{ "id": 4694780, "name": "STATE OF NORTH CAROLINA v. CHARLES GENE ROGERS, aka \"Daddy Rich\" aka Charles Gene Paige and BELINDA JOYCE CARRAWAY", "name_abbreviation": "State v. Rogers", "decision_date": "1986-04-02", "docket_number": "No. 165A84", "first_page": "203", "last_page": "237", "citations": [ { "type": "official", "cite": "316 N.C. 203" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "444 U.S. 954", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11403873, 11404100, 11403588, 11403562, 11403627, 11403820, 11403726, 11403538, 11403795, 11404052, 11403674, 11403515, 11403997 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/444/0954-10", "/us/444/0954-13", "/us/444/0954-04", "/us/444/0954-03", "/us/444/0954-05", "/us/444/0954-09", "/us/444/0954-07", "/us/444/0954-02", "/us/444/0954-08", "/us/444/0954-12", "/us/444/0954-06", "/us/444/0954-01", "/us/444/0954-11" ] }, { "cite": "305 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "defendant orders death of allegedly double-crossing drug dealer - different aggravating circumstances" } ], "opinion_index": 0 }, { "cite": "309 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4768245 ], "year": 1983, "pin_cites": [ { "parenthetical": "defendant orders death of allegedly double-crossing drug dealer - different aggravating circumstances" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0122-01" ] }, { "cite": "292 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573030 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0656-01" ] }, { "cite": "74 L.Ed. 2d 622", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1982, "pin_cites": [ { "parenthetical": "at motorcycle clubhouse defendant shot to death two men, one of whom he had never seen before, because he \"didn't have any use for people like that\"" } ], "opinion_index": 0 }, { "cite": "459 U.S. 1056", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6487664, 6487779 ], "weight": 2, "year": 1982, "pin_cites": [ { "parenthetical": "at motorcycle clubhouse defendant shot to death two men, one of whom he had never seen before, because he \"didn't have any use for people like that\"" } ], "opinion_index": 0, "case_paths": [ "/us/459/1056-01", "/us/459/1056-02" ] }, { "cite": "292 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "at motorcycle clubhouse defendant shot to death two men, one of whom he had never seen before, because he \"didn't have any use for people like that\"" } ], "opinion_index": 0 }, { "cite": "306 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567373 ], "year": 1982, "pin_cites": [ { "parenthetical": "at motorcycle clubhouse defendant shot to death two men, one of whom he had never seen before, because he \"didn't have any use for people like that\"" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0001-01" ] }, { "cite": "78 L.Ed. 2d 173", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "pin_cites": [ { "parenthetical": "defendant kidnapped and attacked victim and her roommate, ultimately stabbing victim twenty-two times with a butcher knife" } ], "opinion_index": 0 }, { "cite": "301 S.E. 2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "defendant kidnapped and attacked victim and her roommate, ultimately stabbing victim twenty-two times with a butcher knife" } ], "opinion_index": 0 }, { "cite": "308 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710595 ], "year": 1983, "pin_cites": [ { "parenthetical": "defendant kidnapped and attacked victim and her roommate, ultimately stabbing victim twenty-two times with a butcher knife" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0001-01" ] }, { "cite": "78 L.Ed. 2d 247", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "pin_cites": [ { "parenthetical": "defendants took turns stabbing heavily intoxicated, utterly defenseless, woman inflicting thirty-seven wounds as she begged for her life" } ], "opinion_index": 0 }, { "cite": "464 U.S. 908", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6423946, 6424206, 6424048, 6424123, 6423839 ], "year": 1983, "pin_cites": [ { "parenthetical": "defendants took turns stabbing heavily intoxicated, utterly defenseless, woman inflicting thirty-seven wounds as she begged for her life" } ], "opinion_index": 0, "case_paths": [ "/us/464/0908-02", "/us/464/0908-05", "/us/464/0908-03", "/us/464/0908-04", "/us/464/0908-01" ] }, { "cite": "302 S.E. 2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "defendants took turns stabbing heavily intoxicated, utterly defenseless, woman inflicting thirty-seven wounds as she begged for her life" } ], "opinion_index": 0 }, { "cite": "308 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4709347 ], "year": 1983, "pin_cites": [ { "parenthetical": "defendants took turns stabbing heavily intoxicated, utterly defenseless, woman inflicting thirty-seven wounds as she begged for her life" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0446-01" ] }, { "cite": "305 S.E. 2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "717" } ], "opinion_index": 0 }, { "cite": "309 N.C. 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763650 ], "year": 1983, "pin_cites": [ { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0026-01" ] }, { "cite": "428 U.S. 153", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176749 ], "year": 1976, "pin_cites": [ { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/us/428/0153-01" ] }, { "cite": "78 L.Ed. 2d 177", "category": "reporters:federal", "reporter": "L. 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Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "448 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787596, 1787636, 1787637, 1787575, 1787641, 1787643 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/448/0907-04", "/us/448/0907-02", "/us/448/0907-06", "/us/448/0907-01", "/us/448/0907-05", "/us/448/0907-03" ] }, { "cite": "259 S.E. 2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572332 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0306-01" ] }, { "cite": "333 S.E. 2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "747" } ], "opinion_index": 0 }, { "cite": "314 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693655 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0432-01" ] }, { "cite": "317 S.E. 2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "311 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681685 ], "year": 1984, "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0194-01" ] }, { "cite": "84 L.Ed. 2d 369", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "320 S.E. 2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "690" }, { "page": "645-46" } ], "opinion_index": 0 }, { "cite": "312 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758280 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0001-01" ] }, { "cite": "85 L.Ed. 2d 526", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 S.E. 2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "year": 1985, "opinion_index": 0 }, { "cite": "334 S.E. 2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685694 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0460-01" ] }, { "cite": "62 L.Ed. 2d 327", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "256 S.E. 2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572160 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0584-01" ] }, { "cite": "49 L.Ed. 2d 1213", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 908", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188931, 6188550, 6188244, 6188023, 6188766 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0908-05", "/us/428/0908-03", "/us/428/0908-02", "/us/428/0908-01", "/us/428/0908-04" ] }, { "cite": "214 S.E. 2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562627 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0303-01" ] }, { "cite": "340 S.E. 2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4701428 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0087-01" ] } ], "analysis": { "cardinality": 2115, "char_count": 82911, "ocr_confidence": 0.816, "pagerank": { "raw": 1.0630266077997455e-06, "percentile": 0.9845931172049027 }, "sha256": "ee796defdd5e92455230ee7b1c7960a35bfe1a9c6cacb8dca11c898fea6515ed", "simhash": "1:836be06e7e7e0ff2", "word_count": 13580 }, "last_updated": "2023-07-14T16:48:49.336190+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. CHARLES GENE ROGERS, aka \u201cDaddy Rich\u201d aka Charles Gene Paige and BELINDA JOYCE CARRAWAY" ], "opinions": [ { "text": "BRANCH, Chief Justice.\nI. Guilt-Innocence Phase\nA. Pretrial Concerns\nDefendant Carraway filed a pretrial pro se motion requesting an internal investigation into the conduct of Sergeant C. E. Boltinhouse, a detective with the Goldsboro Police Department. Her motion alleges that Sergeant Boltinhouse caused Jeffrey Dekeyser to fabricate his account of the 21 September Elm Street murder. Defendant Carraway\u2019s first assignment of error contends that the trial court erred in failing to order the requested investigation.\nThis assignment of error, and others raised by both defendants, are based on the conflicting statements given to the police and defendants by Jeffrey Dekeyser, the only eyewitness to the murder. According to the State, Dekeyser informed the police only hours after the 21 September shooting that defendants were involved in the murder of Charles Hall at 611 Elm Street. However, on 13 November 1983, Dekeyser, who was taken by Carraway to her attorney\u2019s office, said that he did not know defendant Rogers and did not see the 611 Elm Street shooting. At trial, Dekeyser admitted he had lied to Carraway and her attorney.\nWe hold the trial court correctly refrained from authorizing an investigation of Sergeant Boltinhouse\u2019s conduct. Besides the allegations contained in the motion, defendant Carraway failed to bring forward any evidence that tended to show that Sergeant Boltinhouse had improperly influenced Dekeyser\u2019s recollection of the events on the night of the shooting. Furthermore, we note that Sergeant Boltinhouse testified at trial and was subjected to fruitless cross-examination concerning his alleged inappropriate behavior. This assignment of error is overruled.\nDefendant Carraway next assigns as error the denial of her motion to suppress the statements she made to FBI agents when apprehended in Maryland. The defendant contends that she did not waive her rights and that her statements were involuntarily made because she was sleepy and tired when arrested. After a voir dire hearing, the trial court found that defendant Carraway was advised of her Miranda rights when taken into custody. At that time, she did not request an attorney and voluntarily answered the agent\u2019s biographical questions. During the ten-minute ride to their FBI office, defendant Carraway closed her eyes, but appeared to the agents to be at all times in full command of her physical and mental faculties. Upon their arrival, Carraway told the agents that she had been traveling with defendant Rogers for the past few months, that she owned a .44 caliber weapon, and that she did not know Charles Hall. At that point, she exercised her right to an attorney and the interview stopped.\nInitially, we note that defendant failed to except to any of the findings of fact. When no such exceptions are taken, the findings are presumed to be supported by competent evidence. State v. Perry, 316 N.C. 87, 340 S.E. 2d 450 (1986). Further, our examination of the evidence on voir dire discloses plenary competent evidence to support the findings. These findings in turn support the trial court\u2019s conclusions of law and ruling denying the motion to suppress. State v. Thompson, 287 N.C. 303, 214 S.E. 2d 742 (1975), death penalty vacated, 428 U.S. 908, 49 L.Ed. 2d 1213 (1976).\nFinally, we have previously held unpersuasive Carraway\u2019s remaining contention that a defendant\u2019s refusal to sign the Miranda rights waiver form is a bar to finding that an oral waiver has occurred. See State v. Connley, 297 N.C. 584, 256 S.E. 2d 234, cert. denied, 444 U.S. 954, 62 L.Ed. 2d 327 (1979).\nB. Jury Selection\nBoth defendants argue that the trial court committed prejudicial error by denying their motions to prohibit the prosecution from \u201cdeath qualifying\u201d the jury before the guilt-innocence phase of the trial. They contend that death qualified juries are unconstitutional because they are prosecution prone and more likely to convict a defendant. This Court has repeatedly held that the North Carolina jury process in first degree murder cases is constitutional. See State v. Hayes, 314 N.C. 460, 334 S.E. 2d 741 (1985); State v. Vereen, 312 N.C. 449, 314 S.E. 2d 250, cert. denied, --- U.S. ---, 85 L.Ed. 2d 526 (1985); State v. Noland, 312 N.C. 1, 320 S.E. 2d 642 (1984), cert. denied, --- U.S. ---,84 L.Ed. 2d 369 (1985). We decline to reconsider our position.\nDefendants also contest the denial of their motions to prohibit the State from peremptorily challenging black jurors. Defendants alleged that the district attorney has shown \u201ca pattern of discrimination against black jurors by peremptorily challenging them\u201d in criminal cases and moved that the State be prohibited from challenging black jurors. Neither defendant offered any evidence in support of the motion.\nA peremptory challenge may be exercised without a stated reason and without being subject to the control of the court. State v. Jenkins, 311 N.C. 194, 204, 317 S.E. 2d 345, 351 (1984). The right to challenge veniremen peremptorily is equally bestowed on the State and defendants by N.C.G.S. \u00a7 15A-1217. This contention is without merit.\nDefendant Carraway assigns as error the State\u2019s use of a peremptory challenge of a black juror who had already been passed by the State and defendants. During voir dire, the State asked Thelbert Harvey whether he or any member of his family had ever been charged with a serious offense. Neither Mr. Harvey nor any of the other jurors being questioned at that time responded. The State tendered Mr. Harvey to the defendants who first challenged him for cause, then peremptorily. Their motions to excuse Mr. Harvey as a juror for cause were denied. Their peremptory challenges were likewise unsuccessful in removing Mr. Harvey because both defendants had exhausted all their peremptory challenges.\nDuring a short recess and before the jury had been impaneled, the State obtained information that Mr. Harvey\u2019s two sons had been convicted of shoplifting and felonious breaking and entering. An evidentiary hearing was conducted and the State produced a witness who verified the State\u2019s information. The trial court recalled Mr. Harvey and questioned him concerning his sons\u2019 criminal records. Mr. Harvey admitted that his sons had been convicted of these crimes. At that time, the State exercised one of its remaining peremptory challenges and Mr. Harvey was excused.\nWe find that this procedure fully comported with the controlling statute, N.C.G.S. \u00a7 15A-1214(g). This statute provides that after a juror has been accepted by a party, and before the jury has been impaneled, a judge may examine a juror if it is discovered that this juror has made an incorrect statement during voir dire. The decision to reopen the examination of a juror previously accepted by the parties is within the sound discretion of the trial court. State v. Freeman, 314 N.C. 432, 333 S.E. 2d 743 (1985). However, once the examination of a juror has been reopened, \u201cthe parties have an absolute right to exercise any remaining peremptory challenges to excuse such a juror.\u201d Id. at 438, 333 S.E. 2d at 747. In the present case as in Freeman, the question concerning the juror\u2019s truthfulness on voir dire arose before a full jury had been impaneled. We hold that the trial court did not abuse its discretion in reopening the voir dire examination of Mr. Harvey based on the evidence produced by the State. Consequently, the State was entitled to exercise one of its remaining peremptory challenges to remove Mr. Harvey.\nDefendant Carraway further contends that the trial court improperly denied her motion for an additional peremptory challenge. She argues that because Mr. Harvey was peremptorily challenged, rather than excused for cause, she has been prevented from having his removal reviewed on appeal. She maintains, therefore, that she should have been entitled to an additional peremptory challenge. This novel argument is unpersuasive. Pursuant to N.C.G.S. \u00a7 15A-1217(a), the State and the defendant in a capital case are each allowed fourteen peremptory challenges. Contrary to defendant Carraway\u2019s contention, the use of a peremptory challenge by one party does not unfairly prejudice the opposing party\u2019s position in the jury selection process. This contention is without merit.\nDefendants next assign as error the trial court\u2019s denial of their motions for an individual voir dire and sequestration of the jurors during the jury selection proceedings. It is well settled that these motions are addressed to the sound discretion of the court and will not be disturbed absent an abuse of discretion. State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979), cert. denied, 448 U.S. 907, 65 L.Ed. 2d 1137 (1980). Defendants argue that prospective jurors in a capital case are improperly influenced during a collective voir dire by the repetitious questions concerning capital punishment and the positive responses given by other veniremen. Defendants assert that jurors are left with the impression that the accused is guilty and that the penalty phase of the trial will undoubtedly be reached. We reject this argument as speculative as we have rejected previous arguments dealing with the alleged contamination of jurors who are chosen pursuant to a collective voir dire. E.g., State v. Ysaguire, 309 N.C. 780, 309 S.E. 2d 436 (1983); State v. Brown, 306 N.C. 151, 293 S.E. 2d 569, cert. denied, 459 U.S. 1080, 74 L.Ed. 2d 642 (1982). Our review of the voir dire proceedings fails to reveal any abuse of discretion by the trial court in denying defendants\u2019 motions.\nDefendant Carraway also claims that the trial court improperly expressed an opinion by its questioning of a prospective juror who intimated that he could not vote for a verdict which would result in the imposition of the death penalty. The court\u2019s questions to this juror were made in an attempt to clarify his actual position on the issue of capital punishment. Here, since the State was entitled to \u201cdeath-qualify\u201d the jury, we fail to see how the trial judge\u2019s inquiry or his ruling excusing the juror for cause could be construed as an improper expression of an opinion which might have unfairly influenced the views of the other jurors. State v. Greene, 285 N.C. 482, 206 S.E. 2d 229 (1974).\nDefendant Carraway next contends that because her voir dire examination of the jurors followed the State\u2019s and Rogers\u2019 examinations, she was denied her right to examine a full panel from which to select jurors and exercise her challenges. We disagree. The procedure followed in this case was in full accord with the provisions of N.C.G.S. \u00a7 15A-1214. Her statutory rights were not infringed because others had removed jurors before she began her examination. She still had the right to exercise her fourteen peremptory challenges and to exert her right to challenge for cause. Except for her bald assertion of error, defendant has failed to furnish authority or plausible argument to show that the statutory scheme or the judge\u2019s discretionary ruling on the order of examination violated her constitutional or statutory rights. This assignment of error is without merit.\nDefendant Carraway cites as error the trial court\u2019s alleged refusal to allow her to ask prospective jurors during voir dire \u201cnondeath qualifying\u201d questions to counter the State\u2019s \u201cdeath qualifying\u201d questions. In the two instances highlighted in her brief, the juror was asked whether she could conceive of a circumstance where she would impose a life sentence rather than the death penalty and whether she would automatically vote for the death penalty upon the return of a guilty verdict.\nThis Court has previously recognized that \u201cboth the State and defendant have a right to question prospective jurors about their views on the death penalty so as to insure a fair and impartial verdict.\u201d State v. Adcock, 310 N.C. 1, 10, 310 S.E. 2d 587, 593 (1984). However, the trial court is vested with broad discretion in controlling the extent and manner of the inquiry into prospective jurors\u2019 qualifications in a capital case. Absent an abuse of discretion, the trial judge\u2019s rulings in this regard will not be disturbed. State v. Wilson, 313 N.C. 516, 330 S.E. 2d 450 (1985). Our review of the voir dire proceedings reveals that defendant Carraway was clearly afforded an opportunity to question each juror on his or her death penalty views. Because this defendant has failed to show any abuse of discretion, this assignment of error is overruled.\nThe final assignments of error dealing with jury selection are brought forward by defendant Carraway. In one assignment, she objects to the State\u2019s use of \u201cfully satisfied and entirely convinced\u201d instead of \u201creasonable doubt\u201d in its questions to prospective jurors concerning their ability to return a guilty verdict. Defendant Carraway contends that the phrase used by the State is an inadequate statement of the law. We disagree. The North Carolina Pattern Jury Instructions for Criminal Cases, adopting the definition developed in our case law, define reasonable doubt as \u201cproof that fully satisfies or entirely convinces you of the defendant\u2019s guilt.\u201d N.C.P.I. \u2014Crim. 101.10. See also State v. Hammonds, 241 N.C. 226, 232, 85 S.E. 2d 133, 138 (1954). We hold that the trial court properly overruled defendant Carraway\u2019s objection to the State\u2019s question.\nShe also contends that the trial court improperly sustained the State\u2019s objections to their questions asking prospective jurors whether the fact that she called fewer witnesses than the State would make a difference in their decision as to her guilt. We hold that the trial court properly sustained the objections. Hypothetical questions which attempt to \u201cstake out\u201d a juror\u2019s future course of action are improper. State v. Vinson, 287 N.C. 326, 215 S.E. 2d 60 (1975), death penalty vacated, 428 U.S. 902, 49 L.Ed. 2d 1206 (1976).\nC. Evidentiary Questions\nDefendant Rogers contends that the trial court improperly allowed the State in bad faith to repeatedly elicit testimony which was without any basis in fact. Specifically, this assignment of error deals with a dispute in the evidence as to whether or not Jeffrey Dekeyser\u2019s car was parked at 611-A East Elm Street between 11:15 p.m. and 3:00 a.m. on the night of the shooting. Rogers argues that because the State\u2019s other witnesses did not see Dekeyser\u2019s car or do not remember seeing his car that night, the trial court should not have allowed Captain Floyd Hobbs of the Goldsboro Police Department to testify that he saw Dekeyser\u2019s car at the place and during the time Dekeyser had indicated it was there.\nThis contention has no merit. Admittedly, the presence of the car at the scene of the crime is an important fact because it tends to substantiate Dekeyser\u2019s claim that he witnessed Charles Hall\u2019s murder. Yet, contradictions in the evidence are matters for the jury to resolve. State v. Brown, 310 N.C. 563, 313 S.E. 2d 585 (1984). The resolution of this dispute largely turned on the credibility the jury chose to give Dekeyser\u2019s and Hobbs\u2019 testimony. The credibility of witnesses is also a determination for the jury. 12 Strong\u2019s N.C. Index 3d Trial \u00a7 18.2 (1978). Consequently, we hold the trial court properly allowed Captain Hobbs to relate his recollection of the crime scene on the night in question.\nDefendant Rogers next asserts that the trial judge committed reversible error when he directed a series of questions to Dekeyser during the voir dire hearing held to determine the admissibility of Dekeyser\u2019s identification of the defendants. Rogers argues that the court\u2019s conduct was unfair and indicated its bias in favor of the State. He maintains that he was prejudiced by the court\u2019s examination of Dekeyser because his answers constituted the findings of fact in the order admitting his in-court identification of the defendants.\nThe hearing where the challenged examination occurred was conducted out of the presence of the jury. N.C.G.S. \u00a7 15A-1222, which forbids the expression of an opinion by the trial court, is inapplicable when the jury is not present during the questioning. State v. Bright, 301 N.C. 243, 271 S.E. 2d 368 (1980). Furthermore, it is well recognized that a trial judge has a duty to question a witness in order to clarify his testimony or to elicit overlooked pertinent facts. State v. Efird, 309 N.C. 802, 309 S.E. 2d 228 (1983).\nHere, the trial court\u2019s inquiry was necessary and proper. It is evident from the record that Dekeyser, the State\u2019s only eyewitness, had difficulty in understanding some of the prosecution\u2019s questions and in responding clearly. In order to determine the admissibility of his in-court identification, the trial court wisely decided to examine the witness to clarify his testimony. We hold that the trial court\u2019s conduct was entirely proper.\nDefendant Rogers also attacks the trial court\u2019s order allowing Dekeyser\u2019s in-court identification on the basis that Dekeyser\u2019s testimony was incredible and conflicting.\nWhen a motion to suppress identification testimony is made, the trial judge must conduct a voir dire hearing and make findings of fact to support his conclusion of law and ruling as to the admissibility of the evidence. When the facts found are supported by competent evidence, they are binding on the appellate courts.\nState v. Freeman, 313 N.C. 539, 544, 330 S.E. 2d 465, 470 (1985). Although Dekeyser did make a contrary statement prior to trial, his in-court testimony was consistent and in accordance with his first statement to police. The evidence elicited on voir dire fully supports the trial court\u2019s findings of fact and conclusions of law. We hold that the trial court properly admitted Dekeyser\u2019s in-court identification of the defendants.\nBoth defendants further contend that the trial court erred when it failed to strike ex mero motu Dekeyser\u2019s entire testimony because it lacked credibility. Again, defendants have confused the roles of judge and jury. We agree that Dekeyser was a troublesome witness. He was often unclear and an easy target for impeachment in view of his prior inconsistent statement to defendant Carraway\u2019s attorney that he had no knowledge of the Elm Street slaying. Yet, in spite of Dekeyser\u2019s overall shortcomings, he did manage to relate to the jury Charles Hall\u2019s murder as he saw it on 21 September 1983. Moreover, his testimony was corroborated in several crucial respects (Captain Hobbs\u2019 confirmation of the presence of Dekeyser\u2019s car at the scene; Blondie Coley\u2019s verification that after the shots were fired a figure got into the passenger side of a light-colored car which then drove away; and Robert Holmes\u2019 affirmation that defendant Rogers was looking for George Edwards after the murder at the corner of James and Pine).\nIn any event, Dekeyser\u2019s prior inconsistent statement did not cancel his testimony at trial. This statement as well as the seemingly questionable portions of his testimony were matters bearing on the weight the jury would give Dekeyser\u2019s testimony, not on its admissibility. See State v. Wagoner, 249 N.C. 637, 107 S.E. 2d 83 (1959).\nDefendant Rogers next asserts that the trial court improperly admitted the testimony of Robert Holmes. Rogers assails Holmes\u2019 testimony on two grounds. First, he argues that Holmes should not have been allowed to identify him in court as the man he talked with on 21 September 1983 on the corner of James and Pine. Holmes testified on voir dire that he saw Rogers three times on the night of the murder. He stated that he and Jeffrey Dekeyser saw Rogers sitting in his car at the corner of James and Pine after the murder of Charles Hall. According to Holmes, Dekeyser informed him that Rogers \u201cwas supposed to have shot\u201d Hall. Holmes, out of curiosity created by this statement, then walked over to Rogers\u2019 car and spoke with him for several minutes. Later that night, he passed Rogers in the same car driving on other Goldsboro streets. Holmes further testified that based on his recollection of the events of that night he could identify Rogers as the same man with whom he talked on 21 September 1983. Clearly, the trial court\u2019s findings of fact which incorporated this portion of Holmes\u2019 testimony were supported by competent evidence and thus binding upon this Court. State v. White, 307 N.C. 42, 296 S.E. 2d 267 (1982). We hold that the trial judge\u2019s conclusions are supported by these findings and therefore he properly admitted Holmes\u2019 in-court identification of defendant Rogers.\nSecondly, defendant Rogers asserts that Holmes was improperly allowed to relate Dekeyser\u2019s statement to him that Rogers had shot Hall. The statement was admitted for the purpose of corroborating Dekeyser\u2019s earlier testimony as to what he had told Holmes on the corner of James and Pine on the night of the murder. We agree that this testimony was improperly admitted for this purpose. The record reveals that although Dekeyser testified in this manner on voir dire, he did not repeat this statement while testifying before the jury. Therefore, this portion of Holmes\u2019 testimony did not corroborate Dekeyser\u2019s testimony.\nAlthough this statement was improperly admitted on this basis, we hold its admission was harmless in light of the fact that it was admissible for another purpose. Statements which are offered for any purpose other than for proving the truth of the matter stated are not objectionable as hearsay. State v. Irick, 291 N.C. 480, 231 S.E. 2d 833 (1977). \u201cThe statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made.\u201d State v. White, 298 N.C. 430, 437, 259 S.E. 2d 281, 286 (1979). Holmes clearly testified that Dekeyser\u2019s statement about Rogers made him curious and motivated him to cross the street to talk with Rogers. In order to start a conversation with him, Holmes lied and asked if Rogers wanted to buy some drugs. Later, through this conversation, Holmes learned that Rogers was still looking for Edwards. We hold Dekeyser\u2019s statement to Holmes was admissible to explain Holmes\u2019 subsequent conduct. It was not offered to prove Rogers did, in fact, murder Hall, but to reveal why Holmes went over to talk with Rogers after the shooting.\nThe next several assignments of error posing evidentiary questions deal with the admission into evidence of certain photographs offered by the State. Defendant Carraway first objects to the admission into evidence of Exhibits 2 and 3. These exhibits were photographs of the 611 East Elm Street apartment building from different angles and were admitted for purposes of illustrating the witness\u2019s testimony. Carraway contends that these photographs, taken during the day and under rainy conditions, could not be used to illustrate the witness\u2019s testimony because the murder occurred at night and under a clear sky.\nWe reject this contention. \u201cA photograph of the scene of a crime may be admitted into evidence if it is identified as portraying the locale with sufficient accuracy.\u201d State v. Smith, 300 N.C. 71, 75, 265 S.E. 2d 164, 167 (1980). As long as the witness is able to testify that the photograph is a fair and accurate representation of the scene, it is irrelevant that he did not take the photograph or that it was not made at the time of the event to which it relates. Id. at 75, 265 S.E. 2d at 168. See also State v. Lester, 289 N.C. 239, 221 S.E. 2d 268 (1976) (daytime photograph admitted to illustrate testimony of witness who had viewed the scene at night). In the present case, Captain Hobbs, the witness through whom the exhibits were admitted, testified that the photographs fairly and accurately represented the area on the night of the murder. We hold that State\u2019s exhibits 2 and 3 were properly admitted for illustrative purposes.\nAlthough defendant Carraway has also excepted to the court\u2019s admission into evidence of State\u2019s exhibit 4, she has presented no argument to this effect in her brief. Rather, Carraway argues that Dekeyser\u2019s testimony that he parked his car in front of Apartment 611-A and west of the Ford pickup truck should not have been allowed because exhibit 4, a photograph of the front of 611-A and 611-B taken on the night of the murder, reveals that his car was not there during the specified time period.\nClearly, this argument is no basis for holding as error the admission of a properly authenticated photograph. This exhibit was not admitted in connection with Dekeyser\u2019s testimony, but was admitted through Police Officer Pinto, the photographer, for use during his testimony. This assignment of error is overruled.\nExhibit 18, another photograph taken and authenticated by Officer Pinto, is the subject of defendant Carraway\u2019s next assignment of error. Although she does not object to the admission of the exhibit, Carraway contends that the trial court erred in its instruction to the jury upon receiving it into evidence. This photograph of the intersection of Elm and Slocumb Streets was taken during the day five months after the murder and included extraneous vehicles. The trial court, as it admitted the photograph for illustrative purposes, highlighted these differences to the jury and asked it to bear them in mind when considering the exhibit. We hold this instruction was entirely proper.\nDefendant Carraway further assigns as error the trial court\u2019s ruling admitting the photograph of George Edwards into evidence. The State at trial contended that Edwards was the intended murder victim. He was also the alleged victim of the assaults with a deadly weapon with intent to kill. Captain Hobbs testified that he had known Edwards for twenty years and that he recognized State\u2019s exhibit 1 as a photograph of Edwards. The photograph was offered to illustrate Hobbs\u2019 testimony with regard to the people present at the murder scene when he arrived. Contrary to Carraway\u2019s argument, there was substantial evidence that Edwards was at 611-A Elm Street with Hall at the time of his murder and that Edwards was also assaulted at that time. There was further evidence that Rogers had searched for Edwards before and after Hall\u2019s slaying. Because Edwards was an essential part of the State\u2019s trial theory, his picture was surely relevant. Based on the foundation laid through Hobbs\u2019 testimony, we hold the photograph was properly admitted.\nIn a related assignment of error, defendant Carraway argues that the trial court improperly allowed the testimony of Police Officer Perry Sharp that he had searched for Edwards, without success, in order to serve him with a subpoena for trial. Carraway asserts that this evidence was elicited in order to excite the passion and the prejudice of the jurors who essentially were led to believe that Edwards, out of fear, had disappeared after the shooting. We disagree. Since Edwards was a prominent character in the State\u2019s theory of the case, it was both relevant and proper for the prosecution to explain why this witness was not present at trial.\nFurthermore, State\u2019s witness, William Artis, similarly testified, without objection, that after the shooting Edwards did not return to his barbershop for work and was only seen one time thereafter. Therefore, Carraway\u2019s objection to Sharp\u2019s testimony had been waived due to the fact that Artis\u2019s evidence of the same import had been previously admitted without objection. State v. Jenerett, 281 N.C. 81, 187 S.E. 2d 735 (1972). This assignment is overruled.\nDefendant Carraway also contends that the trial court improperly overruled her objections and allowed Captain Hobbs to testify that he found a bullet fragment near the flat tire of the Continental. The State, on the other hand, correctly points out that precisely the same evidence was introduced earlier in Captain Hobbs\u2019 testimony without objection. Therefore, we hold that defendant Carraway waived her right to object to this evidence. Id.\nThe next assignment of error presented by defendant Carraway is likewise without merit. She argues that the trial court erred by failing to instruct Officer Pinto as well as other witnesses that they should refrain from making jokes while on the witness stand. The following exchange occurred during defendant Rogers\u2019 cross-examination of Pinto:\nQ. And what is the date that\u2019s written on the envelope in your handwriting?\nA. 9-26-83.\nQ. Who typed up the envelope, the other information that is on the outside of that envelope?\nA. I did.\nQ. And who typed 9-6-83 on there?\nA. 9-6, that was me.\nQ. Was that an old envelope back from September 6th?\nA. No, I\u2019m just a good typist.\nWe do not find that this testimony reflects that Officer Pinto was attempting to be humorous or was making light of the defendant\u2019s plight. Further, upon defendant Carraway\u2019s objection, the trial judge stated that if the witness made a joke, he would admonish him. However, the court felt Pinto\u2019s answer was responsive to the State\u2019s questions and that the resulting laughter was accidental. Obviously, the trial court was well aware of its duty to control the conduct of the trial and acted accordingly.\nIn four related assignments of error, defendant Carraway asserts that the trial judge improperly expressed an opinion in violation of N.C.G.S. \u00a7 15A-1222 when he instructed the jury that some of the evidence should be considered only against defendant Carraway and not against defendant Rogers. At the time this alleged error occurred, the following exchange took place:\nThe COURT: Members of the jury, the evidence or testimony that is about to be elicited from this witness concerning what occurred at the apartment, 201 North George Street, is admissible into evidence solely against the defendant, Belinda Carraway. You shall not consider it in arriving at your verdict as to the defendant, Charles Gene Rogers. All right, you may continue with your examination.\nMr. JORDAN: If your Honor please, may we approach the Bench?\nThe COURT: Yes, sir.\nMr. JORDAN: If my recollection serves me properly, His Honor said it is admissible as evidence solely against Belinda Carraway and we except to that instruction.\nThe COURT: All right. Members of the jury, in my instruction to you I said the evidence that is about to be elicited from this witness is to be considered by you solely against the defendant, Belinda Carraway. I should have said it should be considered by you solely in the case of Belinda Carraway because evidence may be for or against someone depending upon the circumstances in which you view it and the weight and credibility you should give it, and sometime evidence is favorable to one side and sometimes it is against that side. At any rate, my instruction is that you consider it in the trial of her case but do not consider it in the trial of the case of Charles Gene Rogers. You may continue your examination.\nInitially, we fail to see how the first version of this instruction amounted to a prejudicial expression of opinion by the trial court. In any event, we hold that any possible error which might have occurred due to the phrasing of the first instruction was surely cured by the court\u2019s immediate explanatory instruction. We further note that when instructing the jury in a similar manner later in the trial, the court carefully avoided the use of the word \u201cagainst\u201d to ensure no prejudice resulted and simply stated that the evidence \u201cis received in the trial of the case of Belinda Carraway\u201d and not in the case against Rogers.\nDespite the clarifying second instruction, Carraway nevertheless made a motion for a mistrial on this basis. On appeal, she argues that the trial court erred by denying her motion. A motion for a mistrial is usually addressed to the sound discretion of the trial judge. State v. McCraw, 300 N.C. 610, 268 S.E. 2d 173 (1980). In a capital case, however, the trial court may not order a mistrial without the consent of the defendant except in cases of necessity to attain the ends of justice. State v. Moore, 276 N.C. 142, 171 S.E. 2d 453 (1970). N.C.G.S. \u00a7 15A-1061 requires a trial court to declare a mistrial upon the defendant\u2019s motion if during the trial an error occurs \u201cresulting in substantial or irreparable prejudice to the defendant\u2019s case.\u201d In view of the court\u2019s immediate correction and clarification of its first instruction, we conclude that defendant Carraway suffered no substantial or irreparable prejudice to her case. We therefore hold that the trial court properly denied her motion for a mistrial.\nBy her next assignment of error, defendant Carraway argues that the trial judge improperly allowed Billy King to testify that he saw her with a .44 magnum pistol in May or June of 1983 and again in July of 1983. King further testified that he saw Rogers with the same .44 magnum also in July of 1983. Carraway contends that evidence to the effect that she possessed a gun sometime before the homicide \u201clacked probative value\u201d because there was \u201cno evidence as to what caliber gun was used to inflict the fatal wound.\u201d This statement is incorrect and therefore her reliance on State v. Gaines, 283 N.C. 33, 194 S.E. 2d 839 (1973), is misplaced. In Gaines, this Court held that the trial court properly excluded irrelevant evidence that a person other than the defendant had been seen walking with a shotgun near the victim\u2019s residence three or four days before her attack. This evidence was excluded because it neither tended to inculpate this person or exculpate defendant. Id. at 41, 194 S.E. 2d at 845.\nIn the present case, King\u2019s testimony tended to inculpate both defendants. There was testimony from the State\u2019s medical expert that the entrance wound in Hall\u2019s chest had a one-half inch diameter. Dekeyser testified that Rogers had a \u201clarge caliber pistol\u201d in his hand at the time of the shooting. SBI Firearms Examiner Jim Evans stated that one .44 caliber bullet was recovered from the back seat of the Continental and another one, fired from the same .44 caliber weapon, was found near the Continental\u2019s flat left front tire. Thus, it was clearly relevant to the State\u2019s theory of the case that Carraway possessed a .44 caliber pistol and that Rogers had been seen with her .44 caliber pistol. Thus, King\u2019s testimony was properly admitted into evidence.\nConversely, defendant Carraway asserts that the trial court improperly sustained the State\u2019s objections to her questions asking William Artis whether he had ever seen Edwards with a weapon. In the first place, Carraway\u2019s questions included no time reference as to when the witness might have seen Edwards with a gun in order to show their relevancy to defendant\u2019s case. Secondly, even though these objections were sustained, defendant Carraway, after some rephrasing, was allowed to pose a question seeking the same information. The witness responded: \u201cNo, he didn\u2019t own a gun. I haven\u2019t ever seen him with a gun.\u201d Having obtained an answer to her question, defendant Carraway can show no prejudice in the trial court\u2019s rulings.\nIn the final assignment of error under this grouping, defendant Carraway maintains that the trial court erred in failing to instruct the jury about a comment by the prosecutor that the court was free to sustain defendant\u2019s objection because he had already made his point by asking the question. We hold that this assignment of error is feckless because the comment was made during a bench conference out of the hearing of the jury.\nD. Sufficiency of the Evidence\nIn six assignments of error, defendants Rogers and Carraway contend that the trial court erred in failing to dismiss the charges against them for insufficient evidence. Initially, we note that defendant Carraway\u2019s motion to dismiss at the close of the State\u2019s evidence was waived when she elected to present evidence. State v. Leonard, 300 N.C. 223, 266 S.E. 2d 631, cert. denied, 449 U.S. 960, 66 L.Ed. 2d 227 (1980). Therefore, the trial court\u2019s ruling on that motion is not part of our review.\nUpon a motion to dismiss in a criminal case, the trial judge must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that might be drawn therefrom, and leaving all contradictions or discrepancies in the evidence for the jury\u2019s resolution. State v. Brown, 310 N.C. 563, 313 S.E. 2d 585. The function of the trial court on the motion is to determine whether there is substantial evidence of each element of the offense charged and that defendant is the perpetrator. Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 265 S.E. 2d 164.\nMurder in the first degree is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. N.C.G.S. \u00a7 14-17 (1981). State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837 (1984). To be held liable as an aider and abettor, one must be actually or constructively present at the scene, share the criminal intent with the principal, and render assistance or encouragement to him in the commission of the crime. State v. Williams, 299 N.C. 652, 263 S.E. 2d 774 (1980); State v. Birchfield, 235 N.C. 410, 70 S.E. 2d 5 (1952).\nWe hold that the eyewitness testimony of the witnesses Dekeyser and Coley, when taken with the other corroborative evidence offered by the State, was sufficient substantial evidence from which the jury could have reasonably inferred that defendant Rogers as the principal and defendant Carraway as an aider and abettor committed the first degree murder of Charles Hall. Further, this evidence was sufficient to repel defendants\u2019 motions to dismiss the charges of assault with a deadly weapon with intent to kill George Edwards.\nE. Jury Arguments\nBoth defendants assert that the trial court erred in failing to instruct the jury to disregard a portion of the State\u2019s closing argument which they allege is unsupported by the evidence. The portion of the State\u2019s argument in question is as follows: \u201cWhen the shot was fired Mr. Edwards took off between the pickup truck and the Continental, and by that time Mr. Rogers fired towards Mr. Edwards, causing the weapon to fire, [and] hit the tire.\u201d Immediately after the objection, the trial court instructed the jury to be guided by their own recollection of the evidence.\nIt is well established that counsel should be allowed wide latitude in his argument to the jury. Counsel may argue \u201cthe facts in evidence and all reasonable inferences to be drawn therefrom together with the relevant law so as to present his side of the case.\u201d State v. Covington, 290 N.C. 313, 327-28, 226 S.E. 2d 629, 640 (1976). See State v. Huffstetler, 312 N.C. 92, 322 S.E. 2d 110 (1984), cert. denied, \u2014 U.S. \u2014, 85 L.Ed. 2d 169 (1985). Clearly, the questioned argument was based on reasonable inferences which could be drawn from the evidence. With Dekeyser\u2019s eyewitness account of the shooting and the physical evidence taken from the Continental, it was surely reasonable to infer that after shooting Hall, Rogers turned and fired at Edwards. Because the State\u2019s argument was proper, the trial court correctly refrained from instructing the jury to disregard it.\nDefendants also objected to the assistant district attorney\u2019s comments that: Dekeyser may have felt coerced into giving Carraway\u2019s attorneys his conflicting statement; Carraway told the FBI that she did not know Charles Hall; Dekeyser\u2019s statement that he drove 75 m.p.h. from Kinston to Goldsboro on the night of the murder was a declaration against interest; and defendant\u2019s theory of the case was that the murder occurred after an attempted robbery.\nIt is well settled that the arguments of counsel must be left largely to the discretion of the trial court. The trial court has a duty, upon objection, to censure the remarks not warranted by the law or the evidence. State v. Covington, 290 N.C. at 328, 226 S.E. 2d at 640. The court\u2019s ruling thereon will not be disturbed in the absence of a gross abuse of discretion. State v. Monk, 286 N.C. 509, 212 S.E. 2d 125 (1975).\nA review of the record indicates that all of these contested statements have a basis in the evidence presented at trial. Further, the trial court twice within the State\u2019s argument reminded the jury that they should be guided by their own recollection of the evidence and not by counsel\u2019s rendition. We therefore hold that the trial judge did not abuse his discretion in overruling defendants\u2019 objection to the prosecutor\u2019s argument.\nDefendant Rogers next contends that the trial court erred in sustaining the State\u2019s objection to a rhetorical question he posed to the jury in his closing argument. After highlighting the contradictions and inconsistencies in Dekeyser\u2019s testimony, Rogers\u2019 counsel asked: \u201cWould you like to be convicted on his testimony?\u201d As previously set forth, counsel should be allowed wide latitude in arguing his case to the jury. Yet, \u201c[w]hether counsel abuses this privilege is a matter ordinarily left to the sound discretion of the trial judge.\u201d Id. We hold that the trial judge did not abuse his discretion in sustaining the objection. The trial judge properly exercised his discretion by preventing defense counsel from suggesting that the jurors reach their verdict by placing themselves in defendant Rogers\u2019 position, rather than on deciding the case from the facts and inferences which could be reasonably drawn from the evidence.\nF. Jury Instructions\nTogether defendants have presented nine assignments of error dealing with the trial court\u2019s instructions to the jury in the guilt-innocence phase of their trial. They failed, however, to voice at trial any objection to the court\u2019s final jury instructions. Under N.C. R. App. P. 10(b)(2), defendants have therefore waived their right to assign error in the instructions. Consequently, they are entitled to relief only if one of their alleged errors amounted to \u201cplain error\u201d as that term has been defined in State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983), and subsequent cases. See State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837. Our careful review of the record reveals that no such error was committed in this case.\nII. Fair Sentencing Issues\nEach defendant was convicted of first degree murder and assault with a deadly weapon with intent to kill. Defendant Carraway raises three assignments of error with regard to the sentence she received for her assault conviction. Carraway argues that the court erred in finding the following factors in aggravation:\n27. . . . The defendant although not charged with the crime of conspiracy, entered in a conspiracy to aid and abet another person in the commission of a felony.\n28. Although, the defendant has not been charged with perjury or convicted of it, the jury by its verdict found her testimony of self-defense was unbelievable and thereby, determined that she committed perjury. The Court likewise finds she committed perjury.\nIn State v. Thompson, 310 N.C. 209, 227, 311 S.E. 2d 866, 876 (1984), this Court held that\nnothing in our Fair Sentencing Act specifically precludes a finding of perjury as an aggravating factor to be weighed in considering the sentence to be imposed upon a defendant, provided, of course, the finding meets the requirements of the statute; however, in view of some of the potential dangers inherent in this particular factor and also of its peculiar nature, a trial judge should exercise extreme caution in this area and should refrain from finding perjury as an aggravating factor except in the most extreme case.\nIt is true that Carraway\u2019s testimony conflicts with the State\u2019s version of the facts as revealed through its witnesses and the physical evidence produced at trial. However, her testimony is not intrinsically inconsistent, a usual characteristic of obviously perjured testimony. Moreover, the most damaging evidence against her was offered by Jeffrey Dekeyser, a witness whose own testimony reeked of inconsistencies, contradictions, and recantations. We cannot speculate as to why the jury chose to believe this witness over the defendant but its refusal to accept her version of the facts in light of Dekeyser\u2019s testimony does not compel the conclusion that Carraway\u2019s testimony was perjured. We believe that under Thompson the witness\u2019s testimony must be undeniably perjured to constitute an \u201cextreme case\u201d and to warrant a finding of this aggravating factor. Otherwise, every convicted defendant who has testified in his own defense may be treated as a perjurer, a result previously found unacceptable by this Court. Id. at 226, 311 S.E. 2d at 876. See also United States v. Moore, 484 F. 2d 1284, 1287 (4th Cir. 1973). We hold that the court\u2019s finding of perjury in this case is not supported by a preponderance of the evidence and repeat our admonishment that judges exercise extreme caution in this area.\nWe further hold that the \u201cconspiracy to aid and abet\u201d aggravating factor was not supported by a preponderance of the evidence. A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way. State v. Bindyke, 288 N.C. 608, 220 S.E. 2d 521 (1975).\nIn the present case, there is simply no evidence that the defendants conspired to carry out the crimes for which they were convicted. Basically, the presence of a conspiracy between defendants is only an inference which can be drawn from the commission of the crimes themselves. This inference does not support this factor by a preponderance of the evidence.\nAs a result of the trial court\u2019s error in finding these aggravating factors, we award defendant Carraway a new sentencing hearing for her assault with a deadly weapon with intent to kill conviction.\nIII. Capital Sentencing Issues\nDefendant Rogers brings forward several assignments of error which deal with alleged errors committed during the sentencing phase of his first degree murder conviction. Defendant Carraway was given the mandatory life sentence and therefore has no similar assignments of error.\nA. Jury Argument\nDefendant Rogers first contends that the trial court committed prejudicial error in failing to control the State\u2019s argument to the jury during the capital sentencing portion of the trial. However, Rogers failed to object in court to the argument. As stated in State v. Johnson, 298 N.C. 355, 369, 259 S.E. 2d 752, 761 (1979):\nIn capital cases, ... an appellate court may review the prosecution\u2019s argument, even though defendant raised no objection at trial, but the impropriety of the argument must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero mo tu an argument which defense counsel apparently did not believe was prejudicial when he heard it.\nIn the present case, defendant\u2019s exceptions in general deal with the State\u2019s continued argument that Edwards, not Hall, was the intended murder victim. This idea was again stressed at this time because the \u201ccourse of conduct\u201d aggravating circumstance would be submitted to the jury. Rogers further objects to the prosecutor\u2019s references to biblical passages that encourage Christians to obey the law. We note that defendant Rogers also used the Bible and its teachings to argue against the imposition of the death penalty.\nWe have reviewed the State\u2019s argument and even assuming arguendo that the statements singled out by defendant were improper, the impropriety was clearly not so gross as to require us to hold that the trial court abused its discretion in not recognizing the error and correcting it on its own motion. These assignments are overruled.\nB. Aggravating Circumstance\nDefendant Rogers also claims that the trial court improperly submitted the \u201ccourse of conduct\u201d aggravating circumstance to the jury. N.C.G.S. \u00a7 15A-2000(e)(ll) contains the following aggravating circumstance: \u201cThe murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons.\u201d Defendant Rogers argues that there was no evidence to support the submission of this circumstance. N.C.G.S. \u00a7 15A-2000 (d)(2) also requires this Court in a capital case to review the record and determine whether the record supports the jury\u2019s finding of any aggravating circumstance.\nAs previously set forth, the State presented substantial evidence that after killing Charles Hall, defendant Rogers fired his weapon at George Edwards, intending to kill him. The jury, by returning guilty verdicts, found beyond a reasonable doubt that Rogers had committed Hall\u2019s murder and this assault against Edwards. We therefore hold that the trial court properly submitted this aggravating circumstance to the jury for its consideration and properly denied Rogers\u2019 later motion to set aside the jury\u2019s finding of this aggravating circumstance.\nC. Statutory Review Required by N.C.G.S. \u00a7 15A-2000(d)(2)\nHaving found no prejudicial error by the trial court in the guilt-innocence or sentencing phases in the first degree murder case, we now undertake the review imposed upon this Court by N.C.G.S. \u00a7 15A-2000(d)(2). This statute directs us to review the record in a capital case and to determine: (1) whether the record supports the jury\u2019s findings of any aggravating circumstance or circumstances upon which the sentencing court based its death sentence; (2) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factor; and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. We have previously concluded that the evidence supports the aggravating circumstance found by the jury. Furthermore, we have searched the record and have failed to find any evidence indicating that the sentence was the product of passion, prejudice or any other arbitrary factor.\nTo determine whether the sentence of death is excessive or disproportionate when considering the crime and the defendant, we review all of the cases in the \u201cpool\u201d of similar cases for comparison. State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 177 (1983). The purpose of our review is to eliminate \u201c \u2018the possibility that a person will be sentenced to die by the action of an aberrant jury.\u2019 Greg v. Georgia, 428 U.S. 153, 206 (1976).\u201d Id. at 82, 301 S.E. 2d at 356. We reiterate our feeling that \u201cthe responsibility placed upon us by N.C.G.S. \u00a7 15A-2000(d)(2) to be as serious as any responsibility placed upon an appellate court.\u201d State v. Jackson, 309 N.C. 26, 46, 305 S.E. 2d 703, 717 (1983).\nThe proportionality review pool currently contains approximately twenty-three death sentence cases and seventy-six life sentence cases. Our review of these cases compels the finding that although the crime committed by this defendant was a senseless, unprovoked killing, \u201cit does not rise to the level of those murders in which we have approved the death sentence upon proportionality review.\u201d Id. E.g., State v. Craig & Anthony, 308 N.C. 446, 302 S.E. 2d 740, cert. denied, 464 U.S. 908, 78 L.Ed. 2d 247 (1983) (defendants took turns stabbing heavily intoxicated, utterly defenseless, woman inflicting thirty-seven wounds as she begged for her life); State v. McDougall, 308 N.C. 1, 301 S.E. 2d 308, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 173 (1983) (defendant kidnapped and attacked victim and her roommate, ultimately stabbing victim twenty-two times with a butcher knife); State v. Brown, 306 N.C. 151, 293 S.E. 2d 569 (defendant with no apparent motive fatally stabbed a young mother and her child, extensively mutilating their bodies); and State v. Pinch, 306 N.C. 1, 292 S.E. 2d 203, cert. denied, 459 U.S. 1056, 74 L.Ed. 2d 622 (1982) (at motorcycle clubhouse defendant shot to death two men, one of whom he had never seen before, because he \u201cdidn\u2019t have any use for people like that\u201d).\nFurthermore, it is particularly instructive to compare this case with those cases where the death sentence was upheld and N.C.G.S. \u00a7 15A-2000(e)(ll) was the only aggravating circumstance found by the jury. This \u201ccourse of conduct\u201d circumstance was the sole factor upon which the jury recommended the death penalty in State v. Williams, 305 N.C. 656, 292 S.E. 2d 243, cert. denied, 459 U.S. 1056, 74 L.Ed. 2d 622 (1982), and State v. Noland, 312 N.C. 1, 320 S.E. 2d 642. In Williams, defendant deliberately stalked two lone employees of business establishments in isolated areas during the early morning hours, robbed them at gunpoint, and shot them at very close range with a shotgun before fleeing with the money. Id. at 690, 292 S.E. 2d at 263. In Noland, defendant warned his estranged wife that if she did not come back to him he would kill her sister first and then her father and mother. Thereafter when his wife did not return to him, defendant entered his wife\u2019s sister\u2019s home and shot her in the back of the head as she huddled helplessly behind the laundry room door. Defendant then walked across the street into his wife\u2019s parents\u2019 home, fatally shot her father in the left eye while he slept, and wounded her mother. Id. at 4-6, 320 S.E. 2d at 645-46.\nAlthough any murder is a horrendous and reprehensible act, the slaying in this case does not contain the viciousness and the cruelty present in these cases. Rogers\u2019 crime on the other hand is more in line with those cases in which the jury has recommended a sentence of life imprisonment. Cf. State v. Adcock, 310 N.C. 1, 310 S.E. 2d 587 (defendant follows estranged wife from work and shoots her at the bottom of an exit ramp \u2014 same aggravating circumstance); and State v. Bare, 309 N.C. 122, 305 S.E. 2d 513 (1983) (defendant orders death of allegedly double-crossing drug dealer \u2014 different aggravating circumstances). See also State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837 (defendant shoots fellow drug dealer in Club Ebony after prior drug-related argument-vacated by this Court due to insufficient evidence to support the sole aggravating factor submitted to the jury; life sentence imposed).\nWe therefore hold as a matter of law that the death sentence imposed in this case is excessive and disproportionate. Defendant Rogers\u2019 death sentence is hereby vacated and defendant is sentenced to imprisonment for the remainder of his natural life. Defendant is entitled to credit for days spent in confinement prior to the date of this judgment.\nIV. Post Trial Motions\nIn their final assignments of error, defendant Rogers excepts to the signing and entry of the judgments against him, and defendant Carraway excepts to the trial court\u2019s refusal to set aside the verdict as being contrary to the weight of the evidence. A motion to set aside the jury\u2019s verdict lies within the discretion of the trial judge and is not reviewable absent a showing of abuse of that discretion. State v. Wilson, 313 N.C. 516, 330 S.E. 2d 450 (1985). Since the evidence was sufficient to support the jury\u2019s verdict, we hold that the trial court did not abuse its discretion in denying Carraway\u2019s motion. Furthermore, defendant Rogers\u2019 exception to the entry of judgment based on the same errors heretofore discussed is also without merit. We have found no prejudicial error in the guilt phase of either charge against him and he has failed to assign error to the sentence imposed against him for his assault conviction. Even though we have vacated his death sentence for proportionality reasons, the trial judge did not err by entering that judgment because he was bound to follow the jury\u2019s recommendation. N.C.G.S. \u00a7 15A-2000 (1983).\nNo. 83CRS15013 \u2014 Rogers \u2014 first degree murder \u2014no error in guilt phase; death sentence vacated and sentence of life imprisonment imposed.\nNo. 83CRS15013 \u2014 Rogers \u2014 assault with deadly weapon with intent to kill \u2014no error.\nNo. 83CRS15014 \u2014 Carraway \u2014 first degree murder \u2014no error.\nNo. 83CRS15014 \u2014 Carraway \u2014 assault with a deadly weapon with intent to kill \u2014new sentencing hearing.", "type": "majority", "author": "BRANCH, Chief Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by J. Michael Carpenter, Special Deputy Attorney General, for the State.", "Herbert B. Hulse, Attorney for defendant-appellant Rogers.", "Louis Jordan and Michael A. Ellis, Attorneys for defendant-appellant Carraway." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLES GENE ROGERS, aka \u201cDaddy Rich\u201d aka Charles Gene Paige and BELINDA JOYCE CARRAWAY\nNo. 165A84\n(Filed 2 April 1986)\n1. Criminal Law \u00a7 89.4\u2014 witness allegedly improperly influenced by officer \u2014 motion for pretrial investigation denied \u2014 no error\nThe trial court did not err in a prosecution for murder and assault by refusing defendant Carraway\u2019s pretrial motion requesting an internal investigation of whether a detective had caused the only eyewitness to the shooting to fabricate his account of the murder. Although the witness admitted telling defendant Carraway and her attorney that he had not seen the killing, defendant Carraway did not bring forth any evidence that tended to show that the detective had improperly influenced the witness and the detective was subjected to cross-examination concerning his alleged inappropriate behavior.\n2. Criminal Law \u00a7 75.4\u2014 waiver of rights \u2014 defendant sleepy and tired \u2014 statement admissible\nThe trial court did not err by denying defendant Carraway\u2019s motion to suppress statements made to FBI agents after her arrest in Maryland where 'the trial court found that defendant was advised of her rights when taken into custody; she did not request an attorney and voluntarily answered the agent\u2019s biographical questions; defendant closed her eyes during the ten-minute ride to the FBI office but appeared to be at all times in full command of her physical and mental faculties; defendant told agents upon her arrival at their office that she had been traveling with defendant Rogers for the past few months, that she owned a .44 caliber weapon, and that she did not know the victim; and defendant then exercised her right to an attorney and the interview stopped.\n3. Constitutional Law \u00a7 63; Jury \u00a7 7.11\u2014 death qualified jury \u2014 no error\nThe trial court did not err in a first degree murder prosecution by denying defendants\u2019 motions to prohibit the prosecution from death qualifying the jury.\n4. Jury \u00a7 7.14\u2014 peremptory challenge of black jurors allowed \u2014 no error\nThe trial court did not err in a first degree murder prosecution by denying defendants\u2019 motions to prohibit the State from peremptorily challenging black jurors. N.C.G.S. \u00a7 15A-1217.\n5. Criminal Law \u00a7 101.1; Jury \u00a7 7.14\u2014 exercise of peremptory challenge \u2014 no error\nThe trial court did not err in permitting the State to peremptorily challenge a black juror who had already been passed by the State and defendant where the State asked a black potential juror whether he or any member of his family had ever been charged with a serious offense; none of the jurors being questioned responded; the State tendered the juror to the defendants; defendants\u2019 motions to excuse the juror for cause were denied; defendants\u2019 peremptory challenges were unsuccessful because both defendants had exhausted all their peremptory challenges; the State obtained information before the jury was empaneled that the juror\u2019s two sons had been convicted of shoplifting and felonious breaking and entering; the information was verified at a hearing; and the State exercised one of its peremptory challenges to remove the juror. The trial court did not abuse its discretion in reopening the voir dire examination of the juror and the State was entitled to exercise one of its remaining peremptory challenges. N.C.G.S. 15A-1214(g).\n6. Jury \u00a7 7.14\u2014 motion for additional peremptory challenges denied \u2014 no error\nThere was no error in a murder and assault prosecution where the court denied defendant Carraway\u2019s motion for an additional peremptory challenge after the State exercised a peremptory challenge to remove a juror and defendant argued that she was therefore prevented from having the removal reviewed on appeal. The use of a peremptory challenge by one party does not unfairly prejudice the opposing party\u2019s position in the jury selection process. N.C.G.S. 15A-1217(a).\n7. Jury \u00a7 6\u2014 individual voir dire denied \u2014 no error\nThe trial court did not abuse its discretion in a murder and assault prosecution by denying defendants\u2019 motion for an individual voir dire and separation of potential jurors. The argument that prospective jurors in a capital case are improperly influenced by repetitious questions concerning capital punishment is speculative.\n8. Jury \u00a7 6.4\u2014 capital punishment \u2014 court\u2019s questions to potential juror \u2014 no error\nThe trial court did not improperly question a potential juror during voir dire for a first degree murder prosecution where the court\u2019s questions were an attempt to clarify the juror\u2019s position on the issue of capital punishment.\n9. Jury \u00a7 6\u2014 voir dire \u2014 order of examination \u2014 no error\nDefendant Carraway was not denied her right to examine a full panel of prospective jurors where her voir dire examination followed the State\u2019s and the codefendant\u2019s examinations. Defendant still had the right to exercise her fourteen peremptory challenges and to exercise her right to challenge for cause. N.C.G.S. 15A-1214.\n10. Jury \u00a7 7.11\u2014 nondeath qualifying questions \u2014 not allowed \u2014no error\nThe trial court did not abuse its discretion in a first degree murder prosecution by refusing to ask prospective jurors during voir dire nondeath qualifying questions to counter the State\u2019s death qualifying questions.\n11. Jury \u00a7 6.2\u2014 voir dire examination \u2014use of fully satisfied and entirely convinced \u2014 no error\nThe trial court in a murder and assault prosecution properly overruled defendant\u2019s objection to the State using \"fully satisfied and entirely convinced\u201d instead of \u201creasonable doubt\u201d in its questions to prospective jurors because the N. C. Pattern Jury Instructions for criminal cases define reasonable doubt in those terms. N.C.P.I.-Crim. 101.10.\n12. Jury \u00a7 6.3\u2014 voir dire examination \u2014 question as to effect of number of witnesses \u2014 not allowed \u2014 no error\nThe trial court did not err by sustaining objections to defendant\u2019s questions asking prospective jurors whether the fact that she called fewer witnesses than the State would make a difference in their decision. Hypothetical questions which attempt to stake out a juror\u2019s future course of action are improper.\n13. Criminal Law \u00a7 103\u2014 murder and assault \u2014 conflicts in evidence \u2014 jury question\nThe trial court did not err in a murder and assault prosecution by allowing a police captain to testify that the eyewitness\u2019s car was parked at the murder scene between 11:15 p.m. and 3:30 a.m. on the night of the shooting even though the State\u2019s other witnesses did not remember seeing the car. Contradictions in the evidence are matters for the jury to resolve.\n14. Criminal Law \u00a7 99.2\u2014 voir dire on admissibility of identification \u2014 questions by court \u2014 no error\nThe trial court did not err during a voir dire to determine the admissibility of identification by directing a series of questions to the witness. N.C.G.S. 15A-1222 does not apply when the jury is not present during questioning and it is evident from the record that the witness had difficulty understanding some of the prosecution\u2019s questions and answering clearly.\n15. Criminal Law 8 66\u2014 in-court identification \u2014 contrary statement prior to trial-identification admissible\nThe trial court did not err in a murder and assault prosecution by allowing an in-court identification even though the witness had made a contrary statement prior to trial because the in-court testimony was consistent and in accordance with the first statement to police.\n16. Criminal Law 8 89\u2014 eyewitness testimony \u2014admissible\nThe trial court did not err in a murder and assault prosecution by not striking ea; mero motu the entire testimony of the only eyewitness on the grounds that it lacked credibility where the witness related the murder as he saw it and his testimony was corroborated in several respects. Moreover, a prior inconsistent statement and seemingly questionable portions of his testimony were matters bearing on the weight of the testimony, not its admissibility.\n17. Criminal Law 88 66.20, 73.2\u2014 identification of defendant as man pointed out as murderer \u2014 admissible\nThe trial court did not err in a prosecution for murder and assault by admitting the identification testimony of a witness who saw one defendant several times the night of the murder and who was told that defendant was the man who was supposed to have shot the victim. The court\u2019s findings were supported by competent evidence and are thus binding on appeal, and the statement that defendant was supposed to have shot the victim, though improperly admitted to corroborate the testimony of the person making the statement, was admissible to explain the witness\u2019s subsequent conduct.\n18. Criminal Law \u00a7 43.2\u2014 photographs of scene \u2014properly admitted\nThe trial court did not err in an assault and murder prosecution by admitting photographs offered by the State where a witness testified that the photographs fairly and accurately represented the crime scene on the night of the murder even though defendant claimed the photographs were taken at a different time and under different weather conditions from the night of the murder; the absence of a car which another witness claimed had been parked at the murder scene was not a basis for holding as error the admission of the photographs; a photograph of the alleged intended victim introduced to illustrate testimony was relevant; and the court did not err by instructing the jury on differences in photographs of the crime scene taken five months later and the crime scene on the night of the murder.\n19. Criminal Law \u00a7 33.3\u2014 murder and assault \u2014 evidence about intended victim \u2014 relevant\nThe trial court did not err in a first degree murder prosecution by allowing an officer to testify that he had unsuccessfully searched for the alleged intended victim to serve a subpoena, or by allowing another witness to testify that the alleged intended victim had not returned to his barbershop for work and had been seen only one time thereafter. It was both relevant and proper to explain why a prominent character in the State\u2019s theory of the case was not present at trial.\n20. Criminal Law \u00a7 99.7 \u2014 court\u2019s failure to admonish witness about joke \u2014no error\nThe trial court in a first degree murder trial did not err by not instructing an officer not to make jokes on the witness stand where the court felt that the officer\u2019s answer had been responsive to the State\u2019s questions and that the resulting laughter was accidental, and stated that he would admonish the witness if he made a joke.\n21. Criminal Law \u00a7 113.6\u2014 charge that evidence should be considered against one defendant \u2014 immediate correction \u2014no error\nThe trial court did not improperly express an opinion in a murder prosecution and defendant\u2019s motion for a mistrial was properly denied where the court instructed the jury that some of the evidence should be considered against one defendant and not the other, then corrected the instruction to say that the evidence should only be considered in one defendant\u2019s case. Any possible error in the phrasing of the first instruction was cured by the immediate explanatory instruction. N.C.G.S. 15A-1222.\n22. Criminal Law \u00a7 42.4\u2014 testimony that defendant seen with pistol \u2014same kind used in shooting \u2014 admissible\nThe trial court did not err in an assault and murder prosecution by allowing the witness to testify that he had seen one defendant with the kind of pistol used in the shooting several times in the months before the shooting. It was clearly relevant to the State\u2019s theory of the case that defendant Carraway possessed a .44 caliber pistol and that defendant Rogers had been seen with her pistol.\n23. Criminal Law \u00a7 42.4\u2014 assault and murder \u2014 whether alleged intended victim had ever been seen with gun \u2014 not admissible\nThe trial court did not err in an assault and murder prosecution by sustaining the State\u2019s objections to one defendant\u2019s question asking whether the witness had ever seen the alleged intended victim with the gun. Defendant\u2019s questions included no time reference to show relevancy to the case, and defendant was allowed to pose a rephrased question seeking the same information.\n24. Criminal Law \u00a7 102.4\u2014 counsel\u2019s comment on evidentiary ruling \u2014 no instruction \u2014 no error\nThe trial court did not err in an assault and murder prosecution by failing to instruct the jury about the prosecutor\u2019s comment that the court was free to sustain defendant\u2019s objection because he had already made his point by asking the question where the comment was made during a bench conference out of the hearing of the jury.\n25. Homicide \u00a7 21.1; Assault and Battery \u00a7 14.2\u2014 assault and murder \u2014 evidence sufficient\nThe trial court did not err by failing to dismiss charges of murder and assault for insufficient evidence where the eyewitness testimony, when taken with other corroborative evidence offered by the State, was sufficient substantial evidence from which the jury could reasonably infer that defendant Rogers as principal and defendant Carraway as an aider or abettor committed the first degree murder of Charles Hall and the assault with a deadly weapon with intent to kill of George Edwards.\n26. Criminal Law \u00a7 113.1\u2014 assault and murder \u2014 State\u2019s closing argument \u2014 no error\nThe trial court did not err in a prosecution for assault and murder by not instructing the jury to disregard portions of the State\u2019s closing argument where all of the contested statements had a basis in evidence presented at trial and the court twice within the State\u2019s argument reminded the jury that they should be guided by their own recollection of the evidence and not counsel\u2019s rendition.\n27. Criminal Law \u00a7 102.6\u2014 assault and murder \u2014 defendant\u2019s closing argument\u2014 State\u2019s objection properly sustained\nThe trial court did not err in an assault and murder prosecution by sustaining the State\u2019s objection to defense counsel asking the jury during closing argument if they would like to be convicted on the eyewitness\u2019s testimony after defense counsel had highlighted contradictions and inconsistencies in the eyewitness\u2019s testimony. The trial judge properly exercised his discretion by preventing defense counsel from suggesting that the jurors reach their verdict by placing themselves in defendant Rogers\u2019 position rather than by deciding the case from the facts and inferences which could be drawn from the evidence.\n28. Criminal Law \u00a7 138.29\u2014 finding in aggravation \u2014 perjury\u2014error\nThe trial court erred when sentencing defendant Carraway for assault with a deadly weapon with intent to kill by finding in aggravation that defendant Carraway had committed perjury and that defendant had entered into a conspiracy where the court\u2019s finding of perjury was not supported by a preponderance of the evidence and where there was no evidence that defendants had conspired to carry out the crimes for which they were convicted.\n29. Criminal Law \u00a7 135\u2014 capital sentencing \u2014 jury argument \u2014no error\nThe trial court did not abuse its discretion by not correcting the State\u2019s argument in the capital sentencing portion of a murder trial where the State argued that the intended victim was someone other than the actual victim, and referred to biblical passages that encouraged Christians to obey the law.\n30. Criminal Law \u00a7 135.8\u2014 murder \u2014course of conduct aggravating circumstance \u2014 evidence sufficient\nThe trial court in a murder prosecution properly submitted the course of conduct aggravating factor to the jury and properly denied defendant Rogers\u2019 later motion to set aside the jury\u2019s finding of this aggravating circumstance where the State presented substantial evidence that defendant Rogers fired his weapon at George Edwards after killing Charles Hall and the jury, by returning guilty verdicts, had found beyond a reasonable doubt that defendant Rogers had committed Hall\u2019s murder and the assault against Edwards. N.C.G.S. 15A-2000(e)(ll).\n31. Criminal Law \u00a7 135.10\u2014 murder \u2014 death sentence disproportionate\nThe death sentence imposed in a first degree murder prosecution was excessive and disproportionate where defendant\u2019s crime did not rise to the level of those murders in which the death sentence was approved upon proportionality review and the slaying in this case did not contain the viciousness and cruelty present in other cases in which the only aggravating circumstance was course of conduct. N.C.G.S. 15A-2000(d)(2).\n32. Criminal Law \u00a7 135.10\u2014 murder \u2014death sentence \u2014 judgment signed and entered \u2014 no error\nThe trial court did not err in a prosecution for assault and murder by signing and entering judgments against defendant Rogers or by denying defendant Carraway\u2019s motion to set aside the verdict where the evidence was sufficient to support the verdict against defendant Carraway, there was no prejudicial error in the guilt phase of either charge against Rogers, defendant Rogers did not assign error to the sentence imposed against him for assault, and even though the death sentence was vacated, the trial judge was bound to follow the jury\u2019s recommendation and did not err by entering judgment. N.C.G.S. 15A-2000.\nAPPEAL as of right by each defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from judgments entered by Small, J., at the 5 March 1984 Criminal Session of WAYNE County Superior Court. Defendants\u2019 motions to bypass the North Carolina Court of Appeals on the non-Class A felonies were allowed on 22 June 1984 as to defendant Rogers and on 16 August 1984 as to defendant Carraway.\nDefendants were charged in indictments, proper in form, with first degree murder and assault with a deadly weapon with intent to kill.\nThe State\u2019s evidence during the guilt-innocence phase of this bifurcated trial tended to show that Charles Thurman Hall was fatally shot shortly after midnight on 21 September 1983 in an apartment building parking lot at 611 East Elm Street in Goldsboro.\nState\u2019s witness Captain Floyd Hobbs of the Goldsboro Police Department responded to the call concerning the East Elm Street shooting at 12:07 a.m. He proceeded to 611 East Elm Street and found the victim, Charles Hall, lying in the parking lot behind a pickup truck parked in front of Apartment 611-A. Captain Hobbs stated that the 611 East Elm Street apartment building is a two-story brick building containing four separate apartments. These apartments are fronted by a large parking area which adjoins Elm Street. Apartment 611-A is the westernmost apartment. The western boundary of the apartment parking lot is marked off by a chain link fence. Apartment 611-D is located on the eastern side of the apartment building. Washington\u2019s Shoe Shop is located in the extreme eastern portion of the parking lot. Across Elm Street immediately behind a small gas station, there is a larger building which houses, among other tenants, the Pink Panther Lounge. Captain Hobbs noted that to the left of the pickup truck, beside the fence, there was an automobile and to the right of the truck, in front of Apartment 611-B, a yellow Lincoln Continental was parked. Hobbs observed a bullet hole in the trunk lid of the Lincoln and a bullet fragment lying near its flat left front tire. Goldsboro Police Identification Officer Andrew Pinto testified that he removed the Continental\u2019s left front tire and found what appeared to be a bullet fragment inside.\nJeffrey Dekeyser, testifying for the State, related that on 20 September 1983 between 11:00 and 11:15 p.m. he drove his car to Blondie Coley\u2019s apartment to attend a party. Ms. Coley resided in Apartment 611-A East Elm Street. Dekeyser stated that he parked his car in front of Apartment 611-A between the fence and the pickup truck. When he arrived, several people were standing outside the front door of Ms. Coley\u2019s apartment. Dekeyser testified that after parking his car he walked behind the apartment building to Ms. Coley\u2019s back door. He found more people socializing outside that door. Dekeyser managed to walk just inside the back door but decided to go back outside after seeing the crowd within. While standing in the doorway, Dekeyser saw George Edwards and Charles Hall near the front door making their way outside.\nDekeyser testified that he then walked to the front of the apartment and stood at the southwest corner of the building. He noticed Edwards and Hall talking to each other while standing in the parking lot a few feet behind the pickup truck parked in front of 611-A. Shortly thereafter, Dekeyser observed a 1983 white Cougar turn off Elm Street and pull into the parking lot. When the car stopped and the passenger door opened, the interior light came on enabling Dekeyser to recognize defendant Carraway as the driver of the car and defendant Rogers as the passenger who was leaving the vehicle. Rogers stood up, pulled his coat back, and walked around the rear of the car towards Hall and Edwards. Rogers walked to within three or four feet of the two men and spoke to them. Dekeyser testified that Hall, by his hand movements, looked as if he were trying to explain something to Rogers. Dekeyser stated that \u201cthen, just like out of nowhere,\u201d he saw Rogers pull out a large caliber pistol and begin to shoot.\nWhen the first shot was fired Hall fell to the ground, and as Edwards ran between the pickup truck and the Continental a second shot was fired. At this point the witness Dekeyser ran behind the apartment building through a broken place in the fence to a carwash located on the west side of the apartment building. He there observed the Cougar going west on Elm Street. Dekeyser also testified that he heard a total of three shots fired.\nSBI firearms expert James H. Evans testified that he performed tests on the bullet removed from the back seat of the Continental and the bullet found at the scene by an investigating officer. Agent Evans found both bullets to be .44 caliber jacketed hollow-point bullets and concluded that both bullets were fired from the same firearm. Sergeant C. E. Boltinhouse of the Goldsboro Police Department testified that after defendant Carraway had been arrested and released on bond she reported a .44 caliber magnum pistol missing from her house.\nThe State produced other evidence tending to show that Rogers and Edwards had argued on several previous occasions and that Rogers had physically threatened Edwards on one of those occasions at Edwards\u2019 Barber Shop. The State also offered evidence which revealed that Rogers had been looking for Edwards at the Pink Panther Lounge prior to the shooting and had continued to look for Edwards after the shooting. The State\u2019s case went to the jury on the theory that Rogers, with Carraway\u2019s knowing assistance, mistakenly shot Hall while attempting to murder Edwards.\nBoth defendants testified in their own defense. Defendant Carraway stated that on 20 September 1983 she and defendant Rogers returned to Goldsboro from Wilmington. That evening, they left her 201 North George Street residence to buy some items for a sick friend. They drove first to the Jazz-Mo Club to talk with Carraway\u2019s mother who worked there. Outside the Club, Carraway bought a .357 magnum pistol from Buster King because he was selling it for a good price. Without going inside to speak to her mother, Carraway then left and rode with Rogers to a grocery store where she bought some honey and lemon for her friend.\nThey thereafter proceeded to the service station located next to the Pink Panther Lounge to put some air in one of the Cougar\u2019s tires. Upon finding the station closed, Rogers drove the Cougar to the 611 East Elm Street parking lot and parked near Apartment 611-C beside the Continental. Rogers got out of the car which he had backed into a parking space and walked around the car, opening Carraway\u2019s door. Rogers and Carraway had started back towards the Pink Panther Lounge when Edwards approached Rogers and asked for a loan of money. When Rogers refused, Hall appeared and stated: \u201cMan if you\u2019ve got any sense you\u2019ll give him all your money.\u201d When Rogers refused again, Hall pulled out a gun and began shooting. Carraway testified that the first shot hit the Continental and that she and Rogers ducked in between the Continental and the Cougar. Carraway stated that she heard a second shot fired and at that point reached into her pocketbook and pulled out her recently purchased .357 magnum. Carraway testified that she fired the weapon, then ran out of the parking lot towards Elm Street. At that time, she did not know whether she had hit Hall. Rogers then slipped into the Cougar and picked Carraway up on Elm Street. The couple returned to her residence and left for Myrtle Beach where they intended to be married.\nBy his testimony defendant Rogers substantially corroborated Carraway\u2019s story. He explained that he parked the car at 611-C because he did not want it to get scratched while they briefly went into the Pink Panther Lounge for a beer. Rogers also denied arguing with George Edwards at his barbershop or looking for Edwards on the night before and the morning after the shooting.\nDefendants also offered the testimony of Jeffrey Fennell who stated that at approximately 8:30 or 9:30 p.m. on 20 September 1983 he was at Ed Lewis\u2019s house with George Edwards and Charles Hall. He testified that Charles Hall was \u201cacting wild\u201d and had a weapon in his belt.\nBoth the State and defendants presented evidence on rebuttal. At the conclusion of all the testimony, and after counsel\u2019s closing arguments and the trial court\u2019s instructions to the jury, the case was submitted to the jury. The jury returned verdicts finding both defendants guilty of the first degree murder of Charles Hall and guilty of assault with a deadly weapon with intent to kill George Edwards.\nAt the sentencing phase of the trial, the court submitted the following aggravating circumstance against each defendant for the jury\u2019s consideration: the murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons. N.C.G.S. \u00a7 15A-2000(e)(ll) (1983). The court also submitted to the jury two mitigating factors for defendant Rogers and eight mitigating factors for defendant Carraway. The jury retired and after due deliberation, returned a recommendation of death as to defendant Rogers and life imprisonment for defendant Carraway for the murder of Charles Hall. The court imposed judgments accordingly and further imposed a ten year sentence for defendants\u2019 assault convictions to run consecutively with the sentences imposed for the murder.\nOn appeal, each defendant has brought forward numerous assignments of error. When possible, similar assignments will be discussed together.\nLacy H. Thornburg, Attorney General, by J. Michael Carpenter, Special Deputy Attorney General, for the State.\nHerbert B. Hulse, Attorney for defendant-appellant Rogers.\nLouis Jordan and Michael A. Ellis, Attorneys for defendant-appellant Carraway." }, "file_name": "0203-01", "first_page_order": 231, "last_page_order": 265 }