{ "id": 2498297, "name": "STATE OF NORTH CAROLINA v. JIMMY DALE HUDSON", "name_abbreviation": "State v. Hudson", "decision_date": "1992-04-22", "docket_number": "No. 454A87", "first_page": "122", "last_page": "159", "citations": [ { "type": "official", "cite": "331 N.C. 122" } ], "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": "34 ALR4th 888", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 3, "opinion_index": -1 }, { "cite": "364 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "321 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569559 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nc/321/0570-01" ] }, { "cite": "16 ALR4th 1089", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "35 ALR4th 890", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "25 L. 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"opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] }, { "cite": "381 U.S. 618", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172443 ], "weight": 2, "year": 1965, "pin_cites": [ { "parenthetical": "Fourth Amendment and Mapp" }, { "parenthetical": "Fourth Amendment and Mapp" } ], "opinion_index": 0, "case_paths": [ "/us/381/0632-01" ] }, { "cite": "457 U.S. 537", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6191611 ], "weight": 2, "year": 1982, "pin_cites": [ { "parenthetical": "Fourth Amendment and Payne" }, { "parenthetical": "Fourth Amendment and Payne" } ], "opinion_index": 0, "case_paths": [ "/us/457/0537-01" ] }, { "cite": "470 U.S. 51", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298793 ], "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "Fifth Amendment and 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Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "381 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "650-51" }, { "page": "653" }, { "page": "651" } ], "opinion_index": 0 }, { "cite": "325 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487626 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "29" }, { "page": "33" }, { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0001-01" ] }, { "cite": "11 S.E. 962", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1890, "pin_cites": [ { "page": "964" } ], "opinion_index": 0 }, { "cite": "107 N.C. 772", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274944 ], "year": 1890, "pin_cites": [ { "page": "779" } ], "opinion_index": 0, "case_paths": [ "/nc/107/0772-01" ] }, { "cite": "357 S.E.2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "612", "parenthetical": "\"Payne I\"" }, { "page": "612" }, { "page": "612" } ], "opinion_index": 0 }, { "cite": "320 N.C. 138", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728771 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "139", "parenthetical": "\"Payne I\"" }, { "page": "139" }, { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0138-01" ] }, { "cite": "364 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "375" }, { "page": "375" }, { "page": "375" } ], "opinion_index": 0 }, { "cite": "321 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569559 ], "weight": 3, "pin_cites": [ { "page": "574" }, { "page": "574" }, { "page": "573-74" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0570-01" ] } ], "analysis": { "cardinality": 2370, "char_count": 84234, "ocr_confidence": 0.759, "pagerank": { "raw": 3.184409308720856e-07, "percentile": 0.8647432726772873 }, "sha256": "146e35b492b26cc8fdba56a8a41d272622eab37d14005daaa32c0ce749361e8e", "simhash": "1:cb6f9436763ca8d6", "word_count": 13817 }, "last_updated": "2023-07-14T15:05:46.767853+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JIMMY DALE HUDSON" ], "opinions": [ { "text": "MEYER, Justice.\nOn 24 March 1986 at approximately 8:00 p.m., defendant Jimmy Dale Hudson visited the Greensboro police department and spoke with Officer Gregory Deans. According to Deans, defendant appeared calm and his face was expressionless. Defendant related that he had an argument with his wife, Kathryn Hudson, and that she had come at him with a butcher knife. He took the knife away from her and did not remember what next occurred, but he thought he might have killed her and that his daughter, three-year-old Wilma Dale Hudson, might have gotten in the way. Defendant informed Deans that he himself had been cut about the neck, hand, and chest in the melee. Defendant provided Deans with directions to the apartment where the killings occurred.\nDefendant was taken to the emergency room at Wesley Long Hospital. While en route, defendant asked Deans if anyone had visited the apartment. Deans responded that he did not know, and defendant told Deans, \u201cI know what they\u2019ll find when they get there.\u201d At the hospital, Dr. James Kindi examined defendant and discovered superficial scratches to the neck most likely caused by fingernails. A one-inch superficial wound that required no stitches was detected on defendant\u2019s chest. A two-inch laceration on the thumb side of the palm of defendant\u2019s left hand was also evident; this wound was not deep but required seven stitches to close. A tiny cut over the knuckle of the index finger of defendant\u2019s left hand required no treatment whatsoever. Finally, defendant complained of soreness on his right wrist. There were no obvious signs of cuts or bruises, and the wrist retained a full range of motion.\nAt approximately 8:25 p.m., police arrived at the scene of the killings and observed the lifeless body of a small child lying on the floor in a pool of blood, with a large gaping laceration in her neck. A butcher knife with a five-inch blade covered almost entirely in blood lay four or five feet from the body of the child. In the living area, officers observed the body of a white female, lying face upward on the floor. She also had a large neck wound and appeared to be dead. The adult female had a handkerchief stuffed inside the neck wound.\nThe apartment appeared to be in order, with no broken furniture or anything out of arrangement. A blue oxford shirt, later identified as being the shirt worn by defendant on the night of the killings, was discovered on the landing of the apartment by the stairs. The shirt had no holes in the shoulder area.\nA 1979 Volkswagen driven by defendant to the police station was also inspected. The inspection revealed bloodstains on the steering wheel, horn, seat, and the driver\u2019s side floor mat. Also found was a brown leather briefcase on the back seat and a man\u2019s shaving kit under the front seat containing a .38-caliber revolver. The revolver was lying exposed on the top of the kit and, unlike the kit, had blood on it.\nRoger McQueen, currently serving time for a double murder, testified for the State. In 1986, McQueen met defendant in the course of his work in the law library at the Eastern Correctional Center, where McQueen assisted inmates in legal research. Defendant confided in McQueen that he was charged with one count of first-degree murder. Defendant went into great detail so that McQueen could provide an opinion as to whether premeditation and deliberation existed and whether an insanity defense was tenable. Defendant first told McQueen that the killing occurred as a result of an argument between him and his wife. At a subsequent meeting, defendant informed McQueen that there was actually a second killing, the latter involving Wilma Dale Hudson. Defendant related that the child was present at the time Kathryn was killed, that the child began to cry, and that defendant sent her to her room. The daughter returned and defendant killed her. McQueen asked defendant how long the interval was between killings, and defendant replied that it was longer than fifteen minutes. Defendant told McQueen that he killed the little girl \u201cto make it fit.\u201d Defendant never told McQueen anything about his wife\u2019s approaching him with a butcher knife.\nDefendant testified in his own behalf. Defendant and Kathryn Hudson met while in school at the University of North Carolina at Chapel Hill. The couple married in 1971. In 1974, defendant graduated from dental school and began a practice in Robbinsville, North Carolina. He left the practice in 1979, moving to Greensboro to begin a practice with Dr. Julian Rogers. After a year and a half, defendant became a full partner. The Hudsons adopted a female child in 1983, naming her Wilma Dale Hudson. In December 1985, defendant was informed by his partners that they wanted him out of the practice. He was disassociated in 1986 and thereafter worked on a temporary basis for other dentists.\nOn the evening of 7 March 1986, defendant arrived at his home and discovered a letter from his wife informing him that she and Wilma Dale had moved out and that she had an attorney. After several unsuccessful attempts, defendant finally located his wife by phone; she refused to discuss the problem and kept telling defendant to read the letter. On 13 March, defendant and Kathryn signed a separation agreement. Shortly after signing the agreement, defendant left the country for a vacation.\nUpon his return, defendant arranged to spend the day with Wilma Dale. When they returned, defendant and his estranged wife talked. Some time later, Kathryn asked defendant to leave, as she had to prepare dinner. Defendant testified that he resisted and became hysterical. He began to leave and Wilma Dale ran over to him and he began hugging and kissing her. Kathryn became angry and began yelling at defendant. Kathryn then came over to defendant and slapped him twice. She then approached defendant with a knife, and defendant was unable to remember anything else until he was washing his hands at the sink. Defendant turned around and Wilma Dale was on the floor. He noticed the two bodies and that they lacked signs of life. Defendant then entered his car and drove around the area. He eventually made his way to the police station. When at the station, he contemplated suicide but was unable to carry it out. Defendant testified that he remembered being cut on his left hand but none of his other injuries.\nConsiderable testimony was mounted concerning defendant\u2019s mental condition at or about the time of the killings. Dr. Bob Rollins, Clinical Director of the Forensic Unit at Dorothea Dix Hospital, evaluated defendant in March and April 1986. Rollins diagnosed defendant as having a mixed personality disorder with narcissistic and dependent features. He also testified that defendant was able at the time of the murder to distinguish right from wrong and that defendant did not suffer from a brief reactive psychosis at the time of the killings.\nDrs. John Edwards, Selwyn Rose, and Donald Fidler all testified that defendant was unable to distinguish right from wrong and that defendant suffered from a reactive psychosis at the time of the killings.\nDr. Aldo Mell examined defendant in the Guilford County jail on 26 March 1986. Mell testified that defendant was probably suffering atypical psychosis and that he recommended a full psychiatric evaluation and transfer to Dorothea Dix.\nThe jury convicted defendant of one count of second-degree murder for the murder of Kathryn Hudson and one count of first-degree murder for the murder of Wilma Dale Hudson. The jury recommended a sentence of life imprisonment on the first-degree murder conviction. The trial court imposed a mandatory life sentence for the first-degree murder and a consecutive fifty-year term for the second-degree murder.\nDefendant raises numerous claims on appeal. We will address these claims seriatim.\nDefendant first claims that the trial court committed reversible error in engaging in ex parte conversations that were not recorded and that took place out of the presence of defendant and his counsel.\nDefendant was the first witness to testify for the defense. During the course of the lengthy direct examination, the court took its regularly scheduled afternoon recess. When court reconvened, outside the presence of defendant and the jury, the judge recounted to counsel at a recorded bench conference conversations he had had with various jurors during the recess. The following colloquy occurred involving the court, defense attorneys Manning and O\u2019Donnell, and district attorneys Greeson and Goodman:\n(A recess was taken at 3:16 p.m.)\n(Court reconvened at 3:39 p.m. All counsel were present. The defendant was not present. The jury was not present.)\nThe COURT: Approach the bench, counsel.\n(The following proceedings were had by the Court and all counsel at the bench:)\nTHE COURT: Just for the record, so you all will know\u2014 and I\u2019ve told them right back here just now \u2014 that when I left the courtroom to go up around the corner, one of the jurors, the first words out of their [sic] mouth was, \u201cWe didn\u2019t realize that they allowed cameras in the courtroom.\u201d\nAnd I said, \u201cWell, you weren\u2019t supposed to see that.\u201d (The defendant entered the courtroom at 3:40 p.m.)\nTHE COURT: And they said, well, it was hard not to notice, with all the cable and the wire. And one of them said, \u201cAnd they left the tape in our chair.\u201d\nAnd I said, \u201cWell, all I can say to you about it is that, the Supreme Court has authorized that, under certain circumstances.\u201d And I said, \u201cI would say to you now, as I\u2019ve said all along, that this is the reason why you\u2019re not to observe any of that on television at night, because they may record some particular part.\u201d And I said, \u201cIf you\u2019re interested in it, have somebody tape it, and you can view it after the trial\u2019s over, but you\u2019re not to view it.\u201d\nAnd they said, \u201cWell, we understand.\u201d\nBut I just wanted you to know that had occurred, in case either of you now wish me to instruct them in open court about the fact that the cameras are in there, and that they\u2019re\u2014\nMr. GREESON: If there was only\u2014\nThe COURT: \u2014to erase that\u2014\nMr. GREESON: \u2014two of them that said that\u2014\nThe COURT: Oh, there were five or six of them around there at that point, you know. And they clearly know.\nMr. GREESON: I don\u2019t care.\nThe COURT: They talked about it among themselves.\nMr. GOODMAN: They all know.\nMr. O\u2019Donnell:- Just for at the end of the day\u2014\nThe COURT: Yes, that\u2019s what I mean, as part of my normal explanation at the close of the day.\nMr. O\u2019Donnell: That\u2019s fine.\nThe COURT: The other thing, they mentioned to me out there in the hall, and again, for the record is, that they were having difficulty hearing Dr. Hudson. I\u2019ve told Mr. Manning that. And I told the jurors, I said, you know, that when they were not able to hear, that I\u2019ve instructed them previously to raise their hand, and I will ask him to speak up.\nAnd they said, was there not a microphone, couldn\u2019t they turn up the microphone for the sound?\nAnd I said, \u201cWell, those microphones don\u2019t have anything do to [sic] with sound. We don\u2019t have any microphones that have anything to do with sound in this courtroom.\u201d\nAnd then they wanted to know, who selected the foreman, was it appointed, or did the jury vote on it. I explained\u2014\nMR. MANNING: Oh, geez.\nTHE COURT: \u2014to them that\u2014\nMr. GREESON: That\u2019s what I say.\nThe COURT: I explained to them that they would be\u2014\nMR. GREESON: Have they got\u2014\nTHE COURT: \u2014instructed with respect\u2014\nMr. GREESON: \u2014somebody running already?\nTHE COURT: I don\u2019t know. I explained to them that there would be instructions with respect to that at a later time in the proceedings.\nMr. MANNING: There\u2019s probably going to be a primary run-off election to see who\u2019s the foreman.\nTHE COURT: Well, there could be \u2014\nMr. GOODMAN: We could voir dire them to find out who it\u2019s going to be.\nThe COURT: It might be a hung jury on that issue. There is a story, you know, about where the jury \u2014 an open-and-shut case, where the judge sent the jury out and told them they could select a foreman. They were about two hours, and he couldn\u2019t understand why. He finally called them back in and they said, \u201cJudge, we\u2019re hung up six to five.\u201d\nAnd he said, \u201cWell, we haven\u2019t even given you the issues sheet yet.\u201d\n\u201cWe\u2019re hung up six to five, judge, on who\u2019s the foreman.\u201d\nI just advise you of that, because I like to let you know when there\u2019s been any kind of contact like that, first of all. And second of all, I wanted you to know so that if you request any instructions, you\u2019ll be aware of it and you can request them.\nMr. GREESON: That\u2019s fine, Judge.\nThe COURT: Okay?\nMR. MANNING: Okay.\nDefendant contends that the ex parte conversations recounted above were improper in three respects. First, defendant argues that the conversations violated defendant\u2019s state constitutional right to be present at each stage of the capital proceeding. N.C. Const. art. I, \u00a7 23. Second, defendant argues that the conversations violated defendant\u2019s federal constitutional right to due process of law because he was effectively deprived of a state statutory entitlement, namely, the right to a true, complete, and accurate record of all proceedings during his capital trial. N.C.G.S. \u00a7 15A-1241 (1988). Finally, defendant argues that the conversations violated defendant\u2019s right to a complete recordation of the proceedings in his capital trial as required by N.C.G.S. \u00a7 15A-1241.\nIt is well settled that a defendant in a capital trial has an unwaivable right to be present at every stage of his trial. State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987) (\u201cPayne I\u201d). \u201cThis Court has repeatedly held that nothing should be done prejudicial to the rights of a person on his trial for a capital felony unless he is actually present . . . .\u201d State v. Jacobs, 107 N.C. 772, 779, 11 S.E. 962, 964 (1890). This right to presence derives from the Confrontation Clause of our State Constitution. N.C. Const. art. I, \u00a7 23; State v. Huff, 325 N.C. 1, 29, 381 S.E.2d 635, 650-51 (1989), sentence vacated, \u2014 U.S. \u2014, 111 L. Ed. 2d 777 (1990), on remand, 328 N.C. 532, 402 S.E.2d 577 (1991). Significantly, however, any violation of a defendant\u2019s right to be present is subject to a harmless error analysis. State v. Artis, 325 N.C. 278, 297, 384 S.E.2d 470, 480 (1989), sentence vacated, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990), on remand, 329 N.C. 679, 406 S.E.2d 827 (1991). Such harmlessness must be proven beyond a reasonable doubt by the State. Huff, 325 N.C. at 33, 381 S.E.2d at 653.\nAs a preliminary matter, we must first determine whether the conversations in the instant case, which took place in a courtroom corridor and during a trial recess, constitute a \u201cstage\u201d as that term has been interpreted in our jurisprudence pertaining to the constitutional right to presence. It is now well settled that our state constitutional right of confrontation is broader than that embedded in the federal Constitution, \u201cguaranteeing the right of every accused to be present at every stage of his trial.\u201d Huff, 325 N.C. at 29, 381 S.E.2d at 651.\nRecently, in State v. Brogden, we stated that \u201ca defendant charged with capital murder \u2018has the right to be, and must be, personally present at all times in the course of his trial, when anything is done or said affecting him as to the charge against him ... , in any material respect.\u2019 \u201d 329 N.C. 534, 541, 407 S.E.2d 158, 163 (1991) (quoting State v. Kelly, 97 N.C. 404, 405, 2 S.E. 185, 185-86 (1887)). Our case law has also acknowledged that where the conversations are held is not dispositive. State v. Buchanan, 330 N.C. 202, 221, 410 S.E.2d 832, 843 (1991) (\u201cas a practical matter not all of the proceedings in an accused\u2019s capital trial occur in the courtroom itself\u201d). Nor, for that matter, is a defendant\u2019s confrontation right rendered inapplicable merely because the conversations transpired over the course of a recess. For instance, in Payne I the Court ordered a new trial when the trial court, during a jury recess, administered its admonitions in the jury room. The jury recess became a \u201cstage\u201d when the court, in derogation of its duty to ensure the presence of defendant at each stage of the capital trial, directly addressed the jury. Payne I, 320 N.C. at 139, 357 S.E.2d at 612; see also State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985) (defendant not present during voir dire of jurors during recess).\nUnder the instant facts, it is not at all clear whether the conversations between judge and jurors constitute a \u201cstage.\u201d The conversations here were indisputably unintended and spontaneous, and not at the behest of the judge, occurring in the corridor of the courthouse during a trial recess. Thus, even under our relatively liberal reading of the constitutional right to presence, it is doubtful that such conversations may be equated with a \u201cstage\u201d in any meaningful sense.\nAssuming arguendo that the chance meeting in the corridor did constitute a \u201cstage,\u201d we nevertheless conclude that the error here, if any, is harmless beyond a reasonable doubt.\nCiting State v. Smith, 326 N.C. 792, 392 S.E.2d 362 (1990), and State v. McCarver, 329 N.C. 259, 404 S.E.2d 821 (1991), defendant contends that prejudicial error occurred as a result of the unrecorded ex parte communications between judge and jurors here. In Smith, the trial judge had private, unrecorded bench conferences that resulted in the excusal of a number of prospective jurors. This Court concluded that the conversations denied defendant his constitutional right to presence and, further, that this violation was not harmless beyond a reasonable doubt. Smith, 326 N.C. at 794, 392 S.E.2d at 363-64. The Court was constrained to conclude that harmlessness was not shown because there existed no record of the conversations such as to reveal their substance. Id. Moreover; the Court found support for its conclusion in the fact that the trial judge failed to comply with the statutory requirement that there be made a complete and accurate record of the jury selection process in defendant\u2019s capital trial. N.C.G.S. \u00a7 15A-1241(a) (1988); Smith, 326 N.C. at 794-95, 392 S.E.2d at 363-34.\nIn McCarver, the trial judge had conversations with numerous prospective jurors that were unrecorded and out of the presence of both defendant and his counsel. These conversations apparently concerned the fitness of the jurors to hear the capital case. Subsequent to the conversations, the judge excused numerous jurors \u201cfor good cause shown.\u201d 329 N.C. at 260, 404 S.E.2d at 821. Citing Smith and Payne I, the Court held that the conversations violated defendant\u2019s right to be present and that the unrecorded violations could not be d\u00e9emed harmless beyond a reasonable doubt because no record was made of the conversations. McCarver, 329 N.C. at 261, 404 S.E.2d at 822.\nThe case at bar differs from Smith and McCarver in several significant respects. First, unlike Smith and McCarver, in the instant case there exists in the record a reconstruction of the ex parte conversations. In this respect, the facts here resemble those in Artis, where the existence of the memorialization facilitated the harmlessness review, which ultimately allowed a finding of harmlessness. Artis, 325 N.C. at 297, 384 S.E.2d at 480. We have no reason to doubt the completeness or accuracy of the trial court\u2019s memorialization, and the lack of any objection by defendant in this regard lends support to this view. Moreover, the record reveals that the content of the conversations was not significant. Therefore, under the circumstances, we are unable to conclude that defendant\u2019s presence at the time of the conversations \u201ccould have had a reasonably substantial relation to his ability to present a full defense.\u201d Payne I, 320 N.C. at 139, 357 S.E.2d at 612.\nDefendant also contends that his federal constitutional right to due process of law was violated by the trial court\u2019s failure to make a true, complete, and accurate record of all \u201cstatements from the bench and all other proceedings\u201d in his capital trial, as required by N.C.G.S. \u00a7 15A-1241. Defendant\u2019s pretrial motion for recordation was granted; however, as noted above, aspects of the proceedings, most notably ex parte conversations between judge and jurors in the courthouse corridor, were not recorded. Defendant, citing Hopt v. Utah, 110 U.S. 574, 28 L. Ed. 262 (1884), argues that this violation of his statutory guarantee violates due process.\nWe disagree. As discussed above, we do not deem the chance encounters in the corridor a \u201cproceeding.\u201d Therefore, the recordation requirement of N.C.G.S. \u00a7 15A-1241 was not triggered, and defendant\u2019s federal constitutional right to due process was not implicated.\nFinally, defendant\u2019s claim that N.C.G.S. \u00a7 15A-1241 was violated because of the unrecorded ex parte conversations is meritless. As already discussed, the conversations did not amount to a \u201cproceeding\u201d within the meaning of that statute, and therefore the recordation requirement was not violated.\nNext, defendant contends that the chance encounter between the trial judge and five or six jury members breached the mandatory requirement that all additional instructions be provided in open court. N.C.G.S. \u00a7 15A-1234(d) (1988); State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985). Here, defendant contends, the trial court memorialized communications cautioning some but not all jurors regarding the presence of electronic media and other matters. Scrutiny of the record, however, reveals that defendant\u2019s claim is without merit.\nAs a threshold matter, the conversations, which took place well before the jury retired, cannot reasonably be considered to be \u201cinstructions\u201d within the meaning of N.C.G.S. \u00a7 15A-1234(d). Further, no objections were lodged by defense counsel as to the conversations regarding the jury\u2019s ability to hear defendant\u2019s testimony or the selection of a jury foreman, the other two matters discussed in the corridor. Therefore, the question is whether the record revealed \u201cplain error.\u201d We conclude that no \u201cplain error\u201d occurred here. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).\nDefendant next contends that the trial court committed reversible error in overruling defendant\u2019s objections to the filming of his trial and in failing to properly apply the rules we have mandated regarding such filming. Shortly before the State rested its case, the trial court informed counsel that the news media wished to film the trial. The following day, the trial court, over defense objections, announced its intention to permit the filming and related a number of instructions it had imposed to ensure the unobtrusive filming of the trial.\nDefendant first argues that the trial court failed to exercise the discretion granted to it by this Court in Order Concerning Electronic Media and Still Photography of Public Judicial Proceedings, 306 N.C. 797 (1982) [hereinafter Order Concerning Electronic Media]. See also General Rules of Practice for the Superior and District Courts, Rule 15 (1992). In Order Concerning Electronic Media, we expressly provided that \u201c[t]he presiding judge shall at all times have authority to prohibit or terminate electronic media and still photography coverage of public judicial proceedings.\u201d Order Concerning Electronic Media, 306 N.C. at 797. Citing State v. Ashe, 314 N.C. 28, 35-37, 331 S.E.2d 652, 656-58, defendant contends that the trial court failed to exercise the discretion provided to it and this amounted to reversible error. However, after a review of the pertinent parts of the trial transcript we find no error to have occurred here, as the record reveals that the trial court exercised its discretion in allowing the filming of defendant\u2019s trial. See State v. Eason, 328 N.C. 409, 427, 402 S.E.2d 809, 816 (1991) (finding that trial judge did not use the words, \u201cI am allowing it in my discretion,\u201d is not dispositive if the record shows the exercise of discretion).\nDefendant also argues that the trial court erred in numerous respects in its implementation of the procedural requirements we set out in Order Concerning Electronic Media to ensure unobtrusive media coverage of trials. First, defendant claims that the court erred when it failed to instruct the jury that \u201c[c]overage of jurors is prohibited expressly at any stage of a judicial proceeding.\u201d 306 N.C. at 797. Subsection 2(d) of our mandate provides that jurors shall be informed of this prohibition at the beginning of the jury selection process. Id. In this regard, the record reveals that it was the court\u2019s intention not to advise the jury that filming was taking place, and defendant\u2019s counsel agreed that defendant would rather the jury not be informed. The court stated to both counsel: \u201cI don\u2019t intend to advise the jury that there\u2019s a camera in the courtroom. I don\u2019t think they\u2019ll know it.\u201d Second, defendant claims that the trial court violated Order Concerning Electronic Media by not ensuring that \u201c[t]he location of equipment\u201d for the media \u201cshall be at a place . . . completely obscured from view from within the courtroom.\u201d Id. at 798. That the equipment was not so obscured is evident on the basis of comments made by members of the jury during recess, as discussed above. Third, defendant claims that the trial court erred when it permitted a microphone to be placed at the bench to allow electronic media coverage of bench conferences. Once again, Order Concerning Electronic Media expressly prohibits such coverage, stating that \u201cthere shall be no audio pickup or broadcast of conferences which occur . . . between counsel and the presiding judge held at the bench.\u201d Id. at 800-01.\nApplying the standard of review articulated by the United States Supreme Court in Chandler v. Florida, 449 U.S. 560, 66 L. Ed. 2d 740 (1981), we find that while the trial court did err in applying the rules regarding the media coverage of the trial, such error did not prejudice defendant. In Chandler, the Court considered whether the filming of defendants\u2019 criminal trial violated due process. In rejecting defendant\u2019s constitutional claim, the Court stated:\n[T]he appellants have not attempted to show with any specificity that the presence of cameras impaired the ability of the jurors to decide the case on only the evidence before them or that their trial was affected adversely by the impact on any of the participants of the presence of cameras and the prospect of broadcast.\nId. at 581, 66 L. Ed. 2d at 756.\nLike the Chandler Court, we reject defendant\u2019s claim of prejudice in the instant case. Rather than making specific allegations of prejudice, defendant makes only \u201cgeneralized allegations of prejudice,\u201d id. at 577, 66 L. Ed. 2d at 753, which of themselves do not demonstrate prejudice of constitutional dimension. Indeed, the record reveals that defendant was aware of the jurors\u2019 cognizance of the media coverage yet made no objection. We therefore conclude that this claim has no merit.\nDefendant next contends that the jury instruction on reasonable doubt given in his case was constitutionally infirm. The instruction provided was as follows:\nA reasonable doubt, as that term is employed in the administration of criminal law, is an honest, substantial misgiving, generated by the insufficiency of the proof, an insufficiency which fails to convince your judgment and conscience and satisfy your reason as to the guilt of the accused.\nThis does not mean satisfy beyond any doubt, nor satisfy beyond all doubt, nor does it mean satisfy beyond a shadow of a doubt, or some vain, imaginary or fanciful doubt.\nA reasonable doubt is a doubt based on reason and common sense, arising out of some or all of the evidence that has been presented, or lack or insufficiency of the evidence, as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant\u2019s guilt.\n(Emphasis added.)\nCiting Cage v. Louisiana, \u2014 U.S. \u2014, 112 L. Ed. 2d 339 (1990), defendant contends that the trial court unconstitutionally reduced the State\u2019s burden of proof as to his guilt. In Cage, the Supreme Court considered whether the following instruction on reasonable doubt violated defendant\u2019s due process rights: Id. at \u2014, 112 L. Ed. 2d at 342 (quoting Louisiana v. Cage, 554 So. 2d 39, 41 (La. 1989)). In construing the instruction, the Court considered \u201chow reasonable jurors could have understood the charge as a whole.\u201d Id. The Court concluded that the combination of the terms in the reasonable doubt instruction amounted to constitutional error, stating:\n[Reasonable doubt must be] \u201csuch doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.\u201d\nThe charge did at one point instruct that to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a \u201cgrave uncertainty\u201d and an \u201cactual substantial doubt,\u201d and stated that what was required was a \u201cmoral certainty\u201d that the defendant was guilty. It is plain to us that the words \u201csubstantial\u201d and \u201cgrave,\u201d as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. When those statements are then considered with the reference to \u201cmoral certainty,\u201d rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.\nId. (citation omitted). Accordingly, the Court reversed the conviction of the defendant in Cage and remanded the case for further proceedings not inconsistent with its opinion.\nDefendant argues that the trial court here impermissibly equated reasonable doubt with \u201can honest, substantial misgiving\u201d and, in so doing, ran the risk that the jury could find guilt \u201cbased on a degree of proof below that required by the Due Process Clause.\u201d Id. We disagree. Significantly, the combination of the terms found offensive by the Cage Court is not present here. Indeed, none of the objectionable language present in Cage, \u201cgrave uncertainty,\u201d \u201cactual substantial doubt,\u201d or \u201cmoral certainty,\u201d is evident in the instant jury instruction. Rather, here we are concerned merely with the phrase \u201csubstantial misgiving.\u201d Thus, like other courts that have considered this question, we conclude that the reasonable doubt instruction given here is not constitutionally unsound. See Parker v. Alabama, 587 So. 2d 1072, 1085 (Ala. Crim. App. 1991); South Carolina v. Johnson, 410 S.E.2d 547, 554 (S.C. 1991), cert. denied, \u2014 U.S. \u2014, 118 L. Ed. 2d 404 (1992). Further support for this view is found in our prior case law that has repeatedly held that a definition of reasonable doubt does not require exactitude. See State v. Watson, 294 N.C. 159, 167, 240 S.E.2d 440, 446 (1978) (\u201cthe definition should be given in substantial accord with those approved by this [CJourt, although no exact formula is required\u201d). Indeed, the instruction provided by the trial court here is virtually identical to the instruction approved by this Court in Watson. In sum, we reject defendant\u2019s claim that the reasonable doubt instruction provided by the trial court here violated defendant\u2019s constitutional right to due process.\nIn his next assignment of error, defendant contends that the trial court abused its discretion in refusing to comply with the jury\u2019s request to examine the transcript of the testimony of Dr. Bob Rollins. During the course of its deliberation, the jury requested the written reports of expert witnesses who testified to defendant\u2019s mental capacity and ability to differentiate between right and wrong. Dr. Rollins had not prepared a written report, so no such report was introduced into evidence or available to the jury; however, the written notes of Rollins were admitted into evidence and were available to the jury. The jury also requested a transcript of Rollins\u2019 testimony. The trial court then permitted the jury to review the available written reports of the others and the notes of Dr. Rollins but refused to permit the jury to examine a transcript of the Rollins testimony.\nUnder N.C.G.S. \u00a7 15A-1233, the trial court has the discretionary authority to permit the jury to reexamine writings that have been received into evidence and to rehear specified parts of the testimony heard at trial. N.C.G.S. \u00a7 15A-1233 (1988). In State v. Ashe, 314 N.C. 28, 34, 331 S.E.2d 652, 656, we stated that pursuant to N.C.G.S. \u00a7 15A-1233 \u201cthe trial court must exercise its discretion in determining whether to permit requested evidence to be read to or examined by the jury.\u201d Citing Ashe and State v. Lang, 301 N.C. 508, 272 S.E.2d 123 (1980), defendant contends that the trial court here failed to exercise its discretion. In Lang, after beginning deliberations, the jury requested that trial testimony be read to it. Denying the request, the trial court stated:\n\u201cNo sir, the transcript is not available to the jury. The lady who takes it down, of course, is just another individual like you 12 people. And what she hears may or may not be what you hear, and 12 of you people are expected, through your ability to hear and understand and to recall evidence, to establish what the testimony was.\u201d\nLang, 301 N.C. at 510-11, 272 S.E.2d at 125. The Lang Court concluded that the response by the trial judge was not an exercise of discretion and that the denial of the request because the transcript was \u201cnot available\u201d was error. A similar result was reached in Ashe, where we found error on an identical basis. Ashe, 314 N.C. at 35, 331 S.E.2d at 656-57. Similar facts are present in the instant case. Here, the court responded to the jury\u2019s request as follows:\nI will provide you with the notes and report of Dr. Edwards, the notes and report of Dr. Rose, the notes of Dr. Rollins, the report of Dr. Dees, the report of Dr. Newmark, and the statement of Mr. McQueen.\nNow, with respect to any request for a transcript of any portions of the testimony, I would say to you that there is no transcript available at this time of any of the testimony. I would further say to you, as I did during my earlier instructions to you, that you are to rely on your recollection of the evidence as it was presented during the course of the trial during your deliberations.\n(Emphasis added.) We find the above passage to be indistinguishable from that related to the juries in Lang and Ashe and held improper by this Court in those cases.\nHowever, unlike Lang and Ashe, the trial court\u2019s action here did not involve prejudice amounting to reversible error. In both Lang and Ashe, the only defense presented related to alibi, and the jury desired to review evidence pertaining to this all-important matter. Here, on the other hand, the Rollins testimony was actually adverse to defendant because Rollins concluded that defendant was sane at the time of the killings. Also, the record reveals that Dr. Rollins disagreed with the diagnoses of defense witnesses Edwards, Fidler, and Rose as to the defendant suffering from brief reactive psychosis. Furthermore, the jury was provided with the Rollins testimony in substance because his written notes were introduced into evidence and submitted to the jury for review. Therefore, we deem this claim to be meritless.\nDefendant next argues that the trial court erred when it denied defendant\u2019s request to instruct the jury on the defense of insanity following its instructions on each particular offense. Specifically, the trial court instructed the jury to \u201cconsider this evidence [of defendant\u2019s legal insanity], only if you find that the State has proved beyond a reasonable doubt each of the elements of one of the offenses about which I have already instructed you.\u201d This instruction, defendant contends, was improper as it precluded the jury from considering \u201cthe substantial evidence of defendant\u2019s diminished, impaired mental capacity on the issues of premeditation, deliberation, specific intent to kill, or malice.\u201d Moreover, defendant contends that the instruction violated the federal and state Constitutions by relieving the State of a significant portion of its burden of proof because it required defendant to prove lack of capacity to the satisfaction of the jury before the jury was able to consider the evidence regarding the various offense elements.\nWith this assignment, we revisit the familiar territory encountered in our case of State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975). In Cooper, defendant was charged with the murders of his wife and four of his children. A forensic psychiatrist testified at trial that defendant suffered from paranoid schizophrenia and that defendant was unable to distinguish right from wrong at the time of the murders. The trial court failed to instruct the jury that it should consider the evidence of defendant\u2019s mental disease on the question of premeditation and deliberation. Id. at 572, 213 S.E.2d at 320. The jury found that defendant was not legally insane at the time of the killings and convicted him of five counts of first-degree murder, resulting in the imposition of five sentences of life imprisonment. On appeal, the defendant argued before this Court that the trial court erred in failing to instruct the jury that it should consider evidence of his mental disease on the question of whether he premeditated and deliberated the killings. We held that no reversible error occurred. Id. at 572-73, 213 S.E.2d at 320-21.\nAs an initial matter, we reject defendant\u2019s contention that the trial court erred in refusing a defense request to have the jury determine defendant\u2019s sanity first, before considering defendant\u2019s guilt as to the substantive offenses. This option was considered in Cooper to be the \u201cbetter procedure,\u201d relative to the procedure employed in the case at bar. However, the Cooper Court stated that such a procedure was merely advisory and held that the failure to so instruct did not constitute error. Cooper, 286 N.C. at 571, 213 S.E.2d at 320; see also State v. Adcock, 310 N.C. 1, 21, 310 S.E.2d 587, 599 (1984). We conclude likewise here.\nWe also reject defendant\u2019s contention that the trial court\u2019s instruction to the jury was in error because it precluded the jury from considering purported evidence of defendant\u2019s diminished mental capacity. The record fails to reveal any evidence that such an instruction was requested. Therefore, under Rule 10(b)(2), defendant waived his right to assign as error the trial court\u2019s failure to so instruct. N.C. R. App. P. 10(b)(2).\nSimilarly, we reject defendant\u2019s claim that the trial court\u2019s instruction violated due process because it impermissibly lessened the State\u2019s obligation to prove the elements of the crimes with which he was charged. The identical claim was addressed by this Court in State v. Mize, 315 N.C. 285, 292-94, 337 S.E.2d 562, 567 (1985), and was rejected.\nIn his next assignment of error, defendant argues that the trial court violated his federal and state due process rights in not enforcing a plea bargain agreement allegedly entered into by defendant and the State and that defendant was prejudiced by this violation. The record reveals that negotiations between defendant and the State resulted in an offer for defendant to plead guilty to two counts of second-degree murder and receive two, consecutive fifty-year sentences. On 14 June 1986, defendant agreed to this proposal. Within a week, defense counsel communicated the agreement to the prosecutor, who then revealed the necessity of defendant settling a separate civil lawsuit involving defendant and the family of the victims. Defendant orally accepted the proposal, and sometime thereafter the prosecutor withdrew it. Defendant alleges that in the interim he relied upon the agreement to his detriment by suspending trial preparations, including the investigation and development of a potential insanity defense.\nThe trial court denied defendant\u2019s motion to enforce the plea bargain agreement and entered a lengthy order containing extensive findings of facts and conclusions of law. The court found as a matter of law \u201cthat there was not a meeting of the minds . . . and that there was not, therefore, a plea bargain agreement reached between the State of North Carolina and the defendant in these cases.\u201d The court also found that \u201ceven if a plea bargain agreement did exist between the State of North Carolina and the defendant in these cases as of June 20, 1986, that the defendant has not changed his position in detrimental reliance upon the agreement.\u201d\nThe law in this area was set out in State v. Collins, 300 N.C. 142, 265 S.E.2d 172 (1980), in which we considered the enforceability of a plea bargain agreement under similar circumstances. The defendant in Collins entered into a written plea bargain agreement with the State, which the State subsequently refused to honor. The trial judge denied defendant\u2019s motion to enforce the agreement. Id. at 143-44, 265 S.E.2d at 173. We examined recent federal constitutional cases in this area, most notably Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427 (1971), and Cooper v. United States, 594 F.2d 12 (4th Cir. 1979), and concluded that the trial court did not commit constitutional error in refusing to enforce the plea bargain agreement. In Collins, we stated:\nWe therefore hold that there is no absolute right to have a guilty plea accepted. The State may withdraw from a plea bargain arrangement at any time prior to, but not after, the actual entry of the guilty plea by defendant or any other change of position by him constituting detrimental reliance upon the arrangement.\n300 N.C. at 148, 265 S.E.2d at 176. Because defendant had neither entered a guilty plea nor in any way relied on the agreement to his detriment, the Collins Court denied defendant\u2019s appeal.\nAs a state constitutional matter, the Collins Court concluded that the existence of N.C.G.S. \u00a7 15A-1023(b) provided even greater support for the State\u2019s position, and distinguished Collins from Cooper v. United States, 594 F.2d 12. N.C.G.S. \u00a7 15A-1023(b) provides that a plea bargain agreement proposed by the State that involves a recommended sentence must first be approved by the trial court before it can become effective. \u201cSuch a lack of judicial approval when required by statute renders the proposed plea bargain agreement null and void.\u201d Collins, 300 N.C. at 149, 265 S.E.2d at 176. \u201c[T]he prosecutor ha[s] no authority to bind the State to the dispensation of a particular sentence in defendant\u2019s case until the trial judge ha[s] approved of the proposed sentence.\u201d Id. at 150, 265 S.E.2d at 176-77.\nThe issue was revisited recently by the federal courts in Mabry v. Johnson, 467 U.S. 504, 81 L. Ed. 2d 437 (1984). There, the Supreme Court noted that \u201c[a] plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.\u201d Id. at 507, 81 L. Ed. 2d at 442. \u201c[TJhere is a critical difference between an entitlement and a mere hope or expectation that the trial court will follow the prosecutor\u2019s recommendation.\u201d Id. at 507 n.5, 81 L. Ed. 2d at 442 n.5.\nBecause defendant did not enter a guilty plea pursuant to the purported agreement, whether defendant\u2019s federal due process rights were violated turns on whether the facts reveal that defendant relied to his detriment on the agreement. We agree with the trial court\u2019s conclusion that no such reliance is evident.\nIndeed, acceptance of the purported plea bargain agreement was communicated on 20 June 1986. On 1 August 1986, the State officially withdrew the agreement by means of a letter; the trial commenced 9 February 1987. The defense contends that it ceased pursuit of its case until December 1986, attributing the six-month lapse to the State\u2019s reneging on the agreement. We disagree. As noted by the Collins Court, a plea bargain agreement involving a sentence recommendation by the State must first have judicial approval pursuant to N.C.G.S. \u00a7 15A-1023(b) before it is enforceable; it is merely an executory agreement until approved by the court. The alleged plea bargain agreement here involved a sentence recommendation, namely, that defendant plead guilty to two counts of second-degree murder and receive two, consecutive fifty-year sentences. Thus, the understanding between defendant and the State, if any, not having been approved by the trial judge, was merely executory and of no effect as a matter of law. Any reliance by defendant, therefore, was not reasonable. Defendant\u2019s assertions of detriment here are decidedly nonspecific and are rendered doubtful in the face of the extensive psychiatric testimony actually mounted at trial. Moreover, the trial judge found that defendant had not changed his position in detrimental reliance upon the agreement.\nDefendant\u2019s claim is similarly unavailing on state constitutional grounds. Given the absence of judicial approval pursuant to N.C.G.S. \u00a7 15A-1023(b), the agreement was of no effect. Because judicial approval did not occur, we reject defendant\u2019s state constitutional claim.\nDefendant\u2019s next basis for appeal concerns the testimony, over defense objection, of an emergency room physician, Dr. Mayer, that defendant did not appear psychotic during an emergency room visit two weeks prior to the killings in the instant case. The trial court agreed that Mayer was not qualified as an expert, and therefore no opinion testimony was allowable. However, the court ruled that Mayer could be asked about matters related to his more general practice and medical education. The transcript reveals the following cross-examination of Mayer by the State:\nBy Mr. Goodman-.\nQ Dr. Mayer, during your years of medical experience, and particularly as an emergency physician, have you had an opportunity to observe and see individuals in a psychotic situation, or who were psychotic?\nA Yes, I have.\nQ All right. Based upon your medical training and knowledge and experience, what are, and can you describe the general symptoms of somebody in a psychotic state, due to an emotional situation?\nA Okay. First of all, I\u2019m not a psychiatrist or a psychologist.\nMr. MANNING: We\u2019d object then.\nThe COURT: Well, overruled, if he knows.\nA But from my perspective, when I see a patient, if they break from reality and cannot function in reality any longer, they\u2019ve entered a psychotic state.\nQ What are the physical symptoms, if you will, that you\u2019ve observed in persons in a psychotic state?\nA Most of them were emotional symptoms of how to respond to me, if they\u2019re hallucinating, if they\u2019re not answering questions appropriately, if they\u2019re looking off into the distance while I\u2019m talking to them and not acting appropriately, those are things I look for in the psychotic patients that I see.\nQ Now, did you observe any of those symptoms that you\u2019ve enunciated, or any of the other symptoms that you have previously observed in a person in a psychotic state in Dr. Hudson on March 10, 1986?\nMr. O\u2019DONNELL: Object to the form of the question.\nA No, I did not.\nThe COURT: Overruled.\nDefendant contends that the trial court acted improperly in overruling defendant\u2019s objection to the State\u2019s cross-examination of Mayer as to defendant\u2019s mental state at the time of his emergency room visit. Defendant argues that merely because the questions were artfully crafted so as not to require a response prefaced by \u201cIn my opinion,\u201d the statements made by Mayer nonetheless amounted to unwarranted opinion testimony. Accordingly, the trial court erred in holding that Mayer could not offer an opinion but could draw inferences based in part upon his general expertise. Defendant argues that this action by the court violated our prohibition of expert testimony by nonqualified witnesses. State v. Satterfield, 300 N.C. 621, 628, 268 S.E.2d 510, 515 (1980). Moreover, defendant contends, this is not an instance where the trial court implicitly found that the witness was an expert. See Apex Tire & Rubber Co. v. Tire Co., 270 N.C. 50, 153 S.E.2d 737 (1967). Here, the trial court expressly concluded that Dr. Mayer had not been qualified as an expert. Moreover, defendant contends that the testimony prejudiced him because of the conclusory nature of Mayer\u2019s testimony and the fact that the emergency room visit occurred only two weeks prior to the killings.\nAssuming arguendo that it was error to admit Dr. Mayer\u2019s testimony in this regard, the trial court\u2019s action here did not amount to prejudicial error because defendant waived any objection that he may have had. The transcript reveals that subsequent to the testimony objected to by defendant as described above, defense counsel engaged in the following colloquy with Dr. Mayer on redirect:\nQ Dr. Mayer, your testimony was that you didn\u2019t feel that Dr. Hudson was psychotic when you saw him; isn\u2019t that correct?\nA That\u2019s correct.\nQ You felt, I think, that he was having a situational reaction?\nA That\u2019s correct.\nLater, on recross-examination, the prosecutor asked the following question, not objected to by defendant:\nQ I\u2019m asking, the symptoms that you observed in Dr. Hudson . on March 10th were any of those symptoms consistent with your observations of a person in a psychotic state?\nA No they were not.\nIn State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979), we stated: \u201cIt is well established that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.\u201d Because defendant waived his prior objection this assignment is overruled.\nNext, defendant contends that the trial court erred in overruling defendant\u2019s repeated objections to references made by the State during the cross-examination of defendant regarding his sexual proclivities. This examination included references to written communications defendant had with other married couples and with women other than his wife regarding sexual activity. Defendant concedes that objections were not lodged against all such inquiries and argues that the references nevertheless amounted to \u201cplain error.\u201d Defendant argues that the cross-examination had no relevance to any material fact and had no probative value with respect to impeaching defendant\u2019s veracity.\nDuring the presentation of the State\u2019s case-in-chief, Detective Brady of the Greensboro Police Department testified. On cross-examination by the defense, Brady was requested to read into the record a statement given by defendant on the night of the killings. This statement was as follows:\n\u201cOn approximately six or seven different times, I had \u25a0 affairs with different women, but [Kathryn] probably knew about only three of them. But I had terminated all of this behavior since August 1985. But about three or four weeks ago, [Kathryn] had found some letters in my briefcase that I had written to some women. One of the letters was current, and the other one went further back than a year or more. My affairs were also with out-of-town women, as I never saw any women here in Greensboro, due to my position here in the community.\n\u201cAt one point in our marriage, I suggested that we go to a nudist colony, but [Kathryn] didn\u2019t want any part of it. She finally just told me to do my thing, but don\u2019t bring home any pregnant women or diseases. As far as I am aware, [Kathryn] never had any affairs with anyone.[\u201d]\nFurther, direct examination of defendant resulted in the following exchange between defendant and his counsel:\nQ What was under the bed in your and [Kathryn\u2019s] bedroom at your house?\nA What was under there?\nQ Yes.\nA My guns.\nQ And what else?\nA Some adult magazine, correspondences, things that [Kathryn] and I had shared between \u201979 and about \u201982.\nQ And was some of that material pornographic?\nA Yes.\nQ Why did you have it there?\nA We were a very erotic couple. It was something we were involved with for a short while together, and then later, I was involved with to a minor degree for a couple or three years. It had been under the bed, most of it, for three or four years, without us even looking at it, except maybe at night, sharing a laugh, looking at it, that type of thing.\nOn numerous occasions, we have considered the propriety of efforts to elicit testimony from witnesses regarding their sexual behavior. In State v. Scott, 318 N.C. 237, 243, 347 S.E.2d 414, 418 (1986), we stated that such a cross-examination was improper because \u201cinstances of sexual relations or proclivities[ ] fall[ ] outside the bounds of admissibility under Rule 608(b).\u201d Indeed, such extrinsic evidence rarely will be probative of a witness\u2019 character for truthfulness, as is required by Rule 608(b). See N.C.G.S. \u00a7 8C-1, Rule 608(b) (1988).\nThe State first contends that the cross-examination references to defendant\u2019s extramarital affairs and other sexual behavior were directed toward contesting defendant\u2019s assertion in the statement provided to Detective Brady that defendant had terminated such activities in August 1985. Moreover, the State argues that defendant opened the door to the references to illicit sexual activity by means of the above-described direct examination of defendant by defense counsel and the admission of defendant\u2019s statement during cross-examination of Detective Brady. Finally, the State argues that the alleged error does not reach the level of plain error. The defendant never denied killing his wife and daughter; his sole defense was that he did so while legally insane. Once the jury rejected the insanity defense, the evidence of guilt was unequivocal.\nA review of the record reveals that defendant, early on in the cross-examination, conceded that after 1985 he corresponded with other adults about sexual matters and possible physical encounters but that he did not consider such activities to be \u201caffairs.\u201d Therefore, his statement to Detective Brady that he ceased encounters of a physical nature, \u201caffairs,\u201d was truthful. The record also reveals that none of the State\u2019s references to the illicit activities concerned actual physical contact between defendant and others. On this basis, the State\u2019s continued references to the defendant\u2019s purported nonphysical activities with adults were improper.\nWe agree with the State, however, that defendant opened the door to the cross-examination of defendant regarding his various and extensive illicit activities during the course of his marriage to Kathryn Hudson. In State v. Albert, 303 N.C. 173, 277 S.E.2d 439 (1981), we related the following principle:\n[T]he law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.\nId. at 177, 277 S.E.2d at 441. Here, defendant conceded on direct examination that he and his wife were a \u201cvery erotic couple.\u201d Further, defendant\u2019s statement to Detective Brady, read into evidence at the initiative of defendant, alluded to numerous extramarital affairs. Thus, seen in context, the State\u2019s inquiries regarding defendant\u2019s sexual proclivities were not impermissible. We therefore deem this assignment of error to be without merit.\nDefendant next objects to the fifty-year sentence he received for the second-degree murder of Kathryn Hudson, claiming that the sentence impermissibly exceeded the presumptive sentence of fifteen years. The sentence, in part, was based upon two aggravating factors: that the offense was especially heinous, atrocious, or cruel and that defendant committed perjury during the trial. Defendant notes that when a sentencing court relies on an aggravating factor lacking in either evidentiary or legal support, the matter must be remanded for a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).\nDefendant contends that there existed insufficient evidence to support a finding that the killing of Kathryn Hudson was especially heinous, atrocious, or cruel. N.C.G.S. \u00a7 15A-1340.4(a)(l)(f) (1991). In examining whether the evidence supports this aggravating factor, \u201cthe focus should be on whether the facts of the case disclosed excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense. \u201d State v. Blackwelder, 309 N.C. 410, 414, 306 S.E.2d 783, 786 (1983). It is not \u201cinappropriate in any case to measure the brutality of the crime by the extent of the physical mutilation of the body of the deceased or surviving victim.\u201d Id. at 415, 306 S.E.2d at 787.\nIn State v. Benbow, 309 N.C. 538, 308 S.E.2d 647 (1983), defendant entered a plea of guilty to second-degree murder. The evidence disclosed that the victim was beaten with a stick, fracturing his skull in several places and driving the orb of one eye into the brain. We held that the evidence supported the finding that the crime was especially heinous, atrocious, or cruel.\nAs in Benbow, we find support for the finding here. The autopsy of Kathryn Hudson revealed that in her killing, apparently carried out with a butcher knife, the brutality was excessive and the injuries severe. The victim sustained numerous blunt trauma injuries to the forehead, nose, eye, and cheek areas. There also was a stab wound to the right side of the neck, and at least three severe incise wounds, one extending eleven inches, running from the left side of her neck through the right side to a midpoint on the back of the neck. This massive incision damaged the right and left carotid arteries and right and left jugular veins and was so deep as to damage the spine. According to the medical examiner, defendant used substantial force as he slashed his victim more than three times with the murder weapon. The autopsy revealed that the victim died as a result of the loss of blood and possibly interference with the oxygen supply to the body because of severance of the windpipe. Moreover, the evidence at trial indicated that as life was ebbing from the victim, Kathryn Hudson, three-year old Wilma Dale, defendant\u2019s second murder victim, watched and cried uncontrollably. Under the circumstances, extreme psychological suffering and torment in both the mother and child would be natural. We conclude that there was ample evidence to support the trial court\u2019s finding that the murder, which involved repeated stabbings resulting in severe and massive incised wounds and considerable loss of blood, was especially heinous, atrocious, or cruel.\nThe trial court also found that Kathryn Hudson\u2019s killing was aggravated by the fact that defendant perjured himself during his trial. In State v. Thompson, 310 N.C. 209, 311 S.E.2d 866 (1984), we expressed significant reservations about the use of perjury as a nonstatutory aggravating factor, saying a \u201ctrial judge should exercise extreme caution in this area and should refrain from finding perjury as an aggravating factor except in the most extreme case.\u201d Id. at 227, 311 S.E.2d at 876 (emphasis added). Four years later, in State v. Vandiver, 321 N.C. 570, 574, 364 S.E.2d 373, 375 (1988), we reexamined our position in Thompson and held that a finding of perjury constituted an impermissible aggravating factor and could not, as a matter of law, be considered in the sentencing decision. Significantly, however, we stated that the rule would be effective only as to sentencing proceedings commencing on or after the certification date of the Vandiver opinion, which was 23 February 1988. Here, defendant was sentenced approximately ten months prior to the certification date of Vandiver, thereby rendering the court\u2019s application of the factor permissible here.\nWe conclude that the \u201cextreme case\u201d standard enunciated in Thompson is satisfied here. The record reveals numerous significant contradictions between the testimony of defendant and the record, and the trial court\u2019s finding of perjury is supported by a preponderance of the evidence. State v. Ahearn, 307 N.C. 584, 596, 300 S.E.2d 689, 696-97.\nFirst, defendant testified at trial that on the day before the murder, he grazed himself with a bullet while trying to commit suicide while seated in his car with a .38-caliber revolver. However, when Dr. James Kindi examined defendant on the day of the murders, he discovered no such graze mark. Moreover, when the revolver was recovered from defendant\u2019s car by the police, the revolver was fully loaded. Also, the police discovered no bullet holes within the vehicle. Altogether, the record reveals that defendant perjured himself on the basis of his assertion that he attempted to commit suicide the day prior to the killings.\nSecond, the record belies defendant\u2019s assertion that Kathryn Hudson attacked defendant with a butcher knife prior to the murders and that the attack accounted for a number of injuries defendant complained of during his examination by Dr. Kindi on the day of the murders. None of the clothing defendant wore at the time of the killings revealed any cuts or slashes naturally attending an attack with a butcher knife. Further, in confiding with jailmate Roger McQueen, his ersatz legal advisor, defendant never mentioned anything about his wife attacking him with a butcher knife.\nThird, defendant testified on cross-examination that his knowledge of this State\u2019s law relating to the insanity defense was limited to what he was told by his counsel. This contention is belied by testimony by Roger McQueen that indicated that defendant did a substantial amount of research in this area while being held as a safekeeper.\nFinally, defendant testified that after he was attacked by Kathryn Hudson with a butcher knife, he remembered nothing else until he was at the sink washing his hands. This testimony was decisively contradicted by the record, which reveals that at least fifteen minutes passed between the killings of the mother and daughter and that defendant admitted that he killed Wilma Dale to \u201cmake it fit.\u201d\nTaken together, defendant\u2019s false assertions under oath amply support the nonstatutory aggravating factor that defendant perjured himself during his trial. Unlike Vandiver, where the trial court supported its finding of perjury only on the basis of the jury\u2019s guilty verdict, 321 N.C. at 574, 364 S.E.2d at 375, here ample evidence exists of perjury. In sum, we conclude that the trial court did not err in employing perjury as a nonstatutory aggravating factor.\nNevertheless, defendant argues that failure to apply the Vandiver rule retroactively constitutes a violation of defendant\u2019s federal and state due process rights. Support for defendant\u2019s view is found in the recent Supreme Court case of Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 661 (1987), where the Court provided that \u201ca new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.\u201d Here, because defendant\u2019s appeal was pending before this Court at the time Vandiver was certified, defendant argues that the Vandiver rule should be applied retroactively.\nAn examination of Griffith and the long series of contradictory cases regarding retroactivity culminating with Griffith, however, reveals that the Vandiver rule need not be applied retroactively. Significantly, Griffith and the cases preceding it concerned the announcement of new rules concerning constitutional rights of the accused. See, e.g., Griffith, 479 U.S. 314, 93 L. Ed. 2d 649 (Equal Protection Clause and Batson); Allen v. Hardy, 478 U.S. 255, 92 L. Ed. 2d 199 (1986) (Equal Protection Clause and Batson); Shea v. Louisiana, 470 U.S. 51, 84 L. Ed. 2d 38 (1985) (Fifth Amendment and Edwards); United States v. Johnson, 457 U.S. 537, 73 L. Ed. 2d 202 (1982) (Fourth Amendment and Payne); Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601 (1965) (Fourth Amendment and Mapp). This distinction was expressly related in Griffith, where the Court provided: \u201c[F]ailure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms' of constitutional adjudication.\u201d Griffith, 479 U.S. at 322, 93 L. Ed. 2d at 658 (emphasis added).\nThe \u201cnew rule\u201d before the Court in the instant case is not of constitutional magnitude. It is clear that the discouragement of the use of the aggravator stems from practical concerns over its application, rather than any abiding concern for the constitutional rights of defendants as was the case in Griffith, and was prescribed by this Court pursuant to its powers to prescribe rules of practice and procedure under N.C.G.S. \u00a7 7A-34 and Article IV, Section 13 of the North Carolina Constitution. According to the Vandiver Court, the use of perjury as an aggravating factor was precluded because:\nThe \u201cextreme case\u201d standard has proved unworkable and our words of caution insufficient bulwarks against misuse of the aggravating factor. . . .\nBecause a trial judge\u2019s determination of the factor is basically dependent upon his subjective evaluation of the defendant\u2019s demeanor, we find it impossible to formulate adequately concrete guidelines to prevent future erroneous findings. In the interests of justice, we therefore hold that perjury may no longer constitute a nonstatutory aggravating factor in North Carolina.\nVandiver, 321 N.C. at 573-74, 364 S.E.2d at 375. For this reason, we reaffirm our statement in Vandiver that the Vandiver rule is not to apply retroactively.\nFinally, defendant assigns error to the trial court\u2019s refusal to find the statutory mitigating factor that \u201cthe relationship between the defendant and the victim was . . . extenuating.\u201d N.C.G.S. \u00a7 15A-1340.4(a)(2)(i) (Supp. 1991). Defendant argues that the uncontroverted evidence adduced at trial established that such a relationship existed between him and his wife and that therefore the matter must be remanded for a new sentencing hearing. State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). We disagree.\nIn State v. Watson, 311 N.C. 252, 257, 316 S.E.2d 293, 297 (1984), we responded to a similar claim as follows: \u201cWe decline to hold . . . that a relationship between husband and wife, including marital difficulties in the past, is sufficient, standing alone, to support a finding of this mitigating factor.\u201d We reach the identical conclusion here.\nIn conclusion, we hold that defendant received a fair trial free of prejudicial error.\nNo error.\n. Support for this view is contained in the recent United States Supreme Court case Rushen v. Spain, 464 U.S. 114, 78 L. Ed. 2d 267 (1983). See id. at 118, 78 L. Ed. 2d at 273 (per curiam) (\u201cThere is scarcely a lengthy trial in which one or more jurors does not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial.\u201d); id. at 125-26, 78 L. Ed. 2d at 277 (Stevens, J., concurring) (\u201cI think it quite clear that the mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right. The defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication.\u201d).\n. In the case at bar, the court was approached by the media not at the outset of trial, a time apparently contemplated by our directives in Order Concerning Electronic Media, but rather at the near midpoint of the proceeding. We do not believe that the timing of the decision to allow media coverage diminishes in any way the importance of the procedural safeguards set in place in Order Concerning Electronic Media. However, we reject defendant\u2019s contention that commencement of media coverage at near mid-trial, at a time a defendant begins to present his case, is prejudicial as a matter of law.\n. In Estelle v. McGuire, \u2014 U.S. \u2014, 116 L. Ed. 2d 385 (1991), the Supreme Court reconsidered the standard of review articulated in Cage regarding jury instructions and reasserted the standard first enunciated in Boyde v. California, 494 U.S. 370, 108 L. Ed. 2d 316, reh\u2019g denied, 495 U.S. 924, 109 L. Ed. 2d 322 (1990). In Estelle, the Court inquired \u201c \u2018whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way\u2019 that violates the Constitution.\u201d Estelle, \u2014 U.S. at \u2014, 116 L. Ed. 2d at 399 (quoting Boyde, 494 U.S. at 380, 108 L. Ed. 2d at 329).\n. Additional support for the narrow reading of the Court\u2019s Cage opinion is found in Gaskins v. McKellar, \u2014 U.S. \u2014, 114 L. Ed. 2d 728, reh\u2019g denied, \u2014 U.S. \u2014, 115 L. Ed. 2d 1098 (1991). There, Justice Stevens noted that the Court correctly denied certiorari because the jury instruction in Gaskins did not contain the \u201cgrave uncertainty\u201d language condemned in Cage. Id. at \u2014, 114 L. Ed. 2d at 728-29 (Stevens, J., concurring).\n. Defendant also urges that this case is somehow controlled by State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988). Shank, however, concerned the impropriety of the trial court\u2019s failure to allow expert opinion testimony as to defendant\u2019s diminished capacity at the time of the first-degree murder with which he was charged. We found this refusal to be error, concluding that under Rule of Evidence 704 such testimony was admissible and it concerned the element of premeditation and deliberation, making it highly relevant. In the case at bar, we consider the propriety of the trial court\u2019s instructions to the jury, a wholly distinct matter.", "type": "majority", "author": "MEYER, Justice." }, { "text": "Justice WEBB\nconcurring.\nI concur with the result reached by the majority but not with all its reasoning.\nThe majority says that it was harmless error to admit Dr. Mayer\u2019s testimony that the defendant did not exhibit the symptoms of a person in a psychotic state. I would hold it was not error to admit this testimony. A witness may testify as to the mental condition or capacity of a person if he has had a chance to observe that person although the witness is not an expert in mental disorders. See 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 127 (3d ed. 1988).", "type": "concurrence", "author": "Justice WEBB" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by John H. Watters, Assistant Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JIMMY DALE HUDSON\nNo. 454A87\n(Filed 22 April 1992)\n1. Constitutional Law \u00a7 342 (NCI4th)\u2014 ex parte conversations between judge and jurors \u2014 not \u201cstage\u201d of trial \u2014 constitutional right to presence at trial not violated\nIt is doubtful that ex parte conversations between the judge and jurors in the courthouse corridor during a recess in a capital trial constituted a \u201cstage\u201d of the trial within the meaning of the constitutional right of an accused to be present at every stage of his trial. Assuming arguendo that the chance meeting in the corridor did constitute a \u201cstage,\u201d error, if any, in the ex parte communications between the judge and jurors was harmless beyond a reasonable doubt where the trial judge reconstructed the conversations for the record; the record reveals that the conversations pertained to the presence of cameras in the courtroom, the jury\u2019s ability to hear defendant\u2019s testimony, and selection of the jury foreman and that the contents of the conversations were thus not significant; and defendant\u2019s presence at the time of the conversations could not have had a reasonably substantial relation to his ability to present a full defense.\nAm Jur 2d, Criminal Law \u00a7\u00a7 692-695; Trial \u00a7\u00a7 226, 1573, 1577-1579.\nAccused\u2019s right, under Federal Constitution, to be present at his trial \u2014 Supreme Court cases. 25 L. Ed. 2d 931.\n2. Criminal Law \u00a7 507 (NCI4th)\u2014 judge\u2019s conversations with jurors during recess \u2014record not required\nEx parte conversations between the judge and jurors in a courthouse corridor during a recess in a capital trial did not amount to a \u201cproceeding\u201d within the meaning of the statute requiring the trial court to have made a true, complete, and accurate record of all \u201cstatements from the bench and all other proceedings,\u201d N.C.G.S. \u00a7 15A-1241. Therefore, the recordation requirement of N.C.G.S. \u00a7 15A-1241 was not triggered, and the failure to record these conversations did not implicate defendant\u2019s federal due process rights.\nAm Jur 2d, Trial \u00a7\u00a7 1573, 1577-1579.\nCommunications between court officials or attendants and jurors in criminal trial as ground for mistrial or reversal \u2014 post-Parker cases. 35 ALR4th 890.\n3. Criminal Law \u00a7 870 (NCI4th)\u2014 encounter between judge and jurors during recess \u2014 not additional instructions \u2014 open court requirement inapplicable\nEx parte communications between the judge and jurors in the courthouse corridor during a trial recess did not breach the mandatory requirement of N.C.G.S. \u00a7 15A-1234(d) that all additional instructions be provided in open court where the conversations pertained to cameras in the courtroom, the jury\u2019s ability to hear defendant\u2019s testimony, and selection of a jury foreman and cannot reasonably be considered as \u201cinstructions\u201d within the meaning of the statute.\nAm Jur 2d, Trial \u00a7\u00a7 1111, 1114, 1573.\n4. Criminal Law \u00a7 406 (NCI4th)\u2014 filming of defendant\u2019s trial\u2014 exercise of discretion by court\nThe record shows that the trial court did in fact exercise its discretion in allowing the filming of defendant\u2019s trial.\nAm Jur 2d, Trial \u00a7 256.\n5. Constitutional Law \u00a7 261 (NCI4th|\u2014 electronic media coverage \u2014 commencement at mid-trial \u2014 no prejudice as matter of law\nCommencement of electronic media coverage of defendant\u2019s trial near mid-trial, at the time defendant began to present his case, was not prejudicial as a matter of law.\nAm Jur 2d, Trial \u00a7 256.\n6. Constitutional Law \u00a7 261 (NCI4th)\u2014 rules for electronic media \u2014 court\u2019s failure to follow \u2014no violation of due process\nAlthough the trial court erred in applying the rules regarding electronic media coverage of defendant\u2019s trial by failing to inform the jury that coverage of jurors is expressly prohibited at any stage of a judicial proceeding, by failing to ensure that electronic equipment was completely obscured from view in the courtroom, and by permitting a microphone to be placed at the bench to allow electronic media coverage of bench conferences, such error was not prejudicial to defendant where defendant made no specific allegations that media coverage impaired the jury\u2019s ability to decide the case on the evidence or had an adverse impact on trial participants sufficient to constitute a denial of due process.\nAm Jur 2d, Trial \u00a7\u00a7 184, 256.\n7. Criminal Law \u00a7 757 (NCI4th)\u2014 instruction on reasonable doubt \u2014due process\nThe trial court\u2019s instruction that a reasonable doubt \u201cis an honest, substantial misgiving\u201d did not reduce the State\u2019s burden of proof in violation of defendant\u2019s constitutional right to due process.\nAm Jur 2d, Trial \u00a7\u00a7 1371-1375.\n8. Criminal Law \u00a7 496 (NCI4th)\u2014 jury request to review testimony \u2014denial because transcript unavailable \u2014harmless error\nThe trial court improperly failed to exercise its discretion in a prosecution for two murders when it denied the jury\u2019s request to examine the transcript of a psychiatrist\u2019s testimony because the transcript was \u201cnot available.\u201d However, this error was not prejudicial to defendant where the psychiatrist\u2019s testimony was adverse to defendant in that he concluded that defendant was sane at the time of the killings; the record reveals that the psychiatrist disagreed with the diagnoses of three defense witnesses as to whether defendant suffered from a reactive psychosis at the time of the killings; and the jury was provided with the psychiatrist\u2019s testimony in substance because his written notes were introduced into evidence and submitted to the jury for review.\nAm Jur 2d, Trial \u00a7 1690.\n9. Criminal Law \u00a7 23 (NCI4th)\u2014 consideration of insanity issue first \u2014 failure to instruct not error\nWhile the better procedure would be to have the jury determine defendant\u2019s sanity before considering defendant\u2019s guilt of the substantive offenses, the trial court\u2019s failure to so instruct the jury did not constitute error.\nAm Jur 2d, Criminal Law \u00a7 107; Trial \u00a7 1270.\n10. Criminal Law \u00a7 884 (NCI4th)\u2014 failure to instruct \u2014 absence of request\nDefendant waived his right to assign as error the trial court\u2019s failure to instruct the jury to consider purported evidence of defendant\u2019s diminished mental capacity where he failed to request such an instruction. N.C. R. App. P. 10(b)(2).\nAm Jur 2d, Criminal Law \u00a7\u00a7 40, 41; Trial \u00a7 1081.\n11. Criminal Law \u00a7 769 (NCI4th)\u2014 evidence of insanity\u2014 consideration after finding of guilt \u2014 instruction not violation of due process\nThe trial court\u2019s instruction that the jury in a prosecution for two murders should consider evidence of defendant\u2019s legal insanity \u201conly if you find that the State has proved beyond a reasonable doubt each of the elements of one of the offenses about which I have already instructed you\u201d did not lessen the State\u2019s obligation to prove the elements of the crimes with which defendant was charged in violation of due process.\nAm Jur 2d, Trial \u00a7 1278.\n12. Criminal Law \u00a7 133 (NCI4th)\u2014 plea bargain with sentence recommendation \u2014 withdrawal by State \u2014 court\u2019s refusal to enforce \u2014 no violation of due process\nThe trial court did not violate defendant\u2019s federal or state due process rights by refusing to enforce a plea bargain agreement for defendant to plead guilty to two counts of second degree murder and receive two consecutive fifty-year sentences where defendant\u2019s acceptance of the agreement was communicated on 20 June 1986; the State officially withdrew the agreement by letter on 1 August 1986; the trial commenced on 9 February 1987; the alleged agreement between defendant and the State, if any, was merely executory and of no effect as a matter of law because it had not been approved by the trial judge as required by N.C.G.S. \u00a7 15A-1023(b); any reliance on the agreement by defendant was thus not reasonable; defendant\u2019s assertion of detriment on the ground that he suspended trial preparations for an insanity defense is doubtful in the face of the extensive psychiatric testimony presented at trial; and the trial court found that defendant had not changed his position in detrimental reliance upon the agreement.\nAm Jur 2d, Criminal Law \u00a7\u00a7 481, 483, 484.\nRight of prosecutor to withdraw from plea bargain prior to entry of plea. 16 ALR4th 1089.\n13. Evidence and Witnesses \u00a7 672 (NCI4th)\u2014 waiver of objection\u2014 admission of similar tesimony without objection\nEven if testimony by an emergency room physician that defendant did not appear psychotic during an emergency room visit two weeks prior to the killings in question constituted expert opinion testimony by a nonqualified witness, defendant waived objection to such testimony when defense counsel subsequently elicited similar testimony from the witness and when defendant failed to object to similar testimony thereafter elicited by the prosecutor.\nAm Jur 2d, Trial \u00a7\u00a7 411, 412, 420.\n14. Evidence and Witnesses \u00a7 765 (NCI4th)\u2014 sexual proclivities of defendant \u2014 opening door to cross-examination\nIn a prosecution of defendant for the murders of his wife and child, defendant opened the door to cross-examination of defendant by the State about his sexual proclivities when defendant\u2019s statement to a detective alluding to numerous extramarital affairs was read into evidence at defendant\u2019s initiative, and defendant testified on direct examination that he and his wife were a \u201cvery erotic couple.\u201d\nAm Jur 2d, Trial \u00a7 419.\n15. Criminal Law \u00a7 1148 (NCI4th)\u2014 aggravating factor \u2014 heinous, atrocious or cruel murder \u2014 sufficiency of evidence\nThere was ample evidence to support the trial court\u2019s finding that defendant\u2019s second degree murder of his wife was especially heinous, atrocious or cruel where it tended to show that the murder was carried out with a butcher knife; the victim sustained numerous blunt trauma injuries to the forehead, nose, eye, and cheek areas; there was a stab wound to the right side of the neck and at least three incise wounds; one massive incise wound to the neck damaged the right and left carotid arteries and right and left jugular veins and was so deep as to damage the spine; defendant used substantial force as he slashed the victim with the murder weapon; the victim died as a result of loss of blood and possibly interference with the oxygen supply to the body because of severance of the windpipe; and as life was ebbing from the victim, defend.ant\u2019s three-year-old adopted child, his second murder victim, watched and cried uncontrollably.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Homicide \u00a7 554.\n16. Criminal Law \u00a7 1116 (NCI4th|\u2014 perjury \u2014 improper aggravating factor \u2014nonretroactivity of opinion\nThe holding in State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373, that perjury constitutes an impermissible aggravating factor and may not, as a matter of law, be considered in the sentencing decision does not apply where defendant was sentenced ten months prior to the certification date, of that decision, 23 February 1988.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nPropriety of sentencing judge\u2019s consideration of defendant\u2019s perjury or lying in pleas or testimony in present trial. 34 ALR4th 888.\n17. Criminal Law \u00a7 1116 (NCI4th)\u2014 aggravating factor \u2014 perjury\u2014 sufficiency of evidence\nAmple evidence supported the trial court\u2019s finding of perjury as a nonstatutory aggravating factor for defendant\u2019s second degree murder of his wife where it tended to show that defendant falsely asserted under oath at trial that he attempted to commit suicide the day prior to the killing, that his wife attacked him with a butcher knife prior to the murder and this attack accounted for a number of injuries defendant complained of during his examination by a doctor on the day of the murder, that his knowledge of state law relating to the insanity defense was limited to what he was told by his counsel, and that after he was attacked by his wife he remembered nothing else until he was at the sink washing his hands.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nPropriety of sentencing judge\u2019s consideration of defendant\u2019s perjury or lying in pleas or testimony in present trial. 34 ALR4th 888.\n18. Appeal and Error \u00a7 550 (NCI4th)\u2014 perjury as improper aggravating factor \u2014nonretroactivity\u2014no due process violation\nFailure to apply retroactively the rule of State v. Vandiver, 321 N.C. 570, that perjury is an improper nonstatutory aggravating factor does not violate defendant\u2019s federal or state due process rights since the \u201cnew rule\u201d before the Supreme Court is not of constitutional magnitude.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nPropriety of sentencing judge\u2019s consideration of defendant\u2019s perjury or lying in pleas or testimony in present trial. 34 ALR4th 888.\n19. Criminal Law \u00a7 1245 (NCI4th)\u2014 mitigating factor \u2014 extenuating relationship \u2014marital difficulties\nA relationship between a husband and wife, including marital difficulties in the past, is not sufficient, standing alone, to support a finding of the statutory mitigating factor that the relationship between defendant and the victim was extenuating. N.C.G.S. \u00a7 15A-1340.4(a)(2)(i).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nJustice WEBB concurring.\nAPPEAL as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a life sentence upon defendant\u2019s conviction of first-degree murder entered by Ross, J., at the 9 February 1987 Special Criminal Session of Superior Court, GUILFORD County. Defendant\u2019s motion to bypass the Court of Appeals, pursuant to N.C.G.S. \u00a7 7A-31, as to his second-degree murder conviction, for which he received a consecutive sentence of fifty years, was allowed by this Court 14 January 1992. Heard in the Supreme Court 12 February 1992.\nLacy H. Thornburg, Attorney General, by John H. Watters, Assistant Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Gordon Widenhouse, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0122-01", "first_page_order": 164, "last_page_order": 201 }