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JANET BELL HALL" ], "opinions": [ { "text": "TYSON, Judge.\nJanet Hall (\u201cdefendant\u201d) appeals from judgments entered after a jury found her to be guilty of first-degree murder and attempted first-degree murder. We find no error.\nI. Background\nA. State\u2019s Evidence\nDefendant lived in Granite Falls with her husband, James Hall (\u201cMr. Hall\u201d), their sixteen-year-old daughter, Ashley (\u201cAshley\u201d), and their eleven-year-old son, Eric (\u201cEric\u201d). On 26 February 2004, the children\u2019s school was canceled due to snow. At approximately 10:00 a.m., Ashley awoke after defendant started to beat her on the head with a baseball bat. Defendant then shot Ashley twice: once in the collar bone and once in the chest. Eric came running down the hall towards Ashley\u2019s room. Defendant turned around and shot him in the abdomen and in the back of the neck.\nAshley struggled with defendant for control of the baseball bat and attempted to run away. Ashley ran into the living room where defendant followed her and continued to hit her with the baseball bat. Defendant shot at Ashley a third time, but missed. Defendant kept asking Ashley \u201cwhy [she] wouldn\u2019t die, why [she] couldn\u2019t go in peace like her brother did.\u201d\nDefendant entered the master bedroom and Ashley crawled down the hall into the bathroom. Ashley got into the bathtub and filled it with hot water to stay warm. Ashley remained in the bathtub for several hours until her father arrived home from work at approximately 3:15 p.m..\nMr. Hall entered the residence, walked through the living room, and into the master bedroom. He discovered Eric lying on the floor dead. Defendant was lying on the bed under the covers, with two plastic bags over her head. Mr. Hall asked defendant what had happened. Defendant did not respond. Mr. Hall ripped the bags off of defendant\u2019s head and repeatedly asked her what happened and where the telephone was located. Defendant eventually told Mr. Hall where she had hidden the telephone, but asked him not to call 911 because she did not want to go to jail. When Mr. Hall called 911, defendant left the house, entered her vehicle, and drove away. After Mr. Hall called 911, he found Ashley \u201claying, bleeding, and dying\u201d in the bathtub. Mr. Hall picked Ashley up, brought her to the living room, laid her on the couch and covered her with a blanket.\nLaw enforcement officers arrived at the Hall residence shortly thereafter. Officers observed blood present in the kitchen, on the living room carpet, and on the floor and walls of the hallway. In the master bedroom, officers found a silver Phoenix Arms .25 caliber semiautomatic pistol on a dresser. The safety on the pistol was turned off and two live rounds were present in the pistol\u2019s magazine. Officers recovered three fired projectiles from inside the Hall residence. Additionally, two fired projectiles were recovered from Ashley\u2019s body and one from Eric\u2019s body. Testimony tended to show that a total of six projectiles were fired at the crime scene.\nCaldwell County Sherrif\u2019s Lieutenant Michael Longo (\u201cOfficer Longo\u201d) arrived and found Ashley lying on the couch. Ashley was pale, shaken, and very frightened. Ashley told Officer. Longo defendant had \u201cflipped out\u201d and \u201cwent crazy\u201d and had committed these crimes. Ashley described the attack to Officer Longo but could not remember all of the details. Mr. Hall told officers at the scene he believed defendant had committed these crimes and described what he observed after he arrived home from work and entered the residence.\nA half-mile down the road, defendant\u2019s vehicle rear-ended Barry and Monica Shook\u2019s vehicle. Defendant fled the scene of the collision. State Trooper Kevin Milligan (\u201cTrooper Milligan\u201d) responded to the call reporting the hit-and-run accident. Trooper Milligan received a description of defendant\u2019s car and its license plate number. At approximately 8:30 p.m., Trooper Milligan spotted defendant\u2019s vehicle and followed her. Trooper Milligan requested back-up and attempted to stop defendant\u2019s vehicle.\nA high speed chase ensued. Trooper Milligan and other officers pursued defendant at speeds exceeding 110 miles an hour. The chase ended when defendant crashed head-on into oncoming traffic. Trooper Milligan testified defendant appeared to be \u201cextremely impaired\u201d and was \u201cunaware of what was going on around her.\u201d\nDefendant was transported to Catawba Memorial Hospital. Defendant was subsequently arrested and transported to the Caldwell County Sheriff\u2019s Office. Defendant was charged with and tried capitally for the murder of Eric and for the attempted murder of Ashley.\nAt trial, Ashley testified defendant had threatened to kill her on two prior occasions. Approximately a year and a half prior to 26 February 2004, defendant told Ashley to follow her outside into the yard. Defendant fired her gun in the air and told Ashley if \u201cshe didn\u2019t act better\u201d defendant was going to shoot her. A second incident occurred approximately one year prior to 26 February 2004. While Ashley was standing in the kitchen after dinner, defendant came up behind her, put a knife to her throat, and told Ashley if she did not act better \u201c[defendant] wouldn\u2019t think twice about doing it.\u201d Ashley testified she was scared after both threats. Defendant had hurt her before and Ashley believed defendant would probably do it again.\nSBI Special Agent Shane Green (\u201cAgent Green\u201d) testified that based on the number of fired projectiles found at the crime scene and the number of live rounds remaining in the pistol\u2019s magazine, defendant had to reload her pistol while committing these crimes. Agent Green also testified that reloading the pistol\u2019s magazine could take up to twenty-five seconds.\nB. Defendant\u2019s Evidence\nDefendant\u2019s evidence tended to show the relationship between defendant and Eric was loving, while her relationship with Ashley was more complex. Defendant disapproved of Ashley\u2019s friends and became highly upset when she discovered Ashley had intentionally cut herself. Defendant sought therapy for Ashley, who refused to attend. Ashley acknowledged that she had previously lied to DSS, falsely alleging her father had abused her so she could leave the house. Ashley believed her parents were overly restrictive. Mr. Hall had broken up physical fights between defendant and Ashley on more than one occasion. Despite these conflicts, defendant was described as \u201can excellent mother who loved her daughter\u201d by family acquaintances.\nDefendant produced evidence of a long history of depression. Defendant first sought treatment in 1996, after her father\u2019s death. In 1998, Dr. Guttler, defendant\u2019s famiiy physician, prescribed Zoloft to treat defendant\u2019s depression. Dr. Guttler prescribed a different medication when Zoloft reportedly made defendant \u201cjittery.\u201d Defendant continued to suffer from depression and experienced suicidal thoughts. In November 1998, defendant was admitted to the psychiatric unit at Frye Memorial Hospital to be evaluated by a psychiatrist. Defendant stayed in the hospital for a day and a half. Defendant was treated in the hospital and post-release by Dr. Kim. Upon Dr. Kim\u2019s retirement, defendant\u2019s care was turned over to Dr. Synn.\nIn November 2003, defendant experienced complications with her medication, including tremors, anxiety, insomnia, and depression. During this time, Dr. Synn significantly changed defendant\u2019s medication. In February 2004, defendant complained she was again depressed. During the month of February 2004, Dr. Synn adjusted and changed defendant\u2019s medication a total of four times, the last time being on 25 February 2004, the day before the crimes were committed.\nDefendant retained two mental health experts, Dr. James Bellard (\u201cDr. Bellard\u201d) and Dr. John Warren (\u201cDr. Warren\u201d), to examine her and to testify to their opinion of her mental state at the time the crimes were committed. Dr. Bellard qualified as an expert in forensic psychiatry and testified defendant suffered from depression with psychotic features and from substance induced mood disorder on 26 February 2004. Dr. Bellard testified defendant developed a delusion that she had to die and her children could not live without her. Dr. Bellard opined defendant did not know the nature and quality of her actions, could not tell right from wrong, and was unable to form the specific intent to kill.\nDr. Warren, a clinical psychologist, examined defendant in jail on 2 March 2004. Dr. Warren testified that on 26 February 2006, defendant suffered from major depression with psychotic features and from substance induced mood disorder. Dr. Warren also opined that defendant did not know the nature and quality of her acts and could not appreciate the wrongfulness of her conduct. Dr. Warren opined defendant was unable to form a specific intent to kill due to her delusional beliefs. Dr. Warren stated the \u201cmedication effects on this woman worsened and were [the] proximate cause of the episode that she had on February 26th 2004.\u201d\nDr. Nicole Wolfe (\u201cDr. Wolfe\u201d), a forensic psychiatrist at Dorothea Dix Hospital, examined defendant at the request of the State. Dr. Wolfe agreed with Dr. Bellard\u2019s and Dr. Warren\u2019s diagnoses. Dr. Wolfe opined that defendant was so severely depressed and her mind was so clouded by medication, that she could not appreciate the difference between right and wrong and was unable to form the specific intent to kill.\nDr. Richard Kapit (\u201cDr. Kapit\u201d) testified as a non-examining expert in psychiatry and adverse drug reactions. Dr. Kapit testified that Zoloft, a medication defendant had taken, could \u201cflip a person into a . . . manic state[] where they can become psychotic, [experience] false beliefs, and be very rash, impulsive and dangerous. . . . There is an increased risk of mania causing suicide and homicide.\u201d Dr. Kapit conceded that reports of homicidal reactions from the drug \u201cwere extremely rare.\u201d\nOn 18 April 2005, defendant was tried capitally in Caldwell County Superior Court. On 19 May 2005, the jury found defendant to be guilty of the attempted murder of Ashley and guilty of first-degree murder of Eric under the felony murder rule. On 24 May 2005, following a capital sentencing hearing, the jury recommended life imprisonment without the possibility of parole. The trial court sentenced defendant to life imprisonment without parole for the conviction of first-degree murder and imposed a consecutive sentence of a minimum of 155 and a maximum of 195 months imprisonment for defendant\u2019s conviction of attempted first-degree murder. Defendant appeals.\nII. Issues\nDefendant argues the trial court erred by: (1) excluding Dr. Bellard\u2019s testimony regarding the post-conviction consequences of finding defendant not guilty by reason of insanity; (2) overruling defendant\u2019s objection to the pattern jury instruction and refusing to give her proposed modified instruction; (3) instructing the jury that evidence of witnesses\u2019 out-of-court statements could only be considered for the purpose of impeaching or corroborating trial testimony; (4) overruling defendant\u2019s objection to the prosecutor\u2019s closing argument describing her as having \u201ca disposition towards murder\u201d; (5) denying her motion for reciprocal disclosure of the State\u2019s theory of the case; and (6) refusing to provide discoverable items following the court\u2019s in camera review.\nIII. Excluding Expert Testimony\nDefendant argues the trial court erred by using Rule 403 to exclude Dr. Bellard\u2019s offered testimony regarding the post-conviction consequences of the jury finding defendant not guilty by reason of insanity. We disagree.\nA. Standard of Review\n\u201cWhether to exclude expert testimony under Rule 403 is within the sound discretion of the trial court and will only be reversed on appeal for abuse of discretion.\u201d Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 463, 597 S.E.2d 674, 689 (2004). \u201cAn abuse of discretion occurs when a trial judge\u2019s ruling is manifestly unsupported by reason.\u201d State v. Summers, 177 N.C. App. 691, 697, 629 S.E.2d 902, 907 (internal citations and quotations omitted), disc. rev. denied, 360 N.C. 653, 637 S.E.2d 192 (2006).\nB. Analysis\nExpert testimony is admissible \u201c[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert. . . may testify thereto in the form of an opinion.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 702(a) (2005) (emphasis supplied). In determining the admissibility of expert testimony, \u201c[t]he trial court must always be satisfied that the [] testimony is relevant.\u201d Howerton, 358 N.C. at 462, 597 S.E.2d at 688. The trial court \u201chas inherent authority to limit the admissibility . . . [of] expert testimony, under North Carolina Rule of Evidence 403 . . . .\u201d Id. at 462, 597 S.E.2d at 689.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2005) provides, \u201c[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d (Emphasis supplied). This Court has stated, \u201c[We] will not intervene where the trial court has properly weighed both the probative and prejudicial value of evidence before it.\u201d Tomika Invs., Inc. v. Macedonia True Vine Pent. Holiness Ch. of God, 136 N.C. App. 493, 498, 524 S.E.2d 591, 595 (2000).\nDefense counsel sought to have Dr. Bellard offer his opinion to the jury of the likelihood of defendant\u2019s release from involuntary commitment at Dorothea Dix Hospital if she were to be found not guilty by reason of insanity. During voir dire, Dr. Bellard opined defendant would not be released from involuntary commitment \u201cfor decades.\u201d The trial court found:\nsuch information is [irrelevant to this case in that it will not help the jury understand the evidence or determine a fact in issue... . Assuming arguendo that it has some probative value the Court would apply [the N.C. Gen. Stat. \u00a7 8C-1, Rule] 403 valuation and find that the probative value is far outweighed by the confusion of the issues.\nThe trial court cited State v. Mancuso as the basis of its ruling. 321 N.C. 464, 364 S.E.2d 359 (1988).\nIn Mancuso, defense counsel sought to offer testimony from an Assistant Attorney General on the State\u2019s procedures for treating people involuntarily committed to the State\u2019s mental health facilities. 321 N.C. at 468, 364 S.E.2d at 362. The State objected and the trial court sustained the objection based on the \u201csubject matter about which [the expert] planned to testify.\u201d Id. at 468-69, 364 S.E.2d at 362. Our Supreme Court upheld the trial court\u2019s ruling stating, \u201cdefendant. . . made no showing that [the expert] testimony on involuntary commitment procedures would help the jury understand the evidence, or determine a fact in issue.\u201d Id. at 469, 364 S.E.2d at 363.\nHere, the trial court \u201cproperly weighed both the probative and prejudicial value of evidence before it.\u201d Tomika Invs., Inc., 136 N.C. App. at 498, 524 S.E.2d at 595. The trial court found Dr. Bellard\u2019s testimony could confuse the issues of the case with the possible consequences and his testimony would not assist the jury in regard to any matter in issue or fact. Defendant has presented no evidence tending to show Dr. Bellard\u2019s testimony \u201cwould help the jury understand evidence, or determine a fact in issue.\u201d Mancuso, 321 N.C. 469, 364 S.E.2d 363. The trial court properly excluded Dr. Bellard\u2019s testimony under Rules 403 and 702(a) of the North Carolina Rules of Evidence. Defendant has failed to show an abuse of discretion in the trial court\u2019s ruling. This assignment of error is overruled.\nIV. Involuntary Commitment Procedure Instructions\nDefendant argues the trial court erred by overruling her objection to the pattern jury instructions and refusing to give her proposed modified instruction of the post-conviction commitment procedures following a verdict of not guilty by reason of insanity. We disagree.\nA. Standard of Review\nWe review jury instructions:\ncontextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed .... The party asserting error bears the burden of showing that the jury was misled or that the verdict was affected by [the] instruction. Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.\nState v. Blizzard, 169 N.C. App. 285, 296-97, 610 S.E.2d 245, 253 (2005) (emphasis supplied) (internal citations and quotations omitted).\nB. Analysis\n\u201c[U]pon request, a defendant who interposes a defense of insanity to a criminal charge is entitled to an instruction by the trial judge setting out in substance the commitment procedures outlined in G.S. 122-84.1, [repealed and replaced by N.C. Gen. Stat. \u00a7 122C], applicable to acquittal by reason of mental illness.\u201d State v. Hammonds, 290 N.C. 1, 15, 224 S.E.2d 595, 604 (1976) (emphasis supplied). \u201c[F]ailure to give such instructions [is] prejudicial because the jury might tend to return a verdict of guilty so as to ensure that the accused would be incarcerated for the safety of the public and for his own safety.\u201d State v. Bundridge, 294 N.C. 45, 53, 239 S.E.2d 811, 817 (1978) (citing Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1978)). Our Supreme Court in Hammonds did not set forth the precise jury instructions to be given for post-conviction involuntary commitment procedures under the statute. State v. Harris, 306 N.C. 724, 727, 295 S.E.2d 391, 393 (1982). The appellate court must undertake \u201ca case by case determination\u201d of whether the trial court substantially complied with this rule. Id.\nOur Supreme Court has held when a trial court instructs the jury on:\nthe central meaning of the statute: that if defendant was acquitted by reason of insanity, he would not be released but would be held in custody until a hearing could be held to determine whether he should be confined to a state hospital.... [is] sufficient to remove any hesitancy of the jury in returning a verdict of not guilty by reason of insanity, engendered by a fear that by so doing they would be releasing the defendant at large in the community.\nId.\nHere, defendant requested a modified jury instruction regarding post-verdict commitment procedures after a verdict of not guilty by reason of insanity. The trial court instructed on involuntary commitment procedures as follows:\nA defendant found not guilty by reason of insanity shall immediately be committed to a state mental facility. After the defendant has been automatically committed, the defendant shall be provided a hearing in [sic] within fifty days. At this hearing the defendant shall have the burden of proving by preponderance of the evidence that the defendant no longer has a mental illness, or is no longer dangerous to others. If the Court is so satisfied it shall order the defendant discharged and released. If the Court finds that the defendant has not met the burden of proof upon the defendant, then it shall order that in patient commitment continue/or a period not to exceed ninety days. This involuntary commitment will continue subject to periodic review until the Court finds that the defendant no longer has a mental illness or is no longer dangerous to others.\n(Emphasis supplied). Defendant\u2019s proposed modified instruction deleted the language italicized above from the pattern jury instruction. Defendant argues the pattern jury instruction was ambiguous and misled the jury to believe if defendant was found not guilty by reason of insanity, she would be released no more than ninety days after the initial hearing. We disagree.\n\u201cA trial court is not required to give requested instructions verbatim.\u201d State v. Allen, 322 N.C. 176, 197, 367 S.E.2d 626, 637 (1988) (citation omitted). The trial court gave the pattern jury instruction regarding involuntary commitment procedures pursuant to N.C.PI. \u2014 Crim. 304.10. These instructions sufficiently informed the jury of the commitment hearing procedures in N.C. Gen. Stat. \u00a7 \u00a7 15A-1321 and N.C. Gen. Stat. \u00a7 122C. Id. at 198-99, 367 S.E.2d at 638. We find the trial court properly instructed the jury on \u201cthe central meaning of the statute\u201d and its instruction substantially complied with defendant\u2019s request. Harris, 306 N.C. at 727, 295 S.E.2d at 393. This assignment of error is overruled.\nC. Cumulative Effect of Alleged Errors\nDefendant asserted during oral argument that the cumulative effect of the preceding alleged errors deprived defendant of a fair trial. We disagree.\n\u201c[A] defendant has the burden of demonstrating not only error, but also that the error[s] complained of [were] prejudicial, i.e., that there is a reasonable possibility that a different verdict would have been reached had the errors not been committed.\u201d State v. Temples, 74 N.C. App. 106, 109-10, 327 S.E.2d 266, 268 (citations omitted), disc. rev. denied, 314 N.C. 121, 332 S.E.2d 489 (1985). The State presented evidence that defendant: (1) had threatened to kill Ashley on two prior occasions more than a year prior to these crimes; (2) contemplated death before the crimes occurred; (3) had to reload her gun while shooting both Ashley and Eric; (4) while attempting to murder Ashley, stated \u201cwhy [will you not] die . . . and go in peace like [your] brother did\u201d; (5) hid the telephone so Ashley and Mr. Hall were unable to call 911; (6) asked Mr. Hall not to call 911 because \u201cshe did not want to go to jail\u201d; (7) fled the crime scene after Mr. Hall called 911; (8) rear-ended another vehicle and fled the scene of the accident; and (9) engaged in a high speed chase with police, only stopping when she crashed head on into oncoming traffic.\nWe find the evidence presented on the record is sufficient to support the jury\u2019s verdicts. The jury rejected premeditation and deliberation and chose felony murder as the basis to support defendant\u2019s first-degree murder conviction. The above evidence supports the jury\u2019s: (1) rejection of defendant\u2019s evidence and defense of insanity and (2) finding that defendant knew right from wrong and understood the nature and quality of her actions when she committed the crimes. We hold there is no reasonable possibility the jury would have reached a different verdict had the trial court admitted Dr. Bellard\u2019s testimony and given defendant\u2019s modified jury instruction on post-conviction involuntary commitment procedures.\nV. Prior Statements Instruction\nDefendant argues the trial court\u2019s instruction that evidence of out-of-court statements by witnesses could only be considered for impeachment or corroboration constitutes plain error. We disagree.\nA. Standard of Review\n[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201cresulted in a miscarriage of justice or in the denial to appellant of a fair trial\u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)) (emphasis original).\nB. Analysis\nDefendant argues Ashley\u2019s statements to Officer Longo that defendant had \u201cflipped out\u201d and \u201cwent crazy\u201d and Mr. Hall\u2019s statement to a 911 operator that defendant\u2019s \u201cnerves were shot\u201d were admissible for substantive purposes. We disagree.\nDefendant correctly states that both Ashley\u2019s and Mr. Hall\u2019s out-of-court statements were admitted into evidence without objection. Subsequently, the trial court gave the jury instructions regarding witnesses\u2019 prior statements pursuant to N.C.P.I. \u2014 Crim. 105.20. The trial court stated:\nMembers of the jury, when evidence has been received tending to show that at an earlier time a witness made a statement, either spoken or in writing, which may be consistent or may conflict with that witness [sic] testimony, you should not consider such earlier statement as evidence of the truth of what was said at that earlier time, because it was not made under oath at this trial. If you believe that such earlier statement was made, and that it is consistent, or that it does conflict with the testimony of the witness at this trial, then you may consider this together with all other facts and circumstances bearing upon the witness [sic] truthfulness in deciding whether you believe or disbelieve the witness testimony at this trial.\n(Emphasis supplied). Defendant concedes that she neither objected to this instruction nor requested additional instructions.\nN.C.P.I. \u2014 Crim. 105.20 is a correct statement of the law regarding prior inconsistent statements. Prior inconsistent statements are not admissible as substantive evidence. State v. Williams, 355 N.C. 501, 533, 565 S.E.2d 609, 628 (2002) (citations omitted), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003).\nOn cross-examination, Ashley denied telling Officer Longo defendant had \u201cflipped out\u201d and \u201cwent crazy\u201d when he arrived at the crime scene. Subsequently, defense counsel asked Officer Longo how Ashley responded when he asked her what occurred that morning. Officer Longo testified, \u201cI had asked Ashley what happened and she stated, \u2018My mom just flipped out; she went crazy.\u2019 \u201d Defense counsel properly impeached Ashley\u2019s trial testimony with proof of a prior inconsistent statement. State v. Whitley, 311 N.C. 656, 663, 319 S.E.2d 584, 589 (1984). Defendant\u2019s argument that Ashley\u2019s statement was admissible as substantive evidence is without merit. The trial court properly instructed the jury that prior inconsistent statements could only be used for impeachment purposes.\nFurther, at trial, Mr. Hall did not testify to what he stated to the operator when he called 911. Therefore, Mr. Hall\u2019s statement that defendant\u2019s \u201cnerves were shot\u201d was neither a prior consistent nor inconsistent statement. The jury instruction was therefore not applicable to Mr. Hall\u2019s statement.\nPresuming arguendo, Ashley\u2019s and Mr. Hall\u2019s statements could be admissible as substantive evidence under some theory, defendant has failed to show that the trial court\u2019s pattern jury instruction constitutes \u201cplain error.\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378. Defendant presented extensive opinion testimony from four mental health expert witnesses concerning her mental state at the time of the crime. Additionally, the jury heard the following evidence: (1) Mr. Hall\u2019s and Ashley\u2019s testimony regarding defendant\u2019s behavior leading up to 26 February 2004; (2) defendant\u2019s comment to Ashley about dying together; (3) Ashley\u2019s testimony regarding defendant\u2019s behavior at the time of the crime; (4) Mr. Hall\u2019s testimony describing defendant\u2019s behavior after the crime had occurred; and (5) Trooper Milligan\u2019s testimony that defendant was \u201cextremely impaired\u201d and \u201cunaware of what was going on around her.\u201d\nThe State presented overwhelming evidence to support the jury\u2019s guilty verdict. Under plain error review, defendant has failed to show the alleged \u201cinstructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378. This assignment of error is overruled.\nVI. Prosecutor\u2019s Closing Argument\nDefendant argues the trial court erred by overruling defendant\u2019s objection to the portion of the prosecutor\u2019s closing argument describing defendant as a person with \u201ca disposition towards murder.\u201d We disagree.\nA. Standard of Review\nThe standard of review for improper, closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection. In order to assess whether a trial court has abused its discretion when deciding a particular matter, this Court must determine if the ruling could not have been the result of a reasoned decision.\nState v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002) (internal citations and quotations omitted).\nB. Analysis\nDuring closing arguments, \u201can attorney may... on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.\u201d N.C. Gen. Stat. \u00a7 15A-1230 (2005). \u201cCounsel 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.\u201d 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).\nA prosecutor\u2019s closing remarks \u201care to be viewed in the context in which they are made and in light of the overall factual circumstances to which they refer.\u201d State v. Davis, 349 N.C. 1, 44, 506 S.E.2d 455, 479 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999). To justify a new trial, an inappropriate prosecutorial comment must be sufficiently grave to constitute prejudicial error. State v. Britt, 291 N.C. 528, 537, 231 S.E.2d 644, 651 (1977). \u201c[T]o reach the level of prejudicial error in this regard . . . the prosecutor\u2019s comments must have so infected the trial with unfairness as to make the resulting conviction a denial of due process.\u201d State v. Worthy, 341 N.C. 707, 709-10, 462 S.E.2d 482, 483 (1995) (citation omitted).\nDuring the prosecutor\u2019s closing argument, he stated \u201cif one has a disposition toward murder . ...\u201d We review the prosecutor\u2019s closing argument as a whole and must determine in what context the statement was being made. Prior to the challenged statement, the prosecutor argued defendant: (1) had a motive for killing her family; (2) contemplated death; and (3) was not having delusions, but was thinking of killing her family. Viewed in the context of these arguments, it appears by making the challenged statement, the prosecutor- was arguing defendant should be found guilty of first-degree murder based on defendant\u2019s premeditated and deliberate murder of Eric and attempted murder of Ashley.\n\u201cThe trial court has a duty, upon objection, to censor remarks not warranted by either the evidence or the law, or remarks calculated to mislead or prejudice the jury.\u201d State v. Britt, 288 N.C. 699, 712, 220 S.E.2d 283, 291 (1975). The trial court overruled defendant\u2019s objection to the challenged statement and concluded, \u201cthe argument of counsel is supported by some evidence.\u201d The trial court based this ruling on evidence presented tending to show defendant had threatened to kill Ashley on two occasions prior to 26 February 2004. The prosecutor properly argued \u201cthe evidence that [was] [] presented and all reasonable inferences that c[ould] be drawn from that evidence.\u201d Richardson, 342 N.C. at 792-93, 467 S.E.2d at 697. Defendant has failed to show the trial court abused its discretion by overruling defendant\u2019s objection to a portion of the prosecutor\u2019s statement.\nPresuming arguendo the statement was improper, the prosecutor\u2019s statement did not \u201cso infect[] the trial with unfairness as to make the resulting conviction a denial of due process.\u201d Worthy, 341 N.C. at 709-10, 462 S.E.2d at 483 (1995). The jury found defendant guilty of first-degree murder under the theory of felony murder, not on the basis of premeditation and deliberation. The State presented overwhelming evidence that defendant had shot and killed Eric while she was attempting to murder Ashley. This evidence supports the jury\u2019s verdicts on both convictions. This assignment of error is overruled.\nVIL Reciprocal Disclosure\nDefendant argues the trial court erred by denying defendant\u2019s motion for reciprocal disclosure of the State\u2019s theory of the case and by instructing the jury on a theory of felony murder for which the defense had no notice. We disagree.\nDefendant filed a pre-trial motion for reciprocal disclosure concerning the theory upon which the State sought a conviction of first-degree murder, including, the disclosure of the felonies which supported felony murder. The trial court denied defendant\u2019s motion. Defendant argues the denial of this motion violates defendant\u2019s constitutional rights to due process and prior notice of the charges against her. Based on existing North Carolina law, defendant\u2019s argument is without merit.\nOur Supreme Court has repeatedly held a short-form murder indictment is sufficient to charge first-degree murder on the basis of any theory set forth in N.C. Gen. Stat. \u00a7 14-17, including felony murder. State v. Garcia, 358 N.C. 382, 388, 597 S.E.2d 724, 731-32 (2004), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005); State v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001); State v. King, 311 N.C. 603, 608, 320 S.E.2d 1, 5 (1984).\n\u201cThe State is not required at any time to elect a theory upon which it will proceed against the defendant on the charge of first degree murder.\u201d State v. Clark, 325 N.C. 677, 684, 386 S.E.2d 191, 195 (1989). Further, \u201c[b]y requesting ... the State [to] identify which predicate felony it intended to prove at trial, defendant essentially sought disclosure of the State\u2019s legal theory. . . . The State is not required to choose its theory of prosecution prior to trial.\u201d Garcia, 358 N.C. at 389-90, 597 S.E.2d at 732.\nIf defendant seeks further disclosure of the facts that support the charge alleged in the indictment, defendant may file a motion for a bill of particulars. N.C. Gen. Stat. \u00a7 15A-925(b) (2005); State v. Randolph, 312 N.C. 198, 210, 321 S.E.2d 864, 872 (1984). This assignment of error is overruled.\nVIII Discovery\nDefendant argues the trial court erred by refusing to provide discoverable items following its in camera review. We dismiss this assignment of error.\nA. Standard of Review\n\u201cA trial court\u2019s order regarding matters of discovery are generally reviewed under an abuse of discretion standard.\u201d Morin v. Sharp, 144 N.C. App. 369, 374, 549 S.E.2d 871, 874 (citation omitted), disc. rev. denied, 354 N.C. 219, 557 S.E.2d 531 (2001). \u201cAn abuse of discretion occurs when a trial judge\u2019s ruling is manifestly unsupported by reason.\u201d Summers, 177 N.C. App. at 697, 629 S.E.2d at 907.\nB. Analysis\nAt trial, defendant requested a copy of the prosecutor\u2019s file under N.C. Gen. Stat. \u00a7 15A-903(a)(1). The State compiled a work product inventory of materials it argued were protected from disclosure as attorney work product pursuant to N.C. Gen. Stat. \u00a7 15A-904. After in camera review, the trial court ruled that some materials defendant had requested were non-discoverable and would be placed under seal .for appellate review. These materials are not included as part of the record on appeal.\n\u201cIt is the duty of the appellant to see that the record is properly [prepared] and transmitted.\u201d Hill v. Hill, 13 N.C. App. 641, 642, 186 S.E.2d 665, 666 (1972). The appellant also has the duty to ensure that the record is complete and contains the materials asserted to contain error. Pharr v. Worley, 125 N.C. App. 136, 139, 479 S.E.2d 32, 34 (1997). Rule 9 of the North Carolina Rules of Appellate Procedure requires that \u201cexhibitfs] offered in evidence and required for understanding of errors assigned shall be filed in the appellate court.\u201d N.C.R. App. P. 9(d)(2) (2008) (emphasis supplied).\nHere, the record on appeal does not contain the non-discoverable materials the trial court placed under seal. This omission prevents this Court from determining whether the trial court erred in classifying certain State documents as non-discoverable pursuant to N.C. Gen. Stat. \u00a7 15A-904. This assignment of error is dismissed.\nIX. Conclusion\nDefendant failed to show the trial court abused its discretion by \u201cproperly weighing] both the probative and prejudicial value of evidence before it\u201d and excluding Dr. Bellard\u2019s testimony from the jury, regarding the likelihood of defendant\u2019s release from Dorothea Dix Hospital if the jury found her to be not guilty by reason of insanity. Tomika Invs., Inc., 136 N.C. App. at 498, 524 S.E.2d at 595. The trial court\u2019s jury instruction explained \u201cthe central meaning of the statute\u201d and substantially complied with defendant\u2019s request for \u00e1 jury instruction regarding post-verdict commitment procedures if defendant were to be found not guilty by reason of insanity. Harris, 306 N.C. at 727, 295 S.E.2d at 393.\nThe trial court properly instructed the jury regarding witnesses\u2019 prior statements. The trial court properly overruled defendant\u2019s objection to a portion of the prosecution\u2019s closing argument because the prosecutor\u2019s statement was \u201cwarranted by the evidence\u201d presented at trial. Britt, 288 N.C. at 712, 220 S.E.2d at 291.\nBased on existing North Carolina law, the trial court was not required to order the State to disclose to defendant the underlying theory to support the charge of first-degree murder prior to trial. Garcia, 358 N.C. at 389-90, 597 S.E.2d at 732. Finally, the record is devoid of sealed documents reviewed by the trial court in camera. We cannot determine whether the trial court erred in classifying documents in the State\u2019s file as non-discoverable pursuant to N.C. Gen. Stat. \u00a7 15A-904.\nDefendant received a fair trial, free from the prejudicial errors she preserved, assigned, and argued. Under plain error review, the absence of all or any of the alleged plain errors would not have had a probable impact on the jury\u2019s finding that defendant was guilty. We find no error.\nNo Error.\nJudges MCCULLOUGH and STROUD concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Amy G. Kunstling, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JANET BELL HALL\nNo. COA07-9\n(Filed 4 December 2007)\n1. Evidence\u2014 expert opinion \u2014 likelihood of defendant\u2019s release following insanity verdict\nThe opinion of a mental health expert that defendant would not be released from involuntary commitment for decades if she was found not guilty by reason of insanity was properly excluded from a first-degree murder trial. Defendant presented no evidence tending to show that the testimony would help the jury understand the evidence or determine a fact in issue.\n2. Criminal Law\u2014 procedures following insanity verdict\u2014 failure to give requested instructions\nThe trial court did not err in a first-degree murder prosecution by not giving defendant\u2019s modified instructions on post-conviction procedures if defendant was found not guilty by reason of insanity. The instruction given by the court sufficiently informed the jury of the commitment hearing procedures, properly instructed the jury on the central meaning of the statute, and substantially complied with defendant\u2019s request. N.C.G.S. \u00a7 15A-1321.\n3. Criminal Law\u2014 cumulative errors \u2014 no reasonable possibility of different outcome\nThe cumulative effect of alleged errors in a first-degree murder prosecution did not deprive defendant of a fair trial. The evidence on the record is sufficient to support the jury\u2019s verdicts, and there is no reasonable possibility that the jury would have reached a different verdict had the trial court admitted the contested testimony and given defendant\u2019s requested instruction.\n4. Evidence\u2014 out-of-court statements \u2014 instructions on jury\u2019s use\nThere was no plain error in a first-degree murder prosecution from the trial court\u2019s instruction that evidence of out-of-court statements by witnesses could only be considered for impeachment or corroboration.\n5. Criminal Law\u2014 prosecutor\u2019s argument \u2014 disposition to murder\nThe trial court did not err in a prosecution for first-degree murder and attempted first-degree murder by overruling defendant\u2019s objection to the prosecutor\u2019s closing argument that defendant was a person with a disposition toward murder. Assuming that the statement was improper despite evidence that defendant had twice threatened to kill the victims, the jury found defendant guilty based on felony murder rather than premeditated murder, and the evidence supported the jury\u2019s verdicts.\n6. Criminal Law\u2014 discovery \u2014 basis of charge\nThe trial court did not err in a first-degree murder prosecution by denying defendant\u2019s motion for reciprocal disclosure of the State\u2019s theory of the case and by instructing on a theory of felony murder for which defendant had no notice. The short-form murder indictment is sufficient to charge first-degree murder on the basis of any theory set forth in N.C.G.S. \u00a7 14-17, including felony murder, and the State is not required to choose its theory of prosecution prior to trial. Defendant may file a motion for a bill of particulars for further disclosure of the facts that support the charge alleged in the indictment.\n7. Appeal and Error\u2014 record on appeal \u2014 sealed evidence not included \u2014 not reviewed\nAn assignment of error to the trial court classifying certain documents as non-discoverable in a first-degree murder prosecution was dismissed where the evidence was sealed by the trial court and not included in the appellate record.\nAppeal by defendant from judgments entered 24 May 2005 by Judge Beverly T. Beal in Caldwell County Superior Court. Heard in the Court of Appeals 18 October 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Amy G. Kunstling, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant." }, "file_name": "0308-01", "first_page_order": 338, "last_page_order": 355 }