{ "id": 2536876, "name": "STATE OF NORTH CAROLINA v. KERRY LEMAR MORSTON", "name_abbreviation": "State v. Morston", "decision_date": "1994-06-17", "docket_number": "No. 353A92", "first_page": "381", "last_page": "412", "citations": [ { "type": "official", "cite": "336 N.C. 381" } ], "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": "85 ALR2d 1132", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "14 ALR3d 723", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "73 ALR3d 98", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "8 ALR3d 1236", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "4 ALR3d 351", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "24 ALR3d 1093", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "92 ALR2d 635", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "opinion_index": -1 }, { "cite": "459 U.S. 1189", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6541520, 6541568, 6541613, 6541774 ], "year": 1983, "pin_cites": [ { "parenthetical": "explaining that arguments of this sort are based on footnote thirty-seven of Miranda" } ], "opinion_index": 0, "case_paths": [ "/us/459/1189-01", "/us/459/1189-02", "/us/459/1189-03", "/us/459/1189-04" ] }, { "cite": "300 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "701", "parenthetical": "\"in every case in which it is found that the judge erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing\"" }, { "page": "701" } ], "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "602", "parenthetical": "\"in every case in which it is found that the judge erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing\"" }, { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "182 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "11-12", "parenthetical": "where the trial court stated in open court that the defendant would be sentenced to six years imprisonment, but the signed judgment indicated a sentence of eight years imprisonment, the court of appeals remanded for imposition of the six-year sentence" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 21", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547027 ], "year": 1971, "pin_cites": [ { "page": "23", "parenthetical": "where the trial court stated in open court that the defendant would be sentenced to six years imprisonment, but the signed judgment indicated a sentence of eight years imprisonment, the court of appeals remanded for imposition of the six-year sentence" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0021-01" ] }, { "cite": "356 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "326" } ], "opinion_index": 0 }, { "cite": "319 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739096 ], "year": 1987, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0562-01" ] }, { "cite": "321 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "863-64" } ], "opinion_index": 0 }, { "cite": "312 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753111 ], "year": 1984, "pin_cites": [ { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0237-01" ] }, { "cite": "110 L. Ed. 2d 268", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "496 U.S. 905", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12130850, 12131043, 12131491, 12132165, 12132518, 12130508, 12131821, 12131342, 12131183, 12131987, 12132344, 12130682, 12131645 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/496/0905-03", "/us/496/0905-04", "/us/496/0905-07", "/us/496/0905-11", "/us/496/0905-13", "/us/496/0905-01", "/us/496/0905-09", "/us/496/0905-06", "/us/496/0905-05", "/us/496/0905-10", "/us/496/0905-12", "/us/496/0905-02", "/us/496/0905-08" ] }, { "cite": "386 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "325 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487602 ], "year": 1989, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0607-01" ] }, { "cite": "403 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "287" } ], "opinion_index": 0 }, { "cite": "328 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540682 ], "year": 1991, "pin_cites": [ { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0626-01" ] }, { "cite": "430 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "422" } ], "opinion_index": 0 }, { "cite": "333 N.C. 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545420 ], "year": 1993, "pin_cites": [ { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0687-01" ] }, { "cite": "435 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "306" } ], "opinion_index": 0 }, { "cite": "334 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531078 ], "year": 1993, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0627-01" ] }, { "cite": "108 L. Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4944, 5169, 5111, 5052, 5183 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1021-01", "/us/494/1021-04", "/us/494/1021-02", "/us/494/1021-03", "/us/494/1021-05" ] }, { "cite": "372 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "548-49" } ], "opinion_index": 0 }, { "cite": "323 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563702 ], "year": 1988, "pin_cites": [ { "page": "190-93" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0181-01" ] }, { "cite": "374 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "855-56" } ], "opinion_index": 0 }, { "cite": "323 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560866 ], "year": 1989, "pin_cites": [ { "page": "661-64" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0658-01" ] }, { "cite": "340 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "436" } ], "opinion_index": 0 }, { "cite": "315 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720164 ], "year": 1986, "pin_cites": [ { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0724-01" ] }, { "cite": "443 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538239 ], "year": 1994, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0142-01" ] }, { "cite": "416 U.S. 637", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 84180 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/416/0637-01" ] }, { "cite": "92 L. Ed. 2d 774", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6158045 ], "year": 1986, "pin_cites": [ { "parenthetical": "quoting Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431 (1974)" } ], "opinion_index": 0, "case_paths": [ "/us/333/0411-01" ] }, { "cite": "478 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6285759, 6286362, 6286079 ], "year": 1986, "pin_cites": [ { "parenthetical": "quoting Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431 (1974)" } ], "opinion_index": 0, "case_paths": [ "/us/478/1036-01", "/us/478/1036-03", "/us/478/1036-02" ] }, { "cite": "477 U.S. 168", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205694 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "181", "parenthetical": "quoting Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431 (1974)" }, { "page": "157", "parenthetical": "quoting Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431 (1974)" } ], "opinion_index": 0, "case_paths": [ "/us/477/0168-01" ] }, { "cite": "231 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "651" } ], "opinion_index": 0 }, { "cite": "291 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558765 ], "year": 1977, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0528-01" ] }, { "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": "911" } ], "opinion_index": 0 }, { "cite": "320 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723637 ], "year": 1987, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0233-01" ] }, { "cite": "346 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "317 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778236 ], "year": 1986, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0474-01" ] }, { "cite": "418 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "487" }, { "page": "487-88" } ], "opinion_index": 0 }, { "cite": "332 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505926 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "60" }, { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0047-01" ] }, { "cite": "361 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "888", "parenthetical": "evidence that the defendant \"had had two drinks\" earlier on the evening of the murder was insufficient to show that he was so intoxicated at the time of the crime that he was incapable of forming the intent necessary to commit first-degree murder" } ], "opinion_index": 0 }, { "cite": "321 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568550 ], "year": 1987, "pin_cites": [ { "page": "41-42", "parenthetical": "evidence that the defendant \"had had two drinks\" earlier on the evening of the murder was insufficient to show that he was so intoxicated at the time of the crime that he was incapable of forming the intent necessary to commit first-degree murder" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0031-01" ] }, { "cite": "412 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "41" } ], "opinion_index": 0 }, { "cite": "330 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511838 ], "year": 1992, "pin_cites": [ { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0446-01" ] }, { "cite": "372 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "537-38" } ], "opinion_index": 0 }, { "cite": "323 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564377 ], "year": 1988, "pin_cites": [ { "page": "347-49" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0339-01" ] }, { "cite": "402 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "820" } ], "opinion_index": 0 }, { "cite": "328 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541401 ], "year": 1991, "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0409-01" ] }, { "cite": "456 U.S. 605", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189237 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "611" }, { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/us/456/0605-01" ] }, { "cite": "344 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774343 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0193-01" ] }, { "cite": "298 S.E.2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "654" }, { "page": "658" }, { "page": "658" }, { "page": "654" } ], "opinion_index": 0 }, { "cite": "307 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562214 ], "weight": 4, "year": 1983, "pin_cites": [ { "page": "287" }, { "page": "293" }, { "page": "293" }, { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0274-01" ] }, { "cite": "405 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "154" } ], "opinion_index": 0 }, { "cite": "329 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556466 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "77" }, { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0061-01" ] }, { "cite": "404 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "677", "parenthetical": "\"The 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.\"" } ], "opinion_index": 0 }, { "cite": "329 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553489 ], "year": 1991, "pin_cites": [ { "page": "210", "parenthetical": "\"The 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.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0202-01" ] }, { "cite": "58 L. Ed. 2d 260", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 3, "year": 1978, "pin_cites": [ { "parenthetical": "Friendly, J., concurring" } ], "opinion_index": 0 }, { "cite": "439 U.S. 913", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11403074, 11403139, 11403205, 11403048, 11403241, 11403019, 11403341, 11403443, 11402995, 11403294, 11403099, 11403389, 11403166 ], "year": 1978, "pin_cites": [ { "parenthetical": "Friendly, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/us/439/0913-04", "/us/439/0913-06", "/us/439/0913-08", "/us/439/0913-03", "/us/439/0913-09", "/us/439/0913-02", "/us/439/0913-11", "/us/439/0913-13", "/us/439/0913-01", "/us/439/0913-10", "/us/439/0913-05", "/us/439/0913-12", "/us/439/0913-07" ] }, { "cite": "580 F.2d 1137", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 866156 ], "pin_cites": [ { "page": "1150" } ], "opinion_index": 0, "case_paths": [ "/f2d/580/1137-01" ] }, { "cite": "392 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "349", "parenthetical": "\"Any evidence offered to shed light upon the crime charged should be admitted by the trial court.\"" } ], "opinion_index": 0 }, { "cite": "326 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305505 ], "year": 1990, "pin_cites": [ { "page": "695-96", "parenthetical": "\"Any evidence offered to shed light upon the crime charged should be admitted by the trial court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0689-01" ] }, { "cite": "392 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "74", "parenthetical": "explaining that evidence is not hearsay if offered only to prove that a statement was made" } ], "opinion_index": 0 }, { "cite": "326 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308707 ], "year": 1990, "pin_cites": [ { "page": "683", "parenthetical": "explaining that evidence is not hearsay if offered only to prove that a statement was made" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0676-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "56" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "365 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "576" } ], "opinion_index": 0 }, { "cite": "321 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566745 ], "year": 1988, "pin_cites": [ { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0663-01" ] }, { "cite": "431 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "13" } ], "opinion_index": 0 }, { "cite": "334 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530190 ], "year": 1993, "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0155-01" ] }, { "cite": "405 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "177" }, { "page": "177" } ], "opinion_index": 0 }, { "cite": "329 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553626 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0149-01" ] }, { "cite": "212 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "139" } ], "opinion_index": 0 }, { "cite": "286 N.C. 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568917 ], "year": 1975, "pin_cites": [ { "page": "483-84" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0472-01" ] }, { "cite": "302 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "171" } ], "opinion_index": 0 }, { "cite": "308 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707923 ], "year": 1983, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0272-01" ] }, { "cite": "126 L. Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "430 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "199-200" } ], "opinion_index": 0 }, { "cite": "333 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545734 ], "year": 1993, "pin_cites": [ { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0579-01" ] }, { "cite": "74 L. Ed. 2d 1031", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "explaining that arguments of this sort are based on footnote thirty-seven of Miranda" } ], "opinion_index": 0 }, { "cite": "74 L. Ed. 2d 622", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1056", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6487664, 6487779 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1056-01", "/us/459/1056-02" ] }, { "cite": "292 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "254" } ], "opinion_index": 0 }, { "cite": "305 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573030 ], "year": 1982, "pin_cites": [ { "page": "673-74" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0656-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 4, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "237 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "847" } ], "opinion_index": 0 }, { "cite": "293 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563998 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0315-01" ] }, { "cite": "337 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "474", "parenthetical": "\"While intent is a state of mind sometimes difficult to prove, the mind of an alleged offender may be read from his acts, conduct, and inferences fairly deducible from all of the circumstances.\"" } ], "opinion_index": 0 }, { "cite": "315 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718474 ], "year": 1985, "pin_cites": [ { "page": "163", "parenthetical": "\"While intent is a state of mind sometimes difficult to prove, the mind of an alleged offender may be read from his acts, conduct, and inferences fairly deducible from all of the circumstances.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0157-01" ] }, { "cite": "440 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "780" }, { "page": "784" }, { "page": "784" } ], "opinion_index": 0 }, { "cite": "335 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531405 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "654" }, { "page": "661" }, { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0647-01" ] }, { "cite": "180 S.E.2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "139", "parenthetical": "\"It has been aptly stated that '[T]he malice or intent follows the bullet.' \"" } ], "opinion_index": 0 }, { "cite": "278 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560822 ], "year": 1971, "pin_cites": [ { "page": "519", "parenthetical": "\"It has been aptly stated that '[T]he malice or intent follows the bullet.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0513-01" ] }, { "cite": "415 S.E.2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "730", "parenthetical": "emphasis added" }, { "page": "729-30" } ], "opinion_index": 0 }, { "cite": "331 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498038 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "245", "parenthetical": "emphasis added" }, { "page": "244-46" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0239-01" ] }, { "cite": "272 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567847 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0407-01" ] }, { "cite": "11 L. Ed. 2d 40", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1963, "opinion_index": 0 }, { "cite": "375 U.S. 9", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11715244, 11715279 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/us/375/0009-01", "/us/375/0009-02" ] }, { "cite": "129 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "280-81" } ], "opinion_index": 0 }, { "cite": "258 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561703 ], "year": 1963, "pin_cites": [ { "page": "559-60" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0533-01" ] }, { "cite": "347 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "742-43" }, { "page": "742" } ], "opinion_index": 0 }, { "cite": "318 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732922 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "74" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0054-01" ] }, { "cite": "243 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "351" }, { "page": "352" } ], "opinion_index": 0 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "year": 1978, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0503-01" ] } ], "analysis": { "cardinality": 1935, "char_count": 72002, "ocr_confidence": 0.759, "pagerank": { "raw": 2.1675280587669365e-07, "percentile": 0.7706323804978591 }, "sha256": "df0b659f52d73597fa6511c375d9b51bbea9b10a10a04e9c5e4b7f1282cee143", "simhash": "1:c76bc26b167e9cf4", "word_count": 11798 }, "last_updated": "2023-07-14T18:12:07.467663+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. KERRY LEMAR MORSTON" ], "opinions": [ { "text": "MITCHELL, Justice.\nOn 13 May 1991, the Hoke County Grand Jury indicted the defendant, Kerry Lemar Morston, for first-degree murder and conspiracy to commit first-degree murder. On 19 August 1991, the Grand Jury indicted the defendant for assault with a deadly weapon with intent to kill inflicting serious injury and for discharging a firearm into occupied property. He was tried capitally at the 27 April 1992 Mixed Session of Superior Court, Hoke County. The jury returned verdicts finding the defendant guilty of premeditated and deliberate first-degree murder and all of the other charges against him.\nAt the conclusion of a separate capital sentencing proceeding conducted pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended a sentence of life imprisonment for the first-degree murder conviction. The trial court sentenced the defendant in accord with the jury\u2019s recommendation. The trial court also sentenced the defendant to thirty years imprisonment for conspiracy to commit first-degree murder, twenty years imprisonment for assault with a deadly weapon with intent to kill inflicting serious injury and ten years imprisonment for discharging a firearm into occupied property. Under the judgments entered by the trial court, these latter three sentences are to be served consecutively to each other and to the life sentence imposed for the first-degree murder conviction. The defendant appealed to this Court as a matter of right from the judgment sentencing him to life imprisonment for first-degree murder. See N.C.G.S. \u00a7 7A-27(a) (1989). We also allowed his motion to bypass the Court of Appeals on his appeal from the additional judgments.\nThe State\u2019s evidence tended to show the following. Shortly after 7:00 p.m. on 4 April 1991, members of the Southern Pines Police Department, including the victim, Detective Ed Harris, investigated a report of gunshots at the Holiday Town Apartments in Southern Pines, North Carolina. A large group gathered in the parking lots and grassy common areas of the apartment complex and a heated exchange of words took place between Detective Harris and Bernice McDougald, a reputed drug dealer.\nAfter the officers left the apartment complex, McDougald met with seven other people, including the defendant. McDougald told the group that Detective Harris was \u201cf \u2014 ing up the business\u201d and that he was going to \u201cget rid of\u201d Harris that night. At the time McDougald made these statements, three members of the group, including the defendant, were armed. Two of the group members held 30-30 rifles, while the defendant was armed with a 9-millimeter semi-automatic handgun. McDougald subsequently procured his own 30-30 rifle.\nOnce McDougald had armed himself, he told another member of the group, Shannon McKenzie, that McKenzie was to knock on the front door of Harris\u2019 home. McDougald instructed the defendant that when Harris answered the door, the defendant was to \u201cshoot the s\u2014 out of him.\u201d The defendant made no reply. McDougald then stated that he would also shoot Harris.\nThe group traveled by car to the Harris residence in another part of Southern Pines. While in the car, McDougald told the group that if anyone wanted to back out, they could. The defendant then stated that he was going to do what he had to do and that if he saw fear in anyone\u2019s eyes, he would kill them.\nThe group arrived at the Harris residence around 10:00 p.m. They drove a short distance beyond the house and stopped. The driver, John Chisolm, was told to drive around and return in twenty-five minutes. The other seven members of the group, including the defendant, then walked to Detective Harris\u2019 home. As they approached the house, a car pulled up and Harris\u2019 son, Anthony, got out of the car and went inside the house.\nAfter the car drove away, Shannon McKenzie and the defendant walked to the front door of the Harris residence. McKenzie rang the doorbell and ran. Harris was sitting in his den with his wife, Judy, when the doorbell rang. Harris got up and opened the door leading from the den into a utility room. At the opposite end of the utility room was the front door to the house. Detective Harris closed the door leading into the den, turned on the front porch light and opened the front door. The defendant then shot Harris at least four times through the screen and glass storm door. McDougald also shot Harris. The defendant ran away from the house toward the highway, where he found McKenzie, Chisolm and the getaway car. Once in the car, the defendant exclaimed, \u201cI got him, I got him.\u201d\nMcKenzie explained at trial that because Chisolm \u201clooked scary,\u201d the defendant and McKenzie got out of the car and began running. They eventually came upon McDougald, who was with two other members of the group. After walking for some time, the five men decided to go to the mobile home of one Anna Hurd. Once there, they washed themselves and McDougald wiped down the weapons and hid them under a bed. McDougald also sprayed himself with Hurd\u2019s perfume so that anyone who subsequently encountered him would think that he had been with a woman.\nMcDougald asked Hurd to drive the men to the Fox Club, a local nightclub. After passing a police car on the road, however, McDougald decided that he did not want to go to the Fox Club, so he asked Hurd to drive them to \u201cthe projects.\u201d\nThe following morning, Anna Hurd learned of Detective Harris\u2019 murder from a television news report and drove to the Holiday Town Apartments. She saw the defendant and Terry Evans, another of the eight men who had travelled to Detective Harris\u2019 home the previous night. As Hurd approached and asked what was going on, both men smiled and Evans began to chant, \u201cEd is dead, Ed is dead.\u201d The defendant then said to Hurd, \u201cWe did it. Yes, you heard what he said, we did it. We did it, we did it. It is finished.\u201d The defendant then walked over to Hurd\u2019s car, in which Hurd\u2019s niece, Patrice Hurd, was sitting. The defendant told Patrice that he had shot Detective Harris. The defendant said that he was expecting to collect $20,000 and asked Patrice if she wanted to accompany him to the Bahamas.\nBullets or parts of bullets had also traveled through the door leading into the den of the Harris home. One of these bullets had severed one of Judy Harris\u2019 fingers. After hearing the shots, Anthony Harris had run into the utility room and had found his father lying in a pool of blood and glass. Detective Harris was still conscious and attempted to speak to Anthony. Although he could not make it out clearly, Anthony thought his father said, \u201cWendell McLaurin\u201d and \u201cblack, male, projects.\u201d Mrs. Harris had then pulled Detective Harris\u2019 patrol car around to the front of the house and Anthony placed Detective Harris in the backseat of the car. On their way to the hospital, Anthony attempted in vain to revive his father.\nAn autopsy revealed that Detective Harris had suffered gunshot wounds to the face, wrist, chest, back and abdomen. These wounds caused his death. The defendant presented no evidence at his trial. Other pertinent evidence is discussed at other points in this opinion where it is relevant.\nBy his first assignment of error, the defendant contends that his convictions and sentences for conspiracy to commit first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a firearm into occupied property must be vacated because they arose out of the same conduct underlying the first-degree murder conviction and therefore constitute improper multiple punishments for the same offense. Specifically, the defendant insists in his brief that he \u201cis unfairly being punished sixty extra years in three multiple convictions even though he only had one course of conduct involving one mental element and one physical act.\u201d He therefore maintains that the trial court erred in denying his motions to dismiss those charges at the close of the State\u2019s evidence and his motions to arrest the judgments entered on those charges. We disagree.\nWe first observe as a general matter that \u201cit is well established that two or more criminal offenses may grow out of the same course of action.\u201d State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). In such a situation, \u201cthe perpetrator may be convicted of and punished for both crimes.\u201d Id. at 524, 243 S.E.2d at 352. We now turn to the defendant\u2019s specific arguments regarding each of his convictions.\nWith regard to his conviction for conspiracy to commit first-degree murder, the defendant argues that where, as here, a defendant \u201cis separately being punished for murder,\u201d a conviction for conspiracy to commit murder \u201cshould not lie.\u201d It is a fundamental principle of substantive criminal law, however, that a defendant properly may be convicted of, and punished for, both conspiracy and the substantive offense which the defendant conspired to commit. See, e.g., State v. Lowery, 318 N.C. 54, 74, 347 S.E.2d 729, 742-43 (1986); State v. Brewer, 258 N.C. 533, 559-60, 129 S.E.2d 262, 280-81, appeal dismissed, 375 U.S. 9, 11 L. Ed. 2d 40 (1963). This is so because \u201c \u2018the crime of conspiracy is a separate offense from the accomplishment or attempt to accomplish the intended result.\u2019 \u201d Lowery, 318 N.C. at 74, 347 S.E.2d at 742 (quoting State v. Small, 301 N.C. 407, 428 n.14, 272 S.E.2d 128, 141 n.14 (1980)). Therefore, the defendant in the present case properly was convicted of, and punished for, both conspiracy to commit murder and first-degree murder.\nWith regard to his conviction for assault with a deadly weapon with intent to kill inflicting serious injury, the defendant insists that the trial court erred in failing to dismiss the charge or arrest judgment on the conviction because he had no intent to assault Judy Harris. He argues that the evidence at trial only tended to show that his assault upon Mrs. Harris was \u201cincidental\u201d to the shooting of Detective Harris. In its instructions on the felonious assault charge, the trial court instructed the jury on the doctrine of transferred intent. Under this doctrine, \u201cit is immaterial whether the defendant intended injury to the person actually harmed; if he in fact acted with the required mental element toward someone, that intent suffices as the intent element of the crime charged as a matter of substantive law.\u201d State v. Locklear, 331 N.C. 239, 245, 415 S.E.2d 726, 730 (1992) (emphasis added); see also State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971) (\u201cIt has been aptly stated that \u2018[T]he malice or intent follows the bullet.\u2019 \u201d). The requisite mental state for assault with a deadly weapon with intent to kill inflicting serious injury is the intent to kill. See State v. Reid, 335 N.C. 647, 654, 440 S.E.2d 776, 780 (1994); see also N.C.G.S. \u00a7 14-32(a) (1993). The defendant in the present case concedes that the evidence tended to show that he possessed the intent to shoot and kill Detective Harris. Under the doctrine of transferred intent, this intent suffices as the intent element for the felony of assault upon Mrs. Harris with a deadly weapon with intent to kill inflicting serious injury.\nThe defendant further maintains that where a defendant is being punished separately for murder, an assault conviction arising out of the same circumstances surrounding the murder and based on the doctrine of transferred intent \u201cshould not lie.\u201d However, the defendant fails to cite, and we have not found, any authority to support this proposition. We conclude that the defendant in the present case was properly convicted of, and punished for, assault with a deadly weapon with intent to kill inflicting serious injury.\nWith regard to his conviction for discharging a firearm into occupied property, the defendant argues that the trial court erred in failing to dismiss the charge or arrest judgment upon his conviction because he did not intend to discharge a firearm into occupied property. He argues that the evidence only tended to show that he intended to shoot Detective Harris \u201cwherever and whenever he first saw him.\u201d The evidence presented at the defendant\u2019s trial belies this assertion, however. The evidence tended to show that Bernice McDougald instructed Shannon McKenzie that McKenzie was to knock on the front door of Detective Harris\u2019 home. When Harris came to the door, the defendant was to shoot Harris immediately. McDougald, McKenzie, the defendant and five others then drove to the Harris residence and executed their plan. This was sufficient evidence from which a rational trier of fact could find, as the jury did in this case, that the defendant intended to fire his weapon into an occupied dwelling. See State v. Wilson, 315 N.C. 157, 163, 337 S.E.2d 470, 474 (1985) (\u201cWhile intent is a state of mind sometimes difficult to prove, the mind of an alleged offender may be read from his acts, conduct, and inferences fairly deducible from all of the circumstances.\u201d).\nThe defendant also maintains that there is no rationale to support the discharging a firearm conviction in the present case because the purpose underlying this offense, which the defendant believes to be \u201cto protect unknown and unseen occupants of a dwelling from being hit by a bullet,\u201d was satisfied by his assault conviction. In State v. Shook, 293 N.C. 315, 237 S.E.2d 843 (1977), we held that a defendant properly could be convicted of, and punished for, both discharging a firearm into occupied property and assault with a deadly weapon inflicting serious injury. In Shook, the defendant fired into a tavern which was occupied by a number of patrons. While the shots were intended for one Yarborough, whose automobile the defendant thought he had identified outside of the tavern, one of the bullets penetrated a piece, of plywood and struck another patron. The defendant complained that the trial court erred in denying his motion to arrest judgment because the two offenses in fact constituted only one offense, thereby exposing him to double jeopardy. We rejected this contention, explaining that the two offenses are \u201centirely separate and distinct.\u201d Id. at 320, 237 S.E.2d at 847. Although Shook dealt with a double jeopardy challenge, it is instructive in the present case. We conclude that discharging a firearm into occupied property and assault with a deadly weapon with intent to kill inflicting serious injury are separate and distinct offenses which serve distinct purposes. The defendant in the case at bar was properly convicted of, and punished for, both offenses.\nHaving rejected the defendant\u2019s general assertions in support of this assignment and his specific arguments regarding each offense, we conclude that this assignment of error is without merit.\nBy his next assignment of error, the defendant argues that he is entitled to a new trial because the trial court erroneously denied his motion for a mistrial on the ground that the prosecutor had improperly referred to his exercise of his right to remain silent following his arrest. We do not agree.\nPrior to trial, the defendant moved to prohibit the State from making any reference to his exercise of his right to remain silent. The trial court ordered the State \u201cnot to present any evidence that the [defendant refused to make a statement after having been advised of his Miranda rights,\u201d but stated that it would allow the State to \u201cpresent evidence that the [defendant was advised of and understood his Miranda rights.\u201d At trial, the prosecution called SBI Agent Michael Wilson who testified that he had interviewed Anna Hurd on the day after Detective Harris\u2019 murder. The following dialogue then took place:\n[PROSECUTOR]: Did you interview anybody else that day?\n[WILSON]: Yes, sir, I did.\n[PROSECUTOR]: What other individual did you interview?\n[WILSON]: I interviewed [the defendant].\n[PROSECUTOR]: What time was the first time you saw [the\ndefendant]?\n[WILSON]: The first time I saw [the defendant] was at approximately 9:15 or 9:20 p.m. on . . . April 5th.\nAt this point the defendant\u2019s counsel objected and moved to strike. Out of the jury\u2019s presence, the prosecutor explained that he was merely attempting to elicit the exact time of the defendant\u2019s arrest, which he explained was \u201cimportant . . . based on some of the cross-examination that [the defendant\u2019s counsel] has heretofore engaged in.\u201d The defendant\u2019s counsel then moved for a mistrial. The trial court denied the motion for a mistrial and sustained the defendant\u2019s objection to the prosecutor\u2019s last question. The trial court then told the prosecutor that since there was \u201cnot an interview as such,\u201d the matter \u201cneeds to be corrected\u201d so as not to \u201cleav[e] the jury with an inappropriate notion.\u201d The prosecutor replied, \u201cI will just ask the officer did he interview the defendant. Is that satisfactory?\u201d The defendant\u2019s counsel responded, \u201cYes, that\u2019s all right.\u201d\nThe jury was returned to the courtroom and Agent Wilson testified that the defendant had been arrested \u201cat approximately 9:15.\u201d The following dialogue then occurred:\n[PROSECUTOR]: You did not interview him at that time, did you?\n[WILSON]: No, I did not.\n[Prosecutor]: Would that be a.m. or p.m.?\n[WILSON]: That would be p.m.\n[Prosecutor]: On what date?\n[WILSON]: April 5th, 1991.\nThe trial court then excus\u00e9d the jury while the court and both parties discussed an unrelated matter.\nWhile the jury was out of the courtroom, the defendant\u2019s counsel renewed his previous objection and motion for a mistrial, explaining that he was expecting the prosecutor to establish that Agent Wilson had not interviewed the defendant at any time. The trial court instructed the prosecutor to clarify the matter immediately. Upon the jury\u2019s return to the courtroom, the prosecutor clarified the matter as follows:\n[PROSECUTOR]: Just to clarify one thing, Special Agent Wilson, you never at any time interviewed the defendant, is that correct?\n[WILSON]: That\u2019s correct.\nThe defendant now contends that the prosecutor\u2019s examination of Agent Wilson constituted an \u201cerroneous unconstitutional comment\u201d on the defendant\u2019s exercise of his right to remain silent. Specifically, the defendant argues that the combination of Agent Wilson\u2019s original testimony that he had interviewed the defendant and the lack of any evidence regarding any statement given by the defendant led the jury to conclude either that he had refused to give a statement or that he had successfully suppressed an inculpatory statement. The defendant further maintains that the trial court\u2019s attempts to remedy the error only served to compound the prejudice by unduly emphasizing Agent Wilson\u2019s testimony. Finally, the defendant insists that a mistrial was warranted because the prosecutor\u2019s improper examination of Agent Wilson was an intentional violation of the court\u2019s pretrial order.\nIn Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), the Supreme Court of the United States explained that \u201cit is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.\u201d Id. at 468 n.37, 16 L. Ed. 2d at 720 n.37; see also State v. Williams, 305 N.C. 656, 673-74, 292 S.E.2d 243, 254, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), reh\u2019g denied, 459 U.S. 1189, 74 L. Ed. 2d 1031 (1983) (explaining that arguments of this sort are based on footnote thirty-seven of Miranda). Therefore, the prosecution in a criminal trial may not \u201cuse .. . the fact that [the defendant] stood mute or claimed his privilege in the face of accusation.\u201d Id. This Court has affirmed this principle in a number of cases. See, e.g., State v. Jennings, 333 N.C. 579, 604, 430 S.E.2d 188, 199-200, cert. denied, --- U.S. ---, 126 L. Ed. 2d 602 (1993); State v. Ladd, 308 N.C. 272, 283, 302 S.E.2d 164, 171 (1983); State v. McCall, 286 N.C. 472, 483-84, 212 S.E.2d 132, 139 (1975).\nIn the present case, however, the prosecution did not make use of the defendant\u2019s exercise of his right to remain silent following his arrest. Neither the prosecutor\u2019s questions nor Agent Wilson\u2019s responses ever expressly referred to the defendant\u2019s exercise of his right to remain silent during custodial interrogation. Instead, Agent Wilson twice clarified that he had not actually interviewed the defendant. Therefore, we conclude that the State\u2019s examination of Agent Wilson did not constitute an improper comment on the defendant\u2019s exercise of his right to remain silent. The trial court thus did not err in denying the defendant\u2019s motion for a mistrial. We reject this assignment of error.\nBy another assignment of error, the defendant maintains that he is entitled to a new trial because the trial court erroneously allowed , a State\u2019s witness to invoke the attorney-client privilege and thereby refuse to answer certain questions on cross-examination. We disagree.\nThe witness in question, Mr. Charles L. Hicks, had briefly served as Shannon McKenzie\u2019s appointed counsel until McKenzie\u2019s family retained a private attorney. The State called Mr. Hicks for the purpose of corroborating McKenzie\u2019s testimony. Mr. Hicks testified, over the defendant\u2019s objection, that he had engaged in a three-hour conversation with McKenzie on 9 April 1991, during which McKenzie and he had discussed the events surrounding the murder of Detective Harris. Mr. Hicks then read to the jury a lengthy memorandum he had generated detailing the substance of his conversation with McKenzie.\nOn cross-examination, the defendant\u2019s counsel asked Mr. Hicks whether McKenzie and he had discussed \u201cthe potential benefits of making some type of a statement that would be conceivably useful to the State.\u201d Mr. Hicks responded by invoking the attorney-client privilege and professing his belief that \u201cI have authority from my client to testify as to what he told me happened that particular night and nothing further.\u201d On redirect examination, Mr. Hicks testified that McKenzie had not entered into any agreement with the State during the period of Mr. Hicks\u2019 representation. On re-cross examination, Mr. Hicks again invoked the attorney-client privilege when asked whether McKenzie and he had discussed \u201cthe benefits of making a deal.\u201d\nThe defendant now contends that the trial court erred in allowing Mr. Hicks, based upon the attorney-client privilege, to refuse to answer, because McKenzie\u2019s waiver of the privilege with regard to a portion of the conversation (the portion dealing with the events surrounding Detective Harris\u2019 murder) constituted a waiver of the privilege with regard to the entire conversation. Assuming, arguendo, that the trial court erred in permitting Mr. Hicks to refuse to answer and that the error was of constitutional magnitude, we conclude that the error was harmless. See N.C.G.S. \u00a7 15A-1443(b) (1988).\nThe defendant insists that the trial court\u2019s alleged error was prejudicial because it deprived him of evidence that McKenzie had contemplated a plea arrangement with the State and therefore \u201chad an early scheme and motive to lie.\u201d McKenzie himself had already testified, however, that the State had permitted him to plead guilty to second-degree murder and conspiracy to commit murder in exchange for his truthful testimony at the defendant\u2019s trial. McKenzie also read the terms of his plea arrangement to the jury. Although McKenzie testified that he had not reached an agreement with the State regarding his sentence, he admitted on cross-examination that his testimony had kept him \u201cfrom facing the death penalty\u201d and that he hoped his testimony would \u201chelp\u201d him when it came time for him to be sentenced. In light of such evidence, any testimony by Mr. Hicks to the effect that McKenzie and he had discussed the possible benefits of a plea arrangement would have been cumulative evidence. Thus, the record before us clearly establishes that any error in allowing Mr. Hicks to refuse to testify about any such discussion was harmless beyond a reasonable doubt. We therefore reject this assignment of error.\nBy his next assignment of error, the defendant contends that the trial court erroneously overruled his objections during the guilt-determination phase of his trial to expert testimony regarding the painful nature of Detective Harris\u2019 wounds. Dr. Deborah L. Radisch, the Associate Chief Medical Examiner of the State of North Carolina, performed the autopsy on Detective Harris\u2019 body. Dr. Radisch testified on behalf of the State that Detective Harris had suffered gunshot wounds to his face, wrist, chest, back and abdomen. Over the defendant\u2019s objection, Dr. Radisch also testified about the pain Detective Harris would have experienced as a result of the wounds to his chest, abdomen, wrist and back. The defendant insists that the trial court erred in overruling his objections to this testimony because it was irrelevant and therefore inadmissible. We disagree.\nIn State v. Bearthes, 329 N.C. 149, 405 S.E.2d 170 (1991), we explained that \u201c[i]n determining whether a defendant acted after premeditation and deliberation, the nature of [the] wounds to a victim is a circumstance to be considered.\u201d Id. at 162, 405 S.E.2d at 177. We therefore concluded that expert testimony from the medical examiner who had performed the autopsy on the victim regarding the amount of time it would have taken the victim to die from each individual wound was relevant and admissible \u201cto show the number and severity of the wounds.\u201d Id. at 162-63, 405 S.E.2d at 177; see also State v. Ginyard, 334 N.C. 155, 159, 431 S.E.2d 11, 13 (1993); State v. Bray, 321 N.C. 663, 671, 365 S.E.2d 571, 576 (1988). Similarly, we conclude in the present case that Dr. Radisch\u2019s testimony regarding the pain associated with the individual wounds suffered by Detective Harris was relevant and admissible; it tended to show the severity and nature of the wounds and assisted the jury in determining whether the defendant acted after premeditation and deliberation. Accordingly, this assignment of error is without merit.\nBy another assignment of error, the defendant argues that the trial court erred in failing to exclude hearsay testimony of two State\u2019s witnesses. The first of these witnesses, Scott Fairly, testified that he was present when the defendant and his accomplices conspired to murder Detective Harris, but that he did not accompany the group to the Harris residence. Over the defendant\u2019s objection, Fairly testified about a number of statements made by Bernice McDougald in the defendant\u2019s presence. On appeal, the defendant specifically complains of the following statements made in the defendant\u2019s presence by McDougald on the night of the murder and subsequently related to the jury by Fairly: (1) that Detective Harris was \u201cf \u2014 ing up the business,\u201d (2) that McDougald needed money to buy a house and Detective Harris was \u201cin the way of making this money,\u201d (3) that McDougald had flushed an ounce of cocaine down a toilet on the night of the murder and (4) that Harris \u201cis just f \u2014 ing me up. I need me a house.\u201d The second witness in question, Anna Hurd, testified over the defendant\u2019s objection that while she was driving the five members of the group to the Fox Club, someone said to her that if they came upon a roadblock, she was \u201cto stop and let them out,\u201d that she would then be \u201con [her] own\u201d and that if anyone asked, she \u201chadn\u2019t seen them.\u201d The defendant insists that by overruling his objections to this testimony, the trial court improperly allowed the State to elicit inadmissible hearsay statements made by Bernice McDougald and other members of the group that conspired to murder Detective Harris. We do not agree.\n\u201c \u2018Hearsay\u2019 is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C.G.S. \u00a7 8C-1, Rule 801(c) (1992). However, \u201c[wjhen evidence of such statements by one other than the witness testifying is offered for a proper purpose other than to prove the truth of the matter asserted, it is not hearsay and is admissible.\u201d State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990); see also State v. Reid, 335 N.C. 647, 661, 440 S.E.2d 776, 784 (1994). For example, a statement made by one person to another is not hearsay if introduced for the purpose of explaining the subsequent conduct of the person to whom the statement was made. Id.\nIn the present case, the statements of Bernice McDougald which Fairly related to the jury were offered not to prove the truth of any matter asserted therein, but rather to explain the subsequent conduct of the defendant and his accomplices in shooting Detective Harris and the context in which the murder occurred. The exact words used by McDougald thus were not important to the case; what was important was that McDougald made a statement and the remainder of the group responded. Reid, 335 N.C. at 661, 440 S.E.2d at 784. As the statements were offered not to prove the truth of the matter asserted, but rather for some other, proper purpose, they were not hearsay and were admissible. Id.; 2 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 192 (4th ed. 1993).\nSimilarly, the statements related to the jury by Anna Hurd were offered not to prove the truth of the matter asserted, but rather merely to show that the statements were made. See State v. Faucette, 326 N.C. 676, 683, 392 S.E.2d 71, 74 (1990) (explaining that evidence is not hearsay if offered only to prove that a statement was made). Indeed, the statements related to the jury by Anna Hurd were directives to take action; they \u201casserted\u201d no \u201cmatter\u201d which could be subjected to any evaluation for truthfulness and could not have been hearsay. N.C.G.S. \u00a7 8C-1, Rule 801(c) (1992). Hurd merely testified that someone said to her that if they came upon a roadblock, she was \u201cto stop and let them out,\u201d that she would then be \u201con [her] own\u201d and that if anyone asked, she \u201chadn\u2019t seen them.\u201d These statements were introduced merely to show that they were made and to shed light on the circumstances surrounding the murder of Detective Harris and the conduct of the defendant and his accomplices immediately thereafter. See State v. Meekins, 326 N.C. 689, 695-96, 392 S.E.2d 346, 349 (1990) (\u201cAny evidence offered to shed light upon the crime charged should be admitted by the trial court.\u201d). The statements therefore were properly admitted.\nThe trial court properly allowed the testimony of Scott Fairly and Anna Hurd complained of by the defendant. This assignment of error is without merit.\nBy his next assignment of error, the defendant insists that the trial court erred in denying his request for a special instruction on accomplice testimony. Without objection from the defendant, the trial court instructed the jury on accomplice testimony in accord with the appropriate pattern jury instruction on this issue. See N.C.PJ. \u2014 Crim. 104.25 (1986). At the conclusion of its charge to the jury, the trial court stated that it would \u201cconsider any requests or corrections to the charge or any other additional matters which anyone deems necessary for the court to submit a proper and accurate charge to the jury.\u201d The defendant requested the following special instruction on accomplice testimony:\nThe promise [to give truthful testimony] in the cooperation agreement between [Shannon] McKenzie and the State adds little to the truth-telling obligation imposed by the oath. The prosecutor often has no way of knowing whether the witness is telling the truth or not. The books are not filled with perjury indictments of government witnesses who have gone beyond the facts and an acquittal would not mean that as a matter of course the government would seek such an indictment or even fail to make its promised recommendation of leniency.\nThe trial court denied the defendant\u2019s request, reasoning that the pattern jury instruction already given was adequate and appropriate. We agree with the trial court.\nThe defendant seems to have taken the requested instruction at issue nearly verbatim from a concurring opinion in United States v. Arroyo-Angulo, 580 F.2d 1137, 1150 (2d Cir.), cert. denied, 439 U.S. 913, 58 L. Ed. 2d 260 (1978) (Friendly, J., concurring). In his concurring opinion in that case, Judge Friendly was concerned with an Assistant United States Attorney\u2019s repeated references during closing argument to a witness\u2019 plea arrangement with the government. The majority had found no error in the prosecutor\u2019s remarks. While Judge Friendly agreed that the. defendant was not entitled to a new trial, he expressed his concern with the prosecutor\u2019s repeated references to the witness\u2019 motivation for testifying truthfully. Judge Friendly deemed these remarks to be \u201cprosecutorial overkill\u201d and explained that had the defendant objected to the remarks, the trial court should have sustained the objection. Id. Judge Friendly felt that \u201cif matters had gone too far to make a striking of the remarks an effective cure,\u201d the trial court should have instructed the jury in accord with the instruction requested by the defendant Morston in the present case. Id.\nWe see no need for such an instruction in the present case. The trial court instructed the jury on accomplice testimony as follows:\nThere is evidence which tends to show that the witness, Shannon McKenzie, was an accomplice in the commission of the crime as charged in this case. An accomplice is a person who joins with another in the commission of a crime. The accomplice may actually take part in acts necessary to accomplish the crime or he may knowingly help and encourage another in the crime either before or during its commission. An accomplice is considered by the law to have an interest in the outcome of the case. You should examine every part of the testimony of this witness with the greatest care and caution. If after doing so you believe his testimony in whole or in part, you should treat what you believe the same as any other believable evidence.\nAs previously noted, this instruction is identical in all material respects to the appropriate pattern jury instruction on accomplice testimony. See N.C.P.I. \u2014Crim. 104.25 (1986). Further, it was more than adequate to address the concerns associated with the credibility of accomplice testimony generally and the testimony of Shannon McKenzie in particular. No additional instruction on the issue was necessary. Cf. State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991) (\u201cThe 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). The trial court thus did not err in refusing to give the defendant\u2019s requested special instruction. We overrule this assignment of error.\nBy another assignment of error, the defendant argues that he is entitled to a new trial on the charge of first-degree murder because the trial court erred in denying his request to submit a possible verdict of second-degree murder for consideration by the jury. We do not agree.\nFirst-degree murder \u201cis the unlawful killing of another human being with malice and with premeditation and deliberation.\u201d State v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991); see also N.C.G.S. \u00a7 14-17 (1993). A killing is \u201cpremeditated\u201d if \u201cthe defendant formed the specific intent to kill the victim some period of time, however short, before the actual killing.\u201d Bonney, 329 N.C. at 77, 405 S.E.2d at 154. A killing is \u201cdeliberate\u201d if the defendant acted \u201cin a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.\u201d Id. Premeditation and deliberation \u201cgenerally must be established by circumstantial evidence, because they ordinarily are not susceptible to proof by direct evidence.\u201d Id.\nWhere a defendant is charged with premeditated and deliberate first-degree murder, an instruction on the lesser-included offense of second-degree murder need be given \u201conly if the evidence, reasonably construed, tended to show lack of premeditation and deliberation or would permit a jury to rationally find defendant guilty of the lesser offense and acquit him of the greater.\u201d State v. Strickland, 307 N.C. 274, 287, 298 S.E.2d 646, 654 (1983), modified on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986); see also Hopper v. Evans, 456 U.S. 605, 611, 72 L. Ed. 2d 367, 373 (1982). As we have previously explained:\nThe determinative factor is what the State\u2019s evidence tends to prove. If the evidence is sufficient to fully satisfy the State\u2019s burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant\u2019s denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.\nStrickland, 307 N.C. at 293, 298 S.E.2d at 658; see also State v. Eason, 328 N.C. 409, 430, 402 S.E.2d 809, 820 (1991).\nThe defendant insists that positive evidence was introduced in the present case directly tending to negate the elements of premeditation and deliberation. The defendant argues that the evidence tended to show, inter alia, that Bernice McDougald was the clear leader of the group which carried out the murder of Detective Harris, that the defendant had remained silent for the most part and that the defendant had \u201cmade few conscious decisions\u201d on the night of the murder.\nOther evidence tended to show, however, that the defendant willingly conspired to murder Detective Harris and carried this conspiracy through to its completion. Although the defendant did not speak when instructed by McDougald to \u201cshoot the s\u2014 out of [Detective Harris],\u201d the defendant manifested his assent by his subsequent voluntary participation. The defendant also provided verbal confirmation of his intentions by stating that he was going to do what he had to do and that if he saw fear in the eyes of anyone, he would kill them. Once the group arrived at the Harris residence, the defendant, pursuant to the plan formulated at the Holiday Town Apartments, waited for Detective Harris to answer his door and then fired on Detective Harris at least four times. The defendant then fled and attempted to conceal his participation in the killing by washing himself and relinquishing his weapon to McDougald. On at least two occasions following the murder, the defendant boasted of his role as the perpetrator.\nWe conclude that this evidence was \u201csufficient to fully satisfy the State\u2019s burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation.\u201d Strickland, 307 N.C. at 293, 298 S.E.2d at 658. Even if it is assumed, as the defendant contends, that substantial evidence tended to show that Bernice McDougald was the \u201cleader\u201d of the group which carried out the murder of Detective Harris, and that the defendant \u201cremained silent for the most part\u201d and \u201cmade few conscious decisions\u201d on the night of the murder, such evidence was insufficient to support a conviction for second-degree murder. The evidence that the defendant was the person who actually killed Detective Harris and that he did so by driving to the Harris home and inflicting multiple gunshot wounds on Detective Harris after more than ample time and opportunity to consider and reject killing the victim was essentially uncontroverted. This evidence would only have justified submitting possible verdicts of guilty of first-degree murder or not guilty. Id.\nThe defendant also argues in support of this assignment that positive evidence at trial tending to show that he did not have the capacity to premeditate and deliberate required submission of a possible verdict of guilty of second-degree murder to the jury in this case. Specifically, various witnesses testified that the defendant had consumed \u201ca considerable amount\u201d of gin less than one hour before Detective Harris\u2019 murder, that the defendant had mixed crack cocaine and a pain reliever with his gin, that the defendant\u2019s eyes were \u201cbig and red\u201d and that the defendant \u201clooked like he was high.\u201d Although some evidence exists tending to show that the defendant had consumed alcohol and possibly illicit drugs on the night of the murder, it was insufficient to support an instruction by the trial court on voluntary intoxication raising an issue for the jury as to whether the defendant was so intoxicated by voluntary consumption of alcohol that he did not form a deliberate and premeditated intent to kill. State v. Mash, 323 N.C. 339, 347-49, 372 S.E.2d 532, 537-38 (1988); cf. State v. Baldwin, 330 N.C. 446, 463, 412 S.E.2d 31, 41 (1992) (evidence that the defendant had consumed \u201cabout five or six\u201d beers and an \u201cindeterminate amount\u201d of illicit drugs at some time prior to the murder was insufficient to show that he was so intoxicated as to be incapable of forming the intent necessary to commit premeditated and deliberate murder); State v. Strickland, 321 N.C. 31, 41-42, 361 S.E.2d 882, 888 (1987) (evidence that the defendant \u201chad had two drinks\u201d earlier on the evening of the murder was insufficient to show that he was so intoxicated at the time of the crime that he was incapable of forming the intent necessary to commit first-degree murder).\nFor the foregoing reasons, we conclude that none of the evidence pointed to by the defendant, nor any inference which could fairly be drawn therefrom, tended to show a homicide of a lower grade than first-degree murder. Thus, the evidence in the case at bar would not permit a jury to rationally find the defendant guilty of second-degree murder. Strickland, 307 N.C. at 287, 298 S.E.2d at 654. Accordingly, the trial court did not err in refusing to submit such a possible verdict to the jury. This assignment of error is without merit.\nThe defendant contends by his next assignment of error that he is entitled to a new trial because of several allegedly improper remarks made by the prosecutors during their closing arguments to the jury. We do not agree.\nTrial counsel are allowed wide latitude in jury arguments. State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487 (1992). Counsel are permitted to argue the facts based on evidence which has been presented as well as reasonable inferences to be drawn therefrom. State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986). Control of closing arguments is in the discretion of the trial court. State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898, 911, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987).\nAdditionally, as this Court has previously pointed out, \u201cfor an inappropriate prosecutorial comment to justify a new trial, it \u2018must be sufficiently grave that it is prejudicial error.\u2019 \u201d Soyars, 332 N.C. at 60, 418 S.E.2d at 487-88 (quoting State v. Britt, 291 N.C. 528, 537, 231 S.E.2d 644, 651 (1977)). In order to reach the level of \u201cprejudicial error\u201d in this regard, it now is well established that the prosecutor\u2019s comments must have \u201cso infected the trial with unfairness as to make the resulting conviction a denial of due process.\u201d Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 157, reh\u2019g denied, 478 U.S. 1036, 92 L. Ed. 2d 774 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431 (1974)).\nState v. Green, 336 N.C. 142, 186, 443 S.E.2d 14, --- (1994). In the present case, the defendant contends that several portions of the arguments of the prosecutors denied him due process and thereby amounted to prejudicial error. We address each of the defendant\u2019s contentions in support of this assignment individually.\nDuring closing arguments, one prosecutor stated:\nDon\u2019t get confused about non-issues. [Defense counsel] has talked about certain witnesses that the State didn\u2019t call. He has talked about that. That is not the evidence members of the jury. That\u2019s not evidence of what witnesses the State has or has not called. I am not suggesting to you that the defendant has any burden in this case but you can turn that issue around. If there was some Wendell McLaurin out there, if there was a Wendell McLaurin in the phone book, if there was a Wendell McLaurin in the City Directory in Southern Pines or Aberdeen or Moore County, don\u2019t you think that would have been brought to your attention by the defendant?\nThe defendant objected and moved for a mistrial. The trial court denied the defendant\u2019s motion for a mistrial but sustained his objection. The trial court then instructed the jury: \u201cYou will not consider the last part of the argument. The defendant has no pertinent duty of any kind to prove anything. Remember that; that\u2019s been told to you in the past.\u201d\nThe prosecutor then argued at considerable length concerning the evidence and testimony of witnesses introduced at trial. During the review of such evidence and witnesses, the prosecutor stated at one point, \u201cWhere is Wendell McLaurin, if such a person ever existed?\u201d Counsel for the defendant moved to strike that statement. The trial court had the jury removed to the jury room. Counsel for the defendant then acknowledged that the statement of the prosecutor was \u201cperhaps not objectionable in and of itself,\u201d but contended that in light of the previous argument of the prosecutor, it tended to shift the burden of producing evidence to the defendant. The trial court then stated: \u201cWe should refrain from any way implying that the defendant has any duty to bring Mr. McLaurin here. Both of you obviously have a right to talk about Mr. McLaurin. I think the way this last argument went it is not objectionable and I overrule the objection.\u201d\nIt is well established that a prosecutor may comment on a defendant\u2019s failure to produce witnesses or exculpatory evidence to contradict or refute evidence presented by the State. State v. Mason, 315 N.C. 724, 732, 340 S.E.2d 430, 436 (1986). Here, at worst', the prosecutor merely commented on the defendant\u2019s failure to produce a witness to refute the State\u2019s case. Such statements do not constitute impermissible comments. Id. Additionally, the prosecutor\u2019s statements were by way of reply to a comment by counsel for the defendant concerning the absence of the alleged witness in question. This argument is without merit.\nThe defendant next argues in support of this assignment that the prosecutor made an improper argument to the jury concerning the impact and effect of the crimes committed by the defendant on the victim\u2019s wife and son and the community. Specifically, the defendant contends that prejudicial error was committed when the prosecutor was permitted to argue as follows:\nLadies and gentlemen, Judy Harris and Anthony Harris are as much victims in this case as Ed Harris. You could see that and you could feel that in their testimony. You saw the stress that they were under, the pressure that they were under, the effort to maintain their composure and to keep from crying. They were fighting back tears.... What happened at Ed Harris\u2019 house . . . was a great tragedy. Not only for Ed Harris. Not only for Judy and Anthony Harris. Not only for the Southern Pines Police Department but also for this community. If a person can\u2019t be safe in his own home, if his family can\u2019t be safe in their house, what have we come to? ... The bullets that tore through Ed Harris\u2019 body ... shattered the lives of several people. It killed Ed Harris. Judy Harris and Anthony Harris, their lives will never ever be the same again. ... It was a bad dream that Anthony Harris and Judy Harris will never wake up from.\nViewed in context, we do not believe that the arguments complained of here were improper. See, e.g., State v. Rogers, 323 N.C. 658, 661-64, 374 S.E.2d 852, 855-56 (1989); State v. Cummings, 323 N.C. 181, 190-93, 372 S.E.2d 541, 548-49 (1988), vacated and remanded on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 602 (1990). Certainly they did not descend to the level of a denial of due process. This argument is without merit.\nThe defendant next argues in support of this assignment that the prosecutor misrepresented the evidence by stating that Shannon McKenzie, who had pled guilty to one count of second-degree murder and one count of conspiracy to commit murder, was facing a \u201clife plus\u201d sentence or a sentence of \u201clife imprisonment plus 30 years.\u201d We conclude that this argument was fully supported by the evidence and was not improper. Therefore, the trial court did not err in denying the defendant\u2019s objection when the argument was made.\nFinally, the defendant argues in support of this assignment of error that the trial court erred by permitting the prosecutor to argue as follows:\nYou all have an obligation and a duty in this case based upon all the evidence that you have heard ... to find the defendant guilty. The law enforcement officers have done their jobs. They have investigated this case. Scott Fairly, Shannon McKenzie, Patrice Hurd, Anna McLean [Hurd] have given testimony. They have done what they were required to do pursuant to a subpoena to come to court. Members of the jury ... we can have all the law we want on the books. It is against the law to commit murder. . . . When it gets right down to it, members of the jury, the buck stops with you. We can have those laws on the books. We can have witnesses to come in to testify. We can have investigators to investigate but until you are willing to convict people who have been proven guilty beyond a reasonable doubt, the law is nothing but words on paper.\nThe defendant contends that this was an improper argument by the prosecutor to the effect that the jurors were accountable to the police, the witnesses, the community and society in general. He argues that this caused the jury to base its verdict on its perceived accountability to those groups rather than on the evidence presented at trial. We do not agree with this reading of the prosecutor\u2019s argument. Instead, we perceive the argument as a proper argument contending that the jurors had an obligation to convict based upon the evidence which had been introduced at trial and which had been discovered due to the proper performance of law enforcement officers and witnesses. This argument is without merit.\nFor the foregoing reasons, we have rejected the defendant\u2019s arguments in support of this assignment. This assignment of error is without merit and is overruled.\nBy another assignment of error, the defendant maintains that he is entitled to a new trial with regard to his conviction for assault with a deadly weapon because the trial court\u2019s instructions on the doctrine of transferred intent were unconstitutional. Specifically, the defendant contends that the trial court\u2019s instructions established a conclusive presumption that relieved the State of its burden of proof. The defendant acknowledges, however, that we have previously rejected this contention. See State v. McHone, 334 N.C. 627, 644, 435 S.E.2d 296, 306 (1993), cert. denied, --- U.S. ---, --- L. Ed. 2d --- (1994); State v. Locklear, 331 N.C. 239, 244-46, 415 S.E.2d 726, 729-30 (1992). Having considered the defendant\u2019s argument with regard to this issue, we find no compelling reason to depart from our prior holdings which the defendant correctly recognizes as dispositive. This assignment of error is without merit.\nBy his next assignment of error, the defendant argues that he is entitled to resentencing on his conviction for conspiracy to commit murder because the trial court improperly employed the same evidence to prove more than one aggravating factor under the Fair Sentencing Act. Among the factors the trial court found in aggravation of the defendant\u2019s conspiracy conviction were that \u201c[t]he offense was committed to disrupt the lawful exercise of a governmental function or the enforcement of laws\u201d and that \u201c[t]he offense was committed to hinder the lawful exercise of a governmental function or the enforcement of laws.\u201d See N.C.G.S. \u00a7 15A-1340.4(a)(l)(d) (1988 & Supp. 1993). The defendant argues that the trial court erroneously relied upon the same evidence in finding both of these aggravating factors. We agree.\nUnder the Fair Sentencing Act, \u201cthe same item of evidence may not be used to prove more than one factor in aggravation.\u201d N.C.G.S. \u00a7 15A-1340.4(a)(l). We have recognized and applied this principle on a number of occasions. See, e.g., State v. Kyle, 333 N.C. 687, 705, 430 S.E.2d 412, 422 (1993); State v. Erlewine, 328 N.C. 626, 638, 403 S.E.2d 280, 287 (1991); State v. Davis, 325 N.C. 607, 633, 386 S.E.2d 418, 432 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990); State v. Brown, 312 N.C. 237, 250, 321 S.E.2d 856, 863-64 (1984).\nIn the present case, the trial court used the same item of evidence \u2014 that the defendant had conspired with Bernice McDougald and others to murder a law enforcement officer who was interfering with their drug trade \u2014as the basis for finding both aggravating factors. This is contrary to the statutory mandate and therefore constitutes error.\nThe State contends, however, that the trial court in fact did not find both of these aggravating factors. The State notes that while the sentencing form indicates that the trial court found both factors, the transcript contains the following statement of the trial court to the contrary:\nIn case No. 91-CRS-1442 wherein the jury has unanimously returned a verdict of guilty of conspiracy to commit murder . . . [t]he court will find as aggravating factors, aggravating factor [No.] 4b, that the offense was committed to hinder the lawful exercise of a governmental function or the enforcement of the law, No. 5, [that] the offense was committed against a present or former law enforcement officer and No. 15, that the defendant had prior convictions for criminal offenses punishable by more than 60 days confinement.\n(Emphasis added). Based on this portion of the transcript, the State insists that the trial court did not find the aggravating factor that the offense was committed to disrupt the lawful exercise of a governmental function or the enforcement of laws. The State therefore argues that the indication on the sentencing form that this aggravating factor had been found by the trial court was merely a clerical error.\nWhile the State may indeed be correct, we believe that the better course is to err on the side of caution and resolve in the defendant\u2019s favor the discrepancy between the trial court\u2019s statement in open court, as revealed by the transcript, and the sentencing form. Cf. State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987) (\u201cWhere the trial judge has submitted the case to the jury on alternative theories, one of which is determined to be erroneous and the other properly submitted, and we cannot discern from the record the theory upon which the jury relied, . . . we resolve the ambiguity in favor of the defendant.\u201d); State v. Lawing, 12 N.C. App. 21, 23, 182 S.E.2d 10, 11-12 (1971) (where the trial court stated in open court that the defendant would be sentenced to six years imprisonment, but the signed judgment indicated a sentence of eight years imprisonment, the court of appeals remanded for imposition of the six-year sentence). We therefore conclude that the trial court improperly found two factors in aggravation on the basis of the same item of evidence. Thus, while the verdict returned against the defendant for conspiracy to commit murder shall remain undisturbed, the sentence for this offense must be vacated and this case is remanded to the Superior Court, Hoke County, for resentencing in accordance with the provisions of Articles 81 and 81A of Chapter 15A of the North Carolina General Statutes. See State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983) (\u201cin every case in which it is found that the judge erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing\u201d).\nBy his final assignment of error, the defendant argues that he is entitled to resentencing on his convictions for assault with a deadly weapon with intent to kill inflicting serious injury and for discharging a firearm into occupied property because the trial court improperly aggravated these offenses under the Fair Sentencing Act with evidence the State had previously used to prove an element of each of these offenses. See N.C.G.S. \u00a7 15A-1340.4(a)(l). The State concedes that the defendant is entitled to resentencing on these two convictions for this reason. Therefore, while the verdicts returned against the defendant for assault with a deadly weapon with intent to kill inflicting serious injury and for discharging a firearm into occupied property shall remain undisturbed, the sentence for each of these offenses is vacated and these cases are remanded to the Superior Court, Hoke County, for resentencing in accordance with the provisions of Articles 81 and 81A of Chapter 15A of the North Carolina General Statutes. See Ahearn, 307 N.C. at 602, 300 S.E.2d at 701.\nIn summary, we hold that the defendant\u2019s conviction of first-degree murder and the sentence of life imprisonment entered thereon were without error. As to each of the other charges against the defendant, we find no error in the guilt-determination phase and leave the verdicts finding the defendant guilty of those crimes undisturbed. However, for reasons previously stated in this opinion, the sentences entered upon those convictions must be vacated and this case remanded to the Superior Court, Hoke County, to the end that the defendant be resentenced for each of those crimes.\nNO. 91CRS1442, COUNT #1, FIRST-DEGREE MURDER: NO ERROR.\nNO. 91CRS1442, COUNT #2, CONSPIRACY TO COMMIT MURDER: GUILT PHASE, NO ERROR; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 81 AND 81A OF CHAPTER 15A OF THE NORTH CAROLINA GENERAL STATUTES.\nNO. 91CRS3253, COUNT #1, ASSAULT WITH A DEADLY WEAPON WITH INTENT TO KILL INFLICTING SERIOUS INJURY: GUILT PHASE, NO ERROR; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 81 AND 81A OF CHAPTER 15A OF THE NORTH CAROLINA GENERAL STATUTES.\nNO. 91CRS3253, COUNT #2, DISCHARGING A FIREARM INTO OCCUPIED PROPERTY: GUILT PHASE, NO ERROR; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 81 AND 81A OF CHAPTER 15A OF THE NORTH CAROLINA GENERAL STATUTES.", "type": "majority", "author": "MITCHELL, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Valerie B. Spalding, Assistant Attorney General, for the State.", "Malcolm R. Hunter, Jr., Appellate Defender, by Daniel R. Pollitt, Assistant Appellate Defender, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KERRY LEMAR MORSTON\nNo. 353A92\n(Filed 17 June 1994)\n1. Constitutional Law \u00a7 183 (NCI4th>\u2014 conspiracy to commit first-degree murder and first-degree murder \u2014conviction and punishment for both\nDefendant was properly convicted of, and punished for, both conspiracy to commit first-degree murder and first-degree murder. The crime of conspiracy is a separate offense from the accomplishment or attempt to accomplish the intended result.\nAm Jur 2d, Criminal Law \u00a7\u00a7 279 et seq.\n2. Assault and Battery \u00a7 23 (NCI4th)\u2014 assault with a deadly weapon with intent to kill inflicting serious injury \u2014victim a bystander at murder \u2014transferred intent\nDefendant was properly convicted of, and punished for, assault with a deadly weapon with intent to kill inflicting serious injury where the assault victim was struck by bullets in her living room when her husband was shot and killed when he answered the door to their home. The evidence tended to show that defendant possessed the intent to shoot and kill Detective Harris; under the doctrine of transferred intent, this intent suffices as the intent element for the felony of assault upon Mrs. Harris with a deadly weapon with intent to kill inflicting serious injury. There is no authority for the proposition that an assault conviction arising out of the same circumstances surrounding the murder and based on the doctrine of transferred intent \u201cshould not lie\u201d where the defendant is punished separately for murder.\nAm Jur 2d, Assault and Battery \u00a7\u00a7 56-58.\nIntent to do physical harm as essential element of crime of assault with deadly or dangerous weapon. 92 ALR2d 635.\n3. Assault and Battery \u00a7 81 (NCI4th)\u2014 discharging a firearm into occupied property \u2014murder at the front door \u2014intent to fire into occupied dwelling \u2014 separate offense\nThe trial court did not err by failing to dismiss a charge of discharging a firearm into occupied property or arrest judgment where defendant fired at a detective as the detective answered his door and bullets also struck the detective\u2019s wife inside the house. The evidence tended to show that Bernice McDougald instructed Shannon McKenzie that McKenzie was to knock on the front door of Detective Harris\u2019 home; defendant was to shoot Harris immediately when Harris came to the door; and McDougald, McKenzie, the defendant and five others then drove to the Harris residence and executed their plan. Moreover, although defendant contends that there is no rationale to support the discharging a firearm conviction because the purpose underlying the offense, which the defendant believes to be \u201cto protect unknown and unseen occupants of a dwelling from being hit by a bullet,\u201d was satisfied by his assault conviction, discharging a firearm into occupied property and assault with a deadly weapon with intent to kill inflicting serious injury are separate and distinct offenses which serve distinct purposes.\nAm Jur 2d, Assault and Battery \u00a7\u00a7 48 et seq.\n4. Criminal Law \u00a7 426 (NCI4th)\u2014 first-degree murder \u2014prosecutor\u2019s comment \u2014defendant\u2019s postLarrest silence \u2014not improper\nThe trial court did not err in a first-degree murder prosecution by denying defendant\u2019s motion for a mistrial, which had been based on a reference by the prosecutor to defendant\u2019s exercise of his right to remain silent following his arrest. Neither the prosecutor\u2019s questions nor the witness\u2019s responses ever expressly referred to the defendant\u2019s exercise of his right to remain silent during custodial interrogation; instead, the witness twice clarified that he had not actually interviewed the defendant.\nAm Jur 2d, Trial \u00a7\u00a7 237-243.\nViolation of federal constitutional rule (Griffin v. California) prohibiting adverse comment by prosecutor or court upon accused\u2019s failure to testify, as constituting reversible or harmless error. 24 ALR3d 1093.\n5. Evidence and Witnesses \u00a7 2642 (NCI4th)\u2014 attorney-client privilege \u2014partially waived \u2014cross-examination of attorney\nAny error was not prejudicial where defendant was charged with the first-degree murder of a detective; an attorney who had initially represented another participant in the conspiracy and murder testified as to a conversation he had had with his client; the State introduced that testimony to corroborate the testimony of the client, who had been allowed to plead guilty to second-degree murder in return for his testimony; and the attorney indicated on cross-examination that he had authority from his client to testify only as to what the client had told him about the murder and invoked attorney-client privilege as to whether the benefits of a deal with the State had been discussed. The client had already testified that he had been permitted to plead guilty to second-degree murder and conspiracy in exchange for his testimony, had read the terms of his plea arrangement to the jury, and had testified that his agreement had kept him from the death penalty and that he hoped his testimony would help him when he was sentenced.\nAm Jur 2d, Witnesses \u00a7 228.\n6. Evidence and Witnesses \u00a7 2284 (NCI4th)\u2014 murder \u2014 pathologist\u2019s testimony \u2014pain and suffering of victim\nThe trial court did not err during the guilt phase of a first-degree murder prosecution by overruling defendant\u2019s objections to testimony from the medical examiner about the pain the victim would have experienced. The evidence tended to show the severity and nature of the wounds and assisted the jury in determining whether the defendant acted after premeditation and deliberation.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 264 et seq.\n7. Evidence and Witnesses \u00a7 870 (NCI4th)\u2014 first-degree murder and conspiracy \u2014statements of other participants \u2014 not hearsay \u2014explanation of subsequent conduct\nThe trial court did not err in a prosecution for first-degree murder and conspiracy by admitting testimony concerning statements made in defendant\u2019s presence from a witness who was present but did not participate and from a woman who gave the participants a ride afterwards. The statements were offered not to prove the truth of any matter asserted therein, but to explain the subsequent conduct of the defendant and his accomplices and the context in which the murder occurred.\nAm Jur 2d, Evidence \u00a7\u00a7 497 et seq.\n8. Criminal Law \u00a7 831 (NCI4th)\u2014 first-degree murder \u2014accomplice te stimony \u2014 special instruction\nThe trial court did not err in a first-degree murder and conspiracy prosecution by denying defendant\u2019s request for a special instruction on accomplice testimony where the court instructed on accomplice testimony in accord with the appropriate pattern jury instruction. The instruction was more than adequate to address the concerns associated with the credibility of accomplice testimony generally and this testimony in particular.\nAm Jur 2d, Trial \u00a7 1225.\nPropriety of specific jury instructions as to credibility of accomplices. 4 ALR3d 351.\n9. Homicide \u00a7 552 (NCI4th)\u2014 first-degree murder \u2014instruction on second-degree murder \u2014not submitted\nThe trial court did not err in a prosecution for first-degree murder by denying defendant\u2019s request to submit second-degree murder to the jury where the evidence tended to show that defendant willingly conspired to murder a detective and the evidence that defendant was the person who actually killed the detective and that he did so by driving to the detective\u2019s home and inflicting multiple gunshot wounds after more than ample time and opportunity to consider and reject killing the victim was essentially uncontroverted. This evidence would only have justified submitting possible verdicts of guilty of first-degree murder or not guilty.\nAm Jur 2d, Homicide \u00a7 526.\n10.Homicide \u00a7 521 (NCI4th)\u2014 first-degree murder \u2014premeditation and deliberation \u2014intoxication \u2014evidence not sufficient\nThe trial court did not err in a first-degree murder and conspiracy prosecution by not submitting second-degree murder to the jury where, although some evidence exists tending to show that the defendant had consumed alcohol and possibly illicit drugs on the night of the murder, it was insufficient to support an instruction by the trial court on voluntary intoxication raising an issue for the jury as to whether the defendant was so intoxicated by voluntary consumption of alcohol that he did not form a deliberate and premeditated intent to kill.\nAm Jur 2d, Homicide \u00a7\u00a7 482 et seq.\nModern status of the rules as to voluntary intoxication as defense to criminal charge. 8 ALR3d 1236.\nEffect of voluntary drug intoxication upon criminal responsibility. 73 ALR3d 98.\n11. Criminal Law \u00a7 425 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014defendant\u2019s failure to call particular witness \u2014no error\nThere was no error in a prosecution for first-degree murder and conspiracy where defendant contended that a reference in the prosecutor\u2019s closing argument to a witness not called tended to shift the burden of producing evidence to the defendant, but the prosecutor at worst merely commented on the defendant\u2019s failure to produce a witness to refute the State\u2019s case. Additionally, the prosecutor\u2019s statements were by way of reply to a comment by counsel for defendant concerning the absence of the alleged witness in question.\nAm Jur 2d, Trial \u00a7\u00a7 245-249.\nComment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused\u2019s failure to testify. 14 ALR3d 723.\n12. Criminal Law \u00a7 447 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014comment on impact on victim\u2019s family \u2014 no error\nThere was no error in a prosecution for first-degree murder and conspiracy in the prosecutor\u2019s argument to the jury concerning the impact of the crimes on the victim\u2019s family and the community.\nAm Jur 2d, Trial \u00a7\u00a7 296 et seq.\n13. Criminal Law \u00a7 440 (NCI4th)\u2014 first-degree murder \u2014 State\u2019s witness \u2014prosecutor\u2019s comment on witness\u2019s sentence \u2014 no error\nThere was no error in a first-degree murder prosecution where the prosecutor stated to the jury in his closing argument that' a state\u2019s witness who was an accomplice and who had pled guilty and testified was facing a \u201clife plus\u201d sentence or a sentence of \u201clife plus 30 years.\u201d This argument was fully supported by the evidence and was not improper.\nAm Jur 2d, Trial \u00a7\u00a7 305, 306.\n14. Criminal Law \u00a7 442 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 duty of jury\nThere was no error in a prosecution for first-degree murder and conspiracy where defendant contended that the prosecutor argued to the effect that the jurors were accountable to the police, the witnesses, the community, and society in general, but the argument instead contended that the jurors had an obligation to convict based upon the evidence which had been introduced at trial and which had been discovered due to the proper performance of law enforcement officers and witnesses.\nAm Jur 2d, Trial \u00a7\u00a7 225 et seq.\nPrejudicial effect of prosecuting attorney\u2019s argument to jury that people of city, county, or community want or expect a conviction. 85 ALR2d 1132.\n15. Assault and Battery \u00a7 14 (NCI4th)\u2014 assault with a deadly weapon with intent to kill inflicting serious injury-instructions \u2014 transferred intent\nDefendant was not entitled to a new trial with regard to his conviction for assault with a deadly weapon with intent to kill inflicting serious injury based on the trial court\u2019s instructions on the doctrine of transferred intent.\nAm Jur 2d, Assault and Battery \u00a7\u00a7 48 et seq.\nIntent to do physical harm as essential element of crime of assault with deadly or dangerous weapon. 92 ALR2d 635.\n16. Criminal Law \u00a7 1100 (NCI4th) \u2014 conspiracy to commit murder \u2014 aggravating factors \u2014same evidence supporting both factors\nThe trial court erred when sentencing defendant for conspiracy to commit murder by finding in aggravation that \u201c[t]he offense was committed to disrupt the lawful exercise of a governmental function or the enforcement of laws\u201d and that \u201c[t]he offense was committed to hinder the lawful exercise of a governmental function or the enforcement of laws\u201d based on the same item of evidence, that defendant had conspired to murder a law enforcement officer who was interfering with the drug trade. A discrepancy between the trial court\u2019s statement in open court and the sentencing form was resolved in defendant\u2019s favor.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n17. Criminal Law \u00a7 1098 (NCI4th)\u2014 assault and discharging a weapon into occupied property \u2014 elements of offense \u2014 aggravating factors \u2014same evidence\nThe trial court erred when sentencing defendant for assault with a deadly weapon with intent to kill inflicting serious injury and discharging a firearm into occupied property by improperly aggravating these offenses with evidence the State had previously used to prove an element of the offenses. N.C.G.S. \u00a7 15A-1340.4(a)(l).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nAppeal of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment entered by Ellis, J., on 28 May 1992, in the Superior Court, Hoke County, sentencing the defendant to life imprisonment for first-degree murder. The defendant\u2019s motion to bypass the Court of Appeals as to additional judgments was allowed by the Supreme Court on 19 May 1993. Heard in the Supreme Court on 2 February 1994.\nMichael F. Easley, Attorney General, by Valerie B. Spalding, Assistant Attorney General, for the State.\nMalcolm R. Hunter, Jr., Appellate Defender, by Daniel R. Pollitt, Assistant Appellate Defender, for the defendant-appellant." }, "file_name": "0381-01", "first_page_order": 421, "last_page_order": 452 }