{ "id": 2526731, "name": "STATE OF NORTH CAROLINA v. HERBERT BARTON, JR.", "name_abbreviation": "State v. Barton", "decision_date": "1994-03-04", "docket_number": "No. 210A92", "first_page": "696", "last_page": "717", "citations": [ { "type": "official", "cite": "335 N.C. 696" } ], "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": "386 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182629 ], "opinion_index": -1, "case_paths": [ "/us/386/0738-01" ] }, { "cite": "16 ALR4th 666", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "346 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "450" }, { "page": "517" }, { "page": "450" } ], "opinion_index": 0 }, { "cite": "317 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779881 ], "year": 1986, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0511-01" ] }, { "cite": "93 L. Ed. 2d 166", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "479 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "year": 1986, "opinion_index": 0 }, { "cite": "340 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "688" } ], "opinion_index": 0 }, { "cite": "315 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720550 ], "year": 1986, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0398-01" ] }, { "cite": "406 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "820", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "329 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556019 ], "year": 1991, "pin_cites": [ { "page": "522", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0507-01" ] }, { "cite": "18 L. Ed. 2d 1377", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "388 U.S. 924", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6194450, 6194707 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0924-01", "/us/388/0924-02" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "526" }, { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "284" }, { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "893", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988)" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "page": "308", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "423 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "772" } ], "opinion_index": 0 }, { "cite": "333 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548569 ], "year": 1992, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0128-01" ] }, { "cite": "405 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "196" } ], "opinion_index": 0 }, { "cite": "329 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553398 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0001-01" ] }, { "cite": "302 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "192", "parenthetical": "\"the trial judge ha[s] within his discretion the authority to permit the State to introduce new evidence on re-direct examination\"" } ], "opinion_index": 0 }, { "cite": "308 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707026 ], "year": 1983, "pin_cites": [ { "page": "354", "parenthetical": "\"the trial judge ha[s] within his discretion the authority to permit the State to introduce new evidence on re-direct examination\"" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0348-01" ] }, { "cite": "367 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "905" } ], "opinion_index": 0 }, { "cite": "322 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517737 ], "year": 1988, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0152-01" ] }, { "cite": "98 L. Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "pin_cites": [ { "parenthetical": "\"[w]hile the intentional use of a deadly weapon may, in and of itself, give rise to a presumption that a killing was malicious,... this is insufficient to sustain a finding of premeditation and deliberation\"" } ], "opinion_index": 0 }, { "cite": "484 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 599537, 600738 ], "year": 1987, "pin_cites": [ { "parenthetical": "\"[w]hile the intentional use of a deadly weapon may, in and of itself, give rise to a presumption that a killing was malicious,... this is insufficient to sustain a finding of premeditation and deliberation\"" } ], "opinion_index": 0, "case_paths": [ "/us/484/0959-02", "/us/484/0959-01" ] }, { "cite": "357 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "914", "parenthetical": "\"[w]hile the intentional use of a deadly weapon may, in and of itself, give rise to a presumption that a killing was malicious,... this is insufficient to sustain a finding of premeditation and deliberation\"" } ], "opinion_index": 0 }, { "cite": "320 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723637 ], "year": 1987, "pin_cites": [ { "page": "258", "parenthetical": "\"[w]hile the intentional use of a deadly weapon may, in and of itself, give rise to a presumption that a killing was malicious,... this is insufficient to sustain a finding of premeditation and deliberation\"" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0233-01" ] }, { "cite": "347 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "425" } ], "opinion_index": 0 }, { "cite": "318 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738246 ], "year": 1986, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0126-01" ] }, { "cite": "367 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "643" } ], "opinion_index": 0 }, { "cite": "322 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518702 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0243-01" ] }, { "cite": "404 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "677" }, { "page": "677" } ], "opinion_index": 0 }, { "cite": "329 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553489 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "210" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0202-01" ] }, { "cite": "99 L. Ed. 2d 912", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "485 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13312, 13445, 13287, 13545, 13740, 13965, 13233, 14131, 13397, 13238, 13399, 13750, 13849, 13725 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/485/1036-05", "/us/485/1036-12", "/us/485/1036-11", "/us/485/1036-04", "/us/485/1036-06", "/us/485/1036-14", "/us/485/1036-08", "/us/485/1036-10", "/us/485/1036-01", "/us/485/1036-02", "/us/485/1036-13", "/us/485/1036-03", "/us/485/1036-09", "/us/485/1036-07" ] }, { "cite": "362 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "251" } ], "opinion_index": 0 }, { "cite": "321 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569839 ], "year": 1987, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0201-01" ] }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "year": 1993, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378" }, { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "659-60" }, { "page": "659-60" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "386 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182629 ], "weight": 3, "pin_cites": [ { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/us/386/0738-01" ] } ], "analysis": { "cardinality": 1342, "char_count": 46909, "ocr_confidence": 0.757, "pagerank": { "raw": 2.294164017211875e-07, "percentile": 0.7866186407006741 }, "sha256": "746b0d45eddb37f2b20cc6281c3c3d3aedf3ae1cd59f3a3d4140ed5d231ee282", "simhash": "1:a7ebd33e771c99fd", "word_count": 7763 }, "last_updated": "2023-07-14T21:54:49.870550+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. HERBERT BARTON, JR." ], "opinions": [ { "text": "MITCHELL, Justice.\nOn 20 May 1991, a Robeson County Grand Jury indicted the defendant for first-degree murder, robbery with a dangerous weapon, felonious larceny, larceny of a firearm and conspiracy to commit murder. The defendant was tried capitally at the 18 May 1992 Criminal Session of Superior Court, Robeson County. The trial court dismissed the conspiracy charge at the close of the State\u2019s evidence. The jury returned verdicts finding the defendant guilty of first-degree murder, robbery with a dangerous weapon, felonious larceny and larceny of a firearm.\nAt the conclusion of a separate capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder and the trial court sentenced the defendant in accord with the jury\u2019s recommendation. The trial court also sentenced the defendant to imprisonment for fourteen years for robbery with a dangerous weapon and continued prayer for judgment for five years on the two larceny convictions. The defendant appealed to this Court as a matter of right from the judgment sentencing him to death for first-degree murder. See N.C.G.S. \u00a7 7A-27(a) (1989). We allowed his motion to bypass the Court of Appeals on his appeal from the judgment for robbery with a dangerous weapon.\nThe evidence presented at the defendant\u2019s trial tended to show the following. Around 6:00 p.m. on 8 February 1991, the defendant shot Harold Craven in the back of the head with a shotgun because, as the defendant said, he had \u201cbeen wanting to shoot somebody for about two weeks.\u201d It was Mr. Craven\u2019s custom in the evenings to drive to an area of Maxton, North Carolina, where several garbage dumpsters and a couch were located, in order to sit and think. The defendant had seen Mr. Craven at the dumpsters two nights prior to the murder and had attempted to kill him then. However, the shotgun the defendant was using, which he described as his \u201cold shotgun that had tape on the barrel,\u201d failed to fire. One of the defendant\u2019s accomplices, Michael Emanuel, procured another shotgun, and the defendant returned to the dumpsters with that shotgun on the evening of 8 February 1991. Present with the defendant were Michael Emanuel and the defendant\u2019s younger brother, Heath Barton. All three were waiting for Mr. Craven when he arrived. Mr. Craven got out of his car and was looking around when the defendant shot him. The victim fell to the ground and Emanuel and the defendant\u2019s brother moved forward and took his wallet. Emanuel and the defendant drug the victim\u2019s body into a patch of woods adjacent to the dumpsters and covered it with leaves and brush. They then returned to the victim\u2019s car, from which Emanuel took a .25-caliber pistol belonging to Mr. Craven and gave it to the defendant.\nThe defendant and the others drove off in the victim\u2019s car with the defendant at the wheel. Later, the defendant parked the car in a patch of woods near the defendant\u2019s mobile home. After sweeping the ground around the car, they ran to the mobile home. Emanuel and the defendant\u2019s brother tossed the murder weapon into a ditch behind the mobile home. The defendant hid the victim\u2019s .25-caliber pistol behind a stump. The three then went to buy beer, cocaine, marijuana and knives.\nLocal sheriff\u2019s deputies approached the defendant at his mobile home two days later. After receiving the Miranda warnings and signing a waiver form, the defendant stated to the deputies that he had killed Mr. Craven. The defendant then helped the deputies locate the .25-caliber pistol and other items of evidence. The deputies found the murder weapon in the ditch where Emanuel and the defendant\u2019s brother had hidden it and found the shotgun with tape around the barrel inside the mobile home.\nThe deputies then arrested the defendant and took him to the sheriff\u2019s department. After receiving the Miranda warnings a second time, the defendant confessed. He also stated that he, his brother and Emanuel had \u201call wanted to shoot somebody\u201d and \u201cdidn\u2019t care who it was.\u201d The defendant explained that he \u201cwas mad and didn\u2019t care what [he had] done.\u201d He said he \u201cwould have shot anybody that drove up there that night.\u201d\nOther pertinent facts will be introduced in the discussion of the assignment of error to which they are relevant.\nI. Guilt Phase\nBy an assignment of error regarding the guilt-innocence determination phase of his trial, the defendant contends that the trial court erred in its instructions on lack of mental capacity as a factor tending to negate the specific intent required for first-degree murder. Specifically, the trial court instructed the jury that if it found \u201cthat [the] defendant was intoxicated or drugged or lacked mental capacity at the time of the killing, [it] should consider whether this condition affected his ability to formulate the specific intent which is required for conviction of first-degree murder.\u201d The defendant complains that there was substantial evidence that his impairment \u201cwas caused by mental illness and mental retardation or borderline intellectual functioning,\u201d yet the trial court did not include these causes in its instructions. The defendant insists that the trial court\u2019s omission of these causes suggested to the jury that these causes were not sufficient to allow for a finding of lack of specific intent. The defendant contends that the trial court thereby \u201cimpaired the jury\u2019s consideration of the diminished capacity defense\u201d in violation of the defendant\u2019s rights under the Eighth and Fourteenth Amendments to the Constitution of the United States.\nThe defendant admits, however, that he did not object to the instructions or request more specific instructions. This assignment of error is therefore barred by Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure and the defendant is not entitled to relief unless any error constituted plain error. See State v. Odom, 307 N.C. 655, 659-60, 300 S.E.2d 375, 378 (1983). We have previously explained that to rise to the level of plain error, the error in the instructions must be \u201cso fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him.\u201d State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993). Stated another way, the error must be one \u201cso fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u201d State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).\nHaving reviewed the trial court\u2019s instructions on lack of mental capacity under this standard, we find no plain error. The trial court delivered the appropriate pattern jury instruction on this issue, which lists examples of factors that could contribute to a diminished mental capacity. See N.C.P.I. \u2014 Crim. 305.11 (1986). As the defendant himself recognizes, the trial court was not required to provide the jury with an exhaustive list of all possible factors that could have contributed to his diminished mental capacity. Indeed, \u201c[t]he trial court is not required to frame its instructions with any greater particularity than is necessary to enable the jury to understand and apply the law to the evidence bearing upon the elements of the crime charged.\u201d State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991). The instructions given in the case at bar were of sufficient particularity to enable the jury to understand the law on lack of mental capacity and apply it to the evidence presented on that issue. No more was required of the trial court. We therefore cannot say that the trial court committed plain error. This assignment of error is without merit.\nBy another assignment of error, the defendant insists that the trial court erred by sustaining an objection to a question his counsel posed to Dr. Thomas W. Brown, the defendant\u2019s psychiatric expert. Near the close of Dr. Brown\u2019s testimony on direct examination, counsel for the defendant asked Dr. Brown the following question:\n[B]ased on your education, training and experience, and based on the several diagnoses that you made or diagnoses [the defendant] is suffering from, do you have an opinion satisfactory to yourself as to the impact of all those different diagnoses on his ability to plan?\nThe prosecution objected and the trial court sustained the objection on the ground that Dr. Brown had previously \u201canswered that question.\u201d The defendant then made an offer of proof during which Dr. Brown testified that \u201cthe combination of those would severely limit [the defendant\u2019s] capacity to plan\u201d and his capacity to \u201ccarry out something in accordance with the plan.\u201d\nThe defendant maintains that the question he posed to Dr. Brown was \u201cdirectly related to a critical issue in the case\u201d and was \u201cproper under existing law.\u201d The defendant contends that, contrary to the trial court\u2019s ruling, the question did not call for cumulative testimony. He therefore argues that he is entitled to a new trial under our opinion in State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988). We disagree.\nIn Shank, we held that the trial court committed prejudicial error by excluding the testimony of the defendant\u2019s psychiatric expert that, in his opinion, the \u201cdefendant\u2019s diminished mental capacity adversely affected his ability to make and carry out plans.\u201d We reasoned that because (1) the testimony would have tended to show that the defendant lacked the capacity to premeditate or deliberate, (2) the North Carolina Rules of Evidence allow opinion testimony embracing an ultimate issue, see N.C.G.S. \u00a7 8C-1, Rule 704 (1992), and (3) the testimony was otherwise admissible, the trial court erred in excluding the doctor\u2019s opinion. Shank, 322 N.C. at 249, 367 S.E.2d at 643. Since there was a reasonable possibility that a different result would have been reached had the trial court not committed this error, the error was prejudicial and entitled the defendant to a new trial. Id. See also N.C.G.S. \u00a7 15A-1443(a) (1988).\nIn the present case, we assume arguendo that the question was proper as to form and that the tendered answer was not expressly made inadmissible by any rule of evidence. Unlike the defendant in Shank, however, the defendant in the case at bar was allowed to place before the jury considerable evidence that his diminished mental capacity adversely affected his ability to make and carry out plans. Prior to the question at issue, Dr. Brown had testified that: (1) the defendant\u2019s capacity \u201cfor being able to plan\u201d was limited, (2) the defendant \u201cwould have been significantly, substantially impaired\u201d at the time of the murder, (3) the defendant\u2019s \u201cability to make plans or think things out\u201d was \u201cdefinitely limited\u201d and (4) the defendant \u201cdraws conclusions about what [it] is possible to do or what [it] makes sense to plan on doing in ways that are unrealistic or don\u2019t make sense.\u201d The additional testimony the defendant attempted to elicit from Dr. Brown that the defendant had a limited capacity to plan and a limited capacity to \u201ccarry out something in accordance with the plan\u201d would have added little, if anything, to the testimony he had already given.\nNorth Carolina Rule of Evidence 403 provides that evidence, although relevant, \u201cmay be excluded if its probative value is substantially outweighed ... by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 403 (1992). By sustaining the prosecutor\u2019s objection to the question at issue, the trial court in the case at bar did nothing more than exclude cumulative evidence. The trial court\u2019s action, therefore, was consistent with Rule 403 and did not constitute error. Accordingly, we overrule this assignment of error.\nBy another assignment of error the defendant contends that he is entitled to a new trial on the charge of robbery with a dangerous weapon because the trial court erred in instructing the jury on the theory of acting in concert as it applied to that charge. The trial court instructed the jury, in pertinent part, as follows:\n[F]or a person to be guilty of a crime, it is not necessary that he himself do all of the acts necessary to constitute the crime. If two or more persons act together with a common purpose to commit robbery with a firearm, each of them is held responsible for the acts of the others done in the commission of robbery with a firearm.\nSo I charge you that if you find from the evidence beyond a reasonable doubt that on or about February 8, 1991, the defendant, Herbert Barton, Jr., acting either by himself or acting together with Heath Barton and Michael Emanuel, had in their possession a firearm and took and carried away property from the person or presence of a person without his voluntary consent by endangering or threatening his life with use or threatened use of a firearm, the defendant knowing that he was not entitled to take the property and intending to deprive him of its use permanently, then it would be your duty to return a verdict of guilty of robbery with a firearm.\nHowever, if you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty in case 91 CRS 3025.\n(Emphasis added). This instruction was taken nearly verbatim from the North Carolina Pattern Jury Instructions. See N.C.P.I. \u2014Crim. 202.10 (1971). The defendant did not object to this instruction at trial, nor did he request an additional instruction. Therefore, our review is limited to a review for plain error. State v. Joplin, 318 N.C. 126, 132, 347 S.E.2d 421, 425 (1986); Odom, 307 N.C. at 659-60, 300 S.E.2d at 378.\nThe defendant first argues that the instructions given by the trial court amounted to plain error because the jury was not informed that to convict the defendant of the robbery it must first find from the evidence that he specifically intended that the robbery occur and communicated to the perpetrators his intent to assist them with the commission of that crime, if necessary. We do not agree. Instead, we conclude that the instruction complained of could only have been understood by the jury to allow conviction of the defendant for robbery with a dangerous weapon if the defendant himself acted alone or together with the others and the defendant himself intended that the robbery from the victim result from such action.\nThe defendant also argues in support of this assignment of error that no evidence was introduced at trial to support a reasonable finding that he acted in concert with his brother and Emanuel to commit the robbery with a dangerous weapon. Therefore, he contends that the trial court erred in giving any instruction permitting the jury to convict him of that robbery on the basis of the doctrine of acting in concert. We find this argument feckless.\nOverwhelming evidence tended to show that the defendant, his brother and Emanuel waited for the victim at the murder scene together, where the defendant shot and killed the victim. Still holding the shotgun, the defendant stood by while his brother and Emanuel took the victim\u2019s wallet from his pocket. They then went to the victim\u2019s car, where Emanuel found the victim\u2019s pistol and gave it to the defendant. The defendant took the pistol, then drove the victim\u2019s car away from the scene. Thereafter, the defendant, his brother and Emanuel each individually took steps to conceal evidence which would point to their participation in the crimes committed against the victim. Such evidence was more than sufficient to support the conviction of the defendant for robbery with a dangerous weapon, either on the theory that he acted in concert with the others or on the theory that he himself robbed the victim. Accordingly, we conclude that the trial court did not commit plain error and overrule this assignment of error.\nBy another assignment of error, the defendant argues that the trial court should have instructed the jury that while the intentional use of a deadly weapon may give rise to a presumption that a killing was malicious, it will not alone sustain a finding of premeditation or deliberation. See State v. Zuniga, 320 N.C. 233, 258, 357 S.E.2d 898, 914, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987) (\u201c[w]hile the intentional use of a deadly weapon may, in and of itself, give rise to a presumption that a killing was malicious,... this is insufficient to sustain a finding of premeditation and deliberation\u201d). The defendant maintains that the trial court\u2019s failure to expressly so instruct the jury may have allowed the jury to infer, in violation of Zuniga, that the intentional use of a deadly weapon \u201cwas tantamount to premeditation and deliberation.\u201d\nThe defendant did not object to the instructions given and did not request additional instructions. He therefore is entitled to relief only if the trial court committed plain error.\nThe trial court properly instructed the jury on the elements of first-degree murder in accordance with the North Carolina Pattern Jury Instructions. See N.C.P.I. \u2014 Crim. 206.10 (1989). The trial court is not required to instruct the jury \u201cwith any greater particularity than is necessary to enable the jury to understand and apply the law to the evidence bearing upon the elements of the crime charged.\u201d State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991). The trial court\u2019s instructions in the case at bar were of sufficient particularity to enable the jury to understand the law with regard to first-degree murder and apply it to the evidence bearing upon the elements of that charge in the present case. We therefore conclude that the defendant has failed to establish plain error in this regard and we reject this assignment of error.\nBy his next assignment of error, the defendant maintains that the trial court erred in allowing the State to elicit testimony from a witness on redirect examination that went beyond the scope of the witness\u2019 testimony during direct and cross-examination. On direct examination, the witness, Ms. Winnie Jacobs, testified that she lived near the defendant in February of 1991. She took the defendant, the defendant\u2019s brother and Michael Emanuel \u201cuptown\u201d around 7:30 or 8:00 p.m. on 8 February 1991, the night of the murder. While uptown, she drove the three boys to various locations where they bought gas, cigarettes, knives, beer and ice, and the defendant did not appear to be intoxicated at the time. On cross-examination, Ms. Jacobs again stated that she drove the defendant and the two others uptown around 7:30 or 8:00 p.m. on 8 February 1991. On redirect examination, Ms. Jacobs testified over the defendant\u2019s objection about an encounter with the defendant on the night of 9 February 1991, the night following the murder. She explained that the defendant came to her house around 8:00 p.m., that \u201che acted scared\u201d and that he had mud on his shoes. She also testified that the defendant told her \u201cthat he had been running in the woods\u201d and \u201cthat the laws was after him.\u201d Ms. Jacobs then took the defendant back to his mobile home.\nThe defendant contends that the trial court erred in allowing Ms. Jacobs to testify about her encounter with the defendant on 9 February 1991 because the testimony went beyond the scope of her testimony during direct and cross-examination. He further argues that the error was prejudicial because Ms. Jacobs\u2019 testimony on redirect examination \u201chad the reasonable possibility of suggesting to the jury that the defendant was able to formulate and carry out complex plans, including evasion of law enforcement officers.\u201d He therefore insists that he is entitled to a new trial. We disagree.\nIt is well established that \u201cthe calling party is ordinarily not permitted ... to question the witness on entirely new matters\u201d on redirect examination. State v. Weeks, 322 N.C. 152, 169, 367 S.E.2d 895, 905 (1988). However, the decision whether to allow testimony on redirect examination involving matters beyond the scope of the witness\u2019 testimony on direct and cross-examination is a matter left to the sound discretion of the trial court. See State v. Waters, 308 N.C. 348, 354, 302 S.E.2d 188, 192 (1983) (\u201cthe trial judge ha[s] within his discretion the authority to permit the State to introduce new evidence on re-direct examination\u201d). See also N.C.G.S. \u00a7 8C-1, Rule 611(a) (1992) (\u201cThe court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.\u201d); N.C.G.S. \u00a7 15A-1226(b) (1988) (\u201cThe judge in his discretion may permit any party to introduce additional evidence at any time prior to verdict.\u201d). The testimony at issue here was relevant and otherwise admissible. Further, after its admission, the trial court provided the defendant an opportunity to recross-examine the witness \u2014an opportunity of which the defendant did not avail himself. We conclude that the trial court did not abuse its discretion. Accordingly, this assignment of error is without merit.\nThe defendant contends by another assignment of error that the trial court erred in failing to strike certain testimony of a State\u2019s witness and in failing to give the jury a curative instruction with regard to that testimony. The witness, Vashon Locklear, an acquaintance of the defendant who was charged with conspiracy in this matter, testified about a meeting he had with the defendant, the defendant\u2019s brother and Michael Emanuel on the day following the murder of Harold Craven. Over the defendant\u2019s objection, Locklear testified that he had asked them whether they had \u201cshot the old man.\u201d When asked by the prosecutor whether any of the three had responded, Locklear answered: \u201cI believe Michael said that they had shot the man.\u201d The defendant objected and the trial court sustained the objection. The defendant neither moved to strike Locklear\u2019s testimony nor requested a curative instruction. Nevertheless, he now contends that the trial court should have taken these actions sua sponte because merely sustaining the defendant\u2019s objection was \u201cinsufficient to cure the tremendously damaging statement of Michael Emanuel that \u2018they had shot the man.\u2019 \u201d. We disagree.\nWe recently rejected a nearly identical contention in State v. Quick, 329 N.C. 1, 405 S.E.2d 179 (1991). In Quick, an SBI agent testified that an ashtray found in the victim\u2019s home bore the defendant\u2019s fingerprint. He then testified that he had asked a fellow agent, Agent Duncan, to verify this fingerprint identification and that Agent Duncan had \u201cagreed with the identification.\u201d The defendant objected and the trial court sustained the objection. On appeal, the defendant argued that he was entitled to a new trial because the testifying SBI agent had introduced highly prejudicial inadmissible hearsay.\nIn rejecting this contention, we explained that: (1) \u201cwhere the trial court sustains [the] defendant\u2019s objection, he has no grounds to except,\u201d (2) by failing to move to strike the objectionable testimony, the defendant waived his right to assert error on appeal and (3) there was no prejudice in any event because the testifying agent had given his own opinion that the fingerprint was that of the defendant and the trial court had sustained the defendant\u2019s objection to the corroborating opinion of Agent Duncan. Id. at 29, 405 S.E.2d at 196. Similarly, in the case sub judice the trial court sustained the defendant\u2019s objection and the defendant failed to move to strike the objectionable testimony. He therefore has waived his right to assert on appeal error arising from Vashon Locklear\u2019s objectionable testimony. Further, the defendant has not shown prejudice since prior to Locklear\u2019s testimony, the jury heard the defendant\u2019s own confession to law enforcement officers that he had shot the victim in the head and \u201cdidn\u2019t care what [he had] done.\u201d\nWe have also recently rejected a defendant\u2019s contention that the trial court should have given the jury a curative instruction sua sponte. We plainly stated in State v. Williamson, 333 N.C. 128, 139, 423 S.E.2d 766, 772 (1992), that \u201c[a] trial court does not err by failing to give a curative jury instruction when, as here, it is not requested by the defense.\u201d As the defendant in the case at bar did not request a curative instruction, the trial court did not err by failing to give one. The trial court thus took sufficient action by sustaining the defendant\u2019s objection and was not required either to strike'the testimony or to give a curative jury instruction. Accordingly, we overrule this assignment of error.\nBy another assignment of error, the defendant argues that the trial court erred in allowing the State to introduce two photographs into evidence. The first was an 8 by 10 inch color photograph of the defendant, the defendant\u2019s brother and Michael Emanuel standing handcuffed next to a sheriff\u2019s deputy in the area where the victim\u2019s car was found. The second was an 8 by 10 inch color photograph of the defendant and the others walking, with their backs to the camera, across a field near the location of the car. The trial court admitted the two photographs for the limited purpose of illustrating the testimony of law enforcement officers regarding the assistance given them by the defendant in locating various items of evidence. The trial court expressly instructed the jury that it was to consider the photographs only for this limited purpose. The trial court also instructed the jury that \u201cthe fact that a photograph may depict [the defendant] in handcuffs is no evidence at all of his guilt.\u201d The defendant contends that (1) the photographs were not relevant and (2) even assuming the photographs had some probative value, that value \u201cwas substantially outweighed by the prejudicial effect of the jury seeing the defendant handcuffed.\u201d He therefore insists that he is entitled to a new trial. We disagree.\nPhotographs of the sort at issue here \u201cmay be introduced \u2018so long as their excessive or repetitious use is not aimed solely at arousing the passions of the jury.\u2019 \u201d State v. Stager, 329 N.C. 278, 308, 406 S.E.2d 876, 893 (1991) (quoting State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988)). Further, \u201cWhether the use of photographic evidence is more probative than prejudicial and what constitutes an excessive number of photographs in the light of the illustrative value of each . . . lies within the discretion of the trial court.\u201d Hennis, 323 N.C. at 285, 372 S.E.2d at 527. An abuse of discretion exists \u201cwhere the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d Id. We find no abuse of discretion here. The photographs were used neither excessively nor repetitiously. Only two photographs were introduced, and the trial court determined that they would assist the law enforcement officers in illustrating their testimony regarding the assistance given them by the defendant in locating items of evidence. In addition, the trial court gave the jury a limiting instruction and emphasized to the jury that \u201cthe mere fact that [the defendant] is in handcuffs [in the photographs] is no evidence of guilt whatsoever.\u201d We therefore conclude that the trial court did not abuse its discretion and overrule this assignment of error.\nThe defendant raises three additional issues which, after a \u201cthorough review of the record, including all relevant precedent,\u201d he concedes are without merit but, nevertheless, tenders to this Court for its own review in light of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, reh\u2019g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967). The three issues are: (1) the trial court erred in denying the defendant\u2019s motion to suppress his pretrial statement to law enforcement officers, (2) the trial court\u2019s findings and conclusion to the effect that the defendant made his pretrial statement to law enforcement officers voluntarily and knowingly were not supported by the evidence presented at the suppression hearing and (3) the trial court erred in denying the defendant\u2019s motions to dismiss all charges and to set aside the verdicts due to the insufficiency of the evidence to support these charges.\nWe first emphasize that the defendant\u2019s approach \u201cis inappropriate in this situation because Anders . . . generally applies only where counsel believes the whole appeal is without merit.\u201d State v. Wynne, 329 N.C. 507, 522, 406 S.E.2d 812, 820 (1991) (emphasis added). Anders holds that appointed counsel must \u201csupport his client\u2019s appeal to the best of his ability\u201d and \u201cif counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw\u201d and accompany that request with a brief \u201creferring to anything in the record that might arguably support the appeal.\u201d Anders, 386 U.S. at 744, 18 L. Ed. 2d at 498 (emphasis added). By its use of the term \u201cwholly frivolous\u201d and its discussion of withdrawal by appointed counsel, the Supreme Court of the United States clearly contemplated application of its Anders opinion only to cases that appointed counsel determines to be wholly without merit. In the case at bar, however, counsel for the defendant has vigorously argued twelve assignments of error, indicating his belief that the defendant\u2019s appeal is not wholly without merit. It is therefore inconsistent and inappropriate for defense counsel to present three meritless additional issues to this Court for its own review in light of Anders.\nApart from the language of Anders, we also note that among the responsibilities of counsel representing a criminal defendant on appeal is the duty to carefully review the assignments of error, separate those of arguable merit from those without merit and assert the former on appeal. If counsel, during the course of this review, determines that an assignment of error is without merit, he or she should either present it only as a preservation issue or omit it entirely from his or her argument on appeal, thereby allowing the appellate court to focus its attention and expend its judicial resources on those issues about which a genuine controversy exists. The submission, as in the case at bar, of isolated \u201cAnders issues\u201d for the appellate court to research is not a viable course of action. Nevertheless, we have reviewed the record with regard to these assignments and have found no error. These three assignments of error are therefore without merit.\nFor the foregoing reasons, we find no error in the guilt phase of the defendant\u2019s trial.\nII. Capital Sentencing Proceeding\nBy another assignment of error, the defendant contends that the trial court erred by limiting each counsel for the defendant to one argument at the conclusion of the defendant\u2019s capital sentencing proceeding. The defendant argues that the trial court\u2019s action violated N.C.G.S. \u00a7 84-14, N.C.G.S. \u00a7 15A-2000(a)(4), and his constitutional rights to a fair trial, due process of law and freedom from cruel and unusual punishment. We conclude that the trial court erred and that the defendant must receive a new capital sentencing proceeding.\nAt the charge conference prior to closing arguments in the capital sentencing proceeding, the following dialogue took place between the trial court and the two counsel for the defendant:\nThe COURT: All right. Now, who will take the last argument?\nMr. DAVIS: I will.\nTHE COURT: . . . And when will you argue Mr. Rogers, before [the District Attorney] Mr. Townsend or after Mr. Townsend?\n(Counsel for the defendant confer.)\nMr. ROGERS: Your Honor, just for tentative \u2014 and, you know, we\u2019ve still got some talking to do, there will very well be a possibility that if the court would approve of it, split my argument\u2014\nTHE COURT: No.\nMr. ROGERS: No.\nThe COURT: I\u2019ll give you an argument, but I\u2019m not going to allow you to split it.\nMr. DAVIS: Your Honor, aren\u2019t we entitled to open and close?\nThe Court: Yes.\nMr. DAVIS: We\u2019re talking about he open and then also do\u2014\nThe COURT: I\u2019ll give you the last argument, but I\u2019m not going to let him have two arguments.\nMr. DAVIS: Just for the purpose of the record, we\u2019re requesting that Mr. Rogers be allowed to argue \u2014 open arguments and then let [the District Attorney] do his and then come back and do additional arguments and then I close out with my arguments.\nThe COURT: No, . . . I\u2019m not going to give one lawyer over there on your side two different arguments. Now, I\u2019ll let you have it any way you want to. I\u2019ll let you argue before [the District Attorney]. I\u2019ll let one of you argue before [the District Attorney], one after. I\u2019ll let both of you argue after. But I\u2019m not going to let one lawyer, Mr. Rogers, have two separate arguments.\nMR. DAVIS: Your Honor, for the purpose of the record, then, that was our intention. And since we won\u2019t be allowed to do that, we would except for the record. And give us time to decide how we\u2019re going to do arguments in light of that.\nThe COURT: All right. So, then, in the morning, Mr. Rogers, you will either argue before [the District Attorney]. And if you elect not to, then [the District Attorney] will go first and then Mr. Rogers and Mr. Davis.\nMr. Davis: Yes, sir.\nMr. Rogers: Yes.\n(Emphasis added). The trial court then took a recess until the following morning.\nOn the morning after the charge conference, the following occurred in open court out of the presence of the jury:\nTHE COURT: All right. Mr. Bailiff, are all fourteen members of the jury in the jury room?\nThe Bailiff: Yes, sir.\nTHE COURT: Let the record show it\u2019s now Thursday, June the 4th, 1992.\nMr. Rogers, will you go before [the District Attorney] or after [him]?\nMR. ROGERS: Well, we\u2019d renew our motion as of yesterday as far as the arrangement we proposed yesterday which I understand you are going to\u2014\nTHE COURT: Well, that is to let you argue and let another person argue and you argue again?\nMr. Rogers: Yes, sir.\nTHE COURT: Okay, okay. That motion will be denied.\nMR. ROGERS: I will go, then, after [the District Attorney] and Mr. Davis will follow me.\nTHE COURT: So, [District Attorney] Townsend, that means that you will be first, and you say that you\u2019ll take approximately forty-five minutes; and then Mr. Rogers you will be next with approximately forty-five minutes; and Mr. Davis then you\u2019ll be approximately forty-five minutes.\n(Emphasis added).\nThe foregoing dialogue between the trial court and counsel for the defendant during the charge conference and immediately before the arguments of counsel on the following morning at the close of the capital sentencing proceeding made it clear the trial court would not, under any set of circumstances, allow Mr. Rogers to make more than one single argument on behalf of the defendant during the capital sentencing proceeding. The trial court erred in this regard.\nIn N.C.G.S. \u00a7 84-14, the General Assembly of North Carolina has expressly provided in pertinent part that:\nIn all trials in the superior courts there shall be allowed two addresses to the jury for the State or plaintiff and two for the defendant, except in capital felonies, where there shall be no limit as to number. The judges of the superior court are authorized to limit the time of argument of counsel to the jury on the trial of actions, civil and criminal as follows: to not less than one hour on each side in misdemeanors and appeals from justices of the peace; to not less than two hours on each side in all other civil actions and in felonies less than capital; in capital felonies, the time of argument of counsel may not be limited otherwise than by consent, except that the court may limit the number of those who may address the jury to three counsel on each side.\nN.C.G.S. \u00a7 84-14 (1985) (emphases added). In State v. Gladden, 315 N.C. 398, 421, 340 S.E.2d 673, 688, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986), this Court stated:\nWe construe N.C.G.S. \u00a7 84-14 to mean that, although the trial court in a capital case may limit to three the number of counsel on each side who may address the jury, those three (or however many actually argue) may argue for as long as they wish and each may address the jury as many times as he desires. Thus, for example, if one defense attorney grows weary of arguing, he may allow another defense attorney to address the jury and may, upon being refreshed, rise again to make another address during the defendant\u2019s time for argument.\n(Emphasis added). In a later case, this Court reemphasized that Gladden \u201cmakes it clear\u201d that in a capital case all counsel for the defendant may argue for as long as they wish and each may address the jury as many times as he or she desires. State v. Eury, 317 N.C. 511, 516, 346 S.E.2d 447, 450 (1986).\nIn the present case, the trial court erred in denying Mr. Rogers the opportunity to argue more than once on behalf of the defendant at the close of the capital sentencing proceeding. Id. Further, as one can only speculate as to how the jury would have reacted had the defendant not been deprived of the benefit of multiple arguments on his behalf by Mr. Rogers, we are required under our prior decisions to hold that this error by the trial court constituted prejudicial error. Id. at 517, 346 S.E.2d at 450. Accordingly, the defendant is entitled to have the sentence of death entered against him vacated and to have this case remanded to the Superior Court, Robeson County, for a new capital sentencing proceeding pursuant to N.C.G.S. \u00a7 15A-2000.\nIII. Preservation Issues\nThe defendant has brought forward eight additional assignments which he concedes this Court has previously rejected in other cases. We have considered the defendant\u2019s arguments with regard to these issues and have found no compelling reason to depart from our prior holdings which the defendant correctly recognizes as dispositive. These assignments of error are therefore without merit.\nHaving considered all of the defendant\u2019s assigned errors, we hold that the guilt-innocence determination phase of the defendant\u2019s trial was free of prejudicial error. However, the trial court\u2019s failure to allow both counsel for the defendant to argue as many times as they wished at the conclusion of the capital sentencing proceeding requires that the defendant receive a new capital sentencing proceeding. The verdict against the defendant for first-degree murder and the verdict and judgment for robbery with a dangerous weapon shall remain undisturbed. The sentence of death for first-degree murder is vacated and this case is remanded to the Superior Court, Robeson County, for a new capital sentencing proceeding in accordance with N.C.G.S. \u00a7 15A-2000.\nNO. 91CRS3025, ROBBERY WITH A DANGEROUS WEAPON: NO ERROR.\nNO. 91CRS2709, FIRST-DEGREE MURDER: GUILT PHASE, NO ERROR; SENTENCE VACATED AND CASE REMANDED FOR A NEW CAPITAL SENTENCING PROCEEDING IN ACCORDANCE WITH N.C.G.S. \u00a7 15A-2000.", "type": "majority", "author": "MITCHELL, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by David F. Hoke, Assistant Attorney General, for the State.", "Richard B. Glazier for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HERBERT BARTON, JR.\nNo. 210A92\n(Filed 4 March 1994)\n1. Homicide \u00a7 677 (NCI4th)\u2014 premeditation and deliberation \u2014 diminished capacity \u2014specific causes \u2014sufficiency of instruction\nThe trial court did not commit plain error in its instructions on lack of mental capacity as a factor tending to negate the specific intent required for first-degree murder by failing to include in its instructions the specific causes of \u201cmental illness and mental retardation or borderline intellectual functioning\u201d when there was evidence that defendant\u2019s impairment resulted from these causes. The trial court delivered the appropriate pattern jury instruction on this issue, which lists examples of factors that could contribute to a diminished legal capacity, and the trial court\u2019s instructions were of sufficient particularity to enable the jury to understand the law on lack of mental capacity and to apply it to the evidence presented on that issue.\nAm Jur 2d, Homicide \u00a7 515.\n2. Evidence and Witnesses \u00a7 2302 (NCI4th) \u2014 premeditation and deliberation \u2014 diminished capacity \u2014 exclusion of cumulative evidence\nThe trial court in a first-degree murder prosecution did not err by sustaining the prosecutor\u2019s objection to defense counsel\u2019s question seeking to elicit from defendant\u2019s psychiatric expert testimony that defendant had a limited capacity to plan and a limited capacity \u201cto carry out something in accordance with the plan\u201d where defendant had previously been allowed to place before the jury considerable evidence that his diminished mental capacity adversely affected his ability to make and carry out plans, since the trial court\u2019s action was merely an exclusion of cumulative evidence and was consistent with N.C.G.S. \u00a7 8C-1, Rule 403.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 193, 194, 362, 363.\nAdmissibility of expert testimony as to whether accused had specific intent necessary for conviction. 16 ALR4th 666.\n3. Robbery \u00a7 126 (NCI4th)\u2014 armed robbery \u2014 instructions \u2014acting in concert \u2014intent\nThe trial court\u2019s instructions on acting in concert as they applied to a charge of armed robbery did not amount to plain error where they could only have been understood by the jury to allow conviction of the defendant for armed robbery if the defendant himself acted alone or together with the others and the defendant himself intended that the robbery from the victim result from such action.\nAm Jur 2d, Robbery \u00a7\u00a7 71 et seq.\n4. Robbery \u00a7 88 (NCI4th)\u2014 armed robbery \u2014 acting in concert\u2014 sufficiency of evidence\nThe evidence supported the trial court\u2019s instruction permitting the jury to convict defendant of armed robbery on the basis of acting in concert where the evidence tended to show that defendant, his brother and a third person waited for the victim at the murder scene together, where defendant shot and killed the victim; still holding a shotgun, the defendant stood by while his brother and the third person took the victim\u2019s wallet from his pocket; they then went to the victim\u2019s car, where the third person found the victim\u2019s pistol and gave it to the defendant; the defendant took the pistol and then drove the victim\u2019s car away from the scene; and the defendant, his brother and the third person thereafter each took steps to conceal evidence which would point to' their participation in the crimes committed against the victim.\nAm Jur 2d, Robbery \u00a7\u00a7 62 et seq.\n5. Homicide \u00a7 439 (NCI4th)\u2014 intentional use of deadly weapon \u2014 insufficiency to show premeditation and deliberation \u2014failure to instruct\nThe trial court did not commit plain error by failing to expressly instruct the jury that while the intentional use of a deadly weapon may give rise to a presumption that a killing was malicious, it will not alone sustain a finding of premeditation and deliberation.\nAm Jur 2d, Homicide \u00a7 509.\n6. Evidence and Witnesses \u00a7 2907 (NCI4th)\u2014 redirect testimony\u2014 new matter \u2014 discretion of court\nThe trial court did not abuse its discretion in allowing a witness to testify on redirect examination in a first-degree murder trial about her encounter with defendant the night following the murder because the testimony went beyond the scope of her testimony during direct and cross-examination where the testimony was relevant and otherwise admissible, and the trial court provided the defendant an opportunity to recross-examine the witness about her new testimony.\nAm Jur 2d, Witnesses \u00a7\u00a7 737 et seq.\n7. Evidence and Witnesses \u00a7 712 (NCI4th) \u2014 objection to testimony sustained \u2014court\u2019s failure to strike and give curative instruction\nThe trial court did not err by failing to strike a witness\u2019s testimony in a first-degree murder trial that defendant\u2019s accomplice had stated that \u201cthey had shot the man\u201d and by failing to give a curative instruction where the trial court sustained defendant\u2019s objection to the testimony; defendant failed to move to strike the objectionable testimony and thus waived his right to assert error on appeal; defendant made no request for a curative instruction; and there was no prejudice because the jury had previously heard defendant\u2019s confession that he had shot the victim in the head and \u201cdidn\u2019t care what [he had] done.\u201d\nAm Jur 2d, Trial \u00a7\u00a7 1478-1485.\n8. Evidence and Witnesses \u00a7 1652 (NCI4th)\u2014 photographs showing defendant in handcuffs \u2014 admission for illustrative purposes \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in a first-degree murder trial by admitting for illustrative purposes a color photograph of defendant and two others standing handcuffed next to a sheriff\u2019s deputy in the area where the victim\u2019s car was found and a color photograph of defendant and others walking across a field near the location of the car where the trial court determined that the photographs would assist law officers in illustrating their testimony about the assistance given them by the defendant in locating items of evidence; the photographs were not used excessively or repetitiously; and the trial court gave a limiting instruction and also instructed the jury that the fact that a photograph may depict the defendant in handcuffs is no evidence of his guilt.\nAm Jur 2d, Evidence \u00a7 785.\n9. Constitutional Law \u00a7 318 (NCI4th)\u2014 meritless issues \u2014 submission under Anders v. California \u2014 inappropriate where other assignments argued\nIt was inappropriate for defense counsel to present three meritless additional issues to the Supreme Court for its own review in light of Anders v. California, 386 U.S. 738, where counsel for defendant has vigorously argued twelve assignments of error, since Anders applies only to cases that appointed counsel determines to be wholly without merit. If counsel determines that an assignment of error is without merit, he or she should either present it only as a preservation issue or omit it entirely from the argument on appeal.\nAm Jur 2d, Criminal Law \u00a7\u00a7 752, 985-987.\n10.Criminal Law \u00a7 409 (NCI4th)\u2014 capital sentencing \u2014 limiting each counsel to one argument \u2014 prejudicial error\nThe trial court committed prejudicial error by limiting each counsel for the defendant to one argument to the jury at the conclusion of defendant\u2019s capital sentencing proceeding. N.C.G.S. \u00a7 84-14.\nAm Jur 2d, Trial \u00a7\u00a7 547 et seq.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment entered by Allen (J.B.), J., on 5 June 1992, in the Superior Court, Robeson County, sentencing the defendant to death for first-degree murder. The defendant\u2019s motion to bypass the Court of Appeals on his appeal from an additional judgment for robbery with a dangerous weapon was allowed by the Supreme Court on 6 May 1993. Heard in the Supreme Court on 14 October 1993.\nMichael F. Easley, Attorney General, by David F. Hoke, Assistant Attorney General, for the State.\nRichard B. Glazier for the defendant-appellant." }, "file_name": "0696-01", "first_page_order": 730, "last_page_order": 751 }