{ "id": 2554806, "name": "STATE OF NORTH CAROLINA v. JAMES EDWARD THOMAS", "name_abbreviation": "State v. Thomas", "decision_date": "1991-08-14", "docket_number": "No. 455A87", "first_page": "423", "last_page": "445", "citations": [ { "type": "official", "cite": "329 N.C. 423" } ], "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": "22 L.Ed.2d 909", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "16 L.Ed.2d 1331", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "493 U.S. 474", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11332526 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/493/0474-01" ] }, { "cite": "292 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "224" } ], "opinion_index": 0 }, { "cite": "306 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567373 ], "year": 1982, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0001-01" ] }, { "cite": "401 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "634" } ], "opinion_index": 0 }, { "cite": "328 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541993 ], "year": 1991, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0288-01" ] }, { "cite": "395 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493650 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0388-01" ] }, { "cite": "373 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "529", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "323 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564753 ], "year": 1988, "pin_cites": [ { "page": "390", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0371-01" ] }, { "cite": "337 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716847 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0175-01" ] }, { "cite": "397 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499746 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0630-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "231 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "291 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558733 ], "year": 1977, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0480-01" ] }, { "cite": "370 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "562" } ], "opinion_index": 0 }, { "cite": "322 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515352 ], "year": 1988, "pin_cites": [ { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0709-01" ] }, { "cite": "342 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703868 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0578-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "78 L. Ed. 2d 177", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "464 U.S. 865", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6401817 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/464/0865-01" ] }, { "cite": "301 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "348" }, { "page": "348" } ], "opinion_index": 0 }, { "cite": "308 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4709664 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0047-01" ] }, { "cite": "308 S.E. 2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767980 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0549-01" ] }, { "cite": "279 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "803" } ], "opinion_index": 0 }, { "cite": "303 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573792 ], "year": 1981, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0321-01" ] }, { "cite": "337 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "522" }, { "page": "524-25", "parenthetical": "footnotes omitted" }, { "page": "525" } ], "opinion_index": 0 }, { "cite": "315 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719180 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0191-01" ] }, { "cite": "290 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571423 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0554-01" ] }, { "cite": "284 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569411 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0534-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "319" }, { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "343 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "890" }, { "page": "891" } ], "opinion_index": 0 }, { "cite": "317 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777958 ], "year": 1986, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0087-01" ] }, { "cite": "470 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299693 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "574" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/us/470/0564-01" ] }, { "cite": "100 L. Ed. 2d 217", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "486 U.S. 1017", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6281222, 6282503, 6281873, 6281492, 6282205 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/486/1017-01", "/us/486/1017-05", "/us/486/1017-03", "/us/486/1017-02", "/us/486/1017-04" ] }, { "cite": "743 S.W.2d 51", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11286921 ], "year": 1987, "pin_cites": [ { "page": "65", "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/sw2d/743/0051-01" ] }, { "cite": "391 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "150" }, { "page": "151" } ], "opinion_index": 0 }, { "cite": "326 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305969 ], "year": 1990, "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0489-01" ] }, { "cite": "356 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 473513 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "293" }, { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/ga-app/182/0279-01" ] }, { "cite": "319 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748970 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "489" }, { "page": "490-91" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0465-01" ] }, { "cite": "400 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "724" }, { "page": "724-25" }, { "page": "726" } ], "opinion_index": 0 }, { "cite": "328 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540746 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "120" }, { "page": "121" }, { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0099-01" ] }, { "cite": "114 L. Ed. 2d 395", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6223686 ], "weight": 5, "year": 1991, "pin_cites": [ { "page": "405" }, { "page": "409" }, { "page": "412" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/us/500/0352-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "98, n.21" }, { "page": "89, n.21" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "369 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "587" }, { "page": "588" } ], "opinion_index": 0 }, { "cite": "322 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518417 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "501" }, { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0487-01" ] }, { "cite": "394 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497152 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0031-01" ] }, { "cite": "494 U.S. 433", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4898 ], "weight": 4, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/0433-01" ] } ], "analysis": { "cardinality": 1646, "char_count": 52673, "ocr_confidence": 0.756, "pagerank": { "raw": 4.683375168976468e-07, "percentile": 0.9282156990619916 }, "sha256": "86d4da09493ccf791527eadf3729f89cf0b904903946517fb8a5a5e246a816d2", "simhash": "1:ef2fd062e77e17fa", "word_count": 8541 }, "last_updated": "2023-07-14T19:30:52.475304+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice MEYER did not participate in the decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES EDWARD THOMAS" ], "opinions": [ { "text": "EXUM, Chief Justice.\nDefendant raises the following issues in his assignments of error in the guilt phase of his trial: (1) whether the prosecutor peremptorily challenged potential jurors solely on the basis of race; (2) whether the evidence was sufficient to support defendant\u2019s convictions for felony sex offense and first-degree felony murder; (3) whether the trial court committed reversible error in admitting nontestimonial evidence taken without a search warrant; (4) whether certain concessions by defense counsel of defendant\u2019s guilt before the trial jury deprived defendant of his right to counsel; and (5) whether the trial court committed reversible error in refusing to instruct jurors about sexual assault as an afterthought to murder. We find no error in the guilt phase of defendant\u2019s trial. The decision in McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369, on remand, 327 N.C. 31, 394 S.E.2d 426 (1990), requires that we remand for a new sentencing hearing.\nI.\nThe State\u2019s evidence at trial tended to show the following:\nIn the early afternoon of 14 June 1986, the body of Teresa Ann West was discovered at the Sir Walter Tourist Home in Raleigh. Her body was scratched and bruised, and injuries appearing to be human bite marks were found on her breasts. A telephone receiver was found inserted in her- vagina. A forensic specialist performed an autopsy and estimated the victim, manager of the Tourist Home, died sometime around midnight the night before. The expert testified that the victim had been strangled both manually and with pantyhose used as a garrote and that the telephone receiver probably was inserted in the victim\u2019s vagina after she was dead.\nDefendant had lived at the Tourist Home for approximately five months before moving to his girlfriend\u2019s apartment in Cary, North Carolina, in June 1986. On the night of 13 June 1986 a roommate, Eddie Corley, let defendant use his car, a 1985 blue Monte Carlo. Defendant said he was going out to buy beer. At 10:55 that night a Raleigh police officer cited defendant for speeding on a road leading into Raleigh from Cary. One resident of the Tourist Home recalled seeing an unfamiliar blue car in the boardinghouse\u2019s driveway at approximately 11:30 p.m.\nDefendant\u2019s girlfriend, Sandy Jordan, testified that defendant returned to their Cary apartment at 6 a.m. on 14 June. Defendant and Jordan were called to the police station at 8 p.m., and defendant requested that Jordan call his brother-in-law and ask him to hide the shirt defendant had worn the night before. Defendant himself later telephoned his stepbrother and told him to hide the shirt because it had heroin on it. When the stepbrother hid the shirt he noticed a bloodstain on the collar. Defendant and Jordan returned to their apartment with detectives at about 11 p.m. The police asked defendant for the clothing he wore on 13 June, and defendant gave detectives the wrong shirt and pants. When detectives realized defendant had given them the wrong clothes, they obtained a search warrant for the apartment, returned there, and found the correct clothing.\nThe State presented several forensic experts who testified about physical evidence obtained from the crime scene and from defendant\u2019s clothing tending to place defendant in the victim\u2019s apartment on the night of her murder. Defendant\u2019s palm print was found inside the bathtub, which had been scrubbed clean the morning before West\u2019s death. The print of defendant\u2019s left little finger was found on the back of the telephone base, and the print of his left palm was found on the inside of the victim\u2019s bedroom door. Fibers found under the victim\u2019s fingernails, on her body, and on the bedsheets matched fibers from the shirt defendant wore the night the victim was killed. Fibers from the victim\u2019s bathmat were found on defendant\u2019s shirt and the victim\u2019s nightshirt. Feathers consistent with the victim\u2019s pillow were found on her torso and on defendant\u2019s shirt. Carpet fibers from the car defendant drove on 13 and 14 June were found on the victim\u2019s nightshirt.\nThe State also compared evidence from the crime scene with physiological evidence obtained from defendant\u2019s person. Police obtained samples of defendant\u2019s blood, hair, fingernails, teeth, and lips in a procedure following a nontestimonial identification order served on defendant the day after his arrest. A serologist testified that blood on a piece of tissue found in the victim\u2019s apartment was consistent with the defendant\u2019s blood. An expert in forensic hair analysis testified that hair consistent with defendant\u2019s was found in the victim\u2019s pubic hair and on a sheet underneath the body. An expert in forensic odontology who examined injuries on the victim\u2019s breasts and took dental impressions from the defendant offered his opinion that the injuries were bite marks left by defendant\u2019s teeth.\nDefendant testified that he and the victim became friends after he moved into the Tourist Home in early 1986. He then moved to Cary to live with Jordan. On the night of Friday, 13 June 1987, defendant borrowed Corley\u2019s blue Monte Carlo and drove to the boardinghouse to visit West. She let him in her apartment and said she had obtained heroin for him. After visiting Raleigh taverns in an unsuccessful attempt to find cocaine to use with the heroin, defendant returned to West\u2019s room. West gave defendant a syringe filled with heroin and he injected it into his arm. He then became nauseous and crawled into the bathroom and vomited. He dabbed the injection wound on his arm with some tissue. When defendant returned to West\u2019s bedroom, she asked him to have sex with her. He declined, saying he loved his girlfriend and was physically incapable of sex because of the heroin. West gave him some pills she said would keep him conscious, and he dissolved them and injected them. West then threatened to telephone a friend who was a law enforcement officer and report that defendant was wanted by police in California. West picked up the telephone receiver and pointed it at defendant. He stood up from the floor and asked if she was serious about having him arrested. She said she was. Defendant\u2019s next recollection was waking up at 4:45 a.m. or 5:44 a.m. and finding West dead. He placed a pillow over her face, collected his belongings, and ran from her room. He drove back to Cary, went to bed and got up to go to work later that morning.\nDefendant also presented expert testimony tending to contradict the State\u2019s evidence matching defendant\u2019s dental impressions to the injuries found on the victim\u2019s breasts.\nThe jury found defendant guilty of first-degree murder both by premeditation and deliberation and under the felony murder rule, and guilty of first-degree sexual offense. The jury found defendant not guilty of common-law robbery and not guilty of larceny.\nAt the sentencing proceeding following defendant\u2019s conviction for first-degree murder, the State introduced evidence that defendant had pleaded guilty and served a prison term in California for armed robbery. Defendant called friends, family members, and a guard from a prison where he was previously incarcerated to testify about his good character. Defendant then testified that he had abused drugs since his stepfather introduced him to marijuana at age twelve. He said he committed the armed robbery in California to pay off cocaine debts. He expressed remorse for the victim\u2019s death but did not admit killing her. On cross-examination defendant admitted he was angry with the victim when she threatened to call police about outstanding California arrest warrants.\nThe trial court submitted four aggravating circumstances for the jury\u2019s consideration: (1) defendant had been previously convicted of a felony involving the use or threat of violence to another person; (2) the murder was committed while defendant was engaged in a sexual offense; (3) the murder was committed to disrupt or hinder the enforcement of laws; and (4) the murder was especially heinous, atrocious, or cruel. The jury found the first three to be aggravating circumstances.\nThe trial court submitted nine mitigating circumstances for the jury\u2019s consideration. The jury unanimously found three of these circumstances but did not find six others, including that defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements oil the law was impaired.\nThe jury unanimously found that the aggravating circumstances outweighed the mitigating circumstances and recommended the death sentence.\nII. Guilt Phase\nA.\nDefendant contends he is entitled to a new trial because the prosecutor violated his state and federal constitutional rights by peremptorily challenging prospective jurors solely on the basis of ra ce. Article I, Section 26 of the Constitution of North Carolina prohibits racially based peremptory challenges. State v. Crandell, 322 N.C. 487, 501, 369 S.E.2d 579, 587 (1988). The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution also prohibits such discrimination. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986). Defendant further contends the prosecutor\u2019s peremptory challenges against prospective black jurors violated his rights under the Sixth and Eighth Amendments of the United States Constitution and Article I, Section 24 of the Constitution of North Carolina.\nAt the start of jury selection defense counsel renewed a pretrial motion to prohibit the prosecution from peremptorily challenging any black person. The trial court deferred ruling on the motion until the prosecutor peremptorily challenged a black person. The prosecution challenged Juror 4, who was black, giving as his reason that she had read about the case and might have formed an opinion about it. The trial court ruled that the State had not challenged Juror 4 on account of race, did not purposely discriminate on the basis of race, and that excusing Juror 4 did hot violate the Equal Protection Clause of the Fourteenth Amendment. This procedure was repeated each time the prosecutor peremptorily challenged a black person. The prosecutor peremptorily challenged a total of seven blacks, in each instance stating a reason unrelated to race. The trial court allowed each challenge, in each instance ruling that no discrimination had occurred. At the conclusion of jury selection, the trial court entered an order including findings of fact in regard to each of the prosecutor\u2019s peremptory challenges to blacks and a conclusion that as a matter of law there was no purposeful racial discrimination by the prosecutor in jury selection. The order stated that the trial court did not determine that defendant had made a prima facie showing of discrimination but the trial court nevertheless required the prosecutor to explain each peremptory challenge of a black person.\nThe trial court\u2019s findings of fact stated that the prosecutor peremptorily challenged black venirepersons for the following reasons: one had read about the case; one was young and unmarried, and not as stable and mature as the State preferred; one had never before thought about the death penalty and appeared evasive; one was young and stated that serving on the jury would work hardship on his job because he traveled a lot; one felt that drug use was a mitigating circumstance; one would not convict defendant without an eyewitness to the crime and proof by the State beyond a shadow of a doubt; and one felt the use of drugs would be an excuse.\nDefendant contends the trial court erred in failing to determine that he had made a prima facie showing of racial discrimination. The United States Supreme Court recently held that where the prosecutor offers racially neutral explanations for his peremptory challenges and the trial court finds them to be true and not pretextual, the issue of the prima facie case is moot. Hernandez v. New York, \u2014 U.S. \u2014, 114 L. Ed. 2d 395, 405 (1991). Therefore, the only remaining issue is whether the trial court erred in ruling that defendant failed to meet his ultimate burden of showing purposeful racial discrimination.\nThis Court has identified several factors in addition to the prosecutor\u2019s explanations that may be relevant to the issue of racial discrimination in peremptory challenges. The defendant\u2019s race, the victim\u2019s race, and the race of key witnesses may suggest whether the case is susceptible to racially discriminatory jury selection. State v. Smith, 328 N.C. 99, 120, 400 S.E.2d 712, 724 (1991); see State v. Crandell, 322 N.C. 487, 502, 369 S.E.2d 579, 588 (1988). Also relevant are questions and statements by the prosecutor during jury selection which tend to support or refute a showing of discrimination. Smith, 328 N.C. at 121, 400 S.E.2d at 724-25 (1991); State v. Robbins, 319 N.C. 465, 489, 356 S.E.2d 279, 293 (1987). Also indicative of racial discrimination is the prosecution\u2019s \u201cuse of a disproportionate number of peremptory challenges to strike black jurors in a single case.\u201d Robbins, 319 N.C. at 490-91, 356 S.E.2d at 294. On the other hand, one factor tending to refute a showing of discrimination is the State\u2019s acceptance of black jurors. State v. Smith, 328 N.C. at 121, 400 S.E.2d at 726.\nThat defendant here is black and the victim was white gives support to defendant\u2019s contentions, because a case involving different races provides a motive for racially discriminatory peremptory challenges. The record reveals no question or statement by the prosecutor during jury selection that suggests any discriminatory intent. Defendant urges this Court to consider as a factor that the prosecution peremptorily challenged blacks at a proportionately higher rate than whites. Of eight black members of the venire not excused for cause, the prosecutor peremptorily challenged seven. Of thirty-seven white members of the venire not excused for cause, the prosecutor peremptorily challenged eight. Another circumstance, however, tends to refute a showing of purposeful discrimination. The first venireperson whom the prosecutor accepted for the jury was black.\nDefendant for the first time on appeal contends the prosecutor\u2019s racially neutral explanations for peremptory challenges against blacks were pretextual. This Court has held that a prosecutor\u2019s racially neutral explanations for peremptory challenges must be \u201cclear and reasonably specific\u201d and \u201crelated to the particular case to be tried.\u201d State v. Porter, 326 N.C. 489, 497, 391 S.E.2d 144, 150 (1990). The specificity of the prosecutor\u2019s challenges and their relevance to this trial are shown by the trial court\u2019s findings of fact. Defendant challenges the credibility of those explanations, however, noting that white members of the venire who revealed some of the same characteristics cited in those explanations were nevertheless seated on the jury. This argument falls short of showing discrimination in a practice as complex as jury selection, which we have recognized is \u201cmore art than science\u201d and in which \u201c[r]arely will a single factor control the decision-making process.\u201d Id. Therefore, \u201c[s]o long as the motive does not appear to be racial discrimination, the prosecutor may exercise peremptory challenges on the basis of \u2018legitimate \u201chunches\u201d and past experience.\u2019 \u201d Id. at 498, 391 S.E.2d at 151 (quoting State v. Antwine, 743 S.W.2d 51, 65 (Mo. 1987) (en banc), cert. denied, 486 U.S. 1017, 100 L. Ed. 2d 217 (1988)).\nIn Batson the Supreme Court accorded great deference to the trial court\u2019s decision on the ultimate question of the prosecutor\u2019s discriminatory intent in peremptorily challenging jurors. 476 U.S. at 98, n.21, 90 L. Ed. 2d at 89, n.21. Just recently in Hernandez v. New York, the Court reiterated this extremely deferential standard:\nDeference to the trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding will \u201clargely turn on evaluation of credibility.\u201d ... In the typical peremptory challenge inquiry, the decisive question will be whether counsel\u2019s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor\u2019s state of mind based on demeanor and credibility lies \u201cparticularly within a trial judge\u2019s province.\u201d\nHernandez, \u2014 U.S at \u2014, 114 L. Ed. 2d at 409. The Court in Hernandez specifically held that it would not overturn the trial court\u2019s finding on the issue of discriminatory intent \u201cunless convinced that its determination was clearly erroneous.\u201d Id. at \u2014, 114 L. Ed. 2d at 412.\nWe must address separately defendant\u2019s contention that racial discrimination in peremptory challenges of jurors violated his rights under Article I, Section 26 of the Constitution of North Carolina. Article I, Section 26 provides: \u201cNo juror shall be excluded from jury service on account of sex, race, color, religion, or national origin.\u201d The same reasoning supporting the United States Supreme Court\u2019s deferential standard of review in Batson and Hernandez also counsels this Court, in our evaluation of the state constitutional issue, to yield great deference to the trial court\u2019s ruling that no purposeful discrimination occurred in this case. We therefore conclude that the peremptory removal of black prospective jurors in this case did not violate the state Constitution.\nIn light of all the relevant circumstances, we affirm the trial court\u2019s ruling that no purposeful racial discrimination occurred in the peremptory challenges of black jurors in this case. This ruling was supported by the trial court\u2019s findings of fact, which in turn were supported by the record. It is not enough for defendant to raise the mere possibility of discrimination. \u201cWhere there are two permissible views of the evidence, the factfinder\u2019s choice between them cannot be clearly erroneous.\u201d Anderson v. Bessemer City, 470 U.S. 564, 574, 84 L. Ed. 2d 518, 528 (1985), quoted in Hernandez, --- U.S. at ---, 114 L. Ed. 2d at 412.\nThis assignment of error is overruled.\nB.\nDefendant contends the trial court erred in denying his motions to dismiss at the close of the State\u2019s evidence and again at the close of all the evidence the charges of first-degree sexual offense and first-degree felony murder because the evidence was as a matter of law insufficient to establish each element of those offenses. For the reasons discussed below, we disagree.\nA defendant\u2019s motion for dismissal is properly denied if the trial court determines there is substantial evidence of (1) each element of the charge or of a lesser included offense and of (2) defendant\u2019s being the perpetrator. State v. Mercer, 317 N.C. 87, 96, 343 S.E.2d 885, 890 (1986). If the evidence is sufficient merely to raise a suspicion or conjecture as to any element of the offense, even if the suspicion is strong, the motion to dismiss should be allowed. Id. The evidence is to-be examined in the light most favorable to the State. \u201cThe trial court\u2019s function is to test whether a reasonable inference of the defendant\u2019s guilt of the crime charged may be drawn from the evidence.\u201d Id. at 97, 343 S.E.2d at 891. The constitutional minimum standard required for due process is whether \u201cany rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u201d Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573 (1979), quoted in State v. Earnhardt, 307 N.C. 62, 66-67 n.1, 296 S.E.2d 649, 652 n.1 (1982).\nA first-degree sexual offense as defined in N.C.G.S. \u00a7 14-27.4 includes a sexual act \u201c[w]ith another person by force and against the will of the other person, and . . . employing] or displaying] a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon.\u201d The term \u201cby force\u201d does not necessarily mean physical force, but also means fear, fright, or duress. State v. Locklear, 304 N.C. 534, 284 S.E.2d 500 (1981). The term \u201cagainst the will\u201d requires that the offense be committed without the victim\u2019s consent, and a lack of consent is an essential element of sexual offense where the victim is an adult and not physically or mentally handicapped. State v. Booher, 305 N.C. 554, 290 S.E.2d 561 (1982). The term \u201csexual act\u201d is defined in N.C.G.S. \u00a7 14-27.1(4) as \u201ccunnilingus, fellatio, analingus, or anal intercourse,\u201d or \u201cthe penetration, however slight, by any object into the genital or anal opening of another person\u2019s body.\u201d Bites to the breast do not fall within this definition.\nAccording to the State\u2019s evidence, the victim was alive when her breasts were bitten but probably was dead when the telephone was inserted in her vagina. Dr. Page Hudson, who examined the victim\u2019s body in his role as Chief Medical Examiner for North .Carolina, testified that in his opinion, \u201cit was somewhat more probable that she was dead than alive\u201d when the telephone was inserted in her vagina. Dr. Hudson said he could not be certain whether she was dead or alive at that time, \u201cbut to me the medical aspects of the evidence were a little more for her being dead at the time she received that.\u201d\nIn the case sub judice it is unnecessary for us to decide whether the evidence was sufficient to allow a reasonable inference that the victim was alive when the sexual offense as defined in our statutes was committed. Because the sexual act was committed during a continuous transaction that began when the victim was alive, we conclude the evidence was sufficient to support defendant\u2019s conviction for first-degree sexual offense. This Court, on numerous occasions, has held that to support convictions for .a felony offense and related felony murder, all that is required is that the elements of the underlying offense and the murder occur in a time frame that can be perceived as a single transaction. This principle is well illustrated by the case of State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985), which the trial court below specifically relied upon in ruling on the nonsuit motion. In Fields, this Court set forth the test:\nA killing is committed in the perpetration or attempted perpetration of a felony for purposes of the felony-murder rule where there is no break in the chain of events leading from the initial felony to the act causing death, so that the homicide is part of a series of incidents which form one continuous transaction.\nId. at 197, 337 S.E.2d at 522 (quoting State v. Hutchins, 303 N.C. 321, 345, 279 S.E.2d 788, 803 (1981)).\nDefendant in Fields stated that he took the murder victim\u2019s shotgun only as an afterthought and after the victim was dead. He argued that his intent to steal only arose after the killing and that a corpse is incapable of possessing personal property. In rejecting this, this Court stated:\nTo accept defendant\u2019s argument would be to say that the use of force that leaves its victim alive to be dispossessed falls under N.C.G.S. 14-87, whereas the use of force that leaves him dead puts the robbery beyond the statute\u2019s reach. That the victim is already dead when his possessions are taken has not previously been an impediment in this jurisdiction to the defendant\u2019s conviction for armed robbery. See, e.g., State v. Webb, 309 N.C. 549, 308 S.E. 2d 252 (1983). All that is required is that the elements of armed robbery occur under circumstances and in a time frame that can be perceived as a single transaction. When, as here, the death and the taking are so connected as to form a continuous chain of events, a taking from the body of the dead victim is a taking \u201cfrom the person.\u201d See 67 Am. Jur. 2d Robbery \u00a7 14 at 65 (1985).\nId. at 201-02, 337 S.E.2d at 524-25 (footnotes omitted).\nThis Court has for many years applied the same doctrine to sexual offense and murder occurring in a continuous chain of events. In State v. Williams, 308 N.C. 47, 301 S.E.2d 335, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983), we upheld defendant\u2019s conviction for first-degree murder committed during the perpetration of sexual offense \u2014 repeatedly forcing a mop handle into a woman\u2019s vagina after beating her, resulting in her death. We held as follows: \u201cIt is immaterial whether the felony occurred prior to or immediately after the killing so long as it is part of a series of incidents which form one continuous transaction.\u201d Id. at 67, 301 S.E.2d at 348.\nBecause there is sufficient evidence to support the inference that the victim here was strangled and subjected to a sexual offense within an uninterrupted period of time, and because breast bite marks were inflicted, according to Dr. Hudson, prior to her death, and because of the overwhelming fiber evidence obtained from the victim\u2019s body, an inference arises that her death occurred pursuant to a continuous sexual assault. While the first-degree sexual offense (the insertion of the receiver into her vagina) could have occurred before or after the victim\u2019s death, clearly, it occurred near the time of the victim\u2019s final demise during a continuous transaction.\nThe precise timing of the insertion of the telephone receiver into the victim\u2019s vagina is irrelevant if it occurred during a continuous transaction. All of the evidence clearly suggests that the sexual offense and the death of the victim were \u201cso connected as to form a continuous chain of events.\u201d Fields, 315 N.C. at 202, 337 S.E.2d at 525.\nIn the case of State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980), which defendant cites, defendant was charged with armed robbery, first-degree rape, and first-degree murder in the perpetration of first-degree rape. Although this Court found, under the facts of that case, that there was a sufficient break in the causal chain to justify the dismissal of the armed robbery charge, the Court sustained the felony murder based on the first-degree rape. This holding was based on evidence from the autopsy which showed that the bruises to the victim\u2019s vagina occurred within a half hour or within a few minutes after her death. Thus, Powell held that defendant\u2019s motion to dismiss the charge of first-degree murder (relying on the rape) was properly denied. Id.\nIn summary, defendant\u2019s motion to dismiss here was properly denied in that there was sufficient evidence that the sexual offense for which defendant was convicted was committed in conjunction with the murder as part of a continuous chain of events, forming one continuous transaction.\nFor the same reasons as stated above, the trial court also properly denied defendant\u2019s motion to dismiss the charge of first-degree felony murder.\nC.\nDefendant contends he is entitled to a new trial because the trial court erroneously admitted nontestimonial evidence \u2014 samples of defendant\u2019s blood, hair, saliva, fingernails, and molds of his teeth, lips, and fingernails \u2014 taken by police without a search warrant. Because defendant testified under direct examination that he was at the scene of the crime and also testified that he sustained a bleeding wound to his arm, we conclude that any error in admitting evidence of his blood sample was harmless beyond a reasonable doubt.\nThe day following defendant\u2019s arrest, Superior Court Judge Donald W. Stephens granted a request by the prosecutor for a nontestimonial identification order providing that defendant, who was in police custody, be taken to the state\u2019s Chief Medical Examiner for identification procedures. The medical examiner took samples of defendant\u2019s head and pubic hair, blood, saliva, and fingernails. The examiner also made molds of defendant\u2019s teeth, lips, and fingernails, and took photographs of defendant\u2019s mouth and teeth.\nBefore trial, defense counsel moved to suppress the evidence on grounds that the state and federal constitutions require police to obtain a search warrant based on probable cause before taking blood and other personal identification samples of a defendant already in custody. Superior Court Judge Donald L. Smith denied the motion, relying on the \u201cgood-faith exception\u201d recognized in State v. Welch, 316 N.C. 578, 342 S.E.2d 789 (1986). Judge Smith questioned the application of that exception, however, because Welch involved police reliance on a search warrant requiring probable cause, while the instant case involved police reliance on a nontestimonial identification order requiring a lesser standard of belief than probable cause.\nThereafter, the prosecutor obtained a search warrant authorizing the Chief Medical Examiner\u2019s office to obtain the same personal identification evidence from defendant again. Defendant resisted service of that warrant and for reasons not revealed in the record, the warrant was never executed. The prosecutor therefore relied on the nontestimonial identification order when he introduced the evidence at trial.\nDuring direct examination in the guilt phase of his trial, defendant testified that he had visited the victim in her room the night of her death. He testified that he injected heroin and sustained a bleeding wound to his arm, to which he applied a small piece of tissue paper from the victim\u2019s bathroom. He further testified that he blacked out and later awoke to discover the victim was dead.\nIn State v. Carter, 322 N.C. 709, 724, 370 S.E.2d 553, 562 (1988), this Court held that there is no good-faith exception under the state constitution to the requirement that a search warrant be obtained before a blood sample may be taken from a defendant. The Court in Carter noted that taking a sample of blood is a particularly intrusive search, and that a defendant\u2019s blood type is constant and therefore not susceptible to spoilage or dissipation over the passage of time. With respect to the taking of defendant\u2019s blood, this case involves the same procedural error identified in Carter \u2014 police acted in reliance upon a nontestimonial identification order when a warrant was required. Because this error violated defendant\u2019s constitutional rights, he is entitled to relief unless we determine the error was harmless beyond a reasonable doubt.\nUnlike defendant in Carter, defendant here has admitted to being at the crime scene. He testified that he passed out during an argument with the victim and awoke to find her dead. He also admitted leaving traces of his blood in her room. In light of this and other evidence incriminating defendant in the victim\u2019s death, the trial court\u2019s error in admitting evidence obtained under the nontestimonial identification order was harmless beyond a reasonable doubt.\n. The trial court committed no error in admitting evidence of defendant\u2019s fingernails, pubic hair, teeth, saliva, and lips, because that evidence was properly obtained while defendant was in police custody. State v. Irick, 291 N.C. 480, 490, 231 S.E.2d 833, 840 (1977).\nD.\nThe next assignment of error presents defendant\u2019s contention that he was denied his Sixth Amendment right to effective assistance of counsel when defense counsel, without defendant\u2019s consent, conceded to the jury that defendant had committed second-degree murder and had completed at least one element of the sexual offense.\nThe test for ineffective assistance of counsel is the same under both the federal and state Constitutions. State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). A defendant is entitled to relief if he can show both (1) that his counsel\u2019s performance fell below an objective standard of reasonableness, and (2) that his counsel\u2019s deficient representation was so serious as to deprive him of a fair trial.\nDuring arguments to the jury, defense counsel, apparently as a matter of trial strategy, conceded that defendant was guilty of second-degree murder and that defendant had inserted the telephone receiver into the victim\u2019s vagina. Defense counsel stated to the trial court at a bench conference that defendant had authorized the admission of guilt to second-degree murder. Defendant on appeal denies he consented. After oral arguments were heard on this appeal, we ordered this case be remanded to the Superior Court, Wake County, for an evidentiary hearing to determine whether defendant in fact consented. State v. Thomas, 327 N.C. 630, 397 S.E.2d 79 (1990).\nFollowing a hearing at the 28 January 1991 Criminal Session of Wake County Superior Court, the Honorable Narley L. Cashwell entered an order concluding as a matter of law that defendant freely, voluntarily, intelligently, and understanding^ consented to his counsel\u2019s plan to admit his guilt of second-degree murder. The order also concluded as a matter of law that defendant did not consent to defense counsel\u2019s admission that he had committed a sexual act upon the. victim\u2019s body. The order concluded ultimately, however, that in light of evidence that the victim was dead when assaulted and defense counsel\u2019s argument that therefore no sexual offense occurred, the admission did not concede defendant\u2019s guilt to the sexual offense charge and thus did not deprive defendant of a fair trial on that charge.\nJudge Cashwell included in his order several detailed findings of fact, including the following: On a number of occasions, and with great frequency in the days immediately before the trial, defense counsel discussed with defendant the possible strategy of conceding guilt to second-degree murder, and conceding guilt to a sexual act after the victim was dead, but arguing that because the victim was dead when the sexual act occurred, defendant did not commit a sexual offense. One of two defense attorneys, co-counsel Johnny Gaskins, recommended this strategy to defendant, while lead counsel C. Dick Heidgerd advised against it. Defendant agreed with Gaskins\u2019 strategy orally and signed a paper writing, prepared by both attorneys, to establish a record of his consent as follows:\nI, James Edward Thomas, authorize my attorneys, C.D. Heidgerd and Johnny S. Gaskins, to admit to the jury that I killed Teresa Anne West with malice but without premeditation and deliberation. My attorneys may ask the jury to convict me of second degree murder.\nI have talked with my attorneys about admitting to the jury that I am guilty of second degree murder and I understand the consequences.\nThe paper writing was dated 6 July 1987, the day defendant\u2019s trial began. After the writing was signed, jury selection began.\nIn State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), we held that ineffective assistance of counsel, in violation of the defendant\u2019s Sixth Amendment right to counsel, was established where defense counsel, without the defendant\u2019s consent, admitted the defendant\u2019s guilt, and recommended that jurors convict him of manslaughter rather than first-degree murder or find him not guilty. In that case, however, the State did not contest the defendant\u2019s assertion that he had not consented to his attorney\u2019s admission.\nHere, the trial court has found on supporting evidence that defendant consented orally and in writing to counsel\u2019s strategy to admit his guilt to a charge of second-degree murder. Nothing in the record contradicts that finding. That finding supports the trial court\u2019s conclusion that defendant knowingly consented to the admission of his guilt on the second-degree murder charge.\nThe trial court also concluded that defense counsel never conceded defendant\u2019s guilt of a sexual offense. This conclusion was based on evidence in the trial record that the victim was likely dead when the sexual act occurred and defense counsel\u2019s argument that his client could not have committed a sexual offense against a corpse. For the following reasons, we agree with the trial court\u2019s conclusion.\nIn his closing argument to the jury regarding the sexual offense charge, defense counsel Johnny Gaskins made the following statements:\nDon\u2019t let me mislead you to think that I in any way condone what occurred in the relationship in respect to the sexual assault. . . .\nAgain, let me tell you that I don\u2019t in any way condone what James Thomas did in that respect ....\nIn fact, it is illegal to do exactly what Dr. Hudson described to you was done in this case, that is, to insert the telephone receiver into her vagina after she was dead. ... It is the crime of . . . desecrating the body of the person that is dead.\nMr. Gaskins also stated clearly to jurors that the State had not charged defendant with the offense of desecrating a corpse.\nIn arguing to the jury about the felony murder rule, Mr. Gaskins also anticipated the continuous transaction doctrine, which we cited above in holding that the evidence supports defendant\u2019s conviction of first-degree sexual offense and felony murder. Mr. Gaskins argued as follows:\nIn order to prove that James Thomas is guilty of First Degree Murder on [the felony murder] theory, the State must prove that he was \u2014he was there with the intent to commit a felony which was inherently dangerous to human life.\nNot that he killed her and that he then committed some felony, . .. but that he was there for the purpose of committing the felony, and that during the commission of the felony that Teresa West was killed. . . .\nIf you find that James Thomas was there, exactly as he says, and that in response to what Teresa West said . . . he suddenly started strangling her and he killed her, and . . . after having strangled her that he then committed a sexual offense, then you have two separate things ....\nIf those things occurred they occurred after she was dead and are not so interrelated so as to bring this case within the Felony Murder Rule. . . .\nI submit to you that the State has not proven that the felony and that the murder was [sic] so interrelated as to take this case out of the realm of Second Degree Murder.\nFollowing defense counsel\u2019s argument, the prosecutor argued that jurors could infer from the evidence that all of defendant\u2019s actions in the victim\u2019s room comprised a single, continuous chain of events sufficiently linking the strangulation and the sexual act to support convictions for sexual offense and felony murder. The prosecutor disputed defense counsel\u2019s argument that no such factual inference could be drawn from the evidence. The trial court\u2019s instructions to jurors addressed this disputed issue of fact:\n[I]t makes no difference whether the intent to commit . . . a sexual offense was formulated before the use of force or after it, so long as the elements of . . . sexual offense occur under circumstances and in a time frame that you find to be a single transaction.\nThat is, that the death and the . . . sexual offense was [sic] so connected as to form a continuous chain of events.\nThe trial court did not instruct jurors that defense counsel\u2019s concession about defendant committing the sexual act constituted an admission of guilt to the sex offense charge.\nFor jurors to convict defendant under the trial court\u2019s instructions, they had to reject defense counsel\u2019s view of the facts. Unlike defense counsel in Harbison, who admitted his client\u2019s guilt and asked the jury to return a verdict of\" guilty of manslaughter, a lesser included offense on which defendant could have been convicted, defense counsel here did not admit defendant\u2019s guilt to first-degree sexual offense or to any lesser included offense. Rather, defense counsel held the State to its burden of proof on one element of the sexual offense charge: the issue of a continuous chain of events beginning while the victim was alive.\nBecause defense counsel did not admit defendant\u2019s guilt to the sexual offense of which he stood accused, defendant was not deprived of a fair trial. This assignment of error is overruled.\nE.'\nDefendant finally assigns error to the trial court\u2019s refusal to instruct jurors that defendant could not be found guilty of sexual offense if he committed the sexual act merely as an afterthought to killing the victim. For the following reasons, we find no reversible error.\nBefore the trial court instructed the jury, defendant requested the trial court to give an instruction that to find defendant guilty of sexual offense, jurors first had to find the victim was alive when sexually assaulted. The requested instruction stated:\nA crucial element of the crime of sexual offense is that a sex act must have been done against the person\u2019s will. The purpose of the law is to protect persons from physical abuse. The law cannot protect a person from physical abuse who is not alive.\nAs such, the State must prove to you beyond a reasonable doubt that the victim was alive at the time of the sexual act in order to prove that the crime was against the person\u2019s will. If you do not so find that the victim was alive, then James Edward Thomas would only be guilty of desecrating the human remains of the victim.\nThe trial court instead instructed jurors, as quoted in our discussion of the immediately preceding assignment of error, that to convict defendant of sexual offense, they had to find that the killing and sexual act occurred \u201cunder circumstances and in a time frame that you find to be a single transaction.\u201d The trial court also required jurors to find that the death and sexual offense were \u201cso connected as to form a continuous chain of events.\u201d Defendant objected to this instruction, arguing that the continuous transaction doctrine did not apply in sexual assault cases. The trial court overruled that objection.\n\u201cIf a party requests an instruction which is a correct statement of the law and is supported by the evidence, the court must give the instruction at least in substance.\u201d State v. Fullwood, 323 N.C. 371, 390, 373 S.E.2d 518, 529 (1988) (citation omitted). \u201cIt need not give the instruction exactly as the party requests, however.\u201d Id.\nDefendant\u2019s requested instruction was not a correct statement of North Carolina law. The legislature has not written into statute, nor has this Court ever ruled that to support a conviction for sexual offense, the State must prove that the victim was alive at the time of the sexual act. Additionally, this Court has previously applied the continuous transaction doctrine to a sequence of sexual offense and murder. State v. Williams, 308 N.C. 47, 67, 301 S.E.2d 335, 348, discussed earlier in this opinion, upheld defendant\u2019s conviction for felony murder during the commission of a sexual offense without regard to whether the death or sexual offense occurred first. Under that decision, defendant\u2019s requested instruction here was erroneous and therefore the trial court properly rejected it. This assignment of error is overruled.\nIII. Sentencing Phase\nWe now turn to capital sentencing issues.\nAt the sentencing proceeding the trial court submitted nine mitigating circumstances for the jury\u2019s consideration. The jury unanimously found three of these circumstances to exist but failed to find six others, including the statutory mitigating circumstance that defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was impaired. N.C.G.S. \u00a7 15A-2000(f)(6) (1988 & Cum. Supp. 1990).\nThe trial court instructed the jury to find any mitigating circumstances unanimously and to reject those not unanimously found to exist. This instruction was error under McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369, on remand, 327 N.C. 31, 394 S.E.2d 426 (1990). Such error requires us to order a new sentencing hearing unless the State can demonstrate beyond a reasonable doubt that it was harmless. State v. McNeil, 327 N.C. 388, 395 S.E.2d 106 (1990).\nDefendant testified in his sentencing proceeding about his habitual abuse of drugs including LSD, cocaine, and heroin. Defendant began using drugs at age twelve, when he smoked marijuana belonging to his stepfather. At age 14 he was taking barbiturates and LSD. Defendant moved out on his own while still a teenager and lived in a \u201cdrug house\u201d where people bought and used drugs. By age 20 defendant had fathered two children and robbed a fast food restaurant to pay a debt for cocaine. Defendant\u2019s father, James Mangum, testified that defendant lived with him just before moving to the Tourist Home and was smoking marijuana at that time.\nWhen defendant lived at the Tourist Home, he fell in love with Sandy Jordan and promised to quit using drugs. On 13 June 1987, the night of the murder, defendant broke that promise and injected heroin into his arm at the Tourist Home, according to his testimony. That testimony was corroborated by a piece of tissue paper with defendant\u2019s blood on it found in the victim\u2019s room. Defendant testified that after injecting the drug in the victim\u2019s room he became disoriented and blacked out, awaking later to find the victim dead.\nDefendant\u2019s testimony could support a reasonable inference that defendant was under the influence of heroin at the time of the crime and, as a result, his ability to appreciate the criminality of his conduct or to conform his conduct to the requirement of the law was impaired. We cannot say beyond a reasonable doubt that absent the unanimity instruction no juror could have found the existence of this mitigating circumstance, weighed it in th\u00e9 final balancing process in deciding between life imprisonment and death and, having done so, concluded that life imprisonment should have been imposed. The improper instructions on this mitigating circumstance were prejudicial because the circumstance is statutory and, therefore, deemed to have mitigating value. State v. Quesinberry, 328 N.C. 288, 293, 401 S.E.2d 632, 634 (1991); State v. Pinch, 306 N.C. 1, 27, 292 S.E.2d 203, 224 (1982).\nWe therefore vacate the sentence of death and remand to Superior Court, Wake County, for a new sentencing proceeding in the first-degree murder case.\nFor the reasons stated above, we find no error in the sexual offense case and remand the murder case to the Superior Court, Wake County, for a new sentencing proceeding not inconsistent with this opinion or the opinion of the United States Supreme Court in McKoy.\nFirst-Degree Murder 86CRS043829 \u2014No error in guilt determination. New sentencing proceeding.\nFirst-Degree Sexual Offense 86CRS044695 \u2014 No error.\nJustice MEYER did not participate in the decision of this case.\n. Since arguments were heard in this case, the United States Supreme Court has held that the Sixth Amendment does not apply to protect criminal defendants from racially discriminatory peremptory challenges by the State. Holland v. Illinois, 493 U.S. 474, 107 L. Ed. 2d 905 (1990). Although defendant mentions the Eighth Amendment to the United States Constitution as well as Article I, Sections 19 and 24 of the Constitution of North Carolina in his assignment of error to the prosecutor\u2019s peremptory challenges, defendant makes no separate argument based on these latter provisions and does not explain how they might apply here. Therefore any contention based on these provisions is deemed abandoned. N.C. R. App. P. 28(a).", "type": "majority", "author": "EXUM, Chief Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by J. Michael Carpenter, Special Deputy Attorney General, for the State.", "Thomas F. Moffitt for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES EDWARD THOMAS\nNo. 455A87\n(Filed 14 August 1991)\n1. Jury \u00a7 7.14 (NCI3d)\u2014 murder \u2014 jury selection \u2014peremptory challenges \u2014no racial motivation\nDefendant in a murder and sexual offense prosecution was not entitled to a new trial based on the prosecutor\u2019s peremptory challenges against prospective black jurors where the trial court did not make a prima facie finding of discrimination but nevertheless required the prosecutor to explain each peremptory challenge of a black person. The United States Supreme Court has held that the issue of the prima facie case is moot where the prosecutor offers racially neutral explanations for his peremptory challenges and the court finds them to be true and not pretextual. Great deference is accorded the trial court\u2019s decision on the ultimate question of the prosecutor\u2019s discriminatory intent in peremptorily challenging jurors.\nAm Jur 2d, Jury \u00a7\u00a7 173-176, 237.\n2. Jury \u00a7 7.14 (NCI3d)\u2014 murder \u2014 jury selection \u2014 peremptory challenges of black prospective jurors \u2014 no state constitutional violation\nThe peremptory removal of black prospective jurors in a murder and sexual offense prosecution did not violate Article I, Section 26 of the Constitution of North Carolina.\nAm Jur 2d, Jury \u00a7\u00a7 173-176, 237.\n3. Rape and Allied Offenses \u00a7 5 (NCI3d); Homicide \u00a7 21.6 (NCI3d)~ first degree sexual offense \u2014felony murder \u2014sufficiency of the evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss charges of first degree sexual offense and felony murder where the victim may have been dead when the sexual offense occurred. It is unnecessary to decide whether the victim was alive when the offense was committed because the sexual act was committed during a continuous transaction that began when the victim was alive.\nAm Jur 2d, Rape \u00a7 41.\n4. Searches and Seizures \u00a7 4 (NCI3d)\u2014 nontestimonial identification order \u2014no warrant \u2014admissible\nThe trial court did not err in a prosecution for first degree sexual offense and murder by admitting evidence of defendant\u2019s fingernails, pubic hair, teeth, saliva, and lips obtained pursuant to a nontestimonial identification order because that evidence was properly obtained while defendant was in police custody. Obtaining a blood sample pursuant to the same order, without a search warrant, was harmless error beyond a reasonable doubt because, in addition to other incriminating evidence, defendant admitted being at the crime scene, passing out during an argument with the victim, awaking to find her dead, and leaving traces of his blood in the room.\nAm Jur 2d, Rape \u00a7 61.\nPhysical examination or exhibition of, or tests upon, suspect or accused, as violating rights guaranteed by Federal Constitution \u2014 Federal cases. 16 L.Ed.2d 1331, 22 L.Ed.2d 909.\n5. Constitutional Law \u00a7 309 (NCI4th)\u2014 murder and sexual offense-concession of guilt \u2014not ineffective assistance of counsel\nDefendant was not denied effective assistance of counsel in a prosecution for murder and sexual offense where defendant\u2019s counsel conceded to the jury that defendant had committed second-degree murder and had completed at least one element of the sexual offense. The trial court found on supporting evidence that defendant consented orally and in writing to counsel\u2019s strategy to admit his guilt to a charge of second-degree murder and nothing in the record contradicts that finding. The trial court also concluded that defense counsel never conceded defendant\u2019s guilt of a sexual offense and, for jurors to convict defendant under the trial court\u2019s instructions, they had to reject defense counsel\u2019s view of the facts.\nAm Jur 2d, Criminal Law \u00a7\u00a7 967 et seq.\n6. Rape and Allied Offenses \u00a7 6 (NCI3d)\u2014 sexual offense \u2014requested instruction that victim must be alive \u2014denied\u2014no error\nThe trial court did not err in a prosecution for first degree sexual offense and murder by denying defendant\u2019s requested instruction that the jurors had to first find that the victim was alive when sexually assaulted in order to find defendant guilty of the sexual offense. The requested instruction was not a correct statement of North Carolina law, and the North Carolina Supreme Court has previously applied the continuous transaction doctrine to a sequence of sexual offense and murder.\nAm Jur 2d, Rape \u00a7 108.\n7. Criminal Law \u00a7 1352 (NCI4th)\u2014 murder \u2014sentencing\u2014McKoy error\nA sentence of death in a first-degree murder prosecution was vacated and the case remanded for a new sentencing hearing where the trial court instructed the jury to find any mitigating circumstances unanimously and to reject those not unanimously found to exist. The error was prejudicial because defendant\u2019s testimony could support a reasonable inference that defendant was under the influence of heroin at the time of the crime and that his ability to appreciate the criminality of his conduct or to conform his conduct to the law was impaired. The circumstance is statutory and therefore deemed to have mitigating value.\nAm Jur 2d, Trial \u00a7\u00a7 888-894.\nJustice MEYER did not participate in the decision of this case.\nAPPEAL pursuant to N.C.G.S. \u00a7 7A-27 from judgments imposing a death sentence upon conviction of first-degree murder (86CRS043829) and a mandatory life sentence upon conviction of first-degree sexual offense (86CRS044695). Judgments entered at the 6 July 1987 Criminal Session of Superior Court, WAKE County, Farmer, J., presiding. Execution stayed 24 August 1987 pending defendant\u2019s appeal. Heard in the Supreme Court 11 May 1989. Findings on remand entered 21 March 1991 by Cashwell, J., and filed with this Court on 15 May 1991.\nLacy H. Thornburg, Attorney General, by J. Michael Carpenter, Special Deputy Attorney General, for the State.\nThomas F. Moffitt for defendant-appellant." }, "file_name": "0423-01", "first_page_order": 461, "last_page_order": 483 }