{ "id": 2534822, "name": "STATE OF NORTH CAROLINA v. RICKY LEE SANDERSON", "name_abbreviation": "State v. Sanderson", "decision_date": "1994-04-08", "docket_number": "No. 374A86(2)", "first_page": "1", "last_page": "22", "citations": [ { "type": "official", "cite": "336 N.C. 1" } ], "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": "40 L. Ed. 2d 896", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "90 ALR3d 646", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "26 ALR3d 1409", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "275 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "482-83" } ], "opinion_index": 0 }, { "cite": "302 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565360 ], "year": 1981, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0223-01" ] }, { "cite": "126 L. Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "pin_cites": [ { "parenthetical": "held: aggravating circumstances will not be considered redundant absent \"complete overlap\" in the evidence supporting them" } ], "opinion_index": 0 }, { "cite": "430 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "213-14", "parenthetical": "held: aggravating circumstances will not be considered redundant absent \"complete overlap\" in the evidence supporting them" } ], "opinion_index": 0 }, { "cite": "333 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545734 ], "year": 1993, "pin_cites": [ { "page": "627-28", "parenthetical": "held: aggravating circumstances will not be considered redundant absent \"complete overlap\" in the evidence supporting them" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0579-01" ] }, { "cite": "373 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "354 S.E.2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "452" }, { "page": "452-53" } ], "opinion_index": 0 }, { "cite": "319 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4742893 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0228-01" ] }, { "cite": "314 U.S. 219", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6139038 ], "weight": 2, "year": 1941, "pin_cites": [ { "page": "236" }, { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/us/314/0219-01" ] }, { "cite": "416 U.S. 637", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 84180 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "642", "parenthetical": "quoting Lisenba v. California, 314 U.S. 219, 236, 86 L. Ed. 166, 180 (1941)" }, { "page": "436", "parenthetical": "quoting Lisenba v. California, 314 U.S. 219, 236, 86 L. Ed. 166, 180 (1941)" } ], "opinion_index": 0, "case_paths": [ "/us/416/0637-01" ] }, { "cite": "98 L. Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 599537, 600738 ], "year": 1987, "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": "919" } ], "opinion_index": 0 }, { "cite": "320 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723637 ], "year": 1987, "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0233-01" ] }, { "cite": "251 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "428-29" } ], "opinion_index": 0 }, { "cite": "296 N.C. 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567774 ], "year": 1979, "pin_cites": [ { "page": "500-03" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0495-01" ] }, { "cite": "212 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "131" } ], "opinion_index": 0 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "year": 1975, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0509-01" ] }, { "cite": "259 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "761", "parenthetical": "sentencing phase" } ], "opinion_index": 0 }, { "cite": "298 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572408 ], "year": 1979, "pin_cites": [ { "page": "368-69", "parenthetical": "sentencing phase" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0355-01" ] }, { "cite": "91 S.E. 964", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1917, "pin_cites": [ { "page": "968" } ], "opinion_index": 0 }, { "cite": "173 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269588 ], "year": 1917, "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/nc/173/0215-01" ] }, { "cite": "142 S.E. 19", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1928, "pin_cites": [ { "page": "21", "parenthetical": "quoting Massey v. Alston, 173 N.C. 215, 225, 91 S.E. 964, 968 (1917)" } ], "opinion_index": 0 }, { "cite": "195 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629314 ], "year": 1928, "pin_cites": [ { "page": "353", "parenthetical": "quoting Massey v. Alston, 173 N.C. 215, 225, 91 S.E. 964, 968 (1917)" } ], "opinion_index": 0, "case_paths": [ "/nc/195/0350-01" ] }, { "cite": "157 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "271 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566320 ], "year": 1967, "pin_cites": [ { "page": "658-59" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0646-01" ] }, { "cite": "77 L. Ed. 2d 1393", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "463 U.S. 1210", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6227203, 6224515, 6223365, 6226915, 6225509, 6226032, 6223890, 6225779, 6226324, 6225172, 6223607, 6223065, 6226619, 6224190 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/463/1210-14", "/us/463/1210-06", "/us/463/1210-02", "/us/463/1210-13", "/us/463/1210-08", "/us/463/1210-10", "/us/463/1210-04", "/us/463/1210-09", "/us/463/1210-11", "/us/463/1210-07", "/us/463/1210-03", "/us/463/1210-01", "/us/463/1210-12", "/us/463/1210-05" ] }, { "cite": "696 F.2d 940", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1498765 ], "pin_cites": [ { "page": "951" } ], "opinion_index": 0, "case_paths": [ "/f2d/696/0940-01" ] }, { "cite": "86 L. Ed. 2d 231", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "pin_cites": [ { "page": "236", "parenthetical": "Eighth Amendment imposes \"heightened 'need for reliability in the determination that death is the appropriate punishment . . .' \"" } ], "opinion_index": 0 }, { "cite": "472 U.S. 320", "category": "reporters:federal", "reporter": "U.S.", "year": 1985, "pin_cites": [ { "page": "323", "parenthetical": "Eighth Amendment imposes \"heightened 'need for reliability in the determination that death is the appropriate punishment . . .' \"" } ], "opinion_index": 0 }, { "cite": "79 L. Ed. 2d 1314", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 4, "year": 1935, "pin_cites": [ { "page": "1321" }, { "page": "1319" }, { "page": "1321" }, { "page": "1320" } ], "opinion_index": 0 }, { "cite": "295 U.S. 78", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 333750 ], "weight": 4, "year": 1935, "pin_cites": [ { "page": "88" }, { "page": "84" }, { "page": "88" }, { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/us/295/0078-01" ] }, { "cite": "82 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1954, "pin_cites": [ { "page": "766" }, { "page": "771", "parenthetical": "\"the law forbids the prosecuting attorney to put to a witness for the defense an impertinent and insulting question which he knows or should know cannot possibly elicit any competent or relevant testimony\"" }, { "page": "767-68" } ], "opinion_index": 0 }, { "cite": "240 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603731 ], "weight": 3, "year": 1954, "pin_cites": [ { "page": "522" }, { "page": "528" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0516-01" ] }, { "cite": "33 L. Ed. 2d 761", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "408 U.S. 939", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782720, 1782785, 1782912, 1782723, 1782762, 1782831, 1782832, 1782961, 1782833, 1782835, 1782868, 1782933, 1782865, 1782941, 1782936, 1782777, 1782813 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/408/0939-13", "/us/408/0939-10", "/us/408/0939-06", "/us/408/0939-16", "/us/408/0939-01", "/us/408/0939-05", "/us/408/0939-02", "/us/408/0939-08", "/us/408/0939-07", "/us/408/0939-12", "/us/408/0939-14", "/us/408/0939-15", "/us/408/0939-17", "/us/408/0939-03", "/us/408/0939-04", "/us/408/0939-11", "/us/408/0939-09" ] }, { "cite": "181 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "583-84" } ], "opinion_index": 0 }, { "cite": "279 N.C. 18", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565554 ], "year": 1971, "pin_cites": [ { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0018-01" ] }, { "cite": "220 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "337" } ], "opinion_index": 0 }, { "cite": "288 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570361 ], "year": 1975, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0582-01" ] }, { "cite": "65 L. Ed. 2d 1137", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "448 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787596, 1787636, 1787637, 1787575, 1787641, 1787643 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/448/0907-04", "/us/448/0907-02", "/us/448/0907-06", "/us/448/0907-01", "/us/448/0907-05", "/us/448/0907-03" ] }, { "cite": "259 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "530-31" }, { "page": "531" } ], "opinion_index": 0 }, { "cite": "298 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572332 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "331" }, { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0306-01" ] }, { "cite": "366 U.S. 717", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1285471 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "722" }, { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/us/366/0717-01" ] }, { "cite": "129 A.2d 19", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1957, "pin_cites": [ { "page": "25" } ], "opinion_index": 0 }, { "cite": "23 N.J. 284", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1310934 ], "year": 1957, "pin_cites": [ { "page": "294-95" } ], "opinion_index": 0, "case_paths": [ "/nj/23/0284-01" ] }, { "cite": "176 A.2d 465", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1961, "pin_cites": [ { "page": "467", "parenthetical": "defendant has right to trial in which jury's decision is \" 'obedient to the court's charge based solely on legal evidence produced before it and entirely free from the taint of extraneous considerations and influences' \"" } ], "opinion_index": 0 }, { "cite": "36 N.J. 266", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1901664 ], "year": 1961, "pin_cites": [ { "parenthetical": "defendant has right to trial in which jury's decision is \" 'obedient to the court's charge based solely on legal evidence produced before it and entirely free from the taint of extraneous considerations and influences' \"" } ], "opinion_index": 0, "case_paths": [ "/nj/36/0266-01" ] }, { "cite": "220 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "290" }, { "page": "291-92" } ], "opinion_index": 0 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "weight": 7, "year": 1975, "pin_cites": [ { "page": "710" }, { "page": "710-11" }, { "page": "711" }, { "page": "711" }, { "page": "711" }, { "page": "712" }, { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0699-01" ] }, { "cite": "494 U.S. 433", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4898 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/0433-01" ] }, { "cite": "394 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498586 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0397-01" ] } ], "analysis": { "cardinality": 1848, "char_count": 46258, "ocr_confidence": 0.749, "pagerank": { "raw": 2.856252845090418e-07, "percentile": 0.8410675680319586 }, "sha256": "bee0b25d4ba13a8958a0b10e675102bc22326ca228e45e0cb201a272c029cb88", "simhash": "1:5720433eb5869d78", "word_count": 7578 }, "last_updated": "2023-07-14T18:12:07.467663+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices MITCHELL and PARKER join in this concurring opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. RICKY LEE SANDERSON" ], "opinions": [ { "text": "EXUM, Chief Justice.\nIn April 1986, defendant pled guilty to first-degree kidnapping and first-degree murder of Sue Ellen Holliman and was sentenced to death. This Court overturned his sentence in State v. Sanderson, 327 N.C. 397, 394 S.E.2d 803 (1990), finding that the judge\u2019s instructions to the jury contained error under McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990). After a new sentencing proceeding, defendant was again sentenced to death. He now appeals, raising numerous assignments of error. We conclude that the second sentencing proceeding was thoroughly tainted and defendant unfairly prejudiced by the prosecutor\u2019s improper conduct; therefore, we grant defendant a new sentencing proceeding.\nI\nAt defendant\u2019s second sentencing proceeding, the State introduced a videotape of a confession he made some months after the crime. The substance of that confession was as follows. In need of money to supply his drug habit, defendant, on 14 March 1985, drove to the Supona area of Davidson County looking for a house to rob. He chose one that was surrounded by trees so he would not be seen. Parking his car in the driveway, he first tried the back door. Finding this door locked, he rang the bell and then returned to the front of the house. As he was opening the glass door, the inside door was opened by the victim, sixteen-year-old Sue Ellen Holliman, who had stayed home sick from school. Surprised to find the house occupied, defendant mumbled something about looking for a dog and then asked to use the phone. When he was refused, he barged inside and asked where the money was. Informed that there was no money in the house, defendant decided to \u201cjust get out of there\u201d rather than search the house. He also decided to take the victim with him to prevent her from reporting his license plate number. Making sure not to leave any fingerprints, defendant led the victim out of the house, placed her on the passenger-side floorboard of his car and drove away.\nDefendant drove around with the victim in his car for over two hours trying to decide what to do with her. During this time, he injected drugs \u2014 for the second time that day. Finally, he decided to kill the victim and pulled off the road in a rural area outside Lexington. After injecting more drugs, he placed the victim in the trunk of his car and dug a grave. After again injecting drugs, he removed the victim from the trunk, choked her until she was unconscious and then stabbed her twice in the chest. Her shirt was up when he was stabbing her and her sweat pants got \u201cdrug down to her ankles\u201d when later he dragged her by her hands to the grave. After burying her, he smoothed out the excess dirt to conceal the grave and drove home. On the way, he threw his knife in a creek.\nBy further testimony, the State showed the following. The victim\u2019s body was found on 15 April 1985, lying in a shallow grave with clothing in disarray: T-shirt pulled up and bra partially torn, panties at mid-thigh, and sweat pants around the ankles. An autopsy revealed three stab wounds in the area of the sternum, no evidence of strangulation and no evidence of sexual molestation.\nOn 15 May 1985, Elwood \u201cWoody\u201d Jones, an employee of a business managed by the victim\u2019s family, confessed to the murder. His confession reflected details of the crime that had not yet been made public. He was later indicted for first-degree murder and was awaiting trial when defendant, who was then in prison for another crime, confessed to the same murder. The SBI then, for the first time, analyzed the victim\u2019s clothing and found carpet fibers and paint chips which matched samples taken from the passenger-side floor board and trunk of defendant\u2019s car. With this finding, the case was dismissed against Jones and proceeded instead against defendant.\nDefendant presented evidence at the sentencing hearing tending to show the following. Defendant, the youngest of four children, lived with his family in Tarboro, N.C., for the first few years of his life. His parents fought frequently and his father beat his mother. When defendant was three, his mother took the children to Florida with another man. The family then moved to Texas, where the children were often left alone in the home at night. Soon the mother was jailed. The children spent a month in separate foster homes and were then returned to their father in North Carolina.\nUpon their return, the father began raping defendant\u2019s six-year-old sister, Brenda. Brenda slept in the father\u2019s bed every night and was forced to have sex with him in many locations throughout the house, including on the couch and in the hallway, and quite often in view of defendant and the other children. These rapes were sometimes preceded by beatings, and continued until they resulted in Brenda becoming pregnant at the age of twelve. The children also witnessed the father making love with adult women.\nThe father regularly abused defendant\u2019s oldest brother, Douglas, stripping him and then beating him as hard as he could with electrical cords, all the while asking defendant whether he should beat Douglas harder. Defendant witnessed \u201cthousands\u201d of such beatings. Though he was not beaten himself, he was punished, along with the other children, by being made to kneel in a corner with his hands behind his back for five to six hours at a time.\nThere were no family meals, and seldom was there store-bought food in the house. The children bought food for themselves with the money they made from mowing lawns, but also had to resort to stealing chickens and raiding gardens. Because the father did not provide them with clothing, the children wore rags they found or whatever clothes people gave them. The father remarried at one point, but the marriage lasted only two weeks.\nDefendant was ten years old when his father was convicted of incest and sentenced to fifteen years in prison. After spending two years in a foster home, he was reunited with his mother and siblings in Texas. Having by this time developed behavior problems, defendant was in desperate need of affection from his mother. She responded by breaking \u201cbelt after belt\u201d on him and threatening to kick him out of the house or force him to go live with his father.\nBy the age of thirteen or fourteen, defendant was \u201cheavily\u201d into substance abuse. He started injecting drugs two years later. This habit, a way of coping with the pain and neglect of his childhood, continued. By the time of the murder, when defendant was twenty-five or twenty-six, he was injecting an amphetamine called \u201ccrank\u201d every three or four hours. This drug, which impairs good judgment and creates paranoid and erratic thinking, caused a profound behavioral change in defendant. He stopped going home to his wife, stopped working every day and started gambling. He also started acting \u201cradical. .. and just feisty,\u201d according to his brother Douglas. Given the frequency of his drug use, he would have been acutely intoxicated at the time he killed Sue Ellen Holliman and experiencing \u201cirresistible impulses.\u201d By contrast, when interviewed in prison several years later by an expert on forensic psychiatry and addictionology, he demonstrated none of the mental defects associated with his previous addiction.\nAt the time of the killing, defendant was also suffering from a mental and emotional disturbance secondary to his violent and deprived childhood. This disturbance contributed significantly to his violent behavior.\nOnce in prison, defendant became deeply interested in religion. He met with The Reverend Derry Barnhardt on numerous occasions and corresponded with him regularly for five years. He had many religious discussions with the chaplain of Central Prison, participated in several of the chaplain\u2019s seminars, and was ultimately selected with only six others to undergo six months of discipleship training in the Master Life Program. Defendant was a positive influence on the other men in his cell block, never engaging in misconduct, and tried to bring religion into their lives. He continually expressed deep feelings of remorse about his crime, but never blamed anyone but himself.\nAt the close of the evidence, the jury found beyond a reasonable doubt the existence of two aggravating circumstances: 1) that the murder was committed for the purpose of avoiding lawful arrest, and 2) that the murder was committed while the defendant was engaged in the commission of a kidnapping. Of the thirty-one mitigating circumstances submitted, one or more jurors found only one: that the defendant\u2019s confession was responsible for the release from custody of an innocent man who had been charged with the murder. The jury found this mitigating circumstance insufficient to outweigh the aggravating circumstances, and the aggravating circumstances sufficiently substantial, when considered with the found mitigating circumstance, to call for the imposition of the death penalty. Upon this recommendation, the judge sentenced defendant to death.\nII\nDefendant contends, and we agree, that his death sentence cannot stand because the prosecutor\u2019s persistent misconduct deprived him of a fair sentencing hearing. Because the trial court allowed much of it to go uncorrected, and because the jury almost totally rejected defendant\u2019s evidence in mitigation, we cannot assume that the prosecutor\u2019s misconduct was without effect on the jury. We, therefore, order a new sentencing proceeding.\nA. Prosecutor\u2019s Duty to Ensure Fair Trial\n\u201cEvery person charged with a crime has an absolute right to a fair trial. By this it is meant that he is entitled to a trial before an impartial judge and an unprejudiced jury in keeping with substantive and procedural due process requirements of the Fourteenth Amendment.\u201d State v. Britt, 288 N.C. 699, 710, 220 S.E.2d 283, 290 (1975); accord State v. Levitt, 36 N.J. 266; 270, 176 A.2d 465, 467 (1961) (defendant has right to trial in which jury\u2019s decision is \u201c \u2018obedient to the court\u2019s charge based solely on legal evidence produced before it and entirely free from the taint of extraneous considerations and influences\u2019 \u201d) (quoting Wright v. Bernstein, 23 N.J. 284, 294-95, 129 A.2d 19, 25 (1957)). This right exists \u201cregardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.\u201d Irvin v. Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 755 (1961).\nOur courts have consistently held that it is the duty of the prosecutor, as much as it is of the trial judge, to uphold the defendant\u2019s right to a fair hearing. See State v. Barfield, 298 N.C. 306, 331, 259 S.E.2d 510, 530-31 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980); Britt, 288 N.C. at 710-11, 220 S.E.2d at 291-92; State v. Miller, 288 N.C. 582, 598, 220 S.E.2d 326, 337 (1975); State v. Westbrook, 279 N.C. 18, 38, 181 S.E.2d 572, 583-84 (1971), vacated on other grounds, 408 U.S. 939, 33 L. Ed. 2d 761 (1972); State v. Phillips, 240 N.C. 516, 522, 82 S.E.2d 762, 766 (1954). As stated in the oft-quoted case of Berger v. United States:\nThe [prosecuting attorney] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor \u2014 indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.\n295 U.S. 78, 88, 79 L. Ed. 2d 1314, 1321 (1935). \u201cThe district attorney\u2019s performance of his duties as public prosecutor is tempered by his obligation to the defendant to assure that he is afforded his right to a fair trial.\u201d Barfield, 298 N.C. at 331, 259 S.E.2d at 531.\nThat a prosecutor refrain from improper conduct is especially important in the context of a capital sentencing hearing, where the issue before the jury is whether a human being should live or die and where this decision involves the exercise of the jury\u2019s judgment as to how certain aggravating and mitigating circumstances should be weighed against each other. See Caldwell v. Mississippi, 472 U.S. 320, 323, 86 L. Ed. 2d 231, 236 (1985) (Eighth Amendment imposes \u201cheightened \u2018need for reliability in the determination that death is the appropriate punishment . . .\u2019 \u201d); see also Hance v. Zant, 696 F.2d 940, 951 (11th Cir.) (In capital case, \u201cit is most important that the sentencing phase of the trial not be influenced by passion, prejudice, or any other arbitrary factor. [Citation omitted]. With a man\u2019s life at stake, a prosecutor should not play on the passions of the jury\u201d), cert. denied, 463 U.S. 1210, 77 L. Ed. 2d 1393 (1983); N.C.G.S. \u00a7 15A-2000(d)(2) (1988) (death sentence may not stand if \u201cimposed under the influence of passion, prejudice, or any other arbitrary factor\u201d).\nB. Conduct Toward Opposing Counsel\nThe prosecutor persistently engaged in improper conduct toward opposing counsel, Mr. McMillan and Ms. Simon. He pointedly refused properly to address Mr. McMillan, referring to him derisively either as \u201cMcMillan\u201d or \u201cLawyer Mac Millan.\u201d He responded to Ms. Simon\u2019s suggestion that a prospective juror was hard of hearing by saying, \u201cMaybe he just doesn\u2019t care what you\u2019re talking about.\u201d When Mr. McMillan incorrectly stated that the defense had used only nine peremptory challenges, the prosecutor said, \u201cYou been asleep, McMillan.\u201d Later, he said, \u201cDo you want to learn how to read?! 5 and 7 is what she says that she did not object to. Do you object to them, Lawyer M \u2014 a\u2014c Millan?!\u201d And when Mr. McMillan strenuously objected to a clearly improper line of questioning, the prosecutor retorted, \u201cYou\u2019re getting your exercise, Lawyer Mac Millan.\u201d\nThe prosecutor also, through continual interruptions, often succeeded in preventing defendant\u2019s lawyers from finishing their sentences. Moreover, he directed comments \u2014 styled as objections or points of law \u2014 to counsel rather than to the court. These comments often contained angry denunciations or expressions of incredulity. For instance, the following occurred when the prosecutor learned that neither of defendant\u2019s expert witnesses had prepared written reports.\nMR. ZIMMERMAN: If your Honor please, let me just say for the record, there\u2019s all this talk about what\u2019s right and what\u2019s proper, and what\u2019s \u2014and this fellow who is a psychiatrist is also a lawyer, and that\u2019s exactly why they don\u2019t prepare any written report. Because you know you won\u2019t have to give me one when he testifies and \u2014 so I\u2019ll know what he\u2019s testifying from. And!! that!! \u2014\nMR. McMillan: Your Honor!!\nMr. ZIMMERMAN: \u2014 does not seem to me to be fair!!! (Mr. Zimmerman has directed this comment toward Mr. McMillan.)\nMr. MCMILLAN: Your Honor, would you please have Mr. Zimmerman address the Court?\nThe COURT: I have asked you all to address the Court and I do ask you again\u2014\nMR. ZIMMERMAN: Yes, sir.\nTHE COURT: \u2014Mr. Zimmerman, to address the Court.\nLater, the prosecutor described a defense motion as \u201cthe biggest bunch of hogwash I ever heard!\u201d and called defendant\u2019s lawyers \u201ccowards!\u201d Also, he responded to an objection made by Mr. McMillan during cross-examination of a defense witness by saying, \u201cI\u2019m sick and tired of him jumping up and running his mouth at a point in time when there\u2019s been absolutely nothing said that\u2019s improper . . . .\u201d\nIt is well-established that a trial attorney may not make uncomplimentary comments about opposing counsel, and should \u201crefrain from abusive, vituperative, and opprobrious language, or from indulging in invectives.\u201d State v. Miller, 271 N.C. 646, 658-59, 157 S.E.2d 335, 346 (1967). See also Rule 12, Superior and District Court Rules (1993) (\u201cAll personalities between counsel should be avoided. The personal history or peculiarities of counsel on the opposing side should not be alluded to. Colloquies between counsel should be avoided.\u201d).\nWhile acknowledging the impropriety of the prosecutor\u2019s behavior, the State argues that this behavior was harmless on the ground that much of it occurred out of the presence of the jury. Though it is true that many of the prosecutor\u2019s abusive comments were made outside the jury\u2019s hearing, many were made within its hearing. These comments \u2014 particularly the derisive references to Mr. McMillan \u2014 certainly had the potential to bias the jury against defendant\u2019s counsel and, thereby, prejudice his case. Of no less concern, however, is the effect the prosecutor\u2019s conduct may have had on defendant\u2019s counsel. Indeed, the prosecutor\u2019s abuse, if not designed to do so, at least had the effect of wearing them down, or, as defendant put it in his brief, of making it \u201cso painful for [them] to do their jobs that they would do less.\u201d\nHalfway through the hearing, Mr. McMillan indicated to the court that, \u201cI\u2019ve never been through anything like this before and I\u2019m getting exhausted of trial by insult . . . .\u201d Near the end of the hearing, after one of the prosecutor\u2019s more vehement tirades, Ms. Simon was reduced to tears. She told the judge: \u201cI\u2019m . . . nauseated to the pit of my stomach. I don\u2019t know if the Court has been able to tell, but I\u2019ve lost a tremendous amount of weight during this trial. I do not sleep, I cannot eat.\u201d She indicated further that, though she would not allow herself to be \u201cbeaten down\u201d by the prosecutor, the trial of defendant\u2019s case had caused her \u201cconsiderable pain\u201d such that she fully intended never again to try a capital case.\nThus, we cannot conclude that the prosecutor\u2019s abuse of defendant\u2019s counsel was harmless. Those comments made before the jury may have diminished defendant\u2019s counsel in the eyes of the jury. The prosecutor\u2019s entire course of conduct, including the comments he made out of the presence of the jury, may have undermined the ability of defendant\u2019s counsel to provide effective representation.\nC. Improprieties in Cross-Examination\nThe prosecutor employed similarly abusive tactics in cross-examining defendant\u2019s principal expert witness, Dr. Faye Sultan, a clinical psychologist. He insulted her, degraded her, and attempted to distort her testimony, all in violation of well-settled rules governing cross-examination. Unfortunately, the trial court did not do enough to protect her.\nFrom the start, the prosecutor undertook to discredit Dr. Sultan through insults and unwarranted personal attacks rather than through legitimate cross-examination. He opened his cross-examination with the following:\nQ. Mrs. Sultan?\n(No response from the witness.)\nQ. Mrs. Sultan; is that right?\nA. No, sir.\nQ. Ms. Sultan?\n(No response.)\nQ. Dr. Sultan, did you . . .\nThis tactic, which conveyed the impression that the witness was not worthy of respect as a professional, was employed repeatedly. During the course of his questioning, the prosecutor referred to Dr. Sultan as \u201cthat lady,\u201d \u201cthis gal,\u201d and even \u201cdear.\u201d\nAfter Dr. Sultan indicated that she could not name, off the top of her head, the many diagnostic scales of a test she had administered to defendant, the prosecutor asked her: \u201cMa\u2019am, did you go to school to learn to be a psychologist?!!\u201d The court overruled defendant\u2019s objection. Later in the same line of questioning, the prosecutor stated: \u201cWell, I know about as much as this gal does.\u201d Though the court did instruct the jury to disregard this comment, the prosecutor was undeterred. Shortly thereafter, he suggested that Dr. Sultan\u2019s testing methods were akin to \u201chaving a crystal ball\u201d and asked: \u201cYou don\u2019t wear a cape or anything or one of them pointed hats and do kind of voodoo around it and something comes up and . . . just tells you what the theme is; do you?\u201d Again, the trial court responded with a weak instruction.\nThis sort of personal abuse has no place in cross-examination. As we have long held, a witness \u201c \u2018should not be subjected unjustly to abuse, which is calculated to degrade him or to bring him into ridicule or contempt.\u2019 \u201d Lamborn v. Hollingsworth, 195 N.C. 350, 353, 142 S.E. 19, 21 (1928) (quoting Massey v. Alston, 173 N.C. 215, 225, 91 S.E. 964, 968 (1917)); see also Phillips, 240 N.C. at 528, 82 S.E.2d at 771 (\u201cthe law forbids the prosecuting attorney to put to a witness for the defense an impertinent and insulting question which he knows or should know cannot possibly elicit any competent or relevant testimony\u201d). The prosecutor\u2019s questions were not designed to elicit competent evidence. More in the nature of rhetorical assertions, their likely effect was unfairly to prejudice the jury against this witness.\nThe prosecutor also attempted to distort Dr. Sultan\u2019s testimony. He insisted on yes or no answers to compound, convoluted questions, then cut her off before she could explain. For instance:\nQ. Well, I\u2019m kind of interested in that because like these other tests \u2014 who is it that tells you that somebody else didn\u2019t tell him the answers, or answer it for him, or was laughing while he was doing it, or was crying while he was doing it? You don\u2019t know, yourself, any of those things; do you?\nA. No, sir, I do not. I trust my exam\u2014\nQ. Thank you.\nMr. MCMILLAN: Please, finish \u2014 let her finish!\nMr. ZIMMERMAN: Oh, yes, she can answer!\nBy this technique, the prosecutor sometimes mischaracterized the meaning of the answer given, as in the following exchange:\nQ. Well, when somebody is projecting something into something \u2014 I\u2019m projecting myself into something, okay? Would not it be nice for you to be there to see how I projected, rather than have some clinician do it? Isn\u2019t the way the man reacts, or the woman reacts to what they\u2019re projecting, isn\u2019t that something that any good psychologist would consider; isn\u2019t it?\nA. No, sir, they\u2014\nQ. Oh, they don\u2019t consider how you react?! You\u2014\nA. I\u2019d like to finish my answer.\nQ. Just a minute.\nMr. MCMILLAN: She\u2019s entitled to finish her answer, Your Honor.\nMr. ZIMMERMAN: Just a minute.\nQ. You\u2019re telling me that how somebody reacts to these projections in these two tests is not, not \u2014 -help you form an opinion about your themes and thoughts?\nA. No, sir, I wasn\u2019t telling you that at all.\nQ. Well, tell me, does it make a difference then how he reacts to it?\nA. The answer depends entirely upon how you\u2019re going to use the material that\u2019s elicited. It was \u2014\nQ. Well, very obviously\u2014\nMr. \u2022 McMlLLAN: Your Honor, please let her finish her answer.\nMr. ZIMMERMAN: Go ahead.\nBy posing questions which assumed facts not in evidence, the prosecutor succeeded in testifying to his own knowledge or beliefs through the witness. For instance, though there was no evidence that Dr. Sultan had been present in the courtroom during the testimony of defendant\u2019s brother, the prosecutor nonetheless queried: \u201cI could basically tell you what his profile was after hearing his brother testify. And that\u2019s exactly whiat you did, parrot what his brother said; isn\u2019t that right?\u201d With this sort of question, the very asking of it sufficed to convey the prosecutor\u2019s personal opinion to the jury, regardless of the witness\u2019 answer.\nThough leading questions are entirely appropriate in the cross-examination of an adverse witness, N.C.G.S. \u00a7 8C-1, Rule 611(c) (1992), the questioner may not distort the witness\u2019 testimony by purposely misconstruing answers and cross-examining the witness on the basis of the misconstruction. Berger, 295 U.S. at 84, 79 L. Ed. 2d at 1319; see also Rule 12, Superior and District Court Rules (\u201cCounsel shall not knowingly misinterpret . . . the testimony of a witness\u201d). Nor may the cross-examiner inject into questions \u201chis own knowledge, beliefs, and personal opinions not supported by the evidence.\u201d Britt, 288 N.C. at 711, 220 S.E.2d at 291. The prosecutor is not a sworn witness subject to cross-examination. His personal knowledge and opinions are therefore incompetent\u2019. See Phillips, 240 N.C. at 524, 82 S.E.2d at 767-68.\nThe State argues that the prosecutor\u2019s questioning, though inappropriate, did not result in prejudice to defendant because Dr. Sultan ultimately succeeded in giving a complete answer to every question and in correcting any misimpressions. We are not persuaded by this argument. The prosecutor managed to distort Dr. Sultan\u2019s testimony on several occasions without provoking curative instructions. In the absence of such instructions, that Dr. Sultan strove to correct the record herself does not negate the possibility that the jury chose to accept the prosecutor\u2019s distortions. Furthermore, we do not assume that the prosecutor\u2019s improper behavior had no chilling effect on the witness. She was insulted, maligned, continually interrupted and bullied. Though she weathered it all with considerable fortitude, the net result may still have been a less than complete, or less than accurate, statement of her opinion. Thus, we cannot conclude that the prosecutor\u2019s improper conduct toward this witness caused no prejudice to defendant.\nD. Improprieties in Closing Argument\nDuring closing argument, the prosecutor misstated the evidence, suggested personal knowledge of inflammatory facts not of record and placed before the jury an aggravating circumstance that the trial judge had specifically declined to submit. Again, the trial court\u2019s response to these abuses was inadequate to guard against the potential for prejudice.\nIn both the guilt-innocence and the sentencing phases of a capital trial, counsel is permitted wide latitude in his argument to the jury. Britt, 288 N.C. at 711, 220 S.E.2d at 291 (guilt phase); State v. Johnson, 298 N.C. 355, 368-69, 259 S.E.2d 752, 761 (1979) (sentencing phase). He may argue the facts in evidence and all reasonable inferences therefrom as well as the relevant law. \u201cLanguage may be used consistent with the facts in evidence to present each side of the case.\u201d Britt, 288 N.C. at 711, 220 S.E.2d at 291; see also N.C.G.S. \u00a7 15A-1230(a) (1988). Jury argument, however, is not without limitations. As we stated in Britt: \u201c \u2018The trial court has a duty, upon objection, to censor remarks not warranted by either the evidence or the law, or remarks calculated to mislead or prejudice the jury. If the impropriety is gross it is proper for the court even in the absence of objection to correct the abuse ex mero motu.' \u201d 288 N.C. at 712, 220 S.E.2d at 291 (quoting State v. Monk, 286 N.C. 509, 516, 212 S.E.2d 125, 131 (1975)). In the context of a capital sentencing hearing, counsel\u2019s argument must also comport with the requirements of the capital sentencing statute, N.C.G.S. \u00a7 15A-2000 (1988). See State v. Jones, 296 N.C. 495, 500-03, 251 S.E.2d 425, 428-29 (1979).\nThe prosecutor often disregarded these limitations. First, he distorted the evidence. In addressing the proposed mitigating circumstance that the crime was committed while defendant was under the influence of a mental or emotional disturbance, the prosecutor proclaimed it \u201ca bunch of hogwash\u201d and stated: \u201cThere\u2019ve been plenty, of people and you heard what the psychologist said, \u2018Yeah, there are about 10,000 folks in the county that are walking around with borderline \u2014 [defendant objects] \u2014 personality syndrome.\u2019 \u201d In fact, Dr. Sultan had specifically rejected this contention on cross-examination:\nQ. A borderline personality disorder. Are there fully ten to \u25a0fifteen thousand people right here in Iredell County that suffer from that; aren\u2019t there?\nA. No, sir.\nQ. This isn\u2019t any serious problem, is it?\nA. Yes, sir, it is a quite serious problem.\nQ. And you\u2019re saying that that problem right ther\u00e9 is not suffered by a large number of people in the population today . . . ?\nA. Yes, sir, there are many people who have, who would fall in these categories, yes.\nThe trial court should have sustained defendant\u2019s objection and instructed the jury to disregard the erroneous statement. Britt, 288 N.C. at 712, 220 S.E.2d at 291. Instead, the trial court overruled defendant\u2019s objection and simply advised the jury to \u201cremember my instructions,\u201d i.e., that the statements of counsel were not evidence. This ruling could have left the impression that the jury was free to accept the prosecutor\u2019s incorrect version of Dr. Sultan\u2019s testimony. The jury may well have done so as it rejected the mitigating circumstance at issue.\nSecond, the prosecutor insinuated personal knowledge of facts not in evidence. In addressing the fourth proposed mitigating circumstance, the prosecutor stated:\nNumber Four: \u2018At the time he confessed he was not a suspect in the murder of Sue Ellen Holliman.\u2019 Well, at the time he confessed, that\u2019s right. I submit to you that the evidence was there in the SBI Laboratory to convict him. And until that person came down there [to the prison] and talked to him, that\u2019s right, he was not a suspect in that killing.\nMs. SIMON: Objection.\nMr. McMillan: Objection!\nTHE COURT: Overruled.\nMr. Zimmerman: Thank you.\nTHE COURT: Again, remember my instruc\u2014\nMr. McMILLAN: There is no other killing, Your Honor.\nMr. ZIMMERMAN: Well, you\u2019ve just brought it up. I just said that killing.\nTHE COURT: Members of the Jury, don\u2019t consider this as referring to any other killing. Go ahead, Mr. District Attorney.\nThe prosecutor\u2019s insinuation was without support in the record. It was also erroneous. The defendant had not been a suspect in another murder.\nThe State argues that the prosecutor\u2019s reference to \u201cthat killing\u201d was entirely innocent and that he did not intend to suggest the existence of another murder. Even if innocent, the effect on the jury was the same. Given the prosecutor\u2019s special emphasis on the word \u201cthat,\u201d which appears in the trial transcript itself, the statement clearly implies that the defendant, though not a suspect in the murder of Sue Ellen Holliman, was a suspect in another murder. We note, too, that this was not the first time the prosecutor had made such an insinuation. During his case-in-chief, the prosecutor questioned Sheriff Jim Johnson about a photograph of defendant\u2019s car as follows:\nQ. And so the jury will understand this State\u2019s [exhibit] 17, the car, we had not had State\u2019s 17 in our possession at any time prior to that, with reference to this particular homicide; is that right?\nA. Yes, sir.\nQ. It wasn\u2019t until after Mr. Sanderson had confessed \u2014 -\nMr. MCMILLAN: Your Honor, I\u2019m going to object to the phrase, \u201cthis particular homicide.\u201d\nMr. ZIMMERMAN: Well, let me finish my question.\nThe COURT: Well, disregard \u201cthis particular homicide,\u201d Members of the Jury. Go ahead, Mr. District Attorney.\nMR. ZIMMERMAN: Well, we\u2019re only talking about one homicide so \u2014 but it\u2019s this one as opposed to some other one.\nThe COURT: Disregard that, Members of the Jury. Just ask your question please, Mr. Zimmerman.\nAlso, the jury knew facts which, with the prosecutor\u2019s argument, could have caused it to believe that defendant had in fact committed another murder. The jury knew that defendant had been in jail at the time he confessed, but not for the murder of Sue Ellen Holliman. Thus, it knew he had committed, or at least been charged with, another crime. It was in this context that the prosecutor twice insinuated that the other crime was a killing. Upon these statements, the trial court neither confirmed nor denied the prosecutor\u2019s insinuation, stating merely, \u201cdon\u2019t consider this as referring to any other killing.\u201d The jury being left with a plausible suggestion that defendant had committed at least one other murder and a mild instruction from the judge not to consider it as such, it may well have accepted the prosecutor\u2019s suggestion and been influenced by it in its sentencing determination. We are instructed in this conclusion by the words of Mr. Justice Sutherland:\nIt is fair to say that the average jury, in a greater or less degree, has confidence that these obligations [of fairness], which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.\nBerger, 295 U.S. at 88, 79 L. Ed. 2d at 1321.\nThe State argues that the improprieties in the prosecutor\u2019s statements were cured by the trial court\u2019s prompt instruction. We are not persuaded by this argument. This Court has held that some forms of misconduct are so inherently prejudicial that they may not be considered \u201ccured\u201d even though the trial court has given a strong corrective instruction. In Britt for instance, a case involving a capital murder trial, the prosecutor insinuated during cross-examination that the defendant had already once been convicted of first-degree murder for the same crime. 288 N.C. at 707-08, 220 S.E.2d at 288-89. Though the trial court sustained the defendant\u2019s objection and twice instructed the jury to disregard the defendant\u2019s prior conviction and focus solely on the evidence adduced, we held that, \u201cno instruction by the court could have removed from the minds of the jurors the prejudicial effect that flowed from knowledge of the fact that defendant had been on death row as a result of his prior conviction of first degree murder in this very case.\u201d Id. at 713, 220 S.E.2d at 292.\nAs in Britt, we do not believe the prosecutor\u2019s misstatements could have been cured by the trial court\u2019s instruction. If the jury believed that defendant had committed another murder, or perhaps several other murders, it must necessarily have considered him not only more culpable but also more of a threat to society. In such case the prosecutor\u2019s repeated contention, \u201c[t]he only way you can be sure that he\u2019ll never do this again ... is to give him death,\u201d would have appeared even more compelling.\nThe prosecutor also made improper use of the evidence that defendant said he raped his victim1 before killing her. The evidence adduced was as follows. Defendant\u2019s brother testified on cross-examination that defendant had told him he raped the victim but had not gone into how he raped her. Defendant\u2019s brother also read aloud a religious tract written by defendant from prison. The tract, which described defendant\u2019s journey from sinner to convert, contained the following statement: \u201cI also started going to pornographic movies and tried to fill the sex drive these drugs would give me. One day I broke into a house and a girl was home. I found myself in a place where I could act out all the rape scenes I had been watching in these movies, I did on this girl.\u201d Later, Dr. Sultan testified on direct that defendant had told her he raped the victim. Casting doubt on defendant\u2019s claim was the autopsy report, which showed no evidence of sexual molestation whatsoever.\nAt the close of the evidence, the trial court determined that it would submit only two aggravating circumstances to the jury: 1) that the murder was committed for the purpose of avoiding lawful arrest, and 2) that the murder was committed while the defendant was engaged in the commission of a kidnapping. In addition, the court specifically refused the prosecutor\u2019s request that it submit rape as a third aggravating circumstance, undoubtedly because of the lack of forensic evidence supporting this circumstance. Despite this ruling, the prosecutor asserted on three separate occasions during his closing argument that the defendant deserved to die, at least in part, because he had raped the victim. This line of argument was improper. As we stated in State v. Zuniga, 320 N.C. 233, 267, 357 S.E.2d 898, 919, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987), counsel may not in his argument \u201cattempt to put before the jury a[n aggravating] factor that the trial court ha[s] found not to be supported by the evidence.\u201d Though the argument called for stern rebuke and prompt curative instructions, Britt, 288 N.C. at 712, 220 S.E.2d at 291; see also Berger, 295 U.S. at 85, 79 L. Ed. 2d at 1320, the trial court overruled defendant\u2019s objections and merely instructed the jury to \u201ctake the facts from your own recollection of the evidence.\u201d The jury was presumably left with the impression that it could consider rape in aggravation of the murder.\nE. Prejudice to Defendant\nWe conclude that the prosecutor\u2019s conduct, taken as a whole, deprived defendant of his due process right to a fair sentencing proceeding. The trial court\u2019s rulings did not deter the misconduct, and did little to prevent it from influencing the jury. Despite defendant\u2019s evidence in mitigation, the jury found the existence of only one of the thirty-one submitted mitigating circumstances. We note that the jury in the first sentencing proceeding found four of six submitted mitigating circumstances. Three of those found were among the circumstances rejected by the jury in the second sentencing hearing. We conclude that the prosecutor\u2019s misconduct resulted in a denial of \u201c \u2018that fundamental fairness essential to the very concept of justice.\u2019 \u201d Donnelly v. De Christoforo, 416 U.S. 637, 642, 40 L. Ed. 2d 431, 436 (1974) (quoting Lisenba v. California, 314 U.S. 219, 236, 86 L. Ed. 166, 180 (1941)).\nIll\nWe now address one further issue raised by the parties since it is likely to arise again at defendant\u2019s new sentencing hearing.\nDefendant argues that, under the rule announced in State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987), cert. denied, 373 S.E.2d 554 (1988), the trial court should not have permitted the jury to find as separate statutory aggravating circumstances that the murder was committed for the purpose of avoiding lawful arrest, N.C.G.S. \u00a7 15A-2000(e)(4), and that the murder was committed while the defendant was engaged in a kidnapping, N.C.G.S. \u00a7 15A-2000(e)(5). According to defendant, these circumstances were redundant. We do not agree.\nIn Quesinberry, we held that the trial court erred in submitting the aggravating circumstances 1) that the murder was committed during the course of a robbery and 2) that the murder was committed for pecuniary gain. Because the evidence showed that the defendant committed the robbery for the purpose of pecuniary gain, as opposed to some other purpose, the circumstances were redundant. 319 N.C. at 238, 354 S.E.2d at 452. In effect, the trial court permitted the jury to use the same evidence \u2014 that the defendant killed for pecuniary gain \u2014 to aggravate the murder twice. Id. at 239, 354 S.E.2d at 452-53.\nThe trial court\u2019s submission of (e)(4) and (e)(5) in the case at bar did not violate Quesinberry. The evidence underlying these circumstances was not the same. The (e)(4) circumstance was based on the evidence that the murder itself was effected for the purpose of avoiding lawful arrest. The (e)(5) circumstance was based on the evidence that the murder occurred during the commission of a kidnapping. Because these circumstances were supported by different evidence, they cannot be considered redundant. See State v. Jennings, 333 N.C. 579, 627-28, 430 S.E.2d 188, 213-14, cert. denied, \u2014 U.S. \u2014, 126 L. Ed. 2d 602 (1993) (held: aggravating circumstances will not be considered redundant absent \u201ccomplete overlap\u201d in the evidence supporting them).\nIV\nHaving found that the prosecutor\u2019s persistent misconduct deprived defendant of his right to a fair hearing, we vacate his death sentence and remand for a new capital sentencing proceeding.\nBecause the jury found the existence of both submitted aggravating circumstances, see State v. Silhan, 302 N.C. 223, 270, 275 S.E.2d 450, 482-83 (1981), and because these circumstances were not redundant, we hold that they may be resubmitted at the next sentencing proceeding.\nDEATH SENTENCE VACATED; REMANDED FOR NEW CAPITAL SENTENCING PROCEEDING.\n. \u201cWell, speak up, McMillan!\u201d; \u201cHa! . . . Why don\u2019t you say that in front of the jury, McMillan\u201d; \u201cAnd McMillan looks at me and says . . .\u201d; \u201cAnd you said that Lawyer Mac Millan over here called you back in February . . . .\u201d\n. The prosecutor also engaged in what may be best described as gamesmanship. He responded to the court\u2019s ruling prohibiting him from eliciting certain testimony on direct examination by saying, \u201cNo, I might just put Captain Johnson up there and ask him to tell about it anyway!\u201d Later, when defense counsel moved for a mistrial on the ground that the prosecutor had purposely attempted to elicit testimony already declared inadmissible by the court, the prosecutor first joined the motion then recanted, having in the interim held forth at length about the unfairness of having to \u201ctry the case with one hand tied behind your back.\u201d", "type": "majority", "author": "EXUM, Chief Justice." }, { "text": "Justice MEYER\nconcurring.\nI concur with the majority that the sum of all the prosecutor\u2019s statements and actions warrants a new sentencing proceeding in this case. I wish to make it clear, however, that I do not attribute the conduct of the prosecutor to any intentional course of conduct on his part. I consider the actions and statements of the prosecutor to be a natural, though unrestrained, manifestation of the high emotion of this capital trial.\nThe majority opinion, of necessity, addresses and examines only examples of conduct on the part of the prosecution in this case that represent a crossing of the line of fairness. I fear, however, that in focusing our attention so carefully on these incidents only and in our failure to allude to any example of propriety or fairness exhibited by the prosecutor, it may appear to the reader that this Court believes that the prosecutor intentionally engaged in a bad faith effort to subvert the fairness of the trial. I do not believe that this was the case.\nJustices MITCHELL and PARKER join in this concurring opinion.", "type": "concurrence", "author": "Justice MEYER" } ], "attorneys": [ "Michael F. Easley, Attorney General, by William N. Farrell, Jr., Senior Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RICKY LEE SANDERSON\nNo. 374A86(2)\n(Filed 8 April 1994)\n1. Criminal Law \u00a7 410 (NCI4th)\u2014 murder \u2014 sentencing hearing-fairness \u2014 prosecutor\u2019s obligation\nIt is the duty of the prosecutor, as much as it is of the trial judge, to uphold defendant\u2019s right to a fair hearing; it is especially important that the prosecutor refrain from improper conduct in the context of a capital sentencing hearing, where the issue before the jury is whether a human being should live or die and where this decision involves the exercise of the jury\u2019s judgment as to how certain aggravating and mitigating circumstances should be weighed against each other.\nAm Jur 2d, Trial \u00a7\u00a7 189 et seq.\n2. Criminal Law \u00a7 473 (NCI4th)\u2014 murder \u2014sentencing hearingprosecutorial misconduct \u2014conduct toward opposing counsel\nThe prosecutor in a first-degree murder resentencing hearing persistently engaged in improper conduct toward opposing counsel where he pointedly refused properly to address opposing counsel, often succeeded in preventing defendant\u2019s lawyers from finishing their sentences through continual interruptions, directed comments to counsel rather than to the court, and these comments often contained angry denunciations or expressions of incredulity. It cannot be concluded that the abuse of counsel was harmless because the comments may have diminished defense counsel in the eyes of the jury and may have undermined the ability of defense counsel to provide effective representation by wearing down counsel.\nAm Jur 2d, Trial \u00a7\u00a7 192 et seq., 307 et seq.\n3. Criminal Law \u00a7 471 (NCI4th)\u2014 murder \u2014sentencing hearing \u2014 prosecutorial misconduct \u2014improprieties in cross-examination\nThe prosecutor in a first-degree murder resentencing hearing employed abusive tactics in cross-examining defendant\u2019s principal expert witness, a clinical psychologist, by insulting and degrading the witness and attempting to distort her testimony. She was insulted, maligned, continually interrupted and bullied. It cannot be concluded that there was no prejudice because the net result may have been a less than complete, or a less than accurate, statement of her opinion.\nAm Jur 2d, Trial \u00a7\u00a7 192 et seq., 307 et seq.\n4. Criminal Law \u00a7 468 (NCI4th)\u2014 murder \u2014sentencing hearing \u2014 prosecutorial misconduct \u2014closing arguments\nThe prosecutor during closing arguments in a first-degree murder resentencing hearing improperly misstated the evidence, suggested personal knowledge of inflammatory facts not of record, and placed before the jury an aggravating circumstance that the trial judge had specifically declined to submit.\nAm Jur 2d, Trial \u00a7\u00a7 251 et seq.\nPropriety and prejudicial effect of prosecuting attorney\u2019s arguing new matter or points in his closing summation in criminal case. 26 ALR3d 1409.\nPropriety and prejudicial effect of prosecutor\u2019s argument to jury indicating that he has additional evidence of defendant\u2019s guilt which he did not deem necessary to present. 90 ALR3d 646.\n5. Criminal Law \u00a7 473 (NCI4th(\u2014 murder \u2014sentencing hearing\u2014 prosecutorial misconduct \u2014 prejudice\nThe prosecutor\u2019s misconduct in a capital sentencing hearing, taken as a whole, deprived defendant of his due process right to a fair sentencing hearing and the trial court\u2019s rulings did not deter the misconduct and did little to prevent it from influencing the jury.\nAm Jur 2d, Trial \u00a7\u00a7 479 et seq.\nSupreme Court\u2019s views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L. Ed. 2d 896.\n6. Criminal Law \u00a7 1323 (NCI4th)\u2014 murder \u2014 sentencing\u2014 aggravating circumstances \u2014avoidance of arrest \u2014 engaged in kidnapping \u2014 separate evidence\nThe submission of the aggravating circumstances that a murder was committed to avoid arrest and while engaged in a kidnapping was not redundant because the circumstances were supported by different evidence. N.C.G.S. \u00a7 15A-2000(e)(4); N.C.G.S. \u00a7 15A-2000(e)(5).\nAm Jur 2d, Trial \u00a7\u00a7 888 et seq.\nJustice MEYER concurring.\nJustices MITCHELL and Parker join in this concurring opinion.\nAppeal of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a sentence of death imposed by John, J., presiding at the 20 May 1991 Special Criminal Session of Superior Court, Iredell County. Heard in the Supreme Court 12 April 1993.\nMichael F. Easley, Attorney General, by William N. Farrell, Jr., Senior Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, for defendant-appellant." }, "file_name": "0001-01", "first_page_order": 41, "last_page_order": 62 }