{ "id": 2518053, "name": "STATE OF NORTH CAROLINA v. ELTON GUY BELL", "name_abbreviation": "State v. Bell", "decision_date": "1994-12-09", "docket_number": "No. 421A92", "first_page": "363", "last_page": "394", "citations": [ { "type": "official", "cite": "338 N.C. 363" } ], "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": "96 ALR2d 1435", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "opinion_index": -1 }, { "cite": "36 ALR Fed 564", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "weight": 3, "opinion_index": -1 }, { "cite": "39 ALR Fed 570", "category": "reporters:federal", "reporter": "A.L.R. 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Garner, 330 N.C. 273, 288-89, 410 S.E.2d 861, 870 (1991)" } ], "opinion_index": 0 }, { "cite": "334 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532283 ], "year": 1993, "pin_cites": [ { "page": "410", "parenthetical": "quoting State v. Garner, 330 N.C. 273, 288-89, 410 S.E.2d 861, 870 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0402-01" ] }, { "cite": "341 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "336 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "705" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. 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Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4836, 5158, 4882, 5207, 5176 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1023-04", "/us/494/1023-03", "/us/494/1023-05", "/us/494/1023-02", "/us/494/1023-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "499-500", "parenthetical": "\"[I]t is not improper to remind the jury, as the prosecutor did here, that its voice is the conscience of the community.\"" } ], "opinion_index": 0 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "year": 1989, "pin_cites": [ { "page": "330", "parenthetical": "\"[I]t is not improper to remind the jury, as the prosecutor did here, that its voice is the conscience of the community.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "116 L. Ed. 2d 648", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "116 L. Ed. 2d 174", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "402 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543341 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0550-01" ] }, { "cite": "108 L. Ed. 2d 603", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1022", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5540, 5547, 5516, 5166, 5366, 4823, 5560 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1022-04", "/us/494/1022-06", "/us/494/1022-03", "/us/494/1022-05", "/us/494/1022-01", "/us/494/1022-02", "/us/494/1022-07" ] }, { "cite": "381 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "622" } ], "opinion_index": 0 }, { "cite": "325 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492504 ], "year": 1989, "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0081-01" ] }, { "cite": "291 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573188 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0747-01" ] }, { "cite": "364 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569559 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0570-01" ] }, { "cite": "90 L. Ed. 2d 733", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "476 U.S. 1165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12444, 12982, 12847 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/1165-02", "/us/476/1165-03", "/us/476/1165-01" ] }, { "cite": "337 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "823" } ], "opinion_index": 0 }, { "cite": "315 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716135 ], "year": 1985, "pin_cites": [ { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0040-01" ] }, { "cite": "279 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "838" } ], "opinion_index": 0 }, { "cite": "303 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574086 ], "year": 1981, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0500-01" ] }, { "cite": "347 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "399" } ], "opinion_index": 0 }, { "cite": "318 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737959 ], "year": 1986, "pin_cites": [ { "page": "107-08" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0102-01" ] }, { "cite": "95 Ariz. 4", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 569763 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "8" }, { "page": "1021" } ], "opinion_index": 0, "case_paths": [ "/ariz/95/0004-01" ] }, { "cite": "417 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "331 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500204 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0695-01" ] }, { "cite": "801 P.2d 193", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1990, "opinion_index": 0 }, { "cite": "115 Wash. 2d 609", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1379124 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/wash-2d/115/0609-01" ] }, { "cite": "66 L. Ed. 2d 238", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "449 U.S. 976", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11806341, 11806093, 11806288, 11806229, 11806135, 11806175 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/449/0976-06", "/us/449/0976-01", "/us/449/0976-05", "/us/449/0976-04", "/us/449/0976-02", "/us/449/0976-03" ] }, { "cite": "597 S.W.2d 358", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9935944 ], "opinion_index": 0, "case_paths": [ "/sw2d/597/0358-01" ] }, { "cite": "209 Tenn. 499", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8529214 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/tenn/209/0499-01" ] }, { "cite": "431 N.Y.S.2d 925", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "927" } ], "opinion_index": 0 }, { "cite": "105 Misc. 2d 176", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1946300 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/misc2d/105/0176-01" ] }, { "cite": "542 So. 2d 237", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7545363 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/so2d/542/0237-01" ] }, { "cite": "112 L. Ed. 2d 678", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1991, "opinion_index": 0 }, { "cite": "456 N.W.2d 251", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10595913 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nw2d/456/0251-01" ] }, { "cite": "226 Kan. 704", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1469340 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/kan/226/0704-01" ] }, { "cite": "441 N.E.2d 352", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 901", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5451395 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0901-01" ] }, { "cite": "256 Ga. 655", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1210229 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ga/256/0655-01" ] }, { "cite": "226 Cal. Rptr. 216", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1986, "opinion_index": 0 }, { "cite": "181 Cal. App. 3d 163", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2193045 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/cal-app-3d/181/0163-01" ] }, { "cite": "135 Ariz. 248", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 737538 ], "weight": 4, "year": 1983, "pin_cites": [ { "page": "254" }, { "page": "855" } ], "opinion_index": 0, "case_paths": [ "/ariz/135/0248-01" ] }, { "cite": "342 So. 2d 1348", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9695391 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/so2d/342/1348-01" ] }, { "cite": "463 P.2d 897", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10572860 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "909" }, { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/p2d/463/0897-01" ] }, { "cite": "52 L. Ed. 2d 390", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1977, "opinion_index": 0 }, { "cite": "549 F.2d 799", "category": "reporters:federal", "reporter": "F.2d", "year": 1976, "opinion_index": 0 }, { "cite": "423 F. Supp. 611", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3899523 ], "pin_cites": [ { "page": "613-14" } ], "opinion_index": 0, "case_paths": [ "/f-supp/423/0611-01" ] }, { "cite": "338 A.2d 72", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1975, "opinion_index": 0 }, { "cite": "26 Md. App. 336", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 2311710 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/md-app/26/0336-01" ] }, { "cite": "286 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 } ], "analysis": { "cardinality": 2216, "char_count": 74355, "ocr_confidence": 0.74, "pagerank": { "raw": 3.596415075515371e-07, "percentile": 0.8874978811505999 }, "sha256": "35f4dc1cac5ae8b4c0e245c1486e3ac3b69eb420c74bbc6e1285e427e671697b", "simhash": "1:a76fde2a36371f7a", "word_count": 12177 }, "last_updated": "2023-07-14T21:54:51.848235+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ELTON GUY BELL" ], "opinions": [ { "text": "PARKER, Justice.\nDefendant, upon proper bills of indictment, was tried capitally and convicted of first-degree murder based on premeditation and deliberation and the felony-murder rule. Defendant was also convicted of felony conspiracy to commit robbery with a deadly weapon and attempted robbery with a firearm. Upon the jury\u2019s recommendation following a capital sentencing proceeding pursuant to N.C.G.S. \u00a7 15A-2000, the trial judge sentenced defendant to life imprisonment for the murder conviction and to consecutive sentences of forty years\u2019 imprisonment for the attempted armed-robbery conviction and ten years\u2019 imprisonment for the conspiracy conviction. For the reasons discussed below, we conclude that defendant\u2019s trial was free from prejudicial error.\nThe State presented evidence at trial tending to show that the victim, Donald Ray Tucker (\u201cOfficer Tucker\u201d), a Clinton police officer, was working undercover as part of a drug investigation being conducted in Carteret County by the sheriff\u2019s department. To establish his new identity, Officer Tucker grew a beard, wore granny glasses, adopted the name \u201cSand Man,\u201d and professed to being a big time out-of-state drug dealer. As part of his cover, Officer Tucker became associated with Mark Balch (\u201cBalch\u201d), a local resident with a long history of drug offenses who had served time in prison for breaking and entering and larceny. Balch was paid a fee for turning in and assisting with the arrest of individuals involved with drugs. Balch had assisted Officer Tucker in making over seventy-five drug buys resulting in twenty-five successful arrests.\nPursuant to this arrangement, Balch began contacting David Bell (\u201cDavid\u201d), defendant\u2019s fifteen-year-old son whom Balch had seen on occasion with hashish in his possession. During the various communications, David offered to sell Balch some hashish. When Balch called to confirm the deal, David said he was having trouble getting the \u201cstuff.\u201d Balch and Officer Tucker went to the Bell residence to complete the transaction but were confronted by defendant. Initially, Balch told defendant he was there only to take David skateboarding but later admitted he hoped to purchase some hashish from David. Defendant informed them the \u201chash was gone\u201d but said his older son was on a fishing boat and would return with \u201csome good hash\u201d at the end of the week. However, when Balch called back, defendant still had no hashish. On this occasion, Balch offered to sell defendant some marijuana.\nThe parties met on 12 November 1991 at George\u2019s Party Pak to discuss the marijuana sale. Defendant asked Balch and Officer Tucker to follow him out to Salty Shores, a small campground near the marina. Defendant sampled the marijuana and then agreed to pay $5,400 for five pounds. They made plans to meet again on 14 November 1991 to complete the transaction.\nAt noon on the fourteenth, Balch telephoned defendant and was told to meet him \u201cacross the Broad Creek Loop down at the sound.\u201d Balch and Officer Tucker, riding in a white Mustang with tinted windows, arrived approximately five minutes prior to defendant. Defendant and his brother-in-law, Joey Lewis (\u201cLewis\u201d), drove up in a green pickup truck. Balch said, \u201cThere\u2019s too many people out here, I don\u2019t like it here, let\u2019s get out of here.\u201d Defendant looked at Balch and said okay. Balch and Officer Tucker then followed defendant and Lewis to Bluewater Banks. Once the vehicles were parked, all four men moved to the rear of the Mustang. Officer Tucker placed the same duffel bag he had used at the earlier meeting on the trunk of the automobile and asked defendant if he had the money. Defendant answered, \u201cWe\u2019ve got the f-money, where\u2019s the pot?\u201d After Officer Tucker opened the bag, Lewis rolled a joint for defendant to test the marijuana.\nAs. defendant smoked the joint and commented on the quality of the seeds and stems, Lewis, standing six feet six inches tall and weighing approximately 350 pounds, suddenly backhanded Officer Tucker, knocking him to the ground. According to Balch\u2019s testimony, defendant was silhouetted against the white Mustang as he stood over the officer with a gun pointed at him. The fully extended hammer on the weapon was easily visible and the gun was pointed directly at Officer Tucker. Officer Tucker, attempting to rise from the ground, started to reach for his weapon and yelled, \u201cStop or I\u2019ll shoot.\u201d Defendant replied, \u201cYou won\u2019t shoot anybody\u201d and shot Officer Tucker through the heart.\nFollowing the shooting, Balch ran to a nearby house and called the authorities. Lewis escaped into the Croatan National Forest before turning himself in to the local authorities on the following Saturday. Defendant left the scene of the crime without taking the marijuana or any of Officer Tucker\u2019s personal belongings. He returned to the scene within an hour and was identified by Balch as the shooter. Defendant was subsequently arrested.\nLewis testified for the State that on the day of the shooting, he went over to defendant\u2019s home. Defendant asked if he was \u201c[r]eady to go to work and make some money.\u201d Lewis learned that defendant\u2019s plan was to lure Balch and Officer Tucker to the scallop house at the end of the shore road and pretend that the two men were attempting to \u201crip us off by selling us a bunch of bad marijuana.\u201d Lewis was then to hit one of the men while defendant hit the other so they could steal the marijuana. Lewis agreed to participate and at the arranged time, drove defendant to the shore in his truck. On the way, defendant removed a pistol from his waistband, ejected the magazine, ejected a round from the chamber, chambered a round, replaced the magazine, released the hammer, and concealed the weapon in his waistband. When Lewis and defendant arrived at Salty Shores, defendant asked Balch and Officer Tucker to follow them to Bluewater Banks. Defendant then told Lewis that they should also steal \u201ctheir watches, their rings, and their wallets.\u201d Once they arrived at Blue water Banks, all four men stood around the white Mustang. While Lewis examined the marijuana, defendant told him to roll a joint. As defendant lit the joint, Lewis backhanded Officer Tucker, knocking him to the ground. He turned and noticed Balch running away from the scene. When he turned back around, Officer Tucker was holding a pistol, aimed directly at him, and saying, \u201cYou son of a b-, I will kill you, I\u2019ll kill you.\u201d Lewis testified that Officer Tucker had turned his gun towards defendant when defendant shot him.\nDr. Charles Garrett, the Carteret County medical examiner, testified that Officer Tucker was shot through the heart with a .45 caliber handgun from a distance of approximately three feet. Dr. Garrett opined that Officer Tucker was beneath the shooter when the gun was fired since the bullet entered his body seventeen inches from the top of his head and came to rest in a position some twenty-seven inches from the top of his head.\nOn his own behalf, defendant testified that Balch and Officer Tucker were trying to solicit his emotionally disturbed fifteen-year-old son to use and sell drugs. Defendant contends he confronted Balch on numerous occasions telling him to \u201cstay the hell away from my son.\u201d Defendant first met with Balch at George\u2019s Party Pak \u201c[t]o lay [a] cowboy whipping on his a \u2014 \u201d for attempting to get his son in trouble. Even though he was armed with his .45 caliber handgun, he decided not to fight Balch when he saw that \u201cSand Man\u201d was with him. Defendant then went along with the alleged drug sale in hopes of getting Balch alone at a future meeting. Defendant testified he asked Lewis to accompany him to the meeting on the day of the shooting solely to keep \u201cSand Man\u201d from interfering while he fought with Balch.\nDefendant further testified that while the four men examined the marijuana, he took two puffs of a joint and then tried unsuccessfully to hit Balch. Balch ran away and defendant could not follow him because of his bad back. When he turned back around, Officer Tucker was aiming a gun directly at Lewis and saying, \u201cI am going to kill your d\u2014 a-.\u201d Defendant removed his gun from his waistband and responded, \u201cI got a gun, too. Don\u2019t you shoot him. Please put that gun down. Put the gun down. For God\u2019s sake, put that gun down.\u201d Officer Tucker responded, \u201cI am going to blow your f-head off first\u201d and aimed the gun at defendant. At this point, defendant testified he had time to cock his gun; say, \u201cOh, Lord heaven, help me.... Oh, God, help me\u201d; and shoot Officer Tucker without Officer Tucker squeezing off a single round.\nWhen defendant arrived home, he asked his wife to call the rescue squad and the police. He cleaned up, changed clothes, took a Valium, and drove back to the shore, apparently to commit suicide. While in the attic of an old scallop house, defendant changed his mind and threw the pistol away among the debris in the old building. Defendant then returned to the scene of the shooting where he learned from Balch that the man he had shot was a police officer. Defendant turned himself in and was arrested.\nDavid testified that Balch approached him on numerous occasions about selling marijuana and cocaine for him. He claims he refused on each occasion and after a while, even refused to accept his telephone calls. On the occasion that Balch went to the Bell residence looking for David, defendant confronted Balch on David\u2019s behalf. Martha Lewis Bell (\u201cMartha\u201d), defendant\u2019s wife, testified that Balch called her home looking for David approximately three dozen times during September of 1991. She recalled that her husband became quite upset upon learning that Balch was soliciting David to deal drugs and decided to punish him himself. Defendant went to the meeting on 14 November 1991 intending to \u201cbreak him from sucking eggs.\u201d When he returned from the meeting, defendant told her he had shot a man and asked her to call the authorities. He added, \u201cI have got to go back, Martha, I have shot a man. I have got to go back and face what I have done.\u201d About forty-five minutes later, her brother, Lewis, called and said, \u201cGuy shot that man .... If Guy hadn\u2019t shot him, I would be dead.\u201d\nAdditional facts, when necessary, will be set forth with respect to the various issues.\nIn his first assignment of error, defendant contends the trial court erred in failing to exclude ex mero mo tu certain remarks by the prosecutor concerning the victim\u2019s family during voir dire and closing arguments. We have carefully reviewed the text of the challenged remarks and find no abuse of the trial court\u2019s discretion in failing to intervene absent any objection.\nVoir Dire. During selection of the jury, the prosecutor asked the victim\u2019s father, brother, stepmother, and grandmother to stand up and then asked the prospective jurors if any of them had \u201cever seen these folks before today.\u201d Later, upon calling another prospective juror, the prosecutor requested only the victim\u2019s father to stand and merely pointed out the rest of the victim\u2019s family. On one other occasion, the prosecutor asked a prospective juror if she recognized any of Officer Tucker\u2019s family sitting in the courtroom. Defendant did not object to any of these questions. We have held that \u201c[t]he mere identification of family members present in the courtroom at the opening of the proceedings [does] not constitute the use of highly prejudicial and irrelevant evidence as prohibited by Booth,\u201d State v. Laws, 325 N.C. 81, 103, 381 S.E.2d 609, 622 (1989), death sentence vacated, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990), on remand, 328 N.C. 550, 402 S.E.2d 573, cert. denied, \u25a0\u2014 U.S.-, 116 L. Ed. 2d 174, reh\u2019g denied, \u25a0\u2014 U.S. -, 116 L. Ed. 2d 648 (1991). In the present case the identification of the family to determine whether prospective jurors knew them did not require ex mero mo tu intervention by the trial court.\nDefendant also contends the prosecutor asked one prospective juror if he could give defendant, the victim\u2019s family, and the State a fair trial. Our review of the transcript reveals that the question was posed on at least three occasions. On two of these, no objection was raised. On the third occasion, defendant did object to the question and was overruled. We find no impropriety in asking the jury to judge the facts in a manner fair to all parties. See State v. Artis, 325 N.C. 278, 330, 384 S.E.2d 470, 499-500 (1989) (\u201c[I]t is not improper to remind the jury, as the prosecutor did here, that its voice is the conscience of the community.\u201d), death sentence vacated, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990), on remand, 329 N.C. 679, 406 S.E.2d 827 (1991). The trial court properly overruled defendant\u2019s sole objection to this question and declined to intervene ex mero mo tu on the other two occasions.\nClosing Argument. Defendant also contends the remarks of the prosecutor during his closing argument were irrelevant and designed solely to inflame the passions of the jury. The district attorney argued:\nMr. McFadyen: . . . Every time you celebrate Christmas you think about a family out there that is going to sit back\u2014\nMr. Nobles: Objection.\nMr. McFadyen: \u2014sit by a Christmas tree\u2014\nThe Court: Sustained.\nMr. McFadyen: And they are going to think about that man right there.\nThe Court: Sustained.\nMr. McFadyen: Sir, I would\u2014\nThe Court: I would not \u2014 well\u2014\nMr. McFadyen: I would like certainly to be heard, Judge.\nThe Court: Well, I think your forecast is \u2014 come up.\nMr. McFadyen: I would like to be heard at the bench.\n[Discussion at bench with all counsel and the defendant present.]\nMr. McFadyen: Folks, my comments to you finally will be briefly, you know, I don\u2019t know why it is we are not supposed to think and talk about this man, because he is the victim. But I hope that you folks will think about this man (pointing to picture), Donald Ray Tucker, 22-year-old, and think about what effect the acts of the defendant had and what he did to this man and his family on the 14th day of November of last year.\nThe Court: Sustained as to the effect on the family, but you may speak with respect to the decedent.\nThe trial court sustained the objection or intervened ex mero motu each time the prosecutor mentioned any effect of the killing upon the victim\u2019s family. Defendant did not request special instructions following the court\u2019s rulings and has not shown any gross improprieties which the trial court failed to correct.\nDefendant now argues, however, that the district attorney\u2019s conduct amounted to prejudicial error since the evidence of defendant\u2019s guilt was not overwhelming and since defendant interposed scattered objections to the challenged statements. While we do not condone the prosecutor\u2019s continued comments following the court\u2019s ruling on defendant\u2019s objection, we conclude that the record provides substantial evidence supporting defendant\u2019s conviction for first-degree murder. \u201cIn the absence of a showing of prejudice, prosecutorial misconduct in the form of improper jury argument does not require reversal.\u201d State v. Boyd, 311 N.C. 408, 418, 319 S.E.2d 189, 197 (1984), cert. denied, 471 U.S. 1030, 85 L. Ed. 2d 324 (1985). This assignment of error is overruled.\nDefendant next assigns error to the trial court\u2019s failure to grant defendant\u2019s motion for change of venue. In support of his motion, defendant submitted several newspaper articles and a videotape of the television coverage which allegedly contain hearsay and an allegation by the sheriff that the victim had been murdered. Defendant argues that this adverse publicity and the fact that the victim was a police officer produced a situation where it was impossible for him to receive a fair trial in Carteret County. In denying the motion, the trial court noted that the news items appeared to be \u201cessentially recitals of alleged facts, some of which are in dispute, some of which are not in dispute.\u201d\nIn reviewing the trial court\u2019s decision, we look to several well-established principles.\nThe test for determining whether venue should be.changed is whether \u201cit is reasonably likely that prospective jurors would base their decision in the case upon pre-trial information rather than the evidence presented at trial and would be unable to remove from their minds any preconceived impressions they might have formed.\u201d [State v. Jerrett, 309 N.C. 239, 255, 307 S.E.2d 339, 347 (1983).] The burden of proving the existence of a reasonable likelihood that he cannot receive a fair trial because of prejudice against him in the county in which he is to be tried rests upon the defendant. State v. Madric, 328 N.C. 223, 226, 400 S.E.2d 31, 33 (1991). \u201cIn deciding whether a defendant has met his burden of showing prejudice, it is relevant to consider that the chosen jurors stated that they could ignore their prior knowledge or earlier formed opinions and decide the case solely on the evidence presented at trial.\u201d Jerrett, 309 N.C. at 255, 307 S.E.2d at 348. The determination of whether a defendant has carried his burden of showing that pre-trial publicity precluded him from receiving a fair trial rests within the trial court\u2019s sound discretion. Madric, 328 N.C. at 226, 400 S.E.2d at 33. The trial court has discretion, however, only in exercising its sound judgment as to the weight and credibility of the information before it, including evidence of such publicity and jurors\u2019 averments that they were ignorant of it or could be objective in spite of it. When the trial court concludes, based upon its sound assessment of the information before it, that the defendant has made a sufficient showing of prejudice, it must grant defendant\u2019s motion as a matter of law. See State v. Abbott, 320 N.C. 475, 478, 358 S.E.2d 365, 368 (1987).\nState v. Yelverton, 334 N.C. 532, 539-40, 434 S.E.2d 183, 187 (1993).\nAfter reviewing the newspaper articles and the videotape submitted by the defendant, we are satisfied that defendant has failed to meet his burden of proving that the pretrial publicity tainted his chances of receiving a fair and impartial trial. The articles which appeared in local and state newspapers from 15 November 1991 through 20 November 1991, and the short news segments on the videotape are primarily factual accounts of the murder of Officer Tucker, the arrest of defendant, and the two-day search in the Croatan National Forest for Lewis. \u201cThis Court has consistently held that factual news accounts regarding the commission of a crime and the pretrial proceedings do not of themselves warrant a change of venue.\u201d State v. Gardner, 311 N.C. 489, 498, 319 S.E.2d 591, 598 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 369 (1985).\nWe have repeatedly held that \u201c[t]he best and most reliable evidence as to whether existing community prejudice will prevent a fair trial can be drawn from prospective jurors\u2019 responses to questions during the jury selection process.\u201d State v. Madric, 328 N.C. 223, 228, 400 S.E.2d 31, 34 (1991). While a number of the prospective jurors questioned in this case indicated they had read or heard of the crime, each juror who actually served on the jury stated unequivocally that he or she had formed no opinion about the case, could be fair and impartial, and would decide the issues based solely upon the evidence presented at trial. Therefore, we conclude that the trial court did not err in denying defendant\u2019s motion for a change of venue.\nDefendant further argues that the trial court erred by failing to allow defendant to individually question each prospective juror during voir dire with respect to pretrial publicity. Defendant contends the collective voir dire served only to educate any prospective juror who remained unaware of the adverse publicity surrounding defendant. However, defendant has made no such showing and this argument amounts to mere speculation. See State v. Johnson, 298 N.C. 355, 362, 259 S.E.2d 752, 757 (1979). Defendant\u2019s argument is without merit.\nIn his next assignment of error, defendant contends the trial court erred in denying defense counsel\u2019s repeated requests to allow defendant to personally ask each juror, \u201cwould they listen to my case and be fair?\u201d Defendant argues that there is no statutory prohibition against a criminal defendant\u2019s involvement in voir dire and that a juror\u2019s response to a specific question asked directly by the defendant could be beneficial in selecting an impartial jury.\nDefendant\u2019s argument directly contradicts previous holdings of this Court. Relying on Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562 (1975), this Court has determined \u201cthat a defendant in a criminal action has a right to represent himself at the trial and cannot be required to accept the services of court-appointed counsel.\u201d State v. House, 295 N.C. 189, 204, 244 S.E.2d 654, 662 (1978). \u201cIt is, however, equally well settled that \u2018[a] party has the right to appear in propria persona or by counsel, but this right is alternative,\u2019 so that \u2018one has no right to appear both by himself and by counsel.\u2019 \u201d Id. (quoting State v. Phillip, 261 N.C. 263, 268, 134 S.E.2d 386, 391, cert. denied, 377 U.S. 1003, 12 L. Ed. 2d 1052, reh\u2019g denied, 379 U.S. 874, 13 L. Ed. 2d 83 (1964)).\nIn House, defendant requested that, in addition to questioning by his counsel, he personally be permitted to question prospective jurors on voir dire and witnesses at the trial. In upholding the trial court\u2019s decision denying the request, this Court noted that \u201cwhile the defendant elected to retain the services of the court-appointed counsel, the court did not err in holding that the interrogation of prospective jurors and of witnesses must be done through his counsel.\u201d House, 295 N.C. at 204, 244 S.E.2d at 662. Similarly, defendant here was not entitled to ask questions of prospective jurors while represented by counsel. Defendant\u2019s assignment of error is without merit.\nIn his next assignment of error, defendant contends the trial court erred in admitting into evidence, over objection by defendant, a photograph taken of the victim prior to his death. In the photograph, Officer Tucker is wearing his police uniform and standing in front of a patrol car. Defendant contends the photograph was introduced solely to inflame the passions of the jury and to support the State\u2019s argument that defendant killed a law enforcement officer in the performance of his duty. Defendant argues that the photograph may have been relevant had defendant known that the victim was actually a police officer. However, since defendant believed Officer Tucker to be a drug dealer at the time of the killing, the identity of Officer Tucker, his status as a police officer, and any other facts established by the photograph are irrelevant to the issues presented to the jury in this case. We disagree.\n\u201cPhotographs of a homicide victim may be introduced even if they are gory, gruesome, horrible or revolting, so long as they are used for illustrative purposes and so long as their excessive or repetitious use is not aimed solely at arousing the' passions of the jury.\u201d State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988). The single photograph of Officer Tucker is neither gory nor gruesome and it was not used excessively or repetitively during the trial. The introduction of the photograph was not aimed solely at arousing the passions of the jury, but was admitted to establish the victim\u2019s size.\nDuring the direct examination of Detective Boyce Floyd, the following question was posed:\nQ. Does that photograph fairly and accurately depict Donald Tucker as to his size and approximate weight at the time of his death?\nA. Yes, sir.\nFollowing this exchange, the State moved to introduce the photograph of Officer Tucker into evidence. In overruling the defendant\u2019s objection, the court informed the jury that State\u2019s Exhibit #5 was \u201cadmitted for illustrative purposes, members of the jury. You may consider it for that purpose and that purpose only.\u201d\nDefendant\u2019s defense of self-defense necessitated the State\u2019s showing that a much larger man attacked Officer Tucker and knocked him to the ground, following which defendant shot and killed him. Detective Floyd had previously testified that Officer Tucker weighed 190-200 pounds and was approximately five feet ten or eleven inches tall. Under these circumstances, the photograph was properly admitted to illustrate that Officer Tucker actually appeared as described by Detective Floyd. This assignment of error is also without merit.\nDefendant next assigns error to the trial court\u2019s refusal to allow questioning of Balch, the State\u2019s key witness, regarding his prior convictions and several prior acts of misconduct allegedly committed by him.\nA. Prior Convictions. Rule 609 of the North Carolina Rules of Evidence allows, for purposes of impeachment, the cross-examination of witnesses, including defendant, with respect to prior convictions. State v. Finch, 293 N.C. 132, 235 S.E.2d 819 (1977). \u201c[W]here, for purposes of impeachment, the witness has admitted a prior conviction, the time and place of the conviction and the punishment imposed may be inquired into upon cross-examination.\u201d Id. at 141, 235 S.E.2d at 825. \u201c[I]nquiry into prior convictions which exceeds the limitations established in Finch is reversible error.\u201d State v. Rathbone, 78 N.C. App. 58, 64, 336 S.E.2d 702, 705 (1985), cert. denied, 316 N.C. 200, 341 S.E.2d 582 (1986). Expressly overruling a line of cases apparently expanding this line of reasoning, the Court recently returned to the Finch rationale in holding:\nIn the interest of clarity and certainty for the bench and bar, we conclude that we should overrule Harrison and Gibson and adhere to the rule established in Gamer, viz, that the \u201cFinch . . . limitations on inquiries concerning prior convictions are consistent with rule 609(a).\u201d\nState v. Lynch, 334 N.C. 402, 410, 432 S.E.2d 349, 353 (1993) (quoting State v. Garner, 330 N.C. 273, 288-89, 410 S.E.2d 861, 870 (1991)). In light of Lynch, we find that the trial court properly restricted defendant\u2019s questioning of Balch on his prior convictions for breaking and entering and larceny to the time and place of the convictions and the penalties imposed thereon.\nB. Prior Acts of Misconduct. Rule 608(b) of the North Carolina Rules of Evidence governs the admissibility of specific acts of misconduct where (i) the purpose of the inquiry is to show conduct indicative of the actor\u2019s character for truthfulness or untruthfulness; (ii) the conduct in question is in fact probative of truthfulness or untruthfulness; (iii) the conduct in question is not too remote in time; (iv) the conduct did not result in a conviction; and (v) the inquiry takes place during cross-examination. See State v. Morgan, 315 N.C. 626, 634, 340 S.E.2d 84, 89-90 (1986). \u201cAmong the types of conduct most widely accepted as falling into this category are \u2018use of false identity, making false statements on affidavits, applications or government forms (including tax returns), giving false testimony, attempting to corrupt or cheat others, and attempting to deceive or defraud others.\u2019 \u201d Id. at 635, 340 S.E.2d at 90 (quoting 3 D. Louisell & C. Mueller, Federal Evidence \u00a7 305 (1979)).\nDefendant, on cross-examination, proposed to question Balch concerning his involvement in several alleged specific instances of misconduct, i.e., possession with intent to sell marijuana, conspiracy to commit larceny and larceny of a wave runner, conspiracy to commit larceny and larceny of a 1986 Sea Ox boat and trailer, conspiracy to commit larceny and larceny of a 1989 Bayliner boat and trailer, and various conversations with Billy Simmons concerning stealing other property. Defendant has failed to show how these incidents are relevant to the witness\u2019 general veracity. These instances of alleged prior and unrelated acts of larceny and possession of marijuana, without more, are not necessarily probative of Batch\u2019s propensity for truthfulness or untruthfulness under the standard imposed by Rule 608(b). The trial court properly restricted defendant\u2019s questioning of Balch\u2019s alleged prior acts of misconduct.\nDefendant further intended to question Balch concerning an attempt by Balch to lure an acquaintance away from his home so his accomplices could break into the residence and steal the property inside. This line of questioning should have been allowed as bearing on the witness\u2019 propensity to deceive and defraud others. See State v. Clark, 319 N.C. 215, 353 S.E.2d 205 (1987). In Clark, defendant propounded questions to the witness which, had he been allowed to answer, would have indicated that:\nafter Mr. Givens [witness] had left his employment with a fire extinguisher company he went to customers of the company and represented to them that he was there to inspect the fire extinguishers. When left alone he would steal money if any was in the room.\nId. at 218, 353 S.E.2d at 206. The witness deliberately misrepresented himself to his former employer\u2019s customers in an effort to defraud them. Similarly, Balch misrepresented himself to his friend while his accomplices stole or attempted to steal his friend\u2019s belongings. In each case, these misrepresentations speak to the veracity of the witness. As in Clark, the trial court erred in failing to allow defendant to question the witness on this particular alleged specific act of misconduct.\nHowever, the exclusion of this testimony does not constitute prejudicial error. The statutory test for errors not relating to a right under the Constitution of the United States is that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C.G.S. \u00a7 15A-1443(a) (1988). The record establishes that Balch admitted to the jury during either direct or cross-examination that (i) he had previously used and sold marijuana; (ii) he pled guilty to charges of breaking and entering and larceny; (iii) he served time in prison for his convictions; and (iv) he became an informant partially to improve his efforts at plea bargaining. The jury had before it sufficient evidence to evaluate Balch\u2019s credibility, including proof of bias. No reasonable possibility exists that a different result would have been reached had the testimony in question been allowed. Hence, the error is harmless.\nIn his next assignment of error, defendant contends the trial court erred in sustaining the State\u2019s objection to relevant testimony offered by defendant. During direct examination of defendant, defense counsel attempted to establish defendant\u2019s motive in going to the scene of the fatal shooting by having defendant testify concerning statements made to him by his fifteen-year-old son, David, regarding solicitations by Balch. The State entered a hearsay objection. Defendant argued that the testimony was offered only to show his motivation, not to prove the truth of the matter asserted. The trial court sustained the State\u2019s objection and disallowed the testimony.\nLater, upon reconsideration, the court reversed its ruling and allowed defense counsel, during redirect, to question defendant extensively concerning conversations between his son and Balch. Defendant related to the jury details of encounters and conversations David had with Balch during which Balch attempted to buy, sell, or trade cocaine and hashish with him. Although the testimony was ultimately allowed, defendant contends the original erroneous ruling caused him undue prejudice because he lost \u201cthe inherent advantage produced when a witness first speaks to the jury through direct examination by his own counsel.\u201d We disagree.\nExceptions to the exclusion of competent testimony become immaterial when it appears that the trial judge subsequently revised his rulings and admitted the testimony. See Poole v. Gentry, 229 N.C. 266, 49 S.E.2d 464 (1948). This assignment of error is without merit.\nDefendant next contends the trial court erroneously failed to exclude ex mero mo tu certain testimony elicited during cross-examination of defendant\u2019s son, David, and defendant\u2019s wife, Martha. Defendant contended throughout the trial that he went to Bluewater Banks not to buy or steal marijuana from Balch and Officer Tucker but merely to confront Balch concerning Balch\u2019s repeated attempts to lure his son, David, into using drugs. To contradict this assertion, the State needed to show that David was already involved in the drug culture of Carteret County and that defendant was aware of his son\u2019s involvement. The trial court allowed the prosecutor to question David concerning his use of marijuana and Martha concerning her knowledge of her son\u2019s involvement with illegal drugs. Defendant raised no objection during cross-examination of either witness.\nNow, on appeal, defendant, relying on State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986), argues it is well settled in North Carolina that questions regarding a witness\u2019 prior involvement with or use of illegal drugs are not proper grounds for impeachment. In Morgan this Court in discussing N.C.G.S. \u00a7 8C-1, Rule 608(b) stated:\n[E]vidence routinely disapproved as irrelevant to the question of a witness\u2019 general veracity (credibility) includes specific instances of conduct relating to \u201csexual relationships or proclivities, the bearing of illigitimate [sic] children, the use of drugs or alcohol,... or violence against other persons.\"\nMorgan, 315 N.C. at 635, 340 S.E.2d at 90 (quoting 3 D. Louisell & C. Mueller, Federal Evidence \u00a7 305 (1979)). Rule 608(b) generally bars evidence of specific instances of conduct of a witness for the purpose of attacking his credibility. In the case sub judice, the State was not attempting to impeach either David or Martha Bell\u2019s general reputation for veracity. Rather, the State was trying to rebut their testimony on direct examination. Each witness, during direct examination by defense counsel, testified that David was being lured into the drug culture by Balch. On cross-examination, the State was attempting to show that David was already deeply involved in the drug scene and that defendant was aware of this involvement.\nThe import of the two lines of questioning was not to demonstrate the witnesses\u2019 character for truthfulness or untruthfulness but to shed light on defendant\u2019s true intent in meeting Balch and Officer Tucker at Bluewater Banks. The fact that David, with his parents\u2019 knowledge, had been using and selling illegal drugs for years casts doubt on defendant\u2019s contention that his purpose in going to Bluewater Banks was merely to confront Balch for attempting to lure David into drugs. As such, the testimony was relevant and the cross-examination permissible under N.C.G.S. \u00a7 8C-1, Rule 611(b). The trial court did not err in not intervening ex mero mo tu in the cross-examination. This assignment of error is overruled.\nNext, defendant contends the trial court erred in instructing the jury that if it concluded defendant had killed Officer Tucker in the perpetration of a felony, defendant could not avail himself of the defense of self-defense. Defendant argues that the effect of this instruction was devastating since he relied solely on a theory of self-defense. The challenged instruction provided:\nThe Court: I charge you further that the defendant has been accused of first-degree murder in the perpetration of a felony, which is the killing of a human being by a person attempting to commit robbery with a firearm.\nI instruct you that neither the issue of self-defense or death by accident is available to the defendant, and neither are to be considered by you in connection with the accusation of first-degree murder in perpetration of a felony.\nOur legislature has defined capital felony murder as:\nA murder which shall be ... committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, and any person who commits such murder shall be punished with death or imprisonment in the State\u2019s prison for life as the court shall determine pursuant to G.S. 15A-2000 ____\nN.C.G.S. \u00a7 14-17 (1993). Premeditation and deliberation are not elements of the crime of felony murder. State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982). The prosecution need only prove that the killing took place while the accused was perpetrating or attempting to perpetrate one of the enumerated felonies. By not requiring the State to prove the elements of murder, the legislature has, in essence, established a per se rule of accountability for deaths occurring during the commission of felonies.\nBased on this premise, other jurisdictions have held that an aggressor in a violent confrontation forfeits his right to self-defense.\nWhen a defendant is charged under this [felony-murder] statute, the defense of self-defense is unavailable to him as a matter of law because he is an aggressor engaged in the perpetration of a felony. Street v. State, 26 Md. App. 336, 340, 338 A.2d 72 (1975). This Maryland construction of the felony-murder statute comports with the ' general rule on the subject of the nonavailability of self-defense as a defense to felony-murder.\nStreet v. Warden, 423 F. Supp. 611, 613-14 (Md.), aff\u2019d, 549 F.2d 799 (4th Cir. 1976), cert. denied, 431 U.S. 906, 52 L. Ed. 2d 390 (1977). In Gray v. State, 463 P.2d 897, 909 (Alaska 1970), the court stated:\n[A] person who commits an armed robbery forfeits his right to claim as a defense the necessity to protect himself against the use of excessive force by either the intended victim of the robbery or by any person intervening to prevent the crime or to apprehend the criminal, absent a factual showing that at the time the violence occurred, the dangerous situation created by the armed robbery no longer existed.\nSee also Rainer v. State, 342 So. 2d 1348 (Ala. Crim. App. 1977); State v. Celaya, 135 Ariz. 248, 660 P.2d 849 (1983); People v. Loustaunau, 181 Cal. App. 3d 163, 226 Cal. Rptr. 216 (1986); Williams v. State, 256 Ga. 655, 352 S.E.2d 756 (1987); People v. Abrams, 109 Ill. App. 3d 901, 441 N.E.2d 352 (1982); State v. Marks, 226 Kan. 704, 602 P.2d 1344 (1979); Street v. State, 26 Md. App. 336, 338 A.2d 72 (1975); State v. Gray, 456 N.W.2d 251 (Minn. 1990), cert. denied, 498 U.S. 1030, 112 L. Ed. 2d 678 (1991); Layne v. State, 542 So. 2d 237 (Miss. 1989); People v. Guraj, 105 Misc. 2d 176, 431 N.Y.S.2d 925 (1980); Smith v. State, 209 Tenn. 499, 354 S.W.2d 450 (1961); Davis v. State, 597 S.W.2d 358 (Tex. Crim. App.), cert. denied, 449 U.S. 976, 66 L. Ed. 2d 238 (1980); State v. Dennison, 115 Wash. 2d 609, 801 P.2d 193 (1990).\nWe previously reviewed this issue in State v. Maynor, 331 N.C. 695, 417 S.E.2d 453 (1992). There, \u201cwe assume[d] arguendo but [did] not decide that in certain circumstances, some instruction on the doctrine of self-defense as a defense to first-degree murder under the felony murder theory may be proper.\u201d Id. at 699, 417 S.E.2d at 455. In a felony-murder prosecution, a person who is found by the jury to be engaged in an attempted robbery must be considered the initial aggressor; it is immaterial whether the victim of the robbery or the defendant fired first. Guraj, 105 Misc. 2d at 178, 431 N.Y.S.2d at 927. \u201c \u2018[T]he accused cannot set up in his own defense a necessity which he brought upon himself.\u2019 \u201d Celaya, 135 Ariz. at 254, 660 P.2d at 855 (quoting State v. Jones, 95 Ariz. 4, 8, 385 P.2d 1019, 1021 (1963)).\nWe now hold that, absent (i) a reasonable basis upon which the jury may have disbelieved the prosecution\u2019s evidence of the underlying felony, Layne, 542 So. 2d at 244; (ii) a factual showing that defendant clearly articulated his intent to withdraw from the situation; or (iii) a factual showing that at the time of the violence the dangerous situation no longer existed, Gray, 463 P.2d at 909, defendant has forfeited his right to claim self-defense as a defense to felony murder. Here, the evidence tends to show and the jury found that defendant and Lewis went to Bluewater Banks for the purpose of robbing the victim and Balch of marijuana. No evidence was presented to suggest that the dangerous situation had dissipated at the time of the shooting or that defendant made any effort to declare his intent to withdraw. This assignment of error is overruled.\nDefendant next contends the trial court erred in instructing the jury on premeditation and deliberation because the evidence adduced at trial failed to support such a finding. We disagree.\nWhen measuring the sufficiency of the evidence, direct or circumstantial, competent or incompetent, the evidence must be considered in the light most favorable to the State. The State must be given the benefit of every reasonable inference to be drawn from the evidence and any contradictions in the evidence are to be resolved in favor of the State. State v. Sumpter, 318 N.C. 102, 107-08, 347 S.E.2d 396, 399 (1986).\n\u201cPremeditation is defined as thought beforehand for some length of time; deliberation means an intention to kill, executed by defendant in a \u2018cool state of blood\u2019 in furtherance of a fixed design or to accomplish some unlawful purpose.\u201d State v. Jones, 303 N.C. 500, 505, 279 S.E.2d 835, 838 (1981). \u201cPremeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence.\u201d State v. Brown, 315 N.C. 40, 59, 337 S.E.2d 808, 823 (1985), cert. denied, 476 U.S. 1165, 90 L. Ed. 2d 733 (1986), rev\u2019d on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988).\nAmong the circumstances which may be considered as tending to show premeditation and deliberation are: (1) the want of provocation on the part of the victim, (2) the defendant\u2019s conduct and statements before and after the killing, (3) threats made against the victim by the defendant, (4) ill will or previous difficulty between the parties, (5) evidence that the killing was done in a brutal manner. See State v. Calloway, [305 N.C. 747, 291 S.E.2d 622 (1982)]; State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978); State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978). The nature and number of the victim\u2019s wounds is also a circumstance from which an inference of premeditation and deliberation may be drawn, State v. Brown, 306 N.C. 151, 293 S.E.2d 569, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982), as is the number of blows inflicted upon the victim. State v. Love, 296 N.C. 194, 250 S.E.2d 220 (1978); State v. Thomas, supra.\nState v. Myers, 309 N.C. 78, 84, 305 S.E.2d 506, 510 (1983).\nViewed in the light most favorable to the State, the evidence was sufficient to support a conclusion that the murder was premeditated and deliberate. Defendant carried a gun with him during the attempted robbery, indicating he anticipated a violent confrontation and the potential need for deadly force. On the way to the meeting, defendant removed the clip from his semiautomatic pistol, ejected the round from the chamber, replaced the round in the clip, reinserted the clip, and chambered a live round of ammunition, thus readying the weapon for firing. Defendant\u2019s own testimony suggests he harbored ill will towards Balch and \u201cSand Man\u201d (Officer Tucker). Defendant testified he set up the meeting \u201c[t]o lay [a] cowboy whipping on his a \u2014 .\u201d Finally, at the scene of the confrontation, Balch testified that after Lewis backhanded Officer Tucker, knocking him to the ground, defendant stood over him silhouetted against the white Mustang. The fully extended hammer on the weapon was readily apparent. Officer Tucker, attempting to rise from the ground, reached for his weapon and stated, \u201cStop or I\u2019ll shoot.\u201d Defendant replied, \u201cYou won\u2019t shoot anybody\u201d and shot Officer Tucker through the heart. These facts, among others, support a reasonable inference that there was a lack of provocation on the part of Officer Tucker, that defendant was prepared for an armed confrontation, and that the fatal shooting of Officer Tucker was premeditated and deliberate. We conclude that the trial court did not err in instructing the jury on premeditation and deliberation.\nDefendant also complains that the instruction, as given, constituted prejudicial error because the trial court instructed on several circumstances from which premeditation and deliberation may be inferred which were not supported by the evidence. The trial court instructed the jury as follows:\nNeither premeditation or deliberation are usually susceptible of direct proof. They may be proved by circumstances from which they may be inferred, such as the lack of provocation by the victim; the conduct of the defendant before, during and after the killing; threats and declarations of the defendant, or of the decedent; use of grossly excessive force; and whether or not the defendant inflicted a lethal wound upon the victim when the victim was fell [sic]; and brutal or vicious circumstances of the killing; the manner in which or the means by which the killing was done.\nWhile arguing that none of the enumerated circumstances are present in his case, defendant contends that the evidence specifically does not reveal (i) lack of provocation by the victim; (ii) premeditation and deliberation on the part of defendant based upon his conduct before, during, and after the shooting; (iii) any threats made against the victim by defendant; (iv) the use of grossly excessive force by defendant; (v) a killing done in a brutal or vicious manner; or (vi) infliction of lethal wounds upon the victim after he was felled.\nAlthough defendant objected to the trial judge\u2019s charging the jury on premeditation and deliberation in general, he raised no objection to the instruction as actually given. Therefore, the challenged instruction is reviewable only under plain error analysis. Under this standard of review, defendant must demonstrate that, \u201cabsent the alleged error, [the] jury probably would have reached a different verdict.\u201d State v. Robinson, 330 N.C. 1, 22, 409 S.E.2d 288, 300 (1991). The appellate court must be convinced that the instruction actually \u201ctilted the scales\u201d in favor of conviction. Id. Even assuming, arguendo, that there was error in the instruction given, defendant has failed to demonstrate that, absent the challenged portions of the instruction, the jury would probably have reached a different verdict.\nThis case comes down to whether the jury believed defendant\u2019s version of the events occurring on 14 November 1991 or the State\u2019s version of the events. As we have previously noted, based on the State\u2019s evidence, the jury reasonably concluded that defendant killed Officer Tucker with premeditation and deliberation during the commission of an armed robbery. The jury specifically rejected verdicts of second-degree murder and voluntary and involuntary manslaughter. See State v. Faison, 330 N.C. 347, 362-63, 411 S.E.2d 143, 152 (1991). We do not believe the instruction as given \u201ctilted the scales\u201d in favor of conviction. Defendant has not met his burden under the plain error rule. This assignment of error is overruled.\nIn his next assignment of error, defendant contends the trial court erred in failing to give his requested instruction to the jury on self-defense. The proposed instruction provided that \u201c[a]s long as a person keeps his gun in his hand prepared to shoot, the person opposing him is not expected or required to accept any statement indicative of an intent to discontinue the assault.\u201d Defendant argues that the requested instruction would have clearly explained the insignificance, from a legal standpoint, of the fact that Officer Tucker, when he had the opportunity to fire his weapon, did not do so. However, defendant has cited this passage out of context and, as a result, his argument misconstrues the law on self-defense.\nDefendant\u2019s reliance on State v. Winford, 279 N.C. 58, 181 S.E.2d 423 (1971), is misplaced. The paragraph containing defendant\u2019s requested instruction reads as follows:\n\u201c. . . In order that the right of self-defense may be restored to a person who has provoked or commenced a combat, he must attempt in good faith to withdraw from the combat. He must also in some manner make known his intention to his adversary; and if the circumstances are such that he cannot notify his adversary, as where the injuries inflicted by him are such as to deprive his adversary of his capacity to receive impressions concerning his assailant\u2019s design and endeavor to cease further combat, it is the assailant\u2019s fault and he must bear the consequences. As long as a person keeps his gun in his hand prepared to shoot, the person opposing him is not expected or required to accept any act or statement as indicative of an intent to discontinue the assault.\u201d\nId. at 68-69, 181 S.E.2d at 430 (quoting 40 C.J.S. Homicide \u00a7 121, at 995 (1991)). When read in context, the passage clearly shows that in order for the aggressor to regain his right of self-defense, he must actively alert his victim to the fact that he intends to cease further aggression. As long as the aggressor keeps his weapon at the ready, the victim is not expected to accept any act or statement as an intent to cease the assault.\nAs in Winford, the evidence in the record does not support a finding that defendant attempted, at any point, to withdraw from the combat or that he ever indicated to Officer Tucker that he intended to withdraw from the combat. The trial court is required to give the substance of a requested charge only if the proposed charge is a correct statement of the law and is supported by the evidence. State v. Corn, 307 N.C. 79, 296 S.E.2d 261 (1982). The trial court properly declined to give the requested instruction.\nDefendant next contends the trial court erred in the charge on first-degree murder by instructing the jury that (i) defendant\u2019s actions would not be justified as self-defense were the jury to find him to be the aggressor; (ii) if the victim were the aggressor, and defendant responded with excessive force, defendant would at most be justified under the doctrine of imperfect self-defense; (iii) the jury could infer the killing was unlawful and committed with malice; and (iv) the jury must find that defendant formed the intent to kill the victim over some period of time, however short, in order to find the defendant guilty of first-degree murder based upon premeditation and deliberation. Defendant\u2019s proposed instruction omitted each of these references because defendant contended no evidence was presented to support an inference that defendant was the aggressor, used excessive force to protect himself, or formed an intent to kill Officer Tucker.\nDefendant\u2019s argument ignores Balch\u2019s testimony that defendant pulled his weapon on Officer Tucker after Lewis had knocked the officer to the ground and that Officer Tucker never actually drew his gun. Viewed in the light most favorable to the State, this evidence supports instructing the jury that defendant may not claim self-defense if the jury finds defendant was the aggressor in the encounter leading to the fatal shooting. See State v. Johnson, 278 N.C. 252, 258, 179 S.E.2d 429, 432-33 (1971).\nWe also conclude that the instruction, as given, correctly states the law on the use of excessive force in self-defense. Whether defendant in fact used excessive force is a question for the jury to determine based on the evidence. See State v. Benge, 272 N.C. 261, 264, 158 S.E.2d 70, 72 (1967). Here, the testimony of various witnesses differed as to when Officer Tucker and defendant drew their weapons and as to the circumstances leading to the fatal shot. The trial court properly instructed the jury that if it found defendant to have used excessive force in defending himself, he is entitled, at most, to the defense of imperfect self-defense. State v. McAvoy, 331 N.C. 583, 595-96, 417 S.E.2d 489, 497 (1992).\nThe instruction, furthermore, correctly charged the jury that it could infer the killing was committed with malice. State v. Maynard, 311 N.C. 1, 33, 316 S.E.2d 197, 214-15 (\u201c[T]he law implies that a killing was done with malice and unlawfully when the defendant intentionally inflicts a wound upon a victim with a deadly weapon resulting in death.\u201d), cert. denied, 469 U.S. 963, 83 L. Ed. 2d 299 (1984). Relying on the pattern jury instruction, the trial court instructed the jury:\nIf the State proves beyond a reasonable doubt that the defendant intentionally killed the victim with a deadly weapon or intentionally inflicted a wound upon the deceased with a deadly weapon that proximately caused the victim\u2019s death, you may first infer that the killing was unlawful; and second, that it was done with malice. But you are not compelled to do so. You may consider this along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice. And in this regard I instruct you that a firearm, a .45 caliber pistol, is a deadly weapon, as a matter of law.\nFinally, the instruction properly charged the jury that, to convict defendant of first-degree murder based on premeditation and deliberation, it would have to find that defendant formed the intent to kill the victim over some period of time, however short. We have repeatedly held that premeditation means that the act was thought out beforehand for some length of time. No particular amount of time is necessary for the mental process of premeditation. State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980). This assignment of error is without merit.\nIn his next assignment of error, defendant contends the trial court erred in failing to give his requested instruction that the conspiracy charge could not be used as the underlying felony for a conviction of first-degree murder based upon felony murder. Our review of the instruction reveals that the trial court properly instructed the jury it could consider only the attempted armed-robbery charge as the underlying felony. This assignment of error is overruled.\nDefendant next contends the trial court erred in failing to set aside for lack of evidence the verdicts of guilty of attempted armed robbery, conspiracy to commit armed robbery, and first-degree murder. Defendant grounds his argument on the lack of any evidence tending to show that defendant and Lewis planned to use the gun, that the gun was used to threaten Officer Tucker, or that the gun was used during an attempted robbery. However, this argument ignores other relevant testimony presented at trial.\nLewis testified that defendant told Lewis of defendant\u2019s plan to rob Officer Tucker and Balch of the marijuana. In preparation, defendant armed himself with his pistol and chambered the weapon as the two men drove to Bluewater Banks for the confrontation. Any contradictions or discrepancies in the evidence are for the jury to resolve. State v. Smith, 291 N.C. 505, 513, 231 S.E.2d 663, 669 (1977). While there is no evidence of an express agreement to use the weapon, the conduct of the two men supports an implied understanding between them to use a gun in the commission of the crime. Furthermore, at the scene, Lewis did as he had been instructed when he knocked Officer Tucker down. Hence, the first step in the attempted armed-robbery plan occurred. That things did not go exactly as planned such that the conspirators did not actually take the drugs does not negate the attempted armed robbery. On the record before us, the evidence is sufficient to support a finding by the jury that defendant was guilty of conspiracy to commit armed robbery and attempted armed robbery. The trial court did not abuse its discretion and properly denied defendant\u2019s motion to set aside these verdicts. Furthermore, as discussed more fully earlier in this opinion, the evidence amply supports the submission of first-degree murder based both on premeditation and deliberation and felony murder. The trial court properly denied defendant\u2019s motion to set aside the verdicts.\nFinally, defendant contends the trial court erred by imposing a separate sentence on the attempted armed-robbery charge in addition to the sentence for first-degree murder on the basis that the attempted armed robbery merged into the felony-murder conviction. As we have previously held, where defendant is convicted of first-degree murder based upon both premeditation and deliberation and felony murder, the underlying felony does not merge with the murder conviction and the trial court is free to impose a sentence thereon. State v. Goodman, 298 N.C. 1, 15, 257 S.E.2d 569, 579 (1979). This assignment of error is, thus, overruled.\nWe have carefully considered the entire record and find that defendant received a fair trial free from prejudicial error.\nNO ERROR.\n. Booth v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440 (1987), holding victim impact evidence inadmissible, was overruled by Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720 (1991), which held that a State may choose to permit admission of victim impact evidence without violating the Eighth Amendment per se. Id. at 827, 115 L. Ed. 2d at 736.", "type": "majority", "author": "PARKER, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by David Roy Blackwell, Special Deputy Attorney General, for the State.", "Stephen M. Valentine for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ELTON GUY BELL\nNo. 421A92\n(Filed 9 December 1994)\n1. Criminal Law \u00a7 411 (NCI4th) \u2014 jury selection \u2014 identification of victim\u2019s family\nThe prosecutor\u2019s identification of members of the victim\u2019s family during jury selection in a capital trial to determine whether prospective jurors knew them did not require ex mero motu intervention by the trial court.\nAm Jur 2d, Trial \u00a7\u00a7 490 et seq.\nSupreme Court\u2019s views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L. Ed. 2d 886.\n2. Jury \u00a7 132 (NCI4th)\u2014 jury selection \u2014 ability to give defendant, victim\u2019s family, State a fair trial\nIt was not improper for the prosecutor to ask prospective jurors in a capital trial whether they could give defendant, the victim\u2019s family, and the State a fair trial.\nAm Jur 2d, Jury \u00a7\u00a7 201, 202.\n3. Criminal Law \u00a7 447 (NCI4th)\u2014 closing argument \u2014 effect of killing upon victim\u2019s family \u2014 absence of prejudice\nDefendant was not prejudiced by the prosecutor\u2019s comments during closing argument about the effect of the killing of the victim upon the victim\u2019s family where the trial court sustained defendant\u2019s objection or intervened ex mero motu each time the prosecutor mentioned any effect of the killing upon the victim\u2019s family, and where there was substantial evidence supporting defendant\u2019s conviction for first-degree murder.\nAm Jur 2d, Trial \u00a7\u00a7 664 et seq.\nPropriety and prejudicial effect of prosecutor\u2019s remarks as to victim\u2019s age, family circumstances, or the like. 50 ALR3d 8.\n4. Criminal Law \u00a7 78 (NCI4th)\u2014 pretrial publicity \u2014 change of venue denied\nThe trial court did not err in denying defendant\u2019s motion for a change of venue of his first-degree murder trial based on pretrial publicity where (1) newspaper articles and a videotape of news coverage submitted by defendant in support of his motion were primarily factual accounts of the murder, the arrest of defendant, and a two-day search in a national forest for the codefendant, and (2) although a number of prospective jurors indicated that they had read or heard of the crime, each juror who actually served on the jury stated unequivocally that he or she had formed no opinion about the case, could be fair and impartial, and would decide the issues based solely upon the evidence presented at trial.\nAm Jur 2d, Criminal Law \u00a7 378.\nPretrial publicity in criminal case as ground for change of v\u00e9hue. 33 ALR3d 17.\n5. Jury \u00a7 111 (NCI4th)\u2014 capital trial \u2014 pretrial publicity\u2014 denial of individual voir dire\nThe trial court did not err by failing to allow defendant to individually question each prospective juror during voir dire in a capital trial with respect to pretrial publicity.\nAm Jur 2d, Jury \u00a7 197.\n6. Constitutional Law \u00a7 283 (NCI4th)\u2014 defendant represented by counsel \u2014 no right to personally question jurors\nA criminal defendant represented by counsel was not entitled to personally ask each prospective juror whether the juror would \u201clisten to [his] case and be fair,\u201d since a defendant has no right to appear both by himself and by counsel.\nAm Jur 2d, Criminal Law \u00a7 767.\nRight of defendant in criminal case to conduct defense in person, or to participate with counsel. 77 ALR2d 1233.\nAccused\u2019s right to represent himself in state criminal proceeding \u2014 modern state cases. 98 ALR3d 13.\n7. Evidence and Witnesses \u00a7 1688 (NCI4th)\u2014 murder of undercover officer \u2014 photograph of officer in uniform\u2014 admission for illustrative purposes\nIn a prosecution for the first-degree murder of an undercover officer involved in a drug investigation, a photograph of the victim wearing his police uniform and standing in front of a patrol car was not introduced merely to inflame the passions of the jury but was properly admitted to illustrate a detective\u2019s testimony concerning the size and weight of the victim where defendant\u2019s defense of self-defense necessitated a showing by the State that a much larger man attacked the victim and knocked him down and defendant then shot and killed him.\nAm Jur 2d, Evidence \u00a7\u00a7 971 et seq.\nAdmissibility of visual recording of event or matter other than that giving rise to litigation of prosecution. 41 ALR4th 877.\n8. Evidence and Witnesses \u00a7 3015 (NCI4th)\u2014 prior convictions \u2014 scope of cross-examination\nThe trial court properly restricted defendant\u2019s cross-examination of the State\u2019s key witness about his prior convictions for breaking and entering and larceny to the time and place of the convictions and the penalties imposed thereon. N.C.G.S. \u00a7 8C-1, Rule 609.\nAm Jur 2d, Witnesses \u00a7\u00a7 581 et seq.\nPropriety, on impeaching credibility of witness in criminal case by showing former conviction, of questions relating to nature and extent of punishment. 67 ALR3d 775.\nConstruction and application of Rule 609(a) of the Federal Rules of Evidence permitting impeachment of witness by evidence of prior conviction of crime. 39 ALR Fed 570.\n9. Evidence and Witnesses \u00a7\u00a7 3039, 3054 (NCI4th)\u2014 witness\u2019s prior acts of misconduct \u2014 larceny\u2014possession of marijuana \u2014 cross-examination not allowed\nThe trial court did not err by refusing to permit defendant to question a State\u2019s witness in a murder-robbery trial about several prior unrelated acts of misconduct involving larceny and possession of marijuana since these acts of misconduct are not necessarily probative of the witness\u2019s propensity for truthfulness or untruthfulness, and defendant failed to show that these incidents are relevant to the witness\u2019s general veracity. N.C.G.S. \u00a7 8C-1, Rule 608(b).\nAm Jur 2d, Witnesses \u00a7\u00a7 591-595.\nConstruction and application of Rule 608(b) of Federal Rules of Evidence dealing with use of specific instances of conduct to attack or support credibility. 36 ALR Fed 564.\n10. Evidence and Witnesses \u00a7 3032 (NCI4th)\u2014 fraud and deceit by witness \u2014 cross-examination disallowed \u2014 harmless error\nWhile the trial court should have permitted defendant to cross-examine a State\u2019s witness in a murder-robbery trial concerning an attempt by the witness to lure an acquaintance from his home so his accomplices could break into and steal property from the residence in order to show the propensity of the witness to deceive and defraud others because such misrepresentations speak to the veracity of the witness, the exclusion of this testimony was not prejudicial error where the witness admitted during either direct or cross-examination that he had (1) used and sold marijuana, (2) pled guilty to breaking and entering and larceny charges, (3) served time in prison, and (4) became an informant partially to improve his efforts at plea bargaining; the jury had before it sufficient evidence, including proof of bias, to evaluate the witness\u2019s credibility; and no reasonable possibility exists that a different result would have been reached had the testimony been allowed.\nAm Jur 2d, Witnesses \u00a7\u00a7 591-595.\nConstruction and application of Rule 608(b) of Federal Rules of Evidence dealing with use of specific instances of conduct to attack or support credibility. 36 ALR Fed 564.\n11. Evidence and Witnesses \u00a7 664 (NCI4th)\u2014 exclusion of testimony \u2014 subsequent revision of ruling\nExceptions to the exclusion of competent testimony showing defendant\u2019s motivation for going to the scene of a fatal shooting became immaterial when the trial judge subsequently revised his ruling and admitted the testimony.\nAm Jur 2d, Trial \u00a7\u00a7 395 et seq.\n12. Evidence and Witnesses \u00a7\u00a7 2877, 3052 (NCI4th)\u2014 drug use by defendant\u2019s son \u2014 knowledge of wife \u2014 relevancy of cross-examination\nIn a prosecution for first-degree murder of an undercover police officer, the State\u2019s cross-examination of defendant\u2019s son concerning his use of marijuana and defendant\u2019s wife concerning her knowledge of her son\u2019s involvement with illegal drugs was not an attempt to impeach the witnesses\u2019 character for truthfulness in violation of N.C.G.S. \u00a7 8C-1, Rule 608(b), but was relevant and properly permitted under N.C.G.S. \u00a7 8C-1, Rule 611(b) to rebut defendant\u2019s contention that he went to the crime scene to confront the State\u2019s informant about his attempts to lure defendant\u2019s son into using and selling drugs rather than to steal drugs from the victim and the informant.\nAm Jur 2d, Witnesses \u00a7\u00a7 484 et seq., 591-595.\nConstruction and application of Rule 608(b) of Federal Rules of Evidence dealing with use of specific instances of conduct to attack or support credibility. 36 ALR Fed 564.\n13. Homicide \u00a7 620 (NCI4th)\u2014 felony murder \u2014 defendant as aggressor \u2014 instruction on unavailability of self-defense\nThe trial court did not err by instructing the jury that the defense of self-defense was unavailable to defendant if the jury concluded that defendant killed the victim in the perpetration of a felony where the evidence tended to show that defendant was the aggressor in that he and an accomplice went to the crime scene to rob the victim and another person of marijuana, and no evidence was presented to suggest that the dangerous situation had dissipated at the time of the shooting or that defendant made any effort to declare his intent to withdraw.\nAm Jur 2d, Homicide \u00a7\u00a7 519 et seq.\n14. Homicide \u00a7 86 (NCI4th)\u2014 felony murder \u2014 forfeiture of self-defense claim\nA defendant charged with felony murder, as the aggressor in the underlying felony, forfeits his right to claim self-defense as a defense to the felony murder absent (1) a reasonable basis upon which the jury may have disbelieved the prosecution\u2019s evidence of the underlying felony, (2) a factual showing that defendant clearly articulated his intent to withdraw from the situation, or (3) a factual showing that at the time of the violence the dangerous situation no longer existed.\n, Am Jur 2d, Homicide \u00a7\u00a7 145 et seq. .\n15. Homicide \u00a7 257 (NCI4th)\u2014 premeditation and deliberation \u2014 sufficiency of evidence\nThe evidence in a first-degree murder prosecution was sufficient to support the trial court\u2019s instruction on premeditation and deliberation where it tended to show that defendant carried a pistol with him to a meeting with the victim, who was an undercover police officer, and another person; defendant intended to rob the victim of marijuana; on the way to the meeting, defendant removed the clip from his pistol, rejected the round from the chamber, replaced the round in the clip, and chambered a live round of ammunition, thus readying the weapon for firing; defendant\u2019s own testimony suggested that he harbored ill will toward the victim and the other person; during the meeting, defendant\u2019s accomplice struck the victim and knocked him to the ground; the victim reached for his weapon and stated, \u201cStop or I\u2019ll shoot\u201d while attempting to rise from the ground; and defendant replied, \u201cYou won\u2019t shoot anybody\u201d and shot the victim through the heart.\nAm Jur 2d, Homicide \u00a7\u00a7 437 et seq.\nHomicide: presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR2d 1435.\n16. Homicide \u00a7 489 (NCI4th)\u2014 premeditation and deliberation \u2014 circumstances permitting inference \u2014 instruction not plain error.\nEven if the trial court instructed on several circumstances from which premeditation and deliberation could be inferred which were not supported by the evidence, defendant failed to object to the instruction given, and the instruction was not plain error where the case came down to whether the jury believed defendant\u2019s or the State\u2019s version of the events; the jury reasonably concluded that defendant killed the victim with premeditation and deliberation and during the commission of an armed robbery; and defendant failed to show that, absent the challenged portions of the instruction, the jury would probably have reached a different verdict.\nAm Jur 2d, Homicide \u00a7\u00a7 501.\nHomicide: presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR2d 1435.\n17. Homicide \u00a7 625 (NCI4th)\u2014 self-defense \u2014 withdrawal by aggressor \u2014 instruction not required\nThe trial court in a first-degree murder case did not err by failing to give defendant\u2019s requested self-defense instruction that \u201c[a]s long as a person keeps his gun in his hand prepared to shoot, the person opposing him is not expected or required to accept any statement indicative of an intent to discontinue the assault\u201d where the evidence in the record does not support a finding that defendant attempted, at any point, to withdraw from the combat or that he ever indicated to the victim that he intended to withdraw from the combat.\nAm Jur 2d, Homicide \u00a7\u00a7 520.\n18. Homicide \u00a7 622 (NCI4th)\u2014 self-defense \u2014 instruction on defendant as aggressor \u2014 sufficient evidence\nThere was sufficient evidence that defendant was the aggressor to support the trial court\u2019s instruction in a first-degree murder case that defendant may not claim self-defense if the jury finds defendant was the aggressor in the encounter leading to the fatal shooting where there was testimony that defendant pulled his weapon on the victim, an undercover police officer, after defendant\u2019s accomplice had knocked the officer to the ground and that the officer never actually drew his gun.\nAm Jur 2d, Homicide \u00a7\u00a7 431.\n19. Homicide \u00a7 628 (NCI4th)\u2014 self-defense \u2014 use of excessive force \u2014 jury question \u2014 propriety of instruction\nThe evidence in a prosecution for the first-degree murder of an undercover police officer presented a question for the jury as to whether defendant used excessive force so that the trial court properly instructed the jury that, if it found defendant to have used excessive force in defending himself, he was entitled, at most, to the defense of imperfect self-defense where the testimony of various witnesses differed as to when defendant and the officer drew their weapons and as to the circumstances leading to the fatal shooting.\nAm Jur 2d, Homicide \u00a7\u00a7 519 et seq.\n20. Homicide \u00a7 432 (NCX4th)\u2014 murder \u2014 intentional use of deadly weapon \u2014 inferences of unlawfulness and malice\nThe trial court properly instructed the jury that it could infer that a killing was unlawful and committed with malice if it found that defendant intentionally inflicted a wound upon the victim with a deadly weapon that proximately caused the victim\u2019s death.\nAm Jur 2d, Homicide \u00a7\u00a7 500, 509.\n21. Homicide \u00a7 476 (NCI4th)\u2014 premeditation \u2014 instruction\u2014 formation of intent to kill\nThe trial court did not err by instructing the jury that it must find that defendant formed the intent to kill the victim over some period of time, however short, in order to find defendant guilty of first-degree murder based upon premeditation and deliberation.\nAm Jur 2d, Homicide \u00a7\u00a7 498.\n22. Homicide \u00a7 497 (NCI4th)\u2014 felony murder \u2014 underlying felony \u2014 attempted armed robbery\nThe trial court properly instructed that the jury could consider only an attempted armed robbery charge as the underlying felony for felony murder and did not permit the jury to consider a conspiracy charge as the underlying felony.\nAm Jur 2d, Homicide \u00a7\u00a7 498.\n23. Conspiracy \u00a7 33 (NCI4th); Robbery \u00a7 84 (NCX4th)\u2014 armed robbery conspiracy \u2014 attempted armed robbery \u2014 sufficiency of evidence\nThe evidence was sufficient to support defendant\u2019s convictions of conspiracy to commit armed robbery and attempted armed robbery where it tended to show that defendant told his accomplice of his plan to rob an undercover police officer and his companion of marijuana that the officer and his companion proposed to sell to defendant; defendant armed himself with a pistol and chambered the weapon as he and the accomplice drove to a meeting with the officer and his companion; at the scene, defendant\u2019s accomplice knocked the officer down as he had been instructed to do by defendant as part of the robbery plan; and defendant shot the officer when the officer attempted to get out his weapon. The conduct of defendant and his accomplice supports an implied understanding between them to use a gun in the commission of the crime, and the failure of the conspirators to actually take the marijuana .did not negate the attempted armed robbery.\nAm Jur 2d, Conspiracy \u00a7\u00a7 29, 30; Robbery \u00a7 89.\n24. Homicide \u00a7 727 (NCI4th)\u2014 first-degree murder \u2014 premeditation and deliberation and felony murder \u2014 no merger of felony\nWhere a defendant is convicted of first-degree murder based upon both premeditation and deliberation and felony murder, the underlying felony does not merge with the murder conviction and the trial court is free to impose a sentence thereon.\nAm Jur 2d, Homicide \u00a7\u00a7 549 et seq.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from judgment imposing sentence of life imprisonment entered by Phillips, J., at the 16 March 1992 Criminal Session of Superior Court, Carteret County, upon a jury verdict of guilty of first-degree murder. Defendant\u2019s motion to bypass the Court of Appeals as to additional judgments imposed for attempted robbery with a firearm and felony conspiracy to commit robbery with a deadly weapon was allowed 22 December 1992. Heard in the Supreme Court 15 September 1993.\nMichael F. Easley, Attorney General, by David Roy Blackwell, Special Deputy Attorney General, for the State.\nStephen M. Valentine for defendant-appellant." }, "file_name": "0363-01", "first_page_order": 393, "last_page_order": 424 }