{ "id": 5306539, "name": "STATE OF NORTH CAROLINA v. JERRY LYNN KING", "name_abbreviation": "State v. King", "decision_date": "1990-06-13", "docket_number": "No. 533A89", "first_page": "662", "last_page": "676", "citations": [ { "type": "official", "cite": "326 N.C. 662" } ], "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": "319 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686205 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0465-01" ] }, { "cite": "333 S.E.2d 722", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "728" } ], "opinion_index": 0 }, { "cite": "314 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686122 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0374-01" ] }, { "cite": "250 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565526 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0236-01" ] }, { "cite": "334 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "314 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694660 ], "year": 1985, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0359-01" ] }, { "cite": "304 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705739 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0634-01" ] }, { "cite": "369 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518417 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0487-01" ] }, { "cite": "85 L. Ed. 2d 169", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "471 U.S. 1009", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6232119 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/1009-01" ] }, { "cite": "322 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759870 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0092-01" ] }, { "cite": "187 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573092 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0622-01" ] }, { "cite": "371 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "695" } ], "opinion_index": 0 }, { "cite": "323 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562327 ], "year": 1988, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0112-01" ] }, { "cite": "84 L. Ed. 2d 369", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "469 U.S. 1230", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12108826, 12108839 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/469/1230-01", "/us/469/1230-02" ] }, { "cite": "319 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680504 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0489-01" ] }, { "cite": "229 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557891 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0264-01" ] }, { "cite": "49 L. Ed. 2d 1211", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 904", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184738, 6185094, 6184392, 6185357, 6183598, 6183984, 6185553, 6184594, 6184179, 6183446, 6184922, 6183803 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0904-08", "/us/428/0904-10", "/us/428/0904-06", "/us/428/0904-11", "/us/428/0904-02", "/us/428/0904-04", "/us/428/0904-12", "/us/428/0904-07", "/us/428/0904-05", "/us/428/0904-01", "/us/428/0904-09", "/us/428/0904-03" ] }, { "cite": "221 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567547 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0186-01" ] } ], "analysis": { "cardinality": 1294, "char_count": 32059, "ocr_confidence": 0.748, "pagerank": { "raw": 1.5838948683684178e-07, "percentile": 0.6808557178430094 }, "sha256": "027716d2ef24c90e7146496beef1d4979f47bdbe4424b66fe2b2c48b8a29b18c", "simhash": "1:a16af43214370836", "word_count": 5308 }, "last_updated": "2023-07-14T18:38:26.587833+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JERRY LYNN KING" ], "opinions": [ { "text": "MEYER, Justice.\nOn 9 May 1988, defendant was indicted for first-degree burglary, robbery with a deadly weapon, and first-degree murder in the stabbing death of Nancy Brown Covington on 18 August 1986. The offenses were joined for trial on 28 April 1989, and the case was tried before a jury at the 29 May 1989 Criminal Session of Superior Court, Catawba County, Judge Robert M. Burroughs presiding. The jury found defendant guilty of first-degree murder on theories of premeditation and deliberation and of felony murder, guilty of first-degree burglary, and guilty of armed robbery. During the sentencing phase, the jury found that the mitigating circumstances found were sufficient to outweigh the aggravating circumstances found and accordingly recommended a sentence of life imprisonment. The trial judge, following the jury\u2019s recommendation, sentenced defendant to life imprisonment for the murder and additionally sentenced defendant to life imprisonment for the burglary and forty years for the robbery, each sentence to run consecutively. On appeal, defendant brings forward six assignments of error. After a thorough review of the transcript, record, briefs, and oral arguments we conclude that defendant received a fair trial free of prejudicial error.\nThe State\u2019s evidence tended to show that the victim, Nancy Brown Covington, was a sixty-six-year-old black woman who lived in a mobile home in Hickory, North Carolina. Mrs. Covington lived alone, but every day her niece visited her to make sure she was all right. On Sunday, 17 August 1986, Mrs. Covington\u2019s niece checked on her around 7:00 p.m. The next morning, at approximately 6:15 a.m., she again stopped by the house, accompanied by Mrs. Covington\u2019s sister. The front door was locked, and the two were unable to get any response from inside; so they crawled into the house through a window next to the front door. They found Mrs. Covington\u2019s body lying on the floor of the master bedroom.\nRobert Melton, a special agent of the State Bureau of Investigation, processed the crime scene. On the exterior of the residence, he noted an L-shaped cut in the south bedroom window screen. The sharp edges of the cut suggested that it had been done recently. A fifty-five-gallon barrel under the window appeared to have been moved recently. Upon examination of the window from the inside, Agent Melton noted that there was undisturbed dust and dirt on the bottom of the window frame; however, there was an area on the top of the frame where the dust and dirt had been wiped away. The agent observed pry marks on the rear door of the home and noted that the door\u2019s interior curtains were partially hanging outside of the door.\nInside the mobile home, nothing appeared disturbed with the exception of the victim\u2019s bedroom. Agent Melton found Mrs. Covington\u2019s body lying on her right side on the floor beside her bed. The bedroom had been ransacked, and various items had been placed on the bed, including a sewing kit, a small orange-handled screwdriver, a leather handgun holster, and various religious and medical papers. Investigators discovered blood only in the bedroom and on a knife which was located under the kitchen sink. All of the blood was consistent with the victim\u2019s blood type.\nAgent Melton took twenty-six latent print impressions from various areas of the home. The fingerprint examiner testified that, of those prints, only seven proved valuable for identification purposes. All seven prints belonged to the victim.\nAnother agent testified that two head hairs found on a pillow from the bed were consistent with samples from the victim and that of seven hairs found on the comforter, six hairs were consistent with the victim\u2019s hair and one was not consistent with either defendant or the victim. Hairs taken from the bottom bed sheet and from the victim\u2019s left hand were also consistent with the victim\u2019s head hair. An expert in fiber comparison testified that State\u2019s Exhibit 17, a taping from the south bedroom window, contained several black cotton fibers and one dark brown triacetate fiber. The expert testified that triacetate fibers are commonly found in women\u2019s lingerie items and in jacket linings. Cotton fibers are typically found in many types of clothing.\nThe pathologist who performed the autopsy testified that he observed thirty-five knife wounds on the victim\u2019s body, one of which severed her jugular vein. He further testified that he believed the time of death was in the early morning hours of 18 August 1986.\nA neighbor, Gail Springs, testified that defendant came to her house around midnight on the night of the murder and borrowed a screwdriver, which he never returned.\nHerbert Thompson testified for the State under a grant of immunity. He testified that on 18 August 1986, defendant woke him up at a friend\u2019s house around 3:00 a.m. and asked Thompson to take him to defendant\u2019s mother\u2019s house to obtain some items to trade for cocaine. Thompson drove defendant to his mother\u2019s house, which was located just a few yards in front of the victim\u2019s mobile home. Thompson parked in front of defendant\u2019s mother\u2019s residence and observed defendant as he went inside. Ten to fifteen minutes later, Thompson observed defendant come from around the side of his mother\u2019s residence carrying something under a black jacket. Defendant got into the car and told Thompson to keep the headlights off as he backed the car out of the driveway. The two drove to Larry Saunders\u2019 home, where Thompson let defendant out of the car. About five minutes later, defendant joined Thompson and another acquaintance at a neighboring house, and the three of them \u201cmainlined\u201d the cocaine. Thompson took defendant to his brother\u2019s house at approximately 4:30 a.m.\nThe victim\u2019s niece testified that she had been raised by Mrs. Covington since the age of four, when her parents died. She knew the defendant had known the victim for fifteen years because he lived with his mother in a house just a few yards from the victim\u2019s home. She testified that defendant had been in the victim\u2019s home before. She further testified that Mrs. Covington kept much of her jewelry in a white jewelry box on top of her bedroom dresser. After the murder, the jewelry box was missing. She identified State\u2019s Exhibit 41 as being a ring just like one the victim owned and which the niece had been unable to locate after the murder. It was described by the prosecutor as a gold band with a pink star sapphire stone. Additionally, she testified that the victim owned a small handgun which she kept in a compartment at the head of her bed. After the murder, the gun was missing, but its leather holster was found on the bed. Finally, the niece testified that she did not recall pry marks found on the rear door being there prior to the murder.\nRonald Wilfong and Josephine Fredericks both identified State\u2019s Exhibit 41 as being a ring Wilfong had bought from defendant and had given to Fredericks.\nDetective Steve Hunt of the Hickory Police Department testified that around 21 August 1986, defendant became a suspect in the Covington murder, and a warrant was issued charging him with the crime. Defendant learned of the existence of the warrant from his brother and voluntarily turned himself in to the authorities. He gave a statement to the police to the effect that he was with Thompson in the early morning hours of 18 August 1986 and that after leaving Thompson, he went to his mother\u2019s house, where he spent the rest of the night. He denied having borrowed a screwdriver from Gail Springs on the night of the murder, but he admitted that he was shooting up drugs and selling them. Defendant was arrested and placed in the Catawba County jail.\nWhile in jail, defendant was housed with witnesses Robert Lowe, Charles Stokes, Douglas Silva, and Charles Littman. Lowe testified that sometime around November of 1986, he spoke with defendant and asked if \u201che [the defendant] was the one that they were suspected [sic] in the murder investigation.\u201d Defendant responded affirmatively, adding, \u201cthey ain\u2019t got no evidence on me and I ain\u2019t saying nothing.\u201d\nStokes testified that defendant told him in September 1986 that he had \u201cbroke into this lady\u2019s house, or broke in somebody\u2019s house and he was on drugs, and . . . was wanting some money to get him some drugs with, and there was somebody in the house, and he said he killed her, stabbed her with a knife.\u201d Stokes further testified that defendant said that because the victim recognized him, he stabbed her so that she would not be able to identify him. On cross-examination, Stokes testified that defendant told him he got a \u201cheater\u201d from the victim. He assumed that defendant meant a portable household heater; however, he acknowledged that the term \u201cheater\u201d is also a slang term for a gun.\nSilva testified that sometime after November 1986, he was playing cards with defendant and asked defendant how he could kill a seventy-year-old woman. Defendant replied that \u201che had [to], she would not let him rob her, she struggled, she ripped off his mask, she saw who he was so he had to do it.\u201d Defendant also told Silva he had stolen jewelry from the victim and felt that he would escape the charges because the police had someone else under investigation.\nLittman testified that in the fall of 1986, he and defendant discussed the Covington murder, and defendant told him he had killed Mrs. Covington because he broke in, she knew him, and he had to kill her. Littman testified that defendant said he was using drugs at the time and traded what he had obtained from the victim to a drug dealer named Larry Saunders in exchange for cocaine.\nDefendant presented no evidence at trial.\nIn his first assignment of error, defendant contends that the trial court erred in failing to grant his motion for change of venue. In that motion, defendant stated in support of his position that \u201ca feeling of racial injustice has been loudly voiced by several civic and religious leaders in the black community through the news media, wherein an atmosphere has been created that may influence a jury to convict the Defendant, not because of the evidence against him, but rather to ease racial tensions.\u201d A number of assaults on elderly black women had occurred in the weeks prior to the murder of Nancy Covington, who was herself a sixty-six-year-old black woman who lived alone. Five months prior to her murder, another woman had been murdered under similar circumstances. The two murders and the other attacks which had taken place created a great deal of community concern. As a result, the media ran numerous stories about the ensuing investigations of the two murders, including the prosecution of a suspect in the earlier murder, a proceeding which ended in a mistrial. The State ultimately accepted a guilty plea from that defendant in exchange for a reduced charge of second-degree murder. The media also focused on the efforts being made to combat the area\u2019s perceived drug problem, which was assigned as the reason for the wave of assaults.\nOnce defendant was suspected by the authorities as being involved in the Covington murder, the media began to run stories naming defendant as the perpetrator of the crime. One story included a photograph which depicted defendant being escorted by police officers while in handcuffs and shackles.\nDefendant contends that the totality of these circumstances indicates that the jury could not help but be exposed to negative prejudicial publicity about the case that would in turn taint their opinion of defendant. Defendant concludes that the trial judge therefore abused his discretion in failing to grant defendant\u2019s motion for change of venue. We disagree.\nJudge Forrest A. Ferrell conducted a pretrial hearing on the motion on 12 August 1988. In support of the motion, defendant presented copies of the newspaper accounts which had covered the story. To prove excessive word-of-mouth publicity, defendant offered the testimony of Reverend Webster E. Lytle, pastor of the victim\u2019s church and a member of the Hickory City Council. Lytle testified that five or six members of the church\u2019s six-hundred-member congregation had expressed concern about the murder of the victim, who was a popular and involved member of the church. Lytle further testified, however, that none of these persons had formed an opinion as to defendant\u2019s guilt or innocence. There was no one, to Lytle\u2019s knowledge, who had formed a fixed opinion that defendant was the person .responsible for the killing. Lytle also stated that he did not consider the newspaper accounts to be inflammatory. The victim\u2019s community was known as the Ridgeview area and, according to Lytle, has a population of approximately 3,000 persons. Lytle testified that approximately 26,000 people live within the corporate limits of the Town of Hickory and that Catawba County has a population of over 100,000.\nAt the conclusion of defendant\u2019s evidentiary showing, Judge Ferrell denied the motion, stating the following as his reasoning:\nI think you\u2019ve established that there may be sufficient public interest in the case in the Hickory area and limited primarily to the Ridgeview community. This doesn\u2019t necessarily mean that there\u2019s been established a prejudice against the defendant but you\u2019ve shown that there is at least an interest and justifiably so in that \u2014 in the nature of the articles you\u2019ve presented to the Court. This doesn\u2019t, however, mean that there\u2019s been any . . . showing of prejudice against the defendant in the county at large, in the body of the county. Now, I can not conclude from your showing that such exists.\nThe trial judge went on to say that if pretrial publicity became a problem at any time during the course of the trial, defendant was free to reopen the venue issue or to request a special venire.\nThe relevant statute, N.C.G.S. \u00a7 15A-957, provides in part as follows:\nIf, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either:\n(1) Transfer the proceeding to another \u25a0 county ... , or\n(2) Order a special venire ....\nN.C.G.S. \u00a7 15A-957 (1988).\nA motion for change of venue or for a special venire from another county on grounds of the prominence of the victim and inflammatory publicity is addressed to the sound discretion of the trial judge, and the defendant must demonstrate an abuse of discretion before this Court will determine that the ruling was in error. State v. Harrill, 289 N.C. 186, 221 S.E.2d 325, death sentence vacated, 428 U.S. 904, 49 L. Ed. 2d 1211 (1976). The burden of showing \u201cso great a prejudice against the defendant that he cannot obtain a fair and impartial trial\u201d falls on the defendant. State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976).\nWe have analyzed the record in this case, particularly focusing our attention on Reverend Lytle\u2019s testimony and on the newspaper articles submitted for our review. Reverend Lytle\u2019s testimony that five or six persons in his congregation expressed concern was not sufficient evidence to establish pervasive word-of-mouth publicity. In. fact, Lytle went out of his way to express his opinion that he and each of the persons he had talked with had maintained an open mind about the defendant\u2019s involvement. While the media coverage of these murders was somewhat extensive, it was not excessive. The articles are factual accounts of the events that were taking place. We are not convinced that the evidence presented by defendant established a prejudice so great that he could not obtain a fair and impartial trial.\nFurthermore, this Court has required that a defendant specifically identify prejudice among the jurors selected before he is entitled to a new trial based upon the failure of the trial court to grant a motion for change of venue. The defendant must demonstrate that it is reasonably likely that prospective jurors would base their decision in the case upon pretrial information, either through the media or by word of mouth, rather than upon the evidence presented at trial, and would therefore be unable to remove from their minds any preconceived impressions they might have formed. State v. Gardner, 311 N.C. 489, 319 S.E.2d 591 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 369 (1985). \u201c[W]here a defendant does not show that he exhausted his peremptory challenges or that jurors had prior knowledge of the case, he fails to carry the burden of establishing prejudice.\u201d State v. Harris, 323 N.C. 112, 121, 371 S.E.2d 689, 695 (1988). In the case.at bar, defendant did not request that jury selection be transcribed in order to be included in the record. The record does not reflect how many peremptory challenges defendant used. Defendant did not make any showing that there were any problems in jury selection involving pretrial publicity. Defendant has therefore failed to carry his burden of establishing prejudice.\nWe additionally note that the transcript reveals that the trial judge satisfied himself that excessive publicity was not a problem before he impaneled the jury. He informed counsel that he planned to ask the jurors \u201cif anything has been in the media about the case,\u201d and posed this question to counsel. Defendant\u2019s attorney answered, \u201cJust a very limited amount. And the Hickory Daily Record said the trial would start today.\u201d The trial judge then asked the jury, \u201cAnybody read anything or see anything or hear anything about this case since you\u2019be [sic] been selected? All 15 of you.\u201d The transcript reveals that all of the jurors answered in the negative. We conclude that this assignment of error is without merit.\nDefendant next assigns error to the trial court\u2019s denial of his motion to prohibit jury dispersal, the text of which reads as follows:\nNOW COMES the Defendant and moves the Court that the jurors in the above-styled case shall not be allowed to disperse but shall remain together throughout the proceedings in said case and shall not be allowed to communicate with anyone except the Court or the bailiffs, nor be allowed to read current newspapers concerning the trial and all such communications shall be reported to the attorney for the Defendant.\nThe State points out that there is nothing in the record to indicate that defendant\u2019s motion was ever heard and denied by the court and argues that the motion should therefore be deemed either waived or withdrawn. We agree. Absent evidence of waiver or withdrawal, proceeding with a trial without hearing a pretrial motion is, in effect, a denial of that motion. State v. Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972).\nAssuming arguendo, however, that the motion was in fact heard and denied, we note that a motion to prohibit jury dispersal is to be decided within the sound discretion of the trial judge and will not be disturbed absent abuse of that discretion. State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985). Defendant must show both that there was error in the denial of the motion and that he was prejudiced by that denial before he will be granted a new trial. State v. Crandall, 322 N.C. 487, 369 S.E.2d 579 (1988). In State v. Stokes, 308 N.C. 634, 304 S.E.2d 184 (1983), this Court held that the trial court did not abuse its discretion in denying the defendant\u2019s motions for individual.voir dire in jury selection, for sequestration of the jury venire during voir dire proceedings, and for sequestration of the trial jury after selection was completed because of pretrial publicity concerning the defendant\u2019s case. This Court reasoned that defendant failed to produce any evidence tending to show the existence of inflammatory, nonfactual reporting by the news media or that any seated juror was affected by pretrial publicity. The defendant\u2019s arguments were deemed to be speculative and unpersuasive. Such is the case here as well, as we have previously concluded herein.\nWe further note that the trial judge admonished the jurors during breaks in the proceedings that they were \u201cto remember you\u2019re not to discuss the case with anyone; don\u2019t let anyone discuss the case with you; don\u2019t discuss the case among yourselves; keep an open mind. Decide the case based on the evidence that you hear from the witnesses.\u201d We conclude that defendant has failed to show actual prejudice that prevented him from receiving a fair and impartial trial.\nDefendant\u2019s third assignment of error concerns the trial court\u2019s failure to rule on defendant\u2019s motion for sequestration and segregation of the State\u2019s witnesses during trial. In that motion, defendant requested that the trial court enter an order sequestering all persons expected to be called by the State for the duration of the trial except during their actual testimony and that the court further enter an order to individually separate the witnesses. In support of the motion, defendant cited the \u201cemotionally charged and prejudicial publicity\u201d surrounding the case, his belief that the presence of an extensive number of witnesses for the State could have \u201can unduly persuasive effect upon the minds of the jurors,\u201d and his fear that collective gatherings of State\u2019s witnesses would lead to \u201cthe loss of individual recollection and the substitution of a \u2018mass\u2019 or \u2018consensus\u2019 recollection\u201d when the witnesses were called to testify.\nAgain, defendant contends that the motion was heard and denied by the trial judge. The record does not confirm this assertion. We again apply the standard of abuse of discretion and find defendant\u2019s argument unpersuasive. He has failed to demonstrate how the denial of this motion, if in fact it was heard and denied, has actually and substantially prejudiced him.\nNext, defendant contends that the trial court erred in sustaining the prosecutor\u2019s objection to a defense question concerning an offense the witness\u2019 cousin had allegedly been charged with. The following exchange took place during defendant\u2019s cross-examination of the victim\u2019s niece:\nQ Do you know a gentleman by the name of Michael Jeeter?\nA Yes, I do.\nQ How do you know Michael Jeeter?\nA Well, Michael, he\u2019s my cousin. . . .\nQ Do you know where Michael Jeeter was living on August the 18th, 1986?\nA He was living right up the street from where my mother was living ....\nQ . . . [A]bout how far was that from where Mrs. Covington lived?\nA . . . [TJhere\u2019s four apartments between his house and my mother\u2019s trailer.\nQ Do you know that Michael Jeeter has been charged \u2014\n[Prosecutor]: Objection.\nTHE COURT: Sustained.\nDefendant contends that the adverse ruling by the trial court was an abuse of its discretion which resulted in undue prejudice to defendant. Again, defendant has failed to demonstrate how the trial court\u2019s ruling was improper and, specifically, how this ruling prejudiced his case. We can only speculate as to what the witness\u2019 answer would have been, since defendant did not tender an offer of proof. \u201c[I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.\u201d State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985).\nDefendant next contends that the trial court erred in failing to grant his motion to dismiss. He contends that the State failed to carry its burden of presenting substantial evidence on each essential element of the charged offenses.\nWe have reviewed the transcripts, record, and briefs in this case, and while we concede that the physical evidence at the scene of the crime was, at best, inconclusive, we nevertheless conclude that the State presented more than sufficient evidence to allow this case to go to the jury. The evidence is to be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from the evidence. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978). Contradictions and discrepancies are for the jury to resolve, and all of the evidence actually admitted which is favorable to the State, whether competent or incompetent, is to be considered by the Court in ruling on a motion for dismissal. Id.\nThis.Court has upheld numerous convictions obtained primarily on the basis of admissions made to prison cell mates. In State v. Spangler, 314 N.C. 374, 333 S.E.2d 722 (1985), the defendant was tried for murder of her ten-month-old son. The State\u2019s only evidence consisted of the physical injuries to the child and the testimony of a fellow prison inmate who stated that the defendant had told her that she killed her child by hitting the child\u2019s head on the side of a bathtub. This Court held that \u201c[i]f the jury chose to believe [the inmate witness], this alone could be sufficient evidence of malice, premeditation, and deliberation.\u201d Id. at 383, 333 S.E.2d at 728.\n. Evidence of corpus delicti coupled with the testimony of a cell mate relating inculpatory statements made by the defendant is sufficient to support a conviction. In this case, defendant\u2019s statements to his, cell mates constitute admissions. An admission is a statement of pertinent facts which, in light of other evidence, is incriminating. 2 Brandis on North Carolina Evidence \u00a7 82 (1982). Here, defendant told Robert Lowe, \u201cthey ain\u2019t got no evidence on me and I ain\u2019t saying nothing.\u201d He told Charles Stokes that he had \u201cbroke[n] into this lady\u2019s house\u201d because he wanted to obtain some money with which to purchase drugs and that he had stabbed her with a knife because she recognized him. He stated that he killed her so that she would not be able to identify him. When Douglas Silva asked defendant how he could kill a seventy-year-old woman, defendant replied that he had to because she would not let him rob her. He told Silva that he had stolen jewelry from the victim. Charles Littman corroborated Herbert Thompson\u2019s testimony that defendant obtained his cocaine that night from a drug dealer named Larry Saunders.\nDefendant\u2019s argument that the cell mates were not reliable witnesses goes to the weight of the testimony, not to its sufficiency. The jury was properly permitted to weigh the evidence presented. Defendant\u2019s admissions to his cell mates, in conjunction with the physical evidence at the crime scene, were sufficient to establish each element of the crimes charged, thereby justifying submission of the charges to the jury.\nFinally, defendant assigns error to the trial court\u2019s failure to intervene ex mero motu in the prosecutor\u2019s closing argument. Without being specific, defendant contends that the argument contained numerous statements that were not in evidence and that would appear to be the prosecutor\u2019s subjective feelings about the case. Defendant failed to object to any portion of the argument. Therefore, in our review, the alleged impropriety must be grossly egregious in order for this Court to determine that the trial court erred in failing to take corrective action on its own motion. State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984). We conclude, after reviewing the transcript, that the prosecutor\u2019s closing argument was well within the wide latitude permitted in hotly contested cases, and accordingly, we overrule this assignment of error.\nWe have conducted a thorough review of the assignments of error presented and conclude, for the reasons stated above, that defendant received a fair trial free of prejudicial error.\nNo error.", "type": "majority", "author": "MEYER, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by G. Patrick Murphy and John H. Watters, Assistant Attorneys General, for the State.", "Randy Meares for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JERRY LYNN KING\nNo. 533A89\n(Filed 13 June 1990)\n1. Criminal Law \u00a7 78 |NCI4th) \u2014 murder \u2014pretrial publicity \u2014 change of venue denied\nThe trial court did not abuse its discretion in a prosecution for murder, robbery and burglary by denying defendant\u2019s motion for change of venue for pretrial publicity where the evidence presented was not sufficient to establish pervasive word-of-mouth publicity, the media coverage was extensive but not excessive, and the articles were factual accounts of what took place. Furthermore, defendant did not request that jury selection be transcribed in order to be included in the record, the record does not reflect how many peremptory challenges defendant used, defendant did not make any showing that there were any problems in jury selection involving pretrial publicity, defendant therefore failed to carry his burden of establishing prejudice, and the trial judge satisfied himself that excessive publicity was not a problem before he impaneled the jury. N.C.G.S. \u00a7 15A-957.\nAm Jur. 2d, Criminal Law \u00a7\u00a7 378, 688.\n2. Criminal Law \u00a7 186 (NCI4th)\u2014 motion to prohibit jury dispersal \u2014 nothing in record to indicate hearing \u2014 presumed denied\nA motion to prohibit jury dispersal in a prosecution for murder, robbery, and burglary was in effect denied where nothing in the record indicates that the motion was ever heard. Absent evidence of waiver or withdrawal, proceeding with a trial without hearing a pretrial motion is in effect a denial of that motion. Assuming that the motion was in fact heard and denied, defendant failed to show actual prejudice.\nAm Jur 2d, Trial \u00a7\u00a7 949-955.\n3. Criminal Law \u00a7 98.2 (NCI3d)\u2014 murder \u2014 motion to sequester and segregate State\u2019s witnesses \u2014 not ruled upon\nThere was no abuse of discretion in a prosecution for murder, robbery and burglary from the trial judge\u2019s failure to rule upon defendant\u2019s motion for sequestration and segregation of the State\u2019s witnesses where defendant contended that the motion was heard and denied by the trial judge, the record does not confirm that assertion, and defendant failed to demonstrate how the denial of the motion, if in fact it was heard and denied, actually and substantially prejudiced him.\nAm Jur 2d, Trial \u00a7 61.\n4. Criminal Law \u00a7 169 (NCI3d)\u2014 murder \u2014 objection to defense questions sustained \u2014no offer of proof\nThe trial court did not err in a prosecution for murder, robbery, and burglary by sustaining the prosecutor\u2019s objection to a defense question concerning an offense the witness\u2019s cousin had allegedly been charged with where there was no offer of proof. The Court could only speculate as to what the witness\u2019s answer would have been and defendant failed to demonstrate how the trial court\u2019s ruling prejudiced his case.\nAm Jur 2d, Trial \u00a7\u00a7 128-130.\n5. Homicide \u00a7 21.5 (NCI3d)\u2014 first degree murder \u2014motion to dismiss denied \u2014no error\nThe trial court did not err in a prosecution for first degree burglary, robbery with a deadly weapon, and first degree murder by denying defendant\u2019s motion to dismiss where defendant\u2019s admissions to his cell mates in conjunction with physical evidence at the crime scene were sufficient to establish each element of the crimes charged. This Court has upheld numerous convictions obtained primarily on the basis of admissions made to prison cell mates and the argument that the cell mates were not reliable witnesses goes to the weight of the testimony, not to its sufficiency.\nAm Jur 2d, Evidence \u00a7 572.\n6. Criminal Law \u00a7 420 (NCI4th>\u2014 prosecutor\u2019s closing argument \u2014 no objection \u2014within permitted latitude\nThe trial court in a prosecution for murder, robbery, and burglary did not err by failing to intervene ex mero motu in the prosecutor\u2019s closing argument where defendant failed to object to any portion of the argument and the argument was well within the wide latitude permitted in hotly contested cases.\nAm Jur 2d, Trial \u00a7 218.\nAPPEAL as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Burroughs, J., at the 29 May 1989 Criminal Session of Superior Court, CATAWBA County, upon a jury verdict of guilty of first-degree murder. Defendant\u2019s motion to bypass the Court of Appeals on accompanying convictions was allowed on 5 December 1989. Heard in the Supreme Court 14 May 1990.\nLacy H. Thornburg, Attorney General, by G. Patrick Murphy and John H. Watters, Assistant Attorneys General, for the State.\nRandy Meares for defendant-appellant." }, "file_name": "0662-01", "first_page_order": 698, "last_page_order": 712 }