to hearsay. After
defendant's trial, the United States Supreme Court held in
Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004),
that admission at trial of testimonial evidence made by a non-
testifying person violated the defendant's confrontation rights
unless the declarant was currently unavailable to testify and the
defendant previously had the opportunity to cross-examine the
declarant. Id. at 53-54, 59, 158 L. Ed. 2d at 194, 197. Here,
defendant was unable to cross-examine Agent Spittle. Therefore,
we must determine whether his reports are testimonial statements
that are inadmissible under Crawford.
Although the Supreme Court in Crawford declined to
provide an overarching definition of testimonial evidence, it
did give general guidance, along with some specific instances of
evidence that is testimonial. Whatever else the term
[testimonial] covers, it applies at a minimum to prior testimony
at a preliminary hearing, before a grand jury, or at a former
trial; and to police interrogations. Id. at 68, 158 L. Ed. 2d
at 203. In enunciating its holding, the Supreme Court pointed
out that an evil it was seeking to suppress was the danger
inherent in having damning evidence admitted without being tested
through cross-examination. Involvement of government officers
in the production of testimony with an eye toward trial presents
unique potential for prosecutorial abuse_-a fact borne out time
and again throughout a history with which the Framers were keenlyfamiliar. Id. at 56 n.7, 158 L. Ed. 2d at 196 n.7. The types
of evidence that the Supreme Court listed as definitely being
testimonial are the modern practices with closest kinship to the
abuses at which the Confrontation Clause was directed. Id. at
68, 158 L. Ed. 2d at 203.
Under the Supreme Court's analysis, the reports at
issue here are not testimonial. They do not fall into any of the
categories that the Supreme Court defined as unquestionably
testimonial. These unsworn reports, containing the results of
Agent Spittle's objective analysis of the evidence, along with
routine chain of custody information, do not bear witness against
defendant. See id. at 50-52, 158 L. Ed. 2d at 192-93. Instead,
they are neutral, having the power to exonerate as well as
convict. Although we acknowledge that the reports were prepared
with the understanding that eventual use in court was possible or
even probable, they were not prepared exclusively for trial and
Agent Spittle had no interest in the outcome of any trial in
which the records might be used. See id. at 56 n.7, 158 L. Ed.
2d at 196 n.7.
Consistent with this interpretation, the Supreme Court
in Crawford indicated in dicta that business records are not
testimonial. Id. at 56, 158 L. Ed. 2d at 195-96 (Most of the
hearsay exceptions covered statements that by their nature were
not testimonial_-for example, business records or statements in
furtherance of a conspiracy.). The distinction between business
records and testimonial evidence is readily seen. Among other
attributes, business records are neutral, are created to serve a
number of purposes important to the creating organization, and
are not inherently subject to manipulation or abuse. Business records are defined under Rule 803(6), which
The following are not excluded by the
hearsay rule, even though the declarant is
available as a witness: . . .
(6) Records of Regularly Conducted
Activity. -- A memorandum, report,
record, or data compilation, in any
form, of acts, events, conditions,
opinions, or diagnoses, made at or
near the time by, or from information
transmitted by, a person with
knowledge, if kept in the course of a
regularly conducted business activity,
and if it was the regular practice of
that business activity to make the
memorandum, report, record, or data
compilation, all as shown by the
testimony of the custodian or other
qualified witness, unless the source
of information or the method or
circumstances of preparation indicate
lack of trustworthiness. The term
business as used in this paragraph
includes business, institution,
association, profession, occupation,
and calling of every kind, whether or
not conducted for profit.
N.C.G.S. § 8C-1, Rule 803(6) (2005). Agent Nelson was Agent
Spittle's supervisor and was responsible for creating and
implementing laboratory polices regarding record-keeping. Agent
Nelson testified that Agent Spittle created the reports
contemporaneously with his work as part of the regular practice
of the agency and within the ordinary course of agency business.
Accordingly, we agree with the trial court that the reports are
business records under Rule 803(6).
However, our determination that the reports in question
can be considered business records does not end our inquiry.
Under Rule 803(8),
[t]he following are not excluded by the
hearsay rule, even though the declarant is
available as a witness: . . .
(8) Public Records and Reports. --
Records, reports, statements, ordata compilations, in any form, of
public offices or agencies, setting
forth (A) the activities of the
office or agency, or (B) matters
observed pursuant to duty imposed
by law as to which matters there
was a duty to report, excluding,
however, in criminal cases matters
observed by police officers and
other law-enforcement personnel, or
(C) in civil actions and
proceedings and against the State
in criminal cases, factual findings
resulting from an investigation
made pursuant to authority granted
by law, unless the sources of
information or other circumstances
indicate lack of trustworthiness.
Id. § 8C-1, Rule 803(8) (2005). The SBI reports in question also
fall under the definition of public records set out in this rule,
and [p]ublic records and reports that are not admissible under
Exception (8) are not admissible as business records under
Exception (6). Id. § 8C-1, Rule 803(8) Cmt.
(See footnote 1)
As a result, we
must determine whether these reports are admissible under Rule
803(8) before we can decide whether they are admissible as
Defendant contends that the provision in Rule 803(8)(C)
that findings from an investigation made under authority of law
are admissible against the State means that these laboratory
reports are inadmissible when offered by the State against
defendant. However, in interpreting the public records exception
to the hearsay rule, the Oregon Court of Appeals held that
in adopting FRE 803(8)(B), Congress did not
intend to change the common law rule allowing
admission of public records of purely
ministerial observations. Rather, Congress
intended to prevent prosecutors fromattempting to prove their cases through
police officers' reports of their
observations during the investigation of
crime. United States v. Grady, 544 F.2d 598,
604 (2d Cir. 1976). We infer that the state
legislature adopted [Oregon Evidence Code
Section] 803(8)(b) with the same intent.
State v. Smith, 66 Ore. App. 703, 706, 675 P.2d 510, 512 (1984).
We cited this language with approval in reaching a similar result
as to business records in a case dealing with reports of
breathalyzer testing. State v. Smith, 312 N.C. 361, 381, 323
S.E.2d 316, 327-28 (1984); see also Crawford, 541 U.S. at 68, 158
L. Ed. 2d at 203 (Where nontestimonial hearsay is at issue, it
is wholly consistent with the Framers' design to afford the
States flexibility in their development of hearsay law . . . .).
Accordingly, if Agent Spittle's reports fall under this exception
for purely 'ministerial observations,' they are not
inadmissible under either Rule 803(6) or 803(8).
Here, the reports concern routine, nonadversarial
matters. Although the record is silent, common experience tells
us that such reports are prepared for a number of purposes,
including statistical analysis and construction of databases.
See e.g., http://www.ncsbi.gov/crimestatistics. Thus, potential
use in court was only one purpose among several served by the
creation and compilation of Agent Spittle's reports. Agent
Spittle's analysis of the evidence on hand also facilitated
further examination of the evidence within the SBI laboratory.
Therefore, these reports are records of purely ministerial
observations that do not offend the public records exception and
were properly admitted as business records.
 Defendant next argues that the trial court erred in
admitting statements he made after he asserted his FifthAmendment right to silence. The trial court denied defendant's
motion to suppress his signed written statement to police.
However, the motion to suppress and the supporting arguments were
based on the contention that the officers should have read
defendant his Miranda rights earlier in the process, before they
elicited any statement from him. Only on appeal does defendant
refer to the issue of defendant's purported invocation of his
right to silence. This Court will not consider arguments based
upon matters not presented to or adjudicated by the trial court.
State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600, cert.
denied, 540 U.S. 988, 157 L. Ed. 2d 382 (2003); see also N.C. R.
App. P. 10(b)(1). Because the trial court did not have the
opportunity to rule on this issue and defendant did not argue
plain error in his brief, this issue is not properly before the
Court. See State v. Frye, 341 N.C. 470, 496, 461 S.E.2d 664, 677
(1995) (Defendant objected to the evidence on only one ground;
thus, he failed to preserve the additional grounds presented on
appeal. He also waived appellate review of those arguments by
failing specifically and distinctly to argue plain error. N.C.
R. App. P. 10(c)(4).), cert. denied, 517 U.S. 1123, 134 L. Ed.
2d 526 (1996).
Even if the issue had been properly preserved, we
discern no error. Although custodial interrogation must cease
when a suspect unequivocally invokes his right to silence, an
ambiguous invocation does not require police to cease
interrogation immediately. State v. Golphin, 352 N.C. 364,
450-52, 533 S.E.2d 168, 224-25 (2000), cert. denied, 532 U.S.
931, 149 L. Ed. 2d 305 (2001). Here, defendant had been
cooperative from the beginning of his encounter with the policeand had been forthcoming in his answers to the investigators'
questions. When defendant unexpectedly answered no upon being
asked if he wished to answer any more questions, the officer did
no more than ask him what he meant. In responding, defendant
explained that he was tired and would answer more questions after
he slept. Under these circumstances, defendant's no was
ambiguous, and the officer did not violate defendant's
constitutional rights by asking for amplification. This
assignment of error is overruled.
SENTENCING PROCEEDING ISSUES
 Defendant argues that the trial court erred in
relying on his criminal conduct that occurred after the murders
when it determined not to submit as a mitigating circumstance
defendant's lack of significant prior history of criminal
activity, pursuant to N.C.G.S. § 15A-2000(f)(1). Defendant also
makes the related argument that the court erred in not submitting
this mitigating circumstance to the jury. We agree that the
trial court erred in considering defendant's criminal behavior
subsequent to the murders in determining not to submit the (f)(1)
circumstance. See State v. Coffey, 336 N.C. 412, 418, 444 S.E.2d
431, 434 (1994) (explaining that the (f)(1) circumstance
pertains only to that criminal activity committed before the
murder). However, we find that this error was harmless in light
of the other competent evidence relating to this circumstance
presented to the court.
The test governing the decision to submit the (f)(1)
mitigator is 'whether a rational jury could conclude that
defendant had no significant history of prior criminal
activity.' State v. Walker, 343 N.C. 216, 223, 469 S.E.2d 919,922 (quoting State v. Wilson, 322 N.C. 117, 143, 367 S.E.2d 589,
604 (1988)), cert. denied, 519 U.S. 901, 136 L. Ed. 2d 180
(1996). In making this determination, the trial court considers
the number, nature, and age of the prior criminal activities.
State v. Sexton, 336 N.C. 321, 375, 444 S.E.2d 879, 910, cert.
denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994). The evidence
here showed that prior to the murders, defendant's criminal
convictions included: felonious larceny and possession of stolen
property in 1982, driving while impaired in 1984, resisting and
assaulting a police officer during a fight in a club in 1988, and
driving while license revoked in 1989.
(See footnote 2)
Defendant had been
incarcerated for the assault. In addition, testimony was
presented regarding defendant's alcohol dependence and continual
illegal drug use, his probation and parole violations, and his
extensive history of aggressive behavior.
We review a trial court's decision whether to submit
the (f)(1) mitigating circumstance on the basis of the whole
record. State v. Hurst, 360 N.C. 181, 197, 624 S.E.2d 309, 322
(2006). The court took into account all the evidence of
defendant's criminal activity that occurred before the murders.
In addition, the court noted that defendant specifically did not
request the (f)(1) instruction. It then concluded that no
reasonable juror could find the (f)(1) mitigating circumstance.
Although the trial court erroneously included defendant's post-
murder behavior in its recitation of defendant's history of
criminal activity, the events and behavior cited by the court
that occurred before the murders by themselves adequately supportits decision not to submit the circumstance. See id. at 196-99,
624 S.E.2d at 321-23. Accordingly, the trial court did not
commit prejudicial error as to this issue.
 Defendant next argues that the trial court erred in
refusing to give requested peremptory instructions on the
statutory mitigating circumstances that the murders were
committed while defendant was under the influence of a mental or
emotional disturbance, pursuant to N.C.G.S. § 15A-2000(f)(2), and
that the capacity of defendant to conform his conduct to the
requirements of the law was impaired, pursuant to N.C.G.S. § 15A-
2000(f)(6). If requested, a trial court should give a
peremptory instruction for any statutory or nonstatutory
mitigating circumstance that is supported by uncontroverted and
manifestly credible evidence. State v. Bishop, 343 N.C. 518,
557, 472 S.E.2d 842, 863 (1996), cert. denied, 519 U.S. 1097, 136
L. Ed. 2d 723 (1997). Here, the trial court gave non-peremptory
instructions as to these issues and the jury did not find either
circumstance as to any of the murders.
Defendant relied on the testimony of a psychologist and
two psychiatrists as evidence supporting these two statutory
mitigating circumstances. These witnesses, who were all hired by
the defense, had no contact with defendant until after his arrest
for these murders. We have held that 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, because not 'manifestly credible,' does not
support a peremptory instruction. State v. Barden, 356 N.C.
316, 377, 572 S.E.2d 108, 146 (2002) (quoting Bishop, 343 N.C. at557-58, 472 S.E.2d at 863-64), cert. denied, 538 U.S. 1040, 155
L. Ed. 2d 1074 (2003).
In addition, the evidence supporting the submission of
the (f)(2) and (f)(6) mitigating circumstances was not
uncontroverted. The substance abuse counselor who saw defendant
in 1990 testified that defendant seemed mentally well-oriented
and did not display or report any psychotic symptoms. Several of
defendant's friends and family testified that they never saw any
signs that defendant had a mental or emotional disturbance.
Therefore, because the evidence in support of the (f)(2) and
(f)(6) mitigating circumstances was neither manifestly credible
nor uncontroverted, the trial court did not err in denying the
request for peremptory instructions.
These assignments of error are overruled.
 Defendant next contends that the trial court erred
both in allowing one of his witnesses to be cross-examined about
the amenities of prison life and in not intervening ex mero motu
when the State argued that these amenities made life without
parole an inappropriate sentence. Defendant argues to this Court
that the State's cross-examination and closing argument
implicated his rights under the Eighth Amendment. However,
because defendant failed to make this constitutional argument at
trial, we will not consider it on appeal. State v. Lloyd, 354
N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001) (Constitutional
issues not raised and passed upon at trial will not be considered
for the first time on appeal.).
Moreover, defendant did not object at trial to the
cross-examination in question, nor did he object to the State's
closing argument. Therefore, we review the pertinent portion ofthe cross-examination only for plain error and the challenged
portion of the closing argument to determine if it was grossly
improper. See State v. Locklear, 349 N.C. 118, 156, 505 S.E.2d
277, 299 (1998) (applying the plain error rule to questions asked
on cross-examination that were not objected to at trial), cert.
denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999); see also State
v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (The
standard of review for assessing alleged improper closing
arguments that fail to provoke timely objection from opposing
counsel is whether the remarks were so grossly improper that the
trial court committed reversible error by failing to intervene ex
We begin with the cross-examination of James Aiken.
Before an error by the trial court amounts to 'plain error,' we
must be convinced that absent the error the jury probably would
have reached a different verdict. State v. Waddell, 351 N.C.
413, 419, 527 S.E.2d 644, 648 (2000). The substance of witness
Aiken's testimony was that the North Carolina prison system could
securely house defendant.
During the State's cross-examination of Aiken, the
prosecutor elicited the following testimony:
Q. Can you tell the jury what kind of
exercise people get to do when they are in
maximum security like playing basketball or
A. They get to play basketball. They get
to have noncontact sports but understanding
is [sic] that you are playing with other
Q. Other than basketball, what other type
of exercise activities can prisoners do?
A. Well, most of the weightlifting
equipment have [sic] been moved out of the
prison system but inmates can be involvedwith basketball as well as handball and
Q. And there's the issue of
entertainment. I guess the prison tries to
keep prisoners entertained or distracted to
some degree. Will Mr. Forte get some of
A. It's all in relationship to his
behavior. Also what is allowed. The type of
so-called recreation/entertainment is in
direct relationship to his custody and
supervision, which will always be in a
maximum security environment.
Q. Which would include what?
A. Which would include being able to go
to religious programs, that is, people coming
in; singing groups, as an example.
Q. Go ahead, give us more examples. You
have a lot of experience in this area.
A. It's fairly limited in a maximum
security environment because you don't let
everybody come in and go out.
You do have some people that come in to
provide lectures in relationship to how to
improve your behavior, some people that have
made mistakes in the past and was [sic] able
to come back and share with people. Examples
of that being Chuck Colson and his religious
crusade coming in and providing religious
worship for the inmate population.
You will find that mostly in a maximum
security environment that entertainment is
focused more on volunteers and people from
the religious environment.
A. Some have television, yes.
A. Radios, yes. Of course, those are
very closely supervised. And one additional
thing is canteen. They can buy certain
things off the canteen. That's considered as
a privilege also. Visitation.
Q. So they can go to their canteen store
and get them a candy treat, things like that?
A. And that can be easily taken away in
relationship to behavior.
The scope of cross-examination lies within the
discretion of the trial judge, and the questions must be asked in
good faith. State v. Williams, 279 N.C. 663, 675, 185 S.E.2d
174, 181 (1971). Here, defense counsel questioned Aiken as to
the structure of the prison unit to show that defendant could be
securely housed there without incident. The State responded by
cross-examining Aiken about the particular conditions of that
housing. The State's line of questioning was not outside the
bounds of permissible cross-examination, nor was there any
indication that the questions were not asked in good faith.
There was no error, let alone plain error, in allowing this
cross-examination to take place. This assignment of error is
We now turn to the State's closing argument regarding
the prison amenities. During closing arguments the prosecutor
told the jury:
But we do know from Mr. Aiken what the
defendant will have in prison. He'll have
what he's constitutionally entitled to.
He'll have his space, he'll have his
nourishment, he'll have his recreation,
whether it be basketball or handball; he'll
have his television and radio.
. . . .
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
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
[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.
 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
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.
Defendant raises three issues that he concedes have
been previously decided by this Court contrary to his position.
First, he contends that the death penalty statute is
unconstitutional. We have rejected this argument. See, e.g.,
State v. Williams, 350 N.C. 1, 35-36, 510 S.E.2d 626, 648, cert.
denied, 528 U.S. 880, 145 L. Ed. 2d 162 (1999). Next, he
contends that the trial court erred in not dismissing the
first-degree murder indictments for failure to allege all of the
required elements. We have previously upheld the use of short
form indictments. See, e.g., State v. Wallace, 351 N.C. 481,
504-05, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148 L.
Ed. 2d 498 (2000). Finally, defendant argues that the trial
court erred in overruling defendant's objection to the use of the
especially heinous, atrocious, or cruel aggravating
circumstance set forth in N.C.G.S. § 15A-2000(e)(9), asserting
that it is unconstitutionally vague and fails to narrow the class
of persons who are eligible for the imposition of the death
penalty. We have held that this aggravating circumstance is
constitutional. State v. Syriani, 333 N.C. 350, 391-92, 428
S.E.2d 118, 141, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341
Defendant raises these issues for the purposes of
urging this Court to reconsider its prior decisions and
preserving his right to argue these issues on federal review. We
have considered his arguments on these additional issues and find
no compelling reason to depart from our previous holdings. These
assignments of error are overruled.
 Finally, we must now determine whether the record
supports the aggravating circumstances found by the jury, whether
the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor, and 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) (2005).
The jury found the same two aggravating circumstances
as to each of the three murders: (1) the murder was committed
while defendant was engaged in the commission of a burglary,
pursuant to N.C.G.S. § 15A-2000(e)(5), and (2) the murder was
part of a course of conduct in which defendant engaged and that
course of conduct included the commission by defendant of other
crimes of violence against another person or persons, pursuant to
N.C.G.S. § 15A-2000(e)(11). In addition, as to the Bowens'
murders, the jury found the murders were committed while
defendant was engaged in the commission of arson, pursuant to
N.C.G.S. § 15A-2000(e)(5), and that the murder of Thelma Bowen
was especially heinous, atrocious, or cruel, pursuant to N.C.G.S.
§ 15A-2000(e)(9). After a careful review of the trial
transcript, record on appeal, briefs, and oral arguments in this
case, we conclude that the record supports all of the aggravating
circumstances found by the jury for each of the murders.
Moreover, there is no indication that the sentence of death was
imposed under the influence of passion, prejudice, or any other
We now turn to the issue of proportionality. We
conduct a proportionality review in order to guard against the
capricious or random imposition of the death penalty. State v.Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert.
denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980), overruled in part
on other grounds by State v. Johnson, 317 N.C. 193, 203-04, 344
S.E.2d 775, 782 (1986). In determining whether defendant's
sentence of death is excessive or disproportionate, we compare
this case to those in which we have determined the death penalty
was disproportionate. This Court has held the death penalty to
be 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, 364 S.E.2d 373 (1988);
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); and 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 these cases. Here, there were multiple murder victims
and multiple aggravating circumstances. This Court has never
found a sentence of death disproportionate in a case where a
defendant was convicted of murdering more than one victim.
State v. Meyer, 353 N.C. 92, 120, 540 S.E.2d 1, 17 (2000), cert.
denied, 534 U.S. 839, 151 L. Ed. 2d 54 (2001). Defendant killed
elderly and defenseless victims in their own homes. We have
previously noted that a murder in one's home is particularly
shocking, 'not only because a life was senselessly taken, but
because it was taken [at] an especially private place, one[where] a person has a right to feel secure.' State v. Brown,
357 N.C. 382, 394, 584 S.E.2d 278, 285-86 (2003) (alterations in
original), cert. denied, 540 U.S. 1194, 158 L. Ed. 2d 106 (2004).
Finally, this Court has found that each of the (e)(5), (e)(9),
and (e)(11) aggravating circumstances is, standing alone,
sufficient to justify the imposition of the death penalty. See
State v. Bacon, 337 N.C. 66, 110 n.8, 446 S.E.2d 542, 566 n.8
(1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995).
As detailed above, the (e)(5) and (e)(11) aggravating
circumstances were found as to all three murders and, in
addition, the (e)(9) circumstance was found as to victim Thelma
We also compare this case with cases in which we have
found the death penalty to be proportionate. State v.
Al-Bayyinah, 359 N.C. 741, 762, 616 S.E.2d 500, 515 (2005).
After a careful review of the record, we conclude that this case
is more analogous to cases in which we have found the sentence
of death proportionate than to those cases in which we have found
the sentence disproportionate or to those cases in which juries
have consistently returned recommendations of life imprisonment.
Id. We conclude that the sentence of death in the present case
is not disproportionate.
Based upon the foregoing, we conclude that defendant
received a fair trial and capital sentencing proceeding, free of
prejudicial error, and the death sentences in this case are not
NO ERROR GUILT-INNOCENCE PHASE; NO ERROR CAPITAL
SENTENCING PROCEEDING; NON-CAPITAL SENTENCING VACATED AND
REMANDED FOR RESENTENCING.No. 020A04 - State v. Forte
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
Justice NEWBY joins in this concurring opinion.
Footnote: 1 We assume without deciding that this Comment reflects the
intent of the General Assembly. 1983 N.C. Sess. Laws ch. 701,
§ 2; State v. Hosey, 318 N.C. 330, 337 n.2, 348 S.E.2d 805, 810
Footnote: 2 We cannot determine from the record the date of defendant's
conviction for horse wrestling. Consequently, we do not consider
that conviction in our analysis.
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