{ "id": 2532051, "name": "STATE OF NORTH CAROLINA v. MARVIN EARL WILLIAMS, JR.", "name_abbreviation": "State v. Williams", "decision_date": "1993-09-10", "docket_number": "No. 264A90", "first_page": "440", "last_page": "467", "citations": [ { "type": "official", "cite": "334 N.C. 440" } ], "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": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "opinion_index": -1, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "57 ALR3d 746", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "279 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565516 ], "opinion_index": -1, "case_paths": [ "/nc/279/0001-01" ] }, { "cite": "98 ALR3d 13", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "334 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530961 ], "opinion_index": -1, "case_paths": [ "/nc/334/0333-01" ] }, { "cite": "444 U.S. 943", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11399617, 11399742, 11399849, 11399791, 11399664, 11399698, 11400084, 11399545, 11399898, 11399934, 11400031 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/444/0943-02", "/us/444/0943-05", "/us/444/0943-07", "/us/444/0943-06", "/us/444/0943-03", "/us/444/0943-04", "/us/444/0943-11", "/us/444/0943-01", "/us/444/0943-08", "/us/444/0943-09", "/us/444/0943-10" ] }, { "cite": "190 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "172-73" } ], "opinion_index": 0 }, { "cite": "281 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576334 ], "year": 1972, "pin_cites": [ { "page": "670-72" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0658-01" ] }, { "cite": "291 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "602, 604" }, { "page": "604" } ], "opinion_index": 0 }, { "cite": "306 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567497 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0090-01" ] }, { "cite": "62 L. 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Ed. 2d 935", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "486 U.S. 1061", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6375268, 6376325, 6375755, 6375564, 6375412, 6376092 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/486/1061-01", "/us/486/1061-06", "/us/486/1061-04", "/us/486/1061-03", "/us/486/1061-02", "/us/486/1061-05" ] }, { "cite": "362 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "321 N.C. 125", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567820 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0125-01" ] }, { "cite": "365 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567021 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0738-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1988, "pin_cites": [ { "page": "526" }, { "page": "527" }, { "page": "526-27" }, { "page": "528" }, { "page": "525-26" }, { "page": "527-28" }, { "page": "528" }, { "page": "528" } ], "opinion_index": 0 }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "898" }, { "page": "898" }, { "page": "898" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "316-17" }, { "page": "317" }, { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "204 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "parenthetical": "\"a tape recording should not be excluded merely because parts of it are inaudible if there are other parts that can be heard\"" } ], "opinion_index": 0 }, { "cite": "285 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563464, 8563434, 8563407, 8563512, 8563486 ], "year": 1974, "pin_cites": [ { "parenthetical": "\"a tape recording should not be excluded merely because parts of it are inaudible if there are other parts that can be heard\"" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0235-03", "/nc/285/0235-02", "/nc/285/0235-01", "/nc/285/0235-05", "/nc/285/0235-04" ] }, { "cite": "202 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "317-18", "parenthetical": "\"a tape recording should not be excluded merely because parts of it are inaudible if there are other parts that can be heard\"" }, { "page": "317-18" } ], "opinion_index": 0 }, { "cite": "20 N.C. App. 559", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554370 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "565", "parenthetical": "\"a tape recording should not be excluded merely because parts of it are inaudible if there are other parts that can be heard\"" }, { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/nc-app/20/0559-01" ] }, { "cite": "293 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "826", "parenthetical": "inaudible tape recording not inadmissible \"unless defects are so substantial as to leave the recording without probative value or to render the recording as a whole untrustworthy\"" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525691 ], "year": 1982, "pin_cites": [ { "page": "590", "parenthetical": "inaudible tape recording not inadmissible \"unless defects are so substantial as to leave the recording without probative value or to render the recording as a whole untrustworthy\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0587-01" ] }, { "cite": "233 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569251, 8569159, 8569200, 8569300, 8569341 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0268-03", "/nc/292/0268-01", "/nc/292/0268-02", "/nc/292/0268-04", "/nc/292/0268-05" ] }, { "cite": "230 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "785" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 131", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548927 ], "year": 1977, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0131-01" ] }, { "cite": "285 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "329" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527295 ], "year": 1982, "pin_cites": [ { "page": "366-67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0364-01" ] }, { "cite": "432 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532283 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0402-01" ] }, { "cite": "424 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "333 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547288 ], "year": 1992, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0029-01" ] }, { "cite": "183 A. 2d 655", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1962, "pin_cites": [ { "page": "672" } ], "opinion_index": 0 }, { "cite": "38 N.J. 255", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1937755 ], "year": 1962, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nj/38/0255-01" ] }, { "cite": "181 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1971, "pin_cites": [ { "page": "571" }, { "page": "571" } ], "opinion_index": 0 }, { "cite": "284 S.E.2d 312", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569335 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0511-01" ] }, { "cite": "62 L. 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Ed. 2d 1091", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1977, "opinion_index": 0 }, { "cite": "433 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188288, 6188073, 6188651, 6188470, 6189015, 6187835, 6188829 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/433/0907-03", "/us/433/0907-02", "/us/433/0907-05", "/us/433/0907-04", "/us/433/0907-07", "/us/433/0907-01", "/us/433/0907-06" ] }, { "cite": "220 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570236 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0514-01" ] }, { "cite": "482 F.2d 465", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1322703 ], "weight": 4, "year": 1973, "pin_cites": [ { "page": "467-68" }, { "page": "467" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/f2d/482/0465-01" ] }, { "cite": "417 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "475" } ], "opinion_index": 0 }, { "cite": "331 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499065 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0671-01" ] }, { "cite": "665 F.2d 607", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 472467 ], "year": 1982, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/f2d/665/0607-01" ] }, { "cite": "397 U.S. 337", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054264 ], "weight": 2, "pin_cites": [ { "page": "350-51" }, { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/us/397/0337-01" ] }, { "cite": "422 U.S. 806", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9431 ], "weight": 6, "year": 1975, "pin_cites": [ { "page": "834" }, { "page": "581" }, { "page": "581-82" }, { "page": "835" }, { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/us/422/0806-01" ] }, { "cite": "233 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "572", "parenthetical": "blasting with explosives considered \"ultrahazardous activity\"" } ], "opinion_index": 0 }, { "cite": "292 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570022 ], "year": 1977, "pin_cites": [ { "page": "442", "parenthetical": "blasting with explosives considered \"ultrahazardous activity\"" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0437-01" ] }, { "cite": "333 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "720" } ], "opinion_index": 0 }, { "cite": "314 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695126 ], "year": 1985, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0337-01" ] }, { "cite": "144 F.2d 656", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3676383 ], "weight": 2, "year": 1944, "pin_cites": [ { "page": "663" }, { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/f2d/144/0656-01" ] }, { "cite": "30 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "78 S.E. 146", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1913, "pin_cites": [ { "page": "148" } ], "opinion_index": 0 }, { "cite": "162 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270755 ], "year": 1913, "pin_cites": [ { "page": "249-50" } ], "opinion_index": 0, "case_paths": [ "/nc/162/0247-01" ] }, { "cite": "209 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "756", "parenthetical": "quoting 7 Strong, N.C. Index 2d, Statutes \u00a7 5 (1968)" } ], "opinion_index": 0 }, { "cite": "286 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563921 ], "year": 1974, "pin_cites": [ { "page": "152", "parenthetical": "quoting 7 Strong, N.C. Index 2d, Statutes \u00a7 5 (1968)" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0148-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "78 L. Ed. 2d 177", "category": "reporters:federal", "reporter": "L. 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Lowery, 309 N.C. 763, 768, 309 S.E.2d 232, 237 (1983)" } ], "opinion_index": 0 }, { "cite": "315 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719180 ], "year": 1985, "pin_cites": [ { "page": "200", "parenthetical": "quoting State v. Lowery, 309 N.C. 763, 768, 309 S.E.2d 232, 237 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0191-01" ] }, { "cite": "347 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "399" } ], "opinion_index": 0 }, { "cite": "318 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737959 ], "year": 1986, "pin_cites": [ { "page": "107-08" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0102-01" ] }, { "cite": "313 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "year": 1984, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "275 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "480" } ], "opinion_index": 0 }, { "cite": "302 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565360 ], "year": 1981, "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0223-01" ] }, { "cite": "124 L. Ed. 2d 182", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12227 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/us/508/0275-01" ] }, { "cite": "498 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217574 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/498/0039-01" ] }, { "cite": "432 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "85 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "138" } ], "opinion_index": 0 }, { "cite": "241 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606351 ], "year": 1954, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0226-01" ] }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "weight": 5, "pin_cites": [ { "page": "283" }, { "page": "286" }, { "page": "286-87" }, { "page": "282-83" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "279 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565516 ], "weight": 3, "pin_cites": [ { "page": "17" }, { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0001-01" ] }, { "cite": "334 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530961 ], "opinion_index": 0, "case_paths": [ "/nc/334/0333-01" ] }, { "cite": "239 Neb. 141", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 5227798 ], "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "instruction permissible when \"moral certainty\" and \"actual and substantial doubt\" used" }, { "parenthetical": "instruction permissible when \"moral certainty\" and \"actual and substantial doubt\" used" } ], "opinion_index": 1, "case_paths": [ "/neb/239/0141-01" ] }, { "cite": "567 N.E.2d 1219", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "instruction permissible with \"moral certainty\" language" } ], "opinion_index": 1 }, { "cite": "409 Mass. 553", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3893538 ], "year": 1991, "pin_cites": [ { "parenthetical": "instruction permissible with \"moral certainty\" language" } ], "opinion_index": 1, "case_paths": [ "/mass/409/0553-01" ] }, { "cite": "116 L. Ed. 2d 462", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 1 }, { "cite": "279 Cal. Rptr. 780", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 1 }, { "cite": "807 P.2d 1009", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 1 }, { "cite": "53 Cal. 3d 334", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2358530 ], "opinion_index": 1, "case_paths": [ "/cal-3d/53/0334-01" ] }, { "cite": "587 So. 2d 1061", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7520038 ], "year": 1991, "pin_cites": [ { "parenthetical": "finding use of term \"moral certainty\" to be proper" } ], "opinion_index": 1, "case_paths": [ "/so2d/587/1061-01" ] }, { "cite": "587 So. 2d 1265", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7525331 ], "year": 1991, "pin_cites": [ { "parenthetical": "finding permissible use of terms \"actual and substantial doubt\" and \"moral certainty\"" } ], "opinion_index": 1, "case_paths": [ "/so2d/587/1265-01" ] }, { "cite": "588 So. 2d 561", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7512380 ], "year": 1991, "pin_cites": [ { "parenthetical": "finding no error in use of terms \"actual and substantial doubt\" and \"moral certainty\"" } ], "opinion_index": 1, "case_paths": [ "/so2d/588/0561-01" ] }, { "cite": "115 L. Ed. 2d 1098", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 1 }, { "cite": "114 L. Ed. 2d 728", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 1 }, { "cite": "417 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "752" } ], "opinion_index": 1 }, { "cite": "331 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501748 ], "year": 1992, "pin_cites": [ { "page": "577" } ], "opinion_index": 1, "case_paths": [ "/nc/331/0559-01" ] }, { "cite": "498 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217574 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "41", "parenthetical": "emphasis added" }, { "page": "342", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/us/498/0039-01" ] }, { "cite": "432 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "297" } ], "opinion_index": 1 }, { "cite": "334 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530961 ], "pin_cites": [ { "page": "343" } ], "opinion_index": 1, "case_paths": [ "/nc/334/0333-01" ] } ], "analysis": { "cardinality": 2115, "char_count": 64024, "ocr_confidence": 0.763, "pagerank": { "raw": 2.548640816460011e-07, "percentile": 0.8141214024446985 }, "sha256": "7260d8559bed2d920d3629143025dcafe2debe65ee505737e6d7739d0753b898", "simhash": "1:0f2ad826275e14f3", "word_count": 10578 }, "last_updated": "2023-07-14T14:40:35.485142+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Parker did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. MARVIN EARL WILLIAMS, JR." ], "opinions": [ { "text": "EXUM, Chief Justice.\nAfter a trial in which he was convicted of the murder of Theron Price, of burglary with explosives and of attempted safe-cracking, defendant was sentenced to death. He now raises numerous assignments of error spanning both the guilt-innocence and the sentencing phases of the trial. We find one of these meritorious and therefore grant him a new trial.\nI\nDefendant introduced no evidence at trial. The State\u2019s evidence tended to show the facts narrated below.\nIn the early morning of 12 February 1989, Lewis Rich, a security guard for Dewey Brothers, Inc., arrived at the company\u2019s premises for his 12:30 a.m. to 6:30 a.m. shift to find the guardhouse gate locked. Unable to enter the premises or locate Theron Price, the guard he was scheduled to relieve, Rich telephoned Richard Helms, the company president. Helms arrived shortly and opened the gate. Helms found the door to the payroll office partially open, a light emanating from within, and just outside the office door an acetylene torch and a cart bearing oxygen and acetylene tanks. Helms then summoned the police. Inside the payroll office, the police observed a floor safe illuminated by a gooseneck lamp. There was carbon on the safe\u2019s hinges and knob. The police determined that the torch was improperly adjusted, that it would have created a lot of smoke and carbon but would not have cut metal.\nJoining the police in a search of the rest of the premises, Helms discovered Theron Price. Lifeless, Price was lying on his back in the steel shed next to the payroll office, and had blood on his face and head. Parallel lines in the dirt indicated he had been dragged into the shed. Various of his possessions, including his time clock, were nearby, as were a yellow hard hat and a welder\u2019s mask. The time clock, hard hat and welder\u2019s mask had blood on them. There were cracks in the fiberglass of the welder\u2019s mask, and, in the cracks, gray hairs. Also found on the scene were Reebok tennis shoe impressions leading to the building which housed the acetylene torches and related equipment. The lock on the cabinet where the torches were kept had been cut off.\nSeveral days after the discovery of Price\u2019s body, an employee of Dewey Brothers named Angelo Farmer reported to his supervisors that he knew the identity of the killer. According to Farmer, he and defendant had discussed breaking into Dewey Brothers and robbing its safe in the early part of February. On 11 February, defendant asked Farmer whether he was \u201cready to move.\u201d When Farmer indicated that he was not, defendant said, \u201cI\u2019m gone. I\u2019m on my move.\u201d The next day, after learning of Price\u2019s death, Farmer confronted defendant, saying: \u201cDamn man. You killed a man.\u201d Defendant said he did not mean to do it. When Farmer remarked that defendant could have tied Price up, defendant replied that he had wanted to but \u201cthe man kept coming.\u201d\nHaving revealed this information, Farmer agreed to cooperate with the police. The police furnished him with a tape recording device. Wearing the device, Farmer engaged defendant in conversation about the crimes. During the conversation, defendant said he had tried to break into Dewey Brothers\u2019 safe using an acetylene torch he found on the premises. When surprised by the watchman, he had pulled a knife but the guard had \u201ckept coming.\u201d He had then taken the guard\u2019s time clock and hit him with it \u201ctwo or three times.\u201d Defendant further stated: \u201cI got scared then, but then I thought about the money. I kept checking on him and he had not come back to. I knew I had done killed the m\u2014 f-\u2014 then.\u201d Defendant had continued to work on the safe and had checked on the guard more than once. When he heard a truck pull up, and later a car, defendant had attempted to wipe away his fingerprints and hide some of the evidence, and had then fled.\nThe police obtained a warrant based on Farmer\u2019s allegations and the tape recording and arrested defendant at a boarding house called the Salem Lodge. The police seized defendant\u2019s clothing and some of his possessions. The shoes he was wearing matched the footprints found at Dewey Brothers. Other than the shoes, however, the police obtained no physical evidence tending to link defendant to the crime scene.\nAn autopsy of the victim\u2019s body revealed several wounds on the face and head caused by blunt force trauma and a small laceration on each hand. The wounds on the face would have caused mild to moderate pain. The wounds on the head resulted in skull fractures and could have caused death. Two of these wounds would have required the force of a five-pound steel ball dropped from seven to twelve feet. The victim may have been conscious during the infliction of all the wounds, and for two to five minutes thereafter, and may have been hit while lying on the ground. The victim probably lived for five to ten minutes after the fatal blows were struck.\nDefendant was convicted of first-degree murder on theories of felony murder, the underlying felony being burglary with explosives, and premeditation and deliberation. He was also convicted of burglary with explosives and attempted safe-cracking. After a sentencing hearing, the jury recommended and the trial court imposed a sentence of death. The trial court also sentenced defendant to thirty years\u2019 imprisonment on the burglary conviction, but arrested the attempted safe-cracking judgment.\nII\nDefendant contends, and we agree, that the trial judge gave the jury an unconstitutional instruction on the meaning of \u201creasonable doubt.\u201d The challenged instruction, given midway through the jury\u2019s deliberations in response to a juror\u2019s request for clarification, was taken almost verbatim from State v. Hammonds, 241 N.C. 226, 232, 85 S.E.2d 133, 138 (1954). The instruction stated:\nWhen it is said that the jury must be satisfied of the defendant\u2019s guilt beyond a reasonable doubt, it is meant that they must be fully satisfied or entirely convinced or to put it another way, satisfied to a moral certainty of the truth of the charge. If, after considering, comparing and weighing all the evidence, the minds of the jurors are left in such condition that they cannot say they have an abiding faith to a moral certainty in the defendant\u2019s guilt, then they have a reasonable doubt, otherwise not. A reasonable doubt as that term is employed in the administration of criminal law, is a[n] 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.\nIn the recent case of State v. Bryant, 334 N.C. 333, 432 S.E.2d 291 (1993), we held that the United States Supreme Court\u2019s decisions in Cage v. Louisiana, 498 U.S. 39, 112 L. Ed. 2d 339 (1990), and Sullivan v. Louisiana, 508 U.S. \u2014, 124 L. Ed. 2d 182 (1993), required us to declare an essentially identical instruction violative of the Due Process Clause of the Fourteenth Amendment and plain error warranting a new trial. Our decision in Bryant controls this issue and requires that we grant defendant a new trial.\nIII\nThough the instructional error is dispositive of this appeal, we must also discuss defendant\u2019s contention that the trial court should have dismissed the first-degree murder charge for insufficiency of the evidence. Were his contention correct, he would be shielded from further prosecution on this charge by the Double Jeopardy Clause of the United States Constitution. State v. Silhan, 302 N.C. 223, 267, 275 S.E.2d 450, 480 (1981). In addition, we will discuss those issues likely to arise again at defendant\u2019s next trial.\nA\nDefendant contends that the trial court erred in denying his motion to dismiss the first-degree murder charge since there was insufficient evidence of premeditation and deliberation. We disagree.\nIn measuring the sufficiency of the evidence, all evidence admitted, whether competent or incompetent, must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence and resolving in its favor any contradictions in the evidence. A motion to dismiss is properly denied if the evidence, when viewed in the above light, is such that a rational trier of fact could find beyond a reasonable doubt the existence of each element of the crime charged. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984); State v. Sumpter, 318 N.C. 102, 107-08, 347 S.E.2d 396, 399 (1986).\nA killing is \u201cpremeditated\u201d if the defendant-contemplated killing for some period of time, however short, before he acted. It is \u201cdeliberate\u201d if the defendant acted \u201cin a cool state of blood,\u201d free from any \u201cviolent passion suddenly aroused by some lawful or just cause or legal provocation.\u201d State v. Fields, 315 N.C. 191, 200, 337 S.E.2d 518, 524 (1985) (quoting State v. Lowery, 309 N.C. 763, 768, 309 S.E.2d 232, 237 (1983)). The defendant need not have been placid or unemotional. Rather, whatever passion he felt must not have been such as to overwhelm his faculties and reason. State v. Williams, 308 N.C. 47, 68, 301 S.E.2d 335, 348-49, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177, reh\u2019g denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983).\nWhether a killing was premeditated and deliberate may usually be answered only by resort to circumstantial evidence. State v. Williams, 308 N.C. at 68-69, 301 S.E.2d at 349. Among the circumstances generally considered probative on the point, the following are directly applicable to the facts of this case: 1) conduct of the defendant before and after the killing tending to show the requisite state of mind, 2) the dealing of lethal blows after the deceased has been felled and rendered helpless, 3) that the killing was accomplished in a brutal manner and 4) a want of provocation on the part of the deceased. Id.\nViewed in the light most favorable to the State, the evidence was clearly sufficient to support a conclusion that the murder was premeditated and deliberate. First, defendant carried a knife with him during the attempted safe-cracking, indicating that he had anticipated a violent confrontation and the need for deadly force. Second, and most importantly, he struck the victim numerous times with a heavy object, causing at least three lethal injuries. Since a number of the blows would have rendered the victim unconscious, some of the lethal blows may have been inflicted while the victim was lying helpless on the ground. This evidence tends to show a conscious decision on the part of defendant to ensure that his victim was dead.\nNor is there any evidence to show that defendant was provoked. Granted, he was surprised by the night watchman, but this fact alone does not justify a conclusion that he lost his capacity for rational thought. In fact, the evidence is all to the contrary. According to defendant himself, he had the presence of mind after felling the victim to resume his efforts to crack the safe and, when the police arrived, to hide various incriminating items and wipe his fingerprints from the scene before fleeing.\nWe conclude that the trial court did not err in denying defendant\u2019s motion to dismiss the first-degree murder charge.\nThis assignment of error is overruled.\nB\nDefendant next takes issue with the trial court\u2019s instruction to the jury that it could convict of first-degree murder if it found that the killing had occurred during the commission of a burglary with explosives. According to defendant, burglary with explosives is not a crime within the purview of the felony murder rule. Defendant did not object at trial. Therefore, were there error in this instruction, defendant would be entitled to no relief unless the error amounted to plain error. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). We hold that the trial court did not commit error. The language of the burglary with explosives statute, the statute\u2019s history, and the rationale underlying the felony murder rule, compel a conclusion that the legislature intended burglary with explosives to be one of the felonies upon which first-degree murder could be premised.\nIt is an elementary principle of statutory interpretation that, \u201c[w]here the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give it its plain and definite meaning.\u201d State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756 (1974) (quoting 7 Strong, N.C. Index 2d, Statutes \u00a7 5 (1968)). Thus, we must begin our analysis with the language of the statutes in question. N.C.G.S. \u00a7 14-17 provides that a murder which occurs during the course of any \u201carson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon\u201d is punishable as first-degree murder. N.C.G.S. \u00a7 14-17 (Supp. 1992) (emphasis added). N.C.G.S. \u00a7 14-57 reads as follows:\nAny person who, with intent to commit any felony or larceny therein, breaks and enters, either by day or by night, any building, whether inhabited or not, and opens or attempts to open any vault, safe, or other secure place by use of nitroglycerine, dynamite, gun-powder, or any other explosive, or acetylene torch, shall be deemed guilty of burglary with explosives.\nN.C.G.S. \u00a7 14-57 (1986) (emphasis added).\nWe note at the outset that the legislature denominated the crime of burglary with explosives a \u201cburglary.\u201d The term \u201cburglary\u201d has a technical legal meaning, and we must presume that the legislature intended this meaning absent strong evidence to the contrary. As the Court stated in Asbury v. Albermarle, 162 N.C. 247, 249-50, 78 S.E. 146, 148 (1913):\n[The] rule applicable to the construction of statutes is that when they make use of words of definite and well known sense in the law, they are to be received and expounded in the same sense in the statute. Adams v. Turrentine, 30 N.C. 149. In that case Chief Justice Ruffin says: \u2018Indeed, this rule is not confined to the construction of statutes, but extends to the interpretation of private instruments. There are exceptions to it, where it is seen that a word is used in a sense different from its proper one in instruments made by a person inops consilii. But that is a condition in which the Legislature cannot be supposed, and, therefore, although the intention of the Legislature, as collected from the whole act, is to prevail, a technical term having a settled legal sense, cannot be received in any other sense, unless at the last it be perfectly plain on the act itself what that other sense is.\u2019\nNor is it \u201cplain on the act itself\u201d that the legislature intended the language of the burglary with explosives statute to be received in any but its technical sense. Burglary with explosives was unknown to the common law. United States v. Brandenburg, 144 F.2d 656, 663 (3rd Cir. 1944). Rather, it is a statutory crime, first defined in 1921 N.C. Sess. Laws, ch. 5, in language almost identical to that of the present statute. As noted by Brandenburg, the crime \u201cbears little resemblance to the crime of burglary as defined at the common law.\u201d Id. at 662. Burglary, still a common law offense, is defined as a breaking and entering, in the nighttime, of the dwelling house of another, with intent to commit a felony therein. State v. Williams, 314 N.C. 337, 355, 333 S.E.2d 708, 720 (1985). By contrast, burglary with explosives is the breaking and entering, with intent to commit a felony therein, of any building, whether during the day or night, followed by the requisite opening of or attempt to open any secure place by the use of explosives.\nBurglary with explosives, then, much more resembles a felonious breaking or entering, see N.C.G.S. \u00a7 14-54 (1986), than it does a burglary. This fact makes the legislature\u2019s choice of terminology especially significant. In 1921, the crime of breaking or entering was defined by statute as a breaking or entering \u201cotherwise than by a burglarious breaking.\u201d N.C. Consol. Stat. \u00a7 4235 (1919) (emphasis added). We can only surmise that the legislature, having defined the crime of burglary with explosives in terms almost identical to those of breaking or entering, denominated the crime a \u201cburglary\u201d in order to distinguish it from breaking or entering. That the legislature intended an important distinction between the two crimes is further evidenced by its provision that the crime of burglary \u201cshall be punished as for burglary in the second degree.\u201d 1921 N.C. Sess. Laws, ch. 5, \u00a7 2. Burglary in the second degree was then punishable by imprisonment \u201cfor life, or for a term of years.\u201d N.C. Consol. Stat. \u00a7 4233. Breaking or entering otherwise than burglariously was punishable by imprisonment for \u201cnot less than four months nor more than ten years.\u201d N.C. Consol. Stat. \u00a7 4235.\nThus, both the language of the statute and its history support a conclusion that the legislature intended burglary with explosives to be considered a species of \u201cburglary.\u201d If it is a \u201cburglary,\u201d then burglary with explosives must be within the purview of N.C.G.S. \u00a7 14-17.\nNor does this conclusion do violence to the rationale of the felony murder rule. Indeed, like the other felonies enumerated in N.C.G.S. \u00a7 14-17 \u2014 arson, rape, robbery, kidnapping and burglary\u2014 the crime of burglary with explosives is inherently dangerous to human life. Using explosives is a highly dangerous activity under the best of circumstances. See Sales Co. v. Board of Transportation, 292 N.C. 437, 442, 233 S.E.2d 569, 572 (1977) (blasting with explosives considered \u201cultrahazardous activity\u201d). When done inside a building, and without warning to the occupants of the building, or to those who may be nearby, the risk to human life is only multiplied. We can readily conclude that the legislature considered this crime as inherently dangerous as simple \u201cburglary\u201d and therefore deserving of the highest penalty when its commission results in death.\nWe hold that the crime of burglary with explosives, as defined by N.C.G.S. \u00a7 14-57, is a \u201cburglary\u201d within the purview of the felony murder statute. Therefore, the trial court did not err in instructing the jury on felony murder.\nThis assignment of error is overruled.\nC\nDefendant next contends that he was denied the right to represent himself. Based on the record summarized below, we find that defendant did not request to proceed pro se with sufficient clarity. Because the right was not properly asserted, it cannot have been infringed.\nOn the afternoon of the fourth day of jury selection, defendant informed the judge that he was dissatisfied with his court-appointed counsel, Messrs. Jordan and Braswell. Defendant indicated that his lawyers had not adequately communicated with him about the details of his case, and had failed to provide him with the information (including legal texts) he needed to help defend himself. He also suggested that his case should have been moved to another venue because of negative pretrial publicity. The judge responded that defendant\u2019s lawyers were perfectly capable and that it would be impractical at this late stage of the proceedings to substitute other counsel. According to the judge, defendant had only two options. He could either continue with Messrs. Jordan and Braswell, or represent himself. When asked if he wanted to represent himself, defendant answered, \u201cNo, sir.\u201d The judge reiterated that defendant\u2019s lawyers would provide an \u201cadequate defense,\u201d and then questioned the lawyers about their representation of defendant.\nAfter his lawyers had spoken, defendant again addressed the court. He said, \u201cYou stated that, that there is no other way that I could have no other lawyers . .. But what if I choose to represent myself?\u201d The judge responded that he would consider defendant\u2019s request and proceeded to question him at great length regarding his ability to conduct his own defense. Specifically, the judge asked whether defendant was taking drugs or medication, how much schooling he had completed, what his grades had been and whether he had ever studied law. The judge then advised defendant that, given his lack of legal training, he would be at a grave disadvantage in attempting to represent himself against a prosecutor with twenty-five years experience. The judge concluded by asking defendant whether he still wished to represent himself. Defendant responded: \u201cI choose to represent myself.\u201d The judge did not rule on defendant\u2019s request, but instead adjourned the court so that he could consider the issue for the rest of the afternoon.\nThe judge opened the next session with another lecture on the dangers of self-representation. The judge reminded defendant that he faced a number of serious charges, including one for first-degree murder, and that he risked receiving the death penalty. The judge then asked defendant again whether he still wanted to represent himself. Defendant responded, \u201cI chose to represent myself.\u201d At this, the judge took a brief recess and then renewed his questioning regarding defendant\u2019s ability to represent himself. This time the judge went into greater depth regarding defendant\u2019s education and grades, and also asked about defendant\u2019s age, IQ, public speaking ability and previous experience in representing himself. The following exchange then occurred:\nMr. WILLIAMS: I understand the situation that I have chosen to represent myself. It is not that I would like to represent myself but if I could get a full new complete set of lawyers representing me and I would feel fair with that representation. I would like to continue on with my trial if I was able to receive things that I am entitled to have concerning my trial or evidence that is brought up against me and so on, state witnesses and so on.\nThe COURT: You are saying that if your lawyers would furnish to you everything that you ask for\u2014\nMR. WILLIAMS: Concerning my trial.\nTHE COURT: Then you would be willing to let them stay on your case?\nMR. WILLIAMS: Yes, sir.\nThe discussion then turned to the materials defendant wished to receive. The judge assured defendant that he would order the lawyers to furnish defendant with everything he required, and then said: \u201cLet\u2019s .try it for a few days and see how things go. I don\u2019t want you to represent yourself. I just don\u2019t \u2014 I think that would be unfair.\u201d Defendant did not appear reassured. When asked what was on his mind, defendant responded, \u201cI was thinking of I want to get the right representation from my lawyers concerning this matter.\u201d The judge then indicated that he would require defendant\u2019s lawyers to stay on the case, and denied defendant\u2019s motion \u201cto represent himself in the trial of this case,\u201d citing the following factors: 1) that defendant was charged with serious crimes' for which he could receive the death penalty or life imprisonment, 2) that defendant was twenty-eight years old and had completed only ten years of education, 3) that defendant had an IQ of 78, \u201cborderline range of intellectual functioning,\u201d 4) that Messrs. Braswell and Jordan were competent, experienced attorneys, and 5) that defendant had no access to \u201claw books\u201d in prison and was incapable of retaining a private attorney. The judge concluded \u201cas a matter of law\u201d that defendant was \u201cincapable of adequately representing himself in the trial of his case.\u201d\nAt the outset, we note that the trial court based its ruling on erroneous grounds. A defendant\u2019s right to represent himself, guaranteed in state criminal proceedings by the Sixth and Fourteenth Amendments of the United States Constitution, does not depend on his ability to present an effective defense. Faretta v. California, 422 U.S. 806, 834, 45 L. Ed. 2d 562, 581 (1975). The right protects individual free choice and therefore must be honored even though its exercise may undermine the objective fairness of a proceeding. As stated in Faretta, \u201calthough [the defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of \u2018that respect for the individual which is the life-blood of the law.\u2019 \u201d Id. (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 25 L. Ed. 2d 353, 363 (Brennan, J., concurring) (1970)). Under Faretta, a defendant who clearly elects to represent himself must be permitted to do so upon the sole condition that he make a knowing and voluntary waiver of the right to counsel. Id. at 835, 45 L. Ed. 2d at 581-82. Nor does a defendant need the skill of a lawyer to knowingly waive counsel. Such a waiver will be found if the defendant has been made aware of the benefits of counsel and understands the consequences of foregoing those benefits. Id.; see also N.C.G.S. \u00a7 15A-1242.\nDespite the trial court\u2019s erroneous reasoning, we find no error in its ruling since Mr. Williams never clearly asserted his right to proceed pro se. Unlike the right to counsel, the Faretta right does not arise until asserted. Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982). To properly assert the right, the defendant must \u201cclearly and unequivocally\u201d request to represent himself. Faretta, 422 U.S. at 835, 45 L. Ed. 2d at 582; see also State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992). As explained by the court in Meeks v. Craven, 482 F.2d 465 (9th Cir. 1973), this rule is required to prevent defendants from manipulating trial courts by recording an equivocal request at trial and then arguing on appeal, as appropriate, either that they have been denied the right to represent themselves or that they did not make a knowing waiver and have therefore been denied the right to counsel. 482 F.2d at 467-68. To prevent such gamesmanship, we refuse to find an assertion of the Faretta right if the defendant\u2019s statements or actions create any ambiguity as to his desire to represent himself.\nIn Meeks, the seminal case on this issue, the defendant requested to proceed pro se in order to present a motion his counsel had advised against. The defendant was permitted to present his motion, after which the court asked him whether he wanted to continue representing himself. The defendant replied, \u201c \u2018Yes, Your Honor, I think I will.\u2019 \u201d The Ninth Circuit held that Meeks had never asserted his right to represent himself because his conduct, viewed as a whole, indicated a desire only to present a single motion. The court reasoned further that the statement, \u201c T think I will,\u2019 \u201d was a \u201cprototype of equivocation.\u201d Id. at 467.\nNorth Carolina courts have been equally strict in scrutinizing alleged requests to proceed pro se. This Court has held on many occasions that a mere request to substitute counsel is insufficient to assert the Faretta right. See, inter alia, State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975), cert. denied, 433 U.S. 907, 53 L. Ed. 2d 1091 (1977), overruled on other grounds by State v. Adcock, 310 N.C. 1, 310 S.E.2d 587 (1984); State v. Cole, 293 N.C. 328, 237 S.E.2d 814 (1977); and State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981). Similarly, this Court has held that a request to participate with court-appointed counsel in conducting the trial does not constitute a clear and unequivocal request to proceed pro se. State v. Thomas, 331 N.C. 671, 417 S.E.2d 473 (1992). And, like the Ninth Circuit, we have refused to find an assertion of the Faretta right, despite a defendant\u2019s request to proceed without counsel, where the defendant\u2019s contemporaneous statements made \"that request ambiguous. State v. McGuire, 297 N.C. 69, 254 S.E.2d 165, cert. denied, 444 U.S. 943, 62 L. Ed. 2d 310 (1979); see also State v. Gerald, 304 N.C. 511, 284 S.E.2d 312 (1981).\nIn McGuire, defendant indicated at his arraignment hearing that he wanted the trial court to appoint him a new lawyer because he could not agree with his present one. Defendant added, \u201c T am asking the court to let me defend myself in these cases.\u2019 \u201d When the trial court refused to appoint new counsel, defendant repeated, \u201c T am asking for another attorney.\u2019 \u201d Thereafter, defendant reconciled with his attorney and specifically consented to his representation. On appeal, this Court held that, despite defendant\u2019s one request to represent himself, his statements and conduct viewed as a whole evinced only a desire for new counsel. Thus, defendant had \u201cnever \u2018clearly and unequivocally\u2019 asserted his desire to conduct a pro se defense.\u201d 297 N.C. at 82-83, 254 S.E.2d at 173-74.\nWe believe the case at bar is properly analogized to McGuire. As in McGuire, defendant at one point requested to proceed pro se. But when this request is viewed in the context of his other statements, it is apparent that defendant\u2019s primary desire was to ensure adequate representation by counsel, and that he never took a firm position on whether to proceed pro se.\nWhen first addressing the trial judge, defendant expressed concern that his attorneys were not communicating with him adequately, and requested substitute counsel. When informed that he would not be permitted new counsel, and that his only options were to continue with present counsel or proceed pro se, defendant initially declined to represent himself. Soon thereafter, he changed his mind. Thus, defendant vacillated from the beginning.\nThat defendant still wished to be represented by counsel, despite his request to proceed pro se, is apparent from his statement the next day:\nI understand the situation that I have chosen to represent myself. It is not that I would like to represent myself but if I could get a full new complete set of lawyers representing me and I would feel fair with that representation. I would like to continue on with my trial if I was able to receive things that I am entitled to have concerning my trial or evidence that is brought up against me and so on, state witnesses and so on.\nThereafter, defendant specifically agreed to continue with present counsel on the trial judge\u2019s assurance that he would be provided with all the information he required. Tellingly, defendant never again requested to proceed pro se. Though he did reiterate his concern that he receive \u201cthe right representation from my lawyers,\u201d this statement merely confirms the fact that he wished to be represented by counsel.\nWe therefore hold that defendant was not denied his right to represent himself at trial because he never asserted that right \u201cclearly and unequivocally.\u201d We are reassured in so holding by the knowledge that, had defendant been permitted to represent himself based on his equivocal requests, he would now be arguing with some justification that he was denied the right to counsel. We refuse to place trial courts \u201cin a position to be whipsawed by defendants clever enough to record an equivocal request to proceed without counsel in the expectation of a guaranteed error no matter which way the trial court rules.\u201d Meeks, 482 F.2d at 468.\nThis assignment of error is overruled.\nD\nDefendant assigns error to certain of the trial court\u2019s evidentiary rulings. Specifically, he argues that the trial court erred in admitting a tape recording allegedly containing admissions by defendant, in admitting gory pictures of the victim and in admitting evidence seized at defendant\u2019s residence.\nThe prosecution introduced over defendant\u2019s objection a tape recording allegedly containing an admission by defendant that he killed Theron Price. Defendant argues that the recording should not have been admitted because it was largely inaudible. He says he was prejudiced by this error in that the prosecutor and Angelo Farmer, the government witness who made the recording, were permitted to interpret the tape for the jury, putting words in defendant\u2019s mouth that the jurors could not have heard themselves. We believe the tape was properly admitted.\nAt the voir dire hearing held to determine admissibility, Angelo Farmer testified to having engaged defendant in conversation about the killing while wearing a concealed tape recording device. The trial court listened to the tape recording twice, once with a transcript prepared by a police officer, and once without the transcript, and found the recording admissible. In its findings of fact and conclusions of law, the court noted that \u201cthe tape recording is inaudible and unintelligible in many respects but there are sporadic portions that are audible and intelligible and could be enlightening to the jury.\u201d\nNorth Carolina courts have long recognized that a tape recording may be excluded if inaudible. The rule was first articulated in State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971), where we held that a trial court may not admit a tape recording without first conducting a voir dire, out of the presence of the jury, to determine whether the recording is \u201c \u2018sufficiently audible, intelligible, not obviously fragmented ....\u2019\u201d 279 N.C. at 17, 181 S.E.2d at 571 (quoting State v. Driver, 38 N.J. 255, 288, 183 A. 2d 655, 672 (1962)). Numerous subsequent cases have cited with approval the language in Lynch requiring that a tape recording be sufficiently audible. See, e.g., State v. Gibson, 333 N.C. 29, 41, 424 S.E.2d 95, 102 (1992), overruled on other grounds by State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993); State v. Shook, 55 N.C. App. 364, 366-67, 285 S.E.2d 328, 329 (1982); and State v. Jeeter, 32 N.C. App. 131, 133, 230 S.E.2d 783, 785, disc. review denied, 292 N.C. 268, 233 S.E.2d 394 (1977); cf. State v. Hammette, 58 N.C. App. 587, 590, 293 S.E.2d 824, 826 (1982) (inaudible tape recording not inadmissible \u201cunless defects are so substantial as to leave the recording without probative value or to render the recording as a whole untrustworthy\u201d); and Searcy v. Justice, 20 N.C. App. 559, 565, 202 S.E.2d 314, 317-18, cert. denied, 285 N.C. 235, 204 S.E.2d 25 (1974) (\u201ca tape recording should not be excluded merely because parts of it are inaudible if there are other parts that can be heard\u201d).\nForsaking this line of authority, defendant relies instead on a related, but obsolete, holding of Lynch. Lynch not only created the voir dire rule discussed above, but also established detailed standards for authenticating tape recordings. State v. Stager, 329 N.C. 278, 316-17, 406 S.E.2d 876, 898 (1991). Defendant relies on the latter aspect of Lynch, and thus presents his inaudibility claim in improper authentication clothing. Under Lynch, the proponent of a tape recording was required to show:\n1) that the recorded testimony was legally obtained and otherwise competent;\n2) that the mechanical device was capable of recording testimony and that it was operating properly at the time the statement was recorded;\n3) that the operator was competent and operated the machine properly;\n4) the identity of the recorded voices;\n5) the accuracy and authenticity of the recording;\n6) that defendant\u2019s entire statement was recorded and no changes, additions, or deletions have since been made; and\n7) the custody and manner in which the recording has been preserved since it was made.\n279 N.C. at 17, 181 S.E.2d at 571. Defendant asserts that this test, which he considers binding despite the 1984 adoption of the North Carolina Rules of Evidence, was not met in the case at bar. Specifically, he argues that the trial court failed to make findings of fact as to items 1) through 3). He contends further that the State could not have proven items 2) and 3) because the tape was inaudible.\nAs the State correctly points out, the seven-prong Lynch test has been superseded by the authentication requirements of Rule 901. Stager, 329 N.C. at 317, 406 S.E.2d at 898. Under Rule 901, authentication is satisfied \u201cby evidence sufficient to support a finding that the matter in question is what its proponent claims.\u201d N.C.G.S. \u00a7 8C-1, Rule 901 (1992). The State provided such evidence in the form of testimony by Angelo Farmer that the tape was a true recording of his conversation with defendant. Thus, the tape recording was properly authenticated, and the trial court did not err in failing to make findings of fact in accordance with the Lynch test.\nHolding that the tape recording was properly authenticated does not, however, answer defendant\u2019s contention that the tape was too inaudible to be admissible. Under Stager, authentication is not the only prerequisite to the admissibility of a tape recording. A tape must also be shown to have been legally obtained and to contain \u201cotherwise competent evidence.\u201d Stager, 329 N.C. at 317, 406 S.E.2d at 898. Under the first holding of Lynch, and the cases citing it, a tape recording which is not \u201csufficiently audible\u201d cannot be considered competent evidence.\nWhether a tape recording is sufficiently audible to be admitted is to be first determined by the trial court. The trial court in the case at bar found the tape audible enough to be \u201cenlightening to the jury.\u201d Having listened to the tape ourselves, we agree. Though defendant\u2019s voice is often inaudible, he can clearly be heard describing the incident at Dewey Brothers and, at one point, saying, \u201cI done killed the m\u2014 f \u2014 .\u201d As noted in Searcy, \u201ca tape recording should not be excluded merely because parts of it are inaudible if there are other parts that can be heard.\u201d 20 N.C. App. at 565, 202 S.E.2d at 317-18. We hold that the trial court did not err in admitting the tape recording.\nNor is there merit to defendant\u2019s argument that he was unfairly prejudiced when Angelo Farmer and the prosecutor were permitted to \u201cinterpret\u201d the tape recording for the jury. Farmer testified to defendant\u2019s statements from his own knowledge of the conversation, not from listening to the tape recording. The prosecutor, in his closing statement, argued that the tape contained various incriminating statements by defendant. It was up to the jury, however, to decide what defendant said. The jury was free to discredit Farmer\u2019s testimony, and the prosecutor\u2019s arguments, if it saw fit to do so.\nThis assignment of error is overruled.\nE\nDefendant next assigns error to the State\u2019s use of two photographs showing the victim as found at the crime scene, lying faceup with blood streaked across his face and head. The State first introduced these photographs to illustrate the testimony of Dewey Brothers, Inc., president Richard Helms, who found the victim\u2019s body. A few days later, the State published these photographs to the jury a second time to illustrate the testimony of Officer Honeycutt, the SBI agent who analyzed the crime scene. Defendant takes issue not with the initial publication of the photographs, but rather with their republication. Characterizing the photographs as \u201cexcessively grim,\u201d he argues that the second showing had no value other than to inflame the passions of the jury. We believe the trial court acted correctly in permitting the photographs to be twice published.\nWhether to admit gory photographs, how many to admit and how the photographs should be used are questions left to the sound discretion of the trial court, guided by the precept of Rule 403 of the North Carolina Rules of Evidence, N.C.G.S. \u00a7 8C-1, that evidence may be excluded if its probative value is \u201csubstantially outweighed\u201d by the danger of unfair prejudice. State v. Hennis, 323 N.C. 279, 283, 372 S.E.2d 523, 526 (1988). The trial court\u2019s ruling will not be overturned absent an abuse of discretion. Id. at 285, 372 S.E.2d at 527. As a general rule, gory photographs have been held admissible, if properly authenticated and otherwise competent, as long as they are not aimed solely at arousing the passions of the jury, i.e., if they have some probative value. See, e.g., State v. Murphy, 321 N.C. 738, 365 S.E.2d 615 (1988); State v. Holden, 321 N.C. 125, 362 S.E.2d 513 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988); see also 40 Am. Jur. 2d Homicide \u00a7 419 (1968). By the same token, gory photographs have been held excludable if they merely reiterate photographic evidence already presented, since the additional photographs may lack probative value, tending only to inflame the jury. Hennis, 323 N.C. at 286, 372 S.E.2d at 526-27; State v. Mercer, 275 N.C. 108, 120, 165 S.E.2d 328, 337 (1969). The same logic, of course, has been applied to the repeated publication of the same photograph or set of photographs. Hennis, 323 N.C. at 286-87, 372 S.E.2d at 528.\nIn Hennis, a triple murder case, the trial court admitted thirty-five color photographs of the murder victims, taken at the crime scene and at the autopsy. The photographs depicted in graphic detail numerous stab wounds on each of the bodies, and were particularly gruesome since the bodies had begun decomposing by the time the pictures were taken. The trial court permitted the photographs to be shown to the jury twice. The photographs were first shown as slides, projected on a large screen directly above defendant\u2019s head, and accompanying testimony by those who found the bodies and by the forensic pathologists. At the close of the State\u2019s evidence, the photographs were distributed to the jury one at a time, unaccompanied by further testimony. 323 N.C. at 282-83, 372 S.E.2d at 525-26.\nOn these facts, this Court ordered a new trial, reasoning that many of the slides were repetitive, showing substantially the same images, and thus added nothing of probative value to the State\u2019s case; that the manner in which the repetitive slides were displayed served to compound their prejudicial effect; and that the republication of the photographs was redundant and performed in a prejudicial manner. Id. at 286, 372 S.E.2d at 527-28. The Court said, \u201cpermitting the photographs with redundant content to be admitted into evidence and to be twice published to the jury was error.\u201d Id. at 286-87, 372 S.E.2d at 528.\nDefendant analogizes the case at bar to Hennis, arguing that the republication of the photographs was \u201cunnecessarily repetitive\u201d and that it was performed \u201cfor no other reason than to inflame the jurors\u2019 anger towards defendant.\u201d Defendant\u2019s analogy is inapposite. First, unlike the situation in Hennis, here the republication of the photographs had probative value. Whereas the photographs were first published to illustrate Helms\u2019 testimony describing in broad terms the crime scene as found, they were republished in aid of Officer Honeycutt\u2019s detailed testimony reconstructing the manner in which the crime had occurred. Indeed, Helms testified merely that he had found the body in the steel shed, lying faceup with arms and legs straight out and blood on the face and head. Honeycutt testified to the precise location of the body, measured to the inch from the walls of the shed, and to having discovered no blood on the ground around the body despite a painstaking search. He testified that the blood from the victim\u2019s wounds had run across his head horizontally and diagonally and was spattered on the victim\u2019s arms, on the front of his jacket and on one of his hands. Clearly, the republication of the photographs would have been quite useful in illustrating Honeycutt\u2019s more detailed testimony. By contrast, the photographs in Hennis were republished without any further testimony.\nSecond, the republication of the photographs in the case at bar created very little danger of unfair prejudice. Even though they show the victim\u2019s multiple head wounds, and blood covering his face and head, the photographs are not nearly as gory as those in Hennis. Nor were the photographs presented in a fashion likely to heighten the jury\u2019s emotional reaction. Recall that in Hennis, the prosecution concluded its case in chief by passing the thirty-five photographs to the jury one by one and in total silence. By that time, the jury had been exposed to seventy gory, disturbing images. 323 N.C. at 286, 372 S.E.2d at 528. Here the prosecution republished the photographs to the jury along with roughly sixty other exhibits germane to Officer Honeycutt\u2019s testimony. With the republication, the jury had been exposed to four gory images.\nThus, the republication was probative and created little danger of unfair prejudice. We hold the trial court did not abuse its discretion in allowing it.\nThis assignment of error is overruled.\nF\nDefendant contends, finally, that the trial court erred in denying his motion to suppress statements he made at his arrest and physical evidence seized during a search incident to that arrest. According to defendant, the statements should have been suppressed because obtained in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966); the physical evidence should have been excluded because a fruit of the illegally obtained statements. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441 (1963). We believe the trial court properly denied defendant\u2019s motion.\nAt the suppression hearing, Officer Sullivan testified as follows: Pursuant to warrants for murder and attempted safe-cracking, he arrested defendant at a boarding house called the Salem Lodge, in the room of one Mr. Artis. Upon placing defendant in custody, he informed him of his Miranda rights and asked whether he understood those rights. Defendant responded, \u201cyes.\u201d He then asked defendant, first, whether he wished to waive his right to remain silent, and then, whether he wished to waive his right to have counsel present during questioning. Defendant stood mute at each of these questions, making no response whatsoever. Soon thereafter, someone behind Sullivan asked defendant whether anything in the room belonged to him. Defendant responded that he owned the boxes (located on the floor). Sullivan then asked defendant whether he would consent to a search of the boxes, to which defendant responded, \u201cyes.\u201d The boxes, containing clothing and other personal effects, were searched for weapons and then removed to the police station.\nSullivan testified further that there were four officers at the scene of the arrest, two in the room and two at the door; that neither promises, nor threats, nor trickery were used to elicit defendant\u2019s statements; that defendant appeared to be coherent; and that defendant did not appear to be under the influence of drugs or alcohol.\nCrediting this testimony, and discounting defendant\u2019s testimony to the contrary, the trial court found as fact that defendant had been read his rights, that he did not respond to Sullivan\u2019s questions regarding waiver but thereafter indicated he owned the boxes and consented to having them searched, that he made these statements free from coercion or inducement and while coherent, and that he understood his rights. Based on these findings, the trial court held defendant\u2019s statements admissible, concluding that he had \u201cfreely, knowingly, intelligently, and voluntarily\u201d waived his rights to remain silent and to counsel. The trial court also held the boxes admissible because seized incident to a lawful arrest; it thereupon denied defendant\u2019s motion to suppress.\nDefendant does not take issue with the trial court\u2019s findings of fact. He challenges instead the court\u2019s conclusion of law that he knowingly and voluntarily waived his Miranda rights. According to defendant, waiver cannot be inferred from his conduct at the arrest since he \u201cnever said or did anything ... to indicate he had waived his rights.\u201d To the contrary, however, defendant answered the officers\u2019 questions free from coercion and after indicating that he understood his rights. These facts are sufficient to justify the trial court\u2019s ruling that he impliedly waived his rights.\nNorth Carolina v. Butler, 441 U.S. 369, 60 L. Ed. 2d 286 (1979), established that waiver of Miranda rights may be either express or implied. In that case, the defendant was advised of his Miranda rights and indicated that he understood those rights. He refused, however, to sign a written waiver, stating: \u201c T will talk to you but I am not signing any form.\u2019 \u201d He then made incriminating statements. Id. at 371, 60 L. Ed. 2d at 291. Overruling the North Carolina Supreme Court\u2019s holding that the defendant\u2019s waiver was invalid because not \u201cspecifically made,\u201d the Court held that an express written or oral statement of waiver was \u201cnot inevitably either necessary or sufficient to establish waiver.\u201d 441 U.S. at 373, 60 L. Ed. 2d at 292. As the Court explained:\nThe question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant\u2019s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. . . . [I]n at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.\nId.\nFollowing the lead of Butler, this Court has consistently held that a defendant may validly waive his Miranda rights by answering questions from the police, even though he has initially refused to expressly waive his rights. In State v. Connley, 297 N.C. 584, 256 S.E.2d 234, cert. denied, 444 U.S. 954, 62 L. Ed. 2d 327 (1979), the defendant stated after reading an Advice of Rights form, \u201c T know what it says and I understand, but I\u2019m not going to sign it.\u2019 \u201d He then answered questions for a short time, ignoring some questions and terminating the interview by asking for a lawyer. Id. at 586-88, 256 S.E.2d at 236. On these facts, we held that the defendant had impliedly waived his Miranda rights. Id. at 588-89, 256 S.E.2d at 237. Similarly, in State v. Vickers, 306 N.C. 90, 291 S.E.2d 599 (1982), we found a valid waiver where- the defendant did not expressly waive his rights but rather indicated that he understood them and then answered questions \u201cduring a general conversation that occurred on the way to the jail.\u201d Id. at 92, 96, 291 S.E.2d at 602, 604.\nIn both of these cases, the critical facts supporting waiver were: 1) that the defendant demonstrated an understanding of his rights, and 2) that the questioner exerted no pressure on the defendant to answer questions, whether by way of coercion, intimidation or trickery. Connley, 297 N.C. at 588-89, 256 S.E.2d at 237; Vickers, 306 N.C. at 96, 291 S.E.2d at 604. These facts obtain equally in the case at bar. First, though defendant remained silent when asked if he would waive his rights, he did affirmatively state that he understood his rights. He appeared coherent at the time and was, as the trial court also found, \u201ccapable of understanding his rights.\u201d Second, the police did not pressure him in any way to answer their questions. Thus, we can infer that in answering the officers\u2019 questions after expressly acknowledging that he understood his right not to do so in the absence of counsel, defendant impliedly waived his rights to remain silent and to counsel.\nSince defendant\u2019s statements were legally obtained, the seizure of the boxes he identified as belonging to him, otherwise legal, was not tainted. We conclude that the trial court properly admitted defendant\u2019s statements and his boxes.\nThis assignment of error is overruled.\nIV\nHaving found that the trial court gave an unconstitutional instruction on the meaning of \u201creasonable doubt,\u201d we order a new trial. Those additional assignments of error discussed above are overruled.\nNEW TRIAL.\nJustice Parker did not participate in the consideration or decision of this case.\n. In North Carolina, the right of self-representation is also guaranteed by Article I, Section 23 of the North Carolina Constitution, State v. Mems, 281 N.C. 658, 670-72, 190 S.E.2d 164, 172-73 (1972), and by statute, N.C.G.S. \u00a7 15A-1242.\n. In the caption for this assignment of error, defendant also asserts that the evidence was introduced in violation of the Fourth and Sixth Amendments and of Article 19 of the North Carolina Constitution. He has failed to brief these contentions, however, and we deem them abandoned under the authority of N.C. R. App. P. 28(a).", "type": "majority", "author": "EXUM, Chief Justice." }, { "text": "Justice Meyer\ndissenting.\nI dissent from the majority\u2019s decision to grant a new trial for Cage error essentially for the same reasons I expressed concerning that issue in my dissent in State v. Montgomery, 331 N.C. 559, 577, 417 S.E.2d 742, 752 (1992), and State v. Bryant, 334 N.C. 333, 343, 432 S.E.2d 291, 297 (1993). As in Bryant, defendant here did not object to the reasonable doubt instruction given by the trial judge.\nCage does not dictate that we find reversible error in the instant case. In Cage, the Supreme Court found error in the Louisiana trial court\u2019s reasonable doubt instruction, stating:\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.\nCage v. Louisiana, 498 U.S. 39, 41, 112 L. Ed. 2d 339, 342 (1990) (emphasis added).\nIn reading Cage broadly, the majority opinion deviates from virtually every other appellate court in the land that has considered the matter. See Gaskins v. McKellar, \u2014 U.S. \u2014, 114 L. Ed. 2d 728 (Stevens, J., concurring in denial of writ of certiorari and acknowledging that Cage is to be read narrowly and emphasizing the critical import of the \u201cgrave uncertainty\u201d language), reh\u2019g denied, \u2014 U.S. ---, 115 L. Ed. 2d 1098 (1991); Smith v. State, 588 So. 2d 561 (Ala. Crim. App. 1991) (finding no error in use of terms \u201cactual and substantial doubt\u201d and \u201cmoral certainty\u201d); Adams v. State, 587 So. 2d 1265 (Ala. Crim. App. 1991) (finding permissible use of terms \u201cactual and substantial doubt\u201d and \u201cmoral certainty\u201d); Fells v. State, 587 So. 2d 1061 (Ala. Crim. App. 1991) (finding use of term \u201cmoral certainty\u201d to be proper); People v. Jennings, 53 Cal. 3d 334, 807 P.2d 1009, 279 Cal. Rptr. 780 (same), cert. denied, \u2014 U.S. \u2014, 116 L. Ed. 2d 462 (1991); Commonwealth v. Beldotti, 409 Mass. 553, 567 N.E.2d 1219 (1991) (instruction permissible with \u201cmoral certainty\u201d language); State v. Morley, 239 Neb. 141, 474 N.W.2d 660 (1991) (instruction permissible when \u201cmoral certainty\u201d and \u201cactual and substantial doubt\u201d used).\nThe majority\u2019s extremely broad interpretation of Cage in Bryant, which it says dictates the result here, seems more an excuse than a reason for granting a new trial. The reasonable doubt instruction that the majority finds to be reversible error is one that has been employed by our trial judges for many years and in many cases. I anticipate that this Court will be called upon to review many cases in which the same or a similar jury charge was employed. Unlike McKoy error, which affects only the sentencing proceeding of a capital trial, the error here affects both capital and noncapital trials and requires a totally new trial. The impact of McKoy on our criminal justice system may dim in comparison to the impact of this Court\u2019s interpretation of Cage. For this and other reasons, I would allow a federal appellate court to speak to this issue before granting new trials that may prove to be unnecessary.\nI believe that the majority errs in its conclusion that the reasonable doubt instruction tendered by the trial court was error requiring a new trial.", "type": "dissent", "author": "Justice Meyer" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Isaac T. Avery, III, Special Deputy Attorney General, and Linda Anne Morris, Assistant Attorney General, for the State.", "William F.W. Massengale, Barry T. Winston, and Marilyn G. Ozer for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARVIN EARL WILLIAMS, JR.\nNo. 264A90\n(Filed 10 September 1993)\n1. Criminal Law \u00a7 762 (NCMth) \u2014 murder \u2014reasonable doubt\u2014 instructions\nAn instruction on reasonable doubt in a prosecution for murder, burglary with explosives, and attempted safecracking was erroneous under State v. Bryant, 334 N.C. 333.\nAm Jur 2d, Trial \u00a7 832.\n2. Homicide \u00a7 244 (NCI4tfa)\u2014 murder \u2014 premeditation and deliberation \u2014sufficiency of evidence\nThe evidence was clearly sufficient to support a conclusion that a murder was premeditated and deliberate where defendant carried a knife with him during an attempted safecracking, indicating that he had anticipated a violent confrontation and the need for deadly force; defendant struck the victim numerous times with a heavy object, causing at least three lethal injuries; some of the lethal blows may have been inflicted while the victim was lying helpless on the ground; and there was no evidence to show that defendant was provoked.\nAm Jur 2d, Homicide \u00a7\u00a7 437 et seq.\n3.. Homicide \u00a7 279 (NCMth) \u2014 first-degree murder \u2014 instructions \u2014 guilty if killing occurred during burglary with explosives\nThe trial court did not err by instructing a jury that it could convict defendant of first-degree murder if it found that the killing had occurred during the commission of a burglary with explosives. Although defendant contended that burglary with explosives is not a crime within the purview of the felony murder rule, the language of the burglary with explosives statute, the statute\u2019s history, and the rationale underlying the felony murder rule compel the conclusion that the legislature intended burglary with explosives to be one of the felonies upon which first-degree murder could be premised. N.C.G.S. \u00a7 14-17; N.C.G.S. \u00a7 14-57.\nAm Jur 2d, Homicide \u00a7 442.\n4. Constitutional Law \u00a7 281 (NCI4th)\u2014 murder \u2014 right to appear pro se \u2014sufficiency of request\nA first-degree murder defendant\u2019s right to proceed pro se was not infringed where the right was not properly asserted. Although the trial court erroneously based its denial of the right to appear pro se on defendant\u2019s ability to adequately represent himself, it is apparent that defendant\u2019s primary desire was to ensure adequate representation by counsel and that he never took a firm position on whether to proceed pro se. Defendant was not denied his right to represent himself -at trial because he never asserted that right clearly and unequivocally. Moreover, had defendant been permitted to represent himself based on his equivocal-requests, he would now be arguing with some justification that he was denied the right to counsel and the Supreme Court refused to place the trial courts in a position to be \u201cwhipsawed\u201d by equivocal requests to proceed without counsel.\nAm Jur 2d, Criminal Law \u00a7\u00a7 764 et seq., 993 et seq.\nAccused\u2019s right to represent himself in state criminal proceeding \u2014 modern state cases. 98 ALR3d 13.\n5. Evidence and Witnesses \u00a7 1623 (NCI4th)\u2014 murder \u2014 audio tape recording \u2014 authentication\nThe trial court did not err in a prosecution for first-degree murder, burglary with explosives and attempted safecracking by admitting a tape recording allegedly containing admissions by defendant where the tape was partially inaudible. The seven-prong test of State v. Lynch, 279 N.C. 1, has been superseded by the authentication requirements of N.C.G.S. \u00a7 8C-1, Rule 901, under which authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. The State provided such evidence here in the form of testimony by Angelo Farmer that the tape was a true recording of his conversation with defendant and the trial court did not err in failing to make findings of fact in accordance with the Lynch test.\nAm Jur 2d, Evidence \u00a7 436.\n6. Evidence and Witnesses \u00a7 1618 (NCI4th)\u2014 murder \u2014audio recording \u2014 partially audible \u2014admissible\nThe trial court did not err in a prosecution for first-degree murder, burglary with explosives and attempted safecracking by admitting a tape recording allegedly containing admissions by defendant where the tape was partially inaudible. Authentication is not the only prerequisite to the admissibility of a tape recording; a tape must also be shown to have been legally obtained and to contain otherwise competent evidence. A tape recording which is not sufficiently audible cannot be. considered competent evidence. The trial court here found the tape audible enough to be \u201cenlightening to the jury.\u201d A tape recording should not be excluded merely because parts of it are inaudible if there are other parts that can be heard.\nAm Jur 2d, Evidence \u00a7 436.\nOmission or inaudibility of portions of sound recording as affecting its admissibility in evidence. 57 ALR3d 746.\n7. Evidence and Witnesses \u00a7 1617 (NCI4th)\u2014 murder \u2014audio recording \u2014 partially inaudible \u2014interpretation of tape for jury\nThere was no error in a prosecution for first-degree murder, burglary with explosives and attempted safecracking where a partially inaudible tape recording was admitted and a witness and the prosecutor were allowed to \u201cinterpret\u201d the tape recording for the jury. The witness, Angelo Farmer, testified to defendant\u2019s statements from his own knowledge of the conversation, not from listening to the recording, and the prosecutor argued that the tape contained various incriminating statements by defendant. It was up to the jury to decide what defendant said.\nAm Jur 2d, Evidence \u00a7 436.\n8. Evidence and Witnesses \u00a7 1686 |NCI4th)\u2014 murder \u2014 photographs of victim \u2014introduced twice \u2014not repetitious\nThe trial court did not abuse its discretion in a murder prosecution by allowing the State to use two photographs showing the victim as found at the crime scene with blood streaked across his face and head to illustrate the testimony of the person who found the body and to illustrate the testimony of the SBI agent who analyzed the crime scene. Although defendant argued that the second showing had no value other than to inflame the passions of the jury, the republication of the photographs would have been quite useful in illustrating the SBI agent\u2019s more detailed testimony. Moreover, there was very little danger of unfair prejudice because the photographs were not nearly as gory as those in State v. Hennis, 323 N.C. 279, to which defendant analogizes the case at bar, nor were the photographs presented in a fashion likely to heighten the jury\u2019s emotional reaction.\nAm Jur 2d, Evidence \u00a7 787; Homicide \u00a7 419.\n9. Evidence and Witnesses \u00a7 1263 (NCI4th)\u2014 murder \u2014silence when rights read \u2014subsequent statements by defendant and consent to search \u2014implied waiver of rights\nThe trial court properly admitted defendant\u2019s statements and some boxes seized from him in a prosecution for first-degree murder, burglary with explosives, and attempted safe-cracking where defendant was arrested at a boarding house; defendant was informed of his Miranda rights and asked whether he understood those rights; defendant responded that he did but stood mute when asked whether he wished to waive his right to remain silent and whether he wished to waive his right to have counsel present during questioning; someone asked defendant whether anything in the room belonged to him; defendant responded that he owned the boxes on the floor; defendant was then asked whether he would consent to a search of the boxes; and he responded, \u201cyes.\u201d Defendant answered the officers\u2019 questions free from coercion and after indicating that he understood his rights; these facts are sufficient to justify the trial court\u2019s ruling that he impliedly waived his rights.\nAm Jur 2d, Evidence \u00a7\u00a7 555-557, 614; Criminal Law \u00a7 797.\nJustice Parker did not participate in the consideration or decision of this case.\nJustice Meyer dissenting.\nAppeal of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Butterfield, J., at the 30 April 1990 Criminal Session of Superior Court, Wayne County, upon a jury verdict of first-degree murder. Defendant\u2019s motion to bypass the Court of Appeals as to his conviction of burglary by explosives was allowed by this Court on 13 August 1991. Heard in the Supreme Court 10 February 1992.\nLacy H. Thornburg, Attorney General, by Isaac T. Avery, III, Special Deputy Attorney General, and Linda Anne Morris, Assistant Attorney General, for the State.\nWilliam F.W. Massengale, Barry T. Winston, and Marilyn G. Ozer for defendant-appellant." }, "file_name": "0440-01", "first_page_order": 464, "last_page_order": 491 }