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Ed. 2d 1027", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "368 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "322 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514703 ], "year": 1988, "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0251-01" ] }, { "cite": "130 L. Ed. 2d 650", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1995, "opinion_index": 0 }, { "cite": "443 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "312" }, { "page": "312" }, { "page": "313" } ], "opinion_index": 0 }, { "cite": "336 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535633 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "93" }, { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0078-01" ] }, { "cite": "425 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "692" } ], "opinion_index": 0 }, { "cite": "333 N.C. 296", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544335 ], "year": 1993, "pin_cites": [ { "page": "301-02" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0296-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "89" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "505 U.S.-, 120", "category": "reporters:federal", "reporter": "U.S.", "year": 1992, "opinion_index": 0 }, { "cite": "410 S.E.2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "104 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521815 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/104/0375-01" ] }, { "cite": "400 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "724" }, { "page": "724" }, { "page": "723" } ], "opinion_index": 0 }, { "cite": "328 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540746 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "120" }, { "page": "120-21" }, { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0099-01" ] }, { "cite": "100 L. Ed. 2d 934", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 1104894 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/351/0056-01" ] }, { "cite": "486 U.S. 1061", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6375268, 6376325, 6375755, 6375564, 6375412, 6376092 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/486/1061-01", "/us/486/1061-06", "/us/486/1061-04", "/us/486/1061-03", "/us/486/1061-02", "/us/486/1061-05" ] }, { "cite": "360 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "674" } ], "opinion_index": 0 }, { "cite": "320 N.C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731376 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0688-01" ] }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "opinion_index": 0, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "336 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534822 ], "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0001-01" ] }, { "cite": "331 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499656 ], "weight": 2, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0267-01" ] }, { "cite": "129 L. Ed. 2d 133", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 39205 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/us/512/0154-01" ] } ], "analysis": { "cardinality": 2834, "char_count": 125585, "ocr_confidence": 0.747, "pagerank": { "raw": 1.59690504191102e-07, "percentile": 0.6831919544344092 }, "sha256": "62c0d39498cf0fd654a4422024ee2860b3b138294349cc7083ed9b0737bac711", "simhash": "1:ef69d722f766cdd2", "word_count": 20349 }, "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. JOHNNIE LEE SPRUILL" ], "opinions": [ { "text": "PARKER, Justice.\nIn 1985 defendant was convicted of the first-degree murder of his former girlfriend, Beatrice Williams, and was sentenced to death. On appeal this Court affirmed defendant\u2019s conviction and sentence. State v. Spruill, 320 N.C. 688, 360 S.E.2d 667 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 934 (1988). On 21 February 1992, the trial court granted defendant\u2019s motion for appropriate relief, vacated the order sentencing defendant to death, and ordered a new trial. A capital trial began on 12 October 1992, but on 20 October defendant elected to plead guilty to the charge of first-degree murder.\nIn support of defendant\u2019s plea, the prosecutor summarized the State\u2019s evidence. In March 1984 defendant and victim, both African-Americans, had been romantically involved; but the victim had ended their relationship. On the night of 31 March, they went separately to a nightclub where defendant attempted to talk to the victim, who decided it would be best for her to leave. Defendant followed her to the door, where he stood very close to her, regarding her steadily. The victim was crying, shifting her weight from one foot to the other, and wringing her hands. She walked outside, and defendant followed, his hand in his pocket. A bystander observed the two and decided to try to help the victim to her car. At the car, the victim opened the door, but defendant blocked her way and stabbed at her as she got into the car, cutting her across the chest and on one of her hands. Some bystanders pulled defendant away, and he said he would not bother the victim any more. However, defendant got into the car and slashed the victim\u2019s throat. Again he was pulled away, and someone asked him why he had killed her. He said, \u201cI meant to do it; I meant to do it.\u201d In the summer of 1983 defendant had threatened to kill the victim and had stalked her. About two weeks before her death, defendant had knifed her and on an earlier occasion had attempted to choke her. At the time of the murder, defendant was subject to a court order directing him to stay away from the victim.\nPursuant to N.C.G.S. \u00a7 15A-2000, a capital sentencing proceeding was conducted, and both parties offered evidence. State\u2019s evidence included testimony from Harold Williams, Joe Louis Jackson, and Corrine Simmons, all of whom were present at the time of the murder. Their testimony was consistent with State\u2019s factual summary. Further, Corrine Simmons, Lemile Lockhart, Helen Britton, and Rosa Williams testified about defendant\u2019s drinking and his stalking and assaulting of the victim; and their testimony was consistent with the prosecutor\u2019s summary. Simmons also testified that in September 1983 she heard defendant threaten to kill the victim. In the same month, she heard defendant threaten to put the victim and her son \u201csix foot [sic] under.\u201d In addition to her other testimony, Helen Britton denied seeing defendant use marijuana or other drugs.\nState Highway Patrolman D.E. Harris testified that he responded to a dispatch about the murder at the nightclub and drove towards the scene. About a mile south of the club, Trooper Harris saw a man who fit the description of the suspect running along the road. Harris stopped his car, got out, and called to the man, who put his hands in the air and began walking towards Harris. The man was defendant, who said he was the one Harris was looking for and the knife he used was in his pants pocket. Defendant appeared calm, his speech was not slurred, and he did not smell of alcohol or marijuana. Chief Deputy Otis Wheeler patted defendant down and advised him of his rights at the Northampton Sheriffs Department. Defendant said he understood his rights. He was calm; nothing appeared to be wrong with him. However, after his arrest, defendant had to be taken to the hospital several times on account of seizures. Eventually he was moved to Central Prison, where appropriate treatment was available.\nDefendant\u2019s evidence included the testimony of several family members and friends who described his chaotic upbringing. Defendant was one of eight siblings, and his father kept the entire family in poverty and terror by drinking to excess and then striking them, depriving them of food, shooting at them, or driving them away from home. On one occasion when defendant\u2019s father attempted to strike defendant\u2019s brother with a poker, defendant stepped between the two and took a blow to his head. As an adult, defendant suffered occasional seizures and headaches severe enough to require hospitalization. Nevertheless he could do almost any kind of mechanical work and was steadily employed. He was known to drink to excess, but no witness testified that he was violent when drinking. While working at a shipyard in Newport News, Virginia, defendant met Gloria Williams, and they had a son, Sherrod, who was eighteen years old at the time of the sentencing proceeding.\nJames Odom testified that he ran a service station in Jackson, North Carolina, and had known defendant from defendant\u2019s childhood. Defendant worked for Odom for several years, ending in 1978. Defendant changed oil, washed cars, drove a cab, and did mechanical work. He learned to perform minor mechanical work unsupervised; he could change engines in cars under Odom\u2019s supervision.\nSeveral witnesses who knew defendant in prison testified in his behalf. Chaplain Michael Smith met defendant in 1986, counselled him, and participated regularly in religious services with him. In Smith\u2019s opinion, defendant was sincere in his religious beliefs. Correctional Officer Thomas Humphrey also met defendant around 1986. Humphrey testified that defendant attended religious services regularly and although defendant had committed some disciplinary infractions, Humphrey had never had to report him. Chaplain Luther Pike met defendant in 1985 and since then had made weekly contact with him. Pike testified that defendant had responded positively to programs in which Pike was involved and defendant\u2019s behavior never created problems. Like Smith, Pike thought defendant was sincere in his religious beliefs.\nDr. James Groce was accepted by the court as an expert in forensic psychiatry. Sometime around late 1984 he examined defendant at the request of defense counsel. Groce testified that defendant had an IQ of 64 and read at the 5.5 grade level, both being consistent with mild mental retardation. Defendant suffered from a seizure disorder, but his reported actions on the night of the murder were inconsistent with seizure behavior. Defendant\u2019s retardation resulted in an impairment of his judgment; and he reported multiple drug use on the night of the murder, which also would have had an impairing effect. Dr. Groce testified he had made three diagnoses: Mild mental retardation, a medical diagnosis of seizure disorder, and a conversion disorder with paralysis of the legs. In Dr. Groce\u2019s opinion, at the time of the murder defendant was under a mental disturbance, namely mild mental retardation. Defendant\u2019s capacity to appreciate the criminality of his conduct or conform it to law was impaired by his retardation and use of drugs, which together produced a negative synergistic effect. Defendant told Dr. Groce that on the night in question he drank three or four beers and smoked marijuana. The marijuana was given to defendant by a friend, who told him it was laced with phencyclidine. Nevertheless, reports of defendant\u2019s behavior on the night of the murder were consistent with goal-directed, rational behavior.\nDr. Groce testified further that in February 1985 a psychiatrist at Central Prison noted that defendant\u2019s cognition was \u201cfair,\u201d his insight was \u201cpoor,\u201d his judgment was \u201cfair,\u201d and his recognition of his personality type was \u201cpoor.\u201d \u201cCognition\u201d refers to recognition, general knowledge, and accurate interpretation of general knowledge at the moment. \u201cInsight\u201d means some accurate self-assessment of situations and personal functioning. \u201cJudgment\u201d is the ability to make accurate assessments of situations and appropriate plans based thereon. The psychiatrist\u2019s diagnosis was one of mixed personality disorder with inadequate and dependent features. Personality disorder is characterized by a less than usual ability to adjust appropriately to situations. Mixed personality disorder is characterized by several features. \u201cInadequate and dependent features\u201d refer to (i) a tendency to depend excessively on external sources for emotional support and to weigh reactions of others heavily and (ii) general immaturity and inability to cope with stressful situations. Dr. Groce also testified that the combined effects of such a personality disorder and low IQ are additive, each condition contributing to overall impaired function.\nDr. Groce also examined defendant in 1992 and noted that his full-scale IQ was 73, placing him in the low borderline range of intellectual functioning. The elevation in IQ was consistent with prolonged sobriety. During his 1992 evaluation, defendant stated that at the time of the murder he had also snorted cocaine.\nDr. Claudia Coleman, a specialist in neuropsychology and forensic psychology, examined defendant in October 1992 at the request of defense counsel. In her opinion defendant was in the borderline range of adult intelligence. His school records showed he was a slow learner and was placed in special education classes beginning in ninth grade. He repeated a grade and dropped out of school in eleventh grade. Dr. Coleman considered defendant\u2019s head injury significant because many people who suffer major head injuries (i) experience concentration and attention problems and problems with judgment and emotional control and (ii) are more susceptible to the effects of alcohol and other drugs. Dr. Coleman opined that the following factors impaired defendant\u2019s cognitive abilities and emotional control: (i) history of head injury severe enough to induce chronic headaches and seizure disorder, (ii) history of alcohol and possibly other drug abuse, (iii) possible intoxication at the time of the murder, and (iv) borderline intelligence. Further, owing to these factors, at the time of the murder defendant was acting under the influence of mental or emotional disturbance; and his capacity to appreciate the criminality of his conduct or to control his conduct was impaired. Dr. Coleman stated further that defendant had inadequate and dependent personality traits, being overly dependent on others, particularly for emotional support. He was immature, acting more like a child than others in his age group. On cross-examination, she testified that a number of his behaviors on the night of the murder could be characterized as goal-oriented.\nDefendant testified in his own behalf, and his testimony about his chaotic childhood was consistent with that of other witnesses. After his relationship with Gloria Williams ended and while he was working for James Odom, defendant met and married a woman named Barbara Edwards. During his marriage defendant drank alcohol and smoked marijuana almost daily. He also tried other drugs but did not use them on a regular basis. He met the victim in 1982, was involved with her until 1984, and thought they had a good relationship. Nevertheless, there were times when they fought and did not see each other for several weeks. He admitted slapping the victim sometime around Thanksgiving 1983 but denied choking her. He maintained that in the incident two weeks before her death, the victim accidentally cut herself on his knife, which he was using to clean his fingernails.\nDefendant testified further that on 31 March 1984, he awoke, did a line of cocaine, and then went to work. He had several beers at work since his boss let him drink there if he did not leave cans lying about. He left work around 2:00 p.m. and had a few more beers. That night he went to the club and had several more beers. He saw the victim come into the club with a friend. Defendant went outside and smoked some marijuana with a man he knew. Defendant remarked that the joint tasted odd; the man said it contained PCP. Defendant recalled going back into the club and trying to talk to the victim, but he could not remember what was said. He remembered Harold Williams staring at him. Defendant recalled going outside with the victim but could not remember what he said to her. He admitted that he had cut and killed her but thought it would not have happened had he not been drinking alcohol and using drugs. He expressed remorse for having killed the victim.\nHe testified further that at Central Prison he had three fights with other inmates and several other disciplinary violations, most occurring within the first two or three years of his incarceration. On cross-examination he testified that he had been convicted of misdemeanor possession of stolen property. In connection with the Thanksgiving 1983 incident he pleaded guilty to assaulting the victim. He denied following the victim, threatening to kill her or her son, and intentionally cutting her. He also denied that he had assaulted his wife. On recross-examination, defendant testified that PCP does not cause the user to act drunk or fall down. Instead it causes the user to be \u201cspaced out\u201d and able to remember some things but not others.\nState\u2019s rebuttal evidence included testimony from Deputy Wheeler, who said that around 1:45 a.m. on 1 April 1984, defendant appeared to be calm and cool. Asked if he were under the influence of alcohol or drugs, defendant said, \u201cNo,\u201d paused, and stated he had had a beer or two.\nIn addition, the State introduced evidence of defendant\u2019s convictions for misdemeanor possession of stolen goods and for assault on and communicating threats against the victim in November 1983. Further, Sergeant Ray Campbell, supervisor of inmate records at Central Prison, described defendant\u2019s cellblock from 1985 until the time of trial. Illustrating his testimony with photographs, Campbell described the restrictions on defendant\u2019s freedom of movement, comparing these with lesser restrictions on other inmates. Campbell testified that defendant had a major infraction in October 1985 for fighting, a July 1986 infraction for assaulting the inmate with whom he had been fighting in 1985, an April 1988 major infraction for refusing to report to his cell, a July 1988 infraction for fighting, a December 1989 infraction for using a mop wringer to threaten other inmates, an August 1990 major infraction for fighting, and an October 1990 major infraction for disobeying orders by entering a cell not assigned to him. Punishment, which consisted of confinement to his cell, was suspended on the last two infractions.\nBarbara Spruill testified that in 1977 she was married to defendant but left him after four months because he was mean to her and picked fights with her until he provoked her to hit him. Once he ran her car off the road, reached into the car and choked her, and then left. On cross-examination she testified that when they were first married, defendant was kind to her and fun to be around except when drinking. He drank on weekends with friends and also stayed out late at night during the week and drauk. He drank more after they were married. He also smoked marijuana and sometimes drank and smoked at the same time. Sometimes he accused her of seeing other men. The choking incident occurred after she left him.\nThe jury found the existence of the sole aggravating circumstance submitted, that the murder \u201cwas especially heinous, atrocious, or cruel.\u201d N.C.G.S. \u00a7 15A-2000(e)(9) (1988). Four statutory mitigating circumstances were submitted, but the jury declined to find the existence of any. Of the nineteen nonstatutory mitigating circumstances submitted, the jury found only one, that at the time of committing the crime, \u201cdefendant suffered from a personality disorder with dependency traits.\u201d Pursuant to section 15A-2000(b), the jury found that (i) the mitigating circumstance was insufficient to outweigh the aggravating circumstance and (ii) the aggravating circumstance was sufficiently substantial to call for imposition of the death penalty. On 4 November 1992 the jury recommended that defendant be sentenced to death, and the trial court entered judgment in accord therewith. Execution was stayed 18 November 1992 pending defendant\u2019s appeal. For the reasons discussed herein, we conclude defendant\u2019s capital sentencing proceeding was free from prejudicial error and the death sentence is not disproportionate.\nJury Selection\nDefendant first contends the State exercised its peremptory challenges in a racially discriminatory manner, excusing jurors of African-American descent in violation of the federal and state constitutions. Defendant argues that eight prospective jurors, Bottoms, Squire, Joyner, Lowe, Phillips, Grant, Walton, and Liverman, were improperly excused. We disagree.\nDefendant filed a motion in limine requesting the trial court \u201cto prohibit the District Attorney from exercising peremptory challenges as to Black jurors, or, in the alternative, to order that the District Attorney state reasons on the record for peremptory challenges of such jurors.\u201d The motion stated that the district attorney for Judicial District 6B had shown a pattern of discriminating against black venirepersons and cited State v. Smith, 328 N.C. 99, 400 S.E.2d 712 (1991), and State v. Hall, 104 N.C. App. 375, 410 S.E.2d 76 (1991), as cases from the district in which the appellate courts have found inferences of such discrimination. The trial court denied the motion. During jury selection, after the State peremptorily challenged eight African-American venirepersons, defendant objected and asked to be heard. The trial court stated, \u201cWell, if you\u2019re making a Batson motion, I\u2019ll hear you later.\u201d The district attorney then stated that defense counsel had\nexcused twelve White jurors and one Black juror, and I could have made that motion, I felt three times I could, but I have not done so. And the first eleven of his were White, I take that back, the first twelve of his were White and the last one was Black. And I make the same motion in this particular case.\nThe court responded, \u201cI understand and I\u2019ll hear you later, too.\u201d\nAfter completion of selection of twelve jurors and two alternates, court was recessed and reconvened without any jurors present. The trial court brought up the matter of the motions and asked first to hear from defense counsel. After considerable discussion, counsel for both parties agreed that the State had excused eight black jurors and five white jurors. The prosecutor then argued that under Georgia v. McCollum, 505 U.S.-, 120 L. Ed. 2d 33 (1992), the defense also was prohibited from engaging in purposeful discrimination in the exercise of peremptory challenges to exclude prospective jurors. The court then asked, \u201cAll right, Solicitor, do you care to put on the record an explanation as to each of these?\u201d The prosecutor replied as follows:\nIf Your Honor please, I think that where the defendant has excused, if I may just briefly say what he [h]as excused by my count, fourteen jurors altogether, maybe fourteen or fifteen. How many is it altogether, madam clerk?\nMs. Spruill: Fifteen.\nFifteen jurors altogether. And of those fifteen jurors, thirteen of those were White that he excused; that he excused eleven in a row until he got to the twelfth one, and that was a Black juror, and that was Mr. Royal, which was the first Black juror that he\u2014 let me go back. He had fifteen excuses and of those fifteen, fourteen were used for White jurors.\nNow, if Your Honor please, before I \u2014 this is the way I feel about it. I\u2019ll do whatever the Court directs me to do, but before I state any reasons for the reasons that I have excused the jurors that I have, where someone has excused fourteen, fourteen times one, a hundred and forty per cent of them, I think they ought to go through everyone [sic] of theirs and give the reasons why.\nThe court stated that looking at the contentions of both sides, it appeared that the State had come closer to making out a prima facie case than had the defense. Nevertheless, the court required each party\u2019s counsel to state reasons for the peremptory challenges objected to by opposing counsel. The court then stated as follows:\nAll right. The Court accepts the Solicitor\u2019s clear and race neutral specific explanations as to his reasons for peremptorily challenging the eight Black jurors. Therefore, Court concluding that the explanations are race neutral denies your motion to set aside this panel and start anew, Mr. Warmack.\nAnd as to the fourteen Whites that were challenged by the defense, the Court accepts the explanations of Mr. Warmack as clear and race neutral specific explanations as to the exercise of those peremptories.\nThe jury which heard defendant\u2019s case consisted of six white and six African-American members.\nThe Equal Protection Clause of the United States Constitution prohibits a prosecutor from challenging prospective jurors \u201csolely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State\u2019s case against a black defendant.\u201d Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 83 (1986); accord State v. Glenn, 333 N.C. 296, 301-02, 425 S.E.2d 688, 692 (1993). Although the Batson three-part test for reviewing claims of racial discrimination requires a defendant to make out a prima facie case of discrimination, where prosecutors voluntarily give reasons for their challenges, this Court proceeds as though the burden has been met. State v. Robinson, 336 N.C. 78, 93, 443 S.E.2d 306, 312 (1994), cert. denied,-U.S.-, 130 L. Ed. 2d 650 (1995).\nIn the instant case, the trial court did not find or conclude that the defendant had met his burden. Instead, the record indicates the court was more inclined to find a prima facie case of discriminatory intent on the part of the defense. Nevertheless, since the record suggests that the court considered it in the interest of justice and general fairness to require each party to state reasons for its challenges, we treat the case as though defendant made out a prima facie case.\nThe second part of the Batson test \u201crequires the State to \u2018articulate legitimate reasons which are clear and reasonably specific and related to the particular case to be tried which give a neutral explanation for challenging jurors of the cognizable group.\u2019 \u201d Id. (quoting State v. Jackson, 322 N.C. 251, 254, 368 S.E.2d 838, 840 (1988), cert. denied, 490 U.S. 1110, 104 L. Ed. 2d 1027 (1989)). \u201cDefendant \u2018has a right of surrebuttal to show that the prosecutor\u2019s explanations are a pretext.\u2019 \u201d Smith, 328 N.C. at 120, 400 S.E.2d at 724 (quoting State v. Porter, 326 N.C. 489, 497, 391 S.E.2d 144, 150 (1990)). Finally, it is for the trial court to decide whether the defendant has proved purposeful discrimination. Robinson, 336 N.C. at 93, 443 S.E.2d at 312.\nIn reviewing the issue of purposeful discrimination during jury selection, this Court has considered a number of facts and circumstances. Relevant considerations include (i) race of the defendant, victims, and key witnesses; (ii) the prosecutor\u2019s questions and statements during voir dire; (iii) use of a disproportionate number of peremptory challenges to strike black jurors in a single case; and (iv) acceptance rate of black jurors by the State. Smith, 328 N.C. at 120-21, 400 S.E.2d at 724. Notwithstanding defendant\u2019s motion in limine, in accord with the test established by the United States Supreme Court, this Court reviews each case involving a Batson issue on its individual merits. More importantly, however, the instant case differs from Smith in that it does not involve an interracial killing, and most of the witnesses are African-Americans. In addition, in Smith the Court stated that an acceptance rate of 42.8% is some evidence that there was no discriminatory intent; and in the instant case, the acceptance rate was 53%.\nIn Robinson, the Court also said as follows:\nWhen evaluating the prosecutor\u2019s stated reasons for dismissal, the ultimate question to be decided by the trial court is whether the prosecutor was exercising his peremptory challenges with a discriminatory intent. The United States Supreme Court has acknowledged that, \u201c[a]s with the state of mind of a juror, evaluation of the prosecutor\u2019s state of mind based on demeanor and credibility lies \u2018peculiarly within a trial judge\u2019s province.\u2019 \u201d Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409 (quoting Wainright v. Witt, 469 U.S. 412, 428, 83 L. Ed. 2d 841, 854 (1985)). The findings of a trial court are not to be overturned unless the appellate court is \u201cconvinced that its determination was clearly erroneous.\u201d Id. at 36[9], 114 L. Ed. 2d at 412. \u201c \u2018Where there are two permissible views of the evidence, the factfinder\u2019s choice between them cannot be clearly erroneous.\u2019 \u201d Thomas, 329 N.C. at 433, 407 S.E.2d at 148 (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 84 L. Ed. 2d 518, 528 (1985).\n336 N.C. at 94, 443 S.E.2d at 313.\nWith these principles in mind, we have reviewed the reasons given by the prosecutor for peremptorily challenging the prospective jurors named above and find no reason to overturn the trial court\u2019s judgment. Defendant has argued that of the prosecutor\u2019s stated reasons for excusing prospective juror Bottoms, only one, that Bottoms knew defense counsel Harvey, was supported by the record. We do not find this argument persuasive. While our review of the transcript suggests that the prosecutor may have in part confused Bottoms with another venireperson, the prosecutor stated clearly that he excused Bottoms because he \u201cknew [defense counsel] Thomas Harvey, and he was the one who had visited \u2014 Mr. Harvey had visited his house, seeing his mother and his sister.\u201d Since this race-neutral reason is manifestly supported by the record, any confusion as to the prosecutor\u2019s other statements about Bottoms could at most present another view of the evidence, which under Robinson is insufficient to permit this Court to find the trial court\u2019s determination clearly erroneous. We also note that although given an opportunity to respond, defense counsel did not exercise his right of surrebuttal to show the trial court that any of State\u2019s proffered reasons constituted pretexts. Further, before this Court, defendant has made no independent argument based on Article I, Section 26 of the North Carolina Constitution, which prohibits the use of peremptory challenges solely on the basis of race. Smith, 328 N.C. at 119, 400 S.E.2d at 723. For all the foregoing reasons, we conclude the trial court did not err in determining that the prosecutor did not exercise his peremptory challenges in a racially discriminatory manner.\nDefendant\u2019s next contention is that he was denied a fair trial by the trial court\u2019s partisan conduct during voir dire. Defendant argues that on many occasions the trial court \u201cexhibited partisanship by frustrating defendant\u2019s attempts to remove death-prone jurors.\u201d Defendant argues further that the trial court\u2019s (i) attempts to rehabilitate prospective juror Morgan and refusal to grant defendant\u2019s challenge for cause, (ii) partisan conduct throughout voir dire of prospective juror King, and (iii) granting of only one additional peremptory challenge to the defense denied defendant a substantial right. We disagree.\nWe note first that defendant has made a six-page argument addressing the voir dire of prospective juror Willis. However, the record includes no assignment of error based thereon. Defendant argues that under Morgan v. Illinois, 504 U.S.-, 119 L. Ed. 2d 492 (1992), searching voir dire must be permitted in order to reveal biased venirepersons who as jurors would always impose death upon a finding of guilt. In the instant case, however, since the trial court granted defendant\u2019s challenge for cause of Willis, there could be no Morgan violation. In addition, although defendant assigned error on the same ground to the voir dire of Moore and Motley, defendant\u2019s brief includes no arguments based thereon. Again, since the record shows the trial court granted defendant\u2019s challenges for cause of these two venirepersons, there could be no Morgan error.\nWe next consider defendant\u2019s argument that the trial court showed partiality in denying defendant\u2019s excusal for cause of prospective juror Morgan. We do not find defendant\u2019s argument persuasive. The transcript makes clear that Morgan had some difficulty in following the twists of voir dire questioning. She stated to the court that she could follow the law in deciding whether to vote for life or death. The following exchange then took place:\nThe Court: All right. Now, considering your previous statements to [defense counsel] about the death penalty, state whether you would be able to vote for a recommendation of life in prison if the State fails to satisfy you beyond a reasonable doubt of the three things required by law concerning the aggravating and mitigating circumstances previous mentioned?\nMs. Morgan: Would you repeat that?\nThe Court: In other words, would you be able to vote for a recommendation of life imprisonment if the State fails to satisfy you beyond a reasonable doubt of those three things?\nMs. Morgan: I don\u2019t quite understand that one.\nThe Court: All right.\nConsidering your previous 'statements, I want you to state whether you would be able to vote for a recommendation of life imprisonment if the State fails to satisfy you beyond a reasonable doubt of the three things that I just mentioned?\nMs. Morgan: Oh. No, sir. I wouldn\u2019t be able to.\nThe Court: You would not be able to?\nMs. Morgan: No, sir.\nThe Court: You would not be able to follow the law in that respect?\nMs. Morgan: Maybe I should be dismissed because I don\u2019t understand all of these things. I can listen to the jury [sic] and I can form my own opinions, but whether it should be a sentence of death or whether it should be life imprisonment, you know all these fancy words and everything, I just can\u2019t understand all that.\nThe Court: Would you follow the law as given to you by the Court?\nMs. Morgan: Yes, sir.\nThe Court: And be guided by the law?\nMs. Morgan: Yes, sir. That much I can do. I know what you\u2019re talking about there. These other fancy words, I\u2019m sorry.\nUpon further questioning by defense counsel, Morgan responded, \u201cYou\u2019re trying to get me tangled up again.\u201d Later defense counsel attempted to question Morgan further, but she restated that she would consider the law as given by the trial court. Defense counsel then used a peremptory challenge to excuse her.\nDefendant also argues that the trial court erred in denying defendant\u2019s challenge for cause of prospective juror King. In response to the prosecutor\u2019s asking whether the venire or their family had been victims of a violent crime, King first indicated that his brother had shot someone. The prosecutor asked a second time whether anyone or their family had been hurt or shot. King said that his sister\u2019s boyfriend had killed her. Later, the prosecutor asked King if he had been the victim of a crime or charged with a crime. King replied, \u201cOne time. I got in a fight with a dude and the gun went off and shot him.\u201d Questioned later by defense counsel, King said that in April of 1990, his sister was strangled by her boyfriend. Defense counsel then asked if the matter would have any bearing on King in his deliberations. King answered, \u201cNo, sir. It wouldn\u2019t,\u201d and \u201cIt wouldn\u2019t, it wouldn\u2019t have no bearing on me.\u201d Moments later, in response to defense counsel\u2019s question, King said, \u201cI\u2019ve been in favor of the death penalty a long time.\u201d Asked how strong his belief was, King answered, \u201cWell, like I told [the prosecutor], I\u2019d have to have both sides of the case first before I make my decision. I have to hear his side and his side, and then I go from there.\u201d\nDefendant argues further, and the transcript shows, that the challenges for cause of Morgan and King were preserved when defendant exhausted his peremptory challenges and renewed the challenges for cause to these two prospective jurors. However, the transcript also shows that upon defendant\u2019s renewal of these two challenges for cause, the trial court granted defendant one additional peremptory challenge. Although defendant also argues that it is not possible to tell which denial the court intended to reverse, we can find no error in the court\u2019s denial of defendant\u2019s challenge for cause of Morgan.\n\u201cThe standard for determining whether a prospective juror may be properly excused for cause for his views on capital punishment is whether those views would \u2018prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.\u2019 \u201d State v. Syriani, 333 N.C. 350, 369, 428 S.E.2d 118, 128 (quoting Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985)), cert. denied, 510 U.S.-, 126 L. Ed. 2d 341 (1993), reh\u2019g denied, 510 U.S.-, 126 L. Ed. 2d 707 (1994); accord State v. Gibbs, 335 N.C. 1, 29, 436 S.E.2d 321, 337 (1993), cert. denied,-U.S.-, 129 L. Ed. 2d 881 (1994). Applying this principle in the instant case, Morgan repeatedly said that she could follow the law. Only where a venireperson\u2019s responses indicate that her belief about the death penalty would interfere with the performance of her duty at the guilt-innocence or sentencing phases must the trial court grant a challenge for cause. Gibbs, 335 N.C. at 29, 436 S.E.2d at 337. Assuming without deciding that the trial court erred in denying defendant\u2019s challenge for cause of King, the error was corrected by the granting of an additional peremptory challenge. In sum, since (i) there was no Morgan error or error as to prospective juror Morgan and (ii) error, if any, as to prospective juror King was corrected by the granting of an additional peremptory challenge, we overrule defendant\u2019s assignments of error. We hold that the trial court\u2019s conduct during voir dire did not amount to partisan conduct denying defendant a substantial right.\nDefendant\u2019s final contention relating to voir dire is that the trial court erred by denying his motion to permit questioning of prospective jurors on their beliefs about parole eligibility. Again, we disagree.\nIn Simmons v. South Carolina, -U.S.-, 129 L. Ed. 2d 133 (1994), the capital defendant was ineligible for parole under South Carolina law. Prior to jury selection, the trial court granted State\u2019s motion for an order barring defendant from asking questions about parole. Defendant Simmons was subsequently convicted of murder, and in the penalty phase, evidence tended to show that he posed a continuing danger to elderly women. The prosecutor argued that in its punishment recommendation the jury should consider defendant\u2019s future dangerousness. Id. at-, 129 L. Ed. 2d at 139. Defendant\u2019s rebuttal evidence, and arguments based thereon, tended to show that he would not be a danger to other inmates. Defendant asked the trial court for an instruction that in his case, life imprisonment did not include the possibility of parole. Id. at-, 129 L. Ed. 2d at 139. Defendant argued there was a reasonable likelihood that the jurors would vote for death simply because they mistakenly believed he would eventually be released on parole. The trial court denied defendant\u2019s request. After deliberating for ninety minutes, the jury sent a note to the trial court asking if a life sentence included the possibility of parole. In response, the court instructed the jury not to consider parole or eligibility therefor and to understand \u201clife imprisonment\u201d in its plain and ordinary meaning. Twenty-five minutes later, the jury returned to the courtroom with a death sentence. Id. at-, 129 L. Ed. 2d at 140.\nOn appeal, the Court found the State had secured a death sentence partly on the ground of future dangerousness while concealing from the jury the true meaning of a noncapital sentencing alternative, that life imprisonment meant life without parole. The Court held this constituted a violation of due process, id. at-, 129 L. Ed. 2d at 141, but declined to decide that defendant\u2019s Eighth Amendment protection was also abridged, id. at-n.4, 129 L. Ed. 2d at 141 n.4. The Court also said as follows:\nIn assessing future dangerousness, the actual duration of the defendant\u2019s prison sentence is indisputably relevant. Holding all other factors constant, it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not. Indeed, there may be no greater assurance of a defendant\u2019s future nondangerousness to the public than the fact that he never will be released on parole. The trial court\u2019s refusal to apprise the jury of information so crucial to its sentencing determination, particularly when the prosecution alluded to the defendant\u2019s future dangerousness in its argument to the jury, cannot be reconciled with our well-established precedents interpreting the Due Process Clause.\nLike the defendants in Skipper and Gardner, petitioner was prevented from rebutting information that the sentencing authority considered, and upon which it may have relied, in imposing the sentence of death. The State raised the specter of petitioner\u2019s future dangerousness generally, but then thwarted all efforts by the petitioner to demonstrate that, contrary to the prosecutor\u2019s intimations, he never would be released on parole and thus, in his view, would not pose a future danger to society. The logic and effectiveness of petitioner\u2019s argument naturally depended on the fact that he was legally ineligible for parole and thus would remain in prison if afforded a life sentence. Petitioner\u2019s efforts to focus the jury\u2019s attention on the question whether, in prison, he would be a future danger were futile, as he repeatedly was denied any opportunity to inform the jury that he never would be released on parole. The jury was left to speculate about petitioner\u2019s parole eligibility when evaluating petitioner\u2019s future dangerousness, and was denied a straight answer about petitioner\u2019s parole eligibility even when it was requested.\nId. at-, 129 L. Ed. 2d at 142-43 (emphasis added).\nWe think it important that the Court did not hold that a defendant has a constitutional right to question the venire about parole. Neither did the Court establish a blanket rule that an instruction giving information about parole or parole eligibility is required in all cases, even if the jury asks a question about parole. Instead, the Court said that in states wherein parole is available, how the jurors\u2019 knowledge thereof will affect their recommendation \u201cis speculative, and we shall not lightly second-guess a decision whether or not to inform\u201d them about parole. Id. at-, 129 L. Ed. 2d at 145. Further,\nStates reasonably may conclude that truthful information regarding the availability of commutation, pardon, and the like, should be kept from the jury in order to provide \u201cgreater protection in [the States\u2019] criminal justice system than the Federal Constitution requires.\u201d Concomitantly, nothing in the Constitution prohibits the prosecution from arguing any truthful information relating to parole or other forms of early release.\nId. at \u2014, 129 L. Ed. 2d at 145 (quoting California v. Ramos, 463 U.S. 992, 1014, 77 L. Ed. 2d 1171, 1189 (1983)) (alteration in original).\nIt will readily be seen that the instant case is quite different from Simmons, wherein the jury was kept in ignorance of truthful information about defendant\u2019s parole ineligibility. Instead, in\u2019 defendant\u2019s case it would have been entirely reasonable for the jury, if given accurate information about parole, to view him as a greater threat to society. Defendant\u2019s case is further distinguishable in that the two prosecutors\u2019 arguments, which consume over 100 pages of the transcript, included only one reference to defendant\u2019s future dangerousness. Moreover, defendant\u2019s jury did not submit to the trial court a question about the effect of a life sentence.\nIn many capital cases defendants have argued to this Court that they should have been permitted to inform juries that in North Carolina, a life sentence means the defendant must serve twenty years in prison before he is eligible for parole. Often the State has answered that it should have a similar right to respond with accurate information about such related issues as the possibility of pardon and commutation. From such arguments and from Simmons, it appears that our common-law precedents excluding such information from the jury\u2019s consideration, see, e.g., State v. Syriani, 333 N.C. at 399, 428 S.E.2d at 145, have offered capital defendants greater protection than does federal law. For this reason, and because of significant differences between the instant case and Simmons, we hold the trial court did not err in denying defendant\u2019s motion to explore during voir dire the issue of parole.\nSentencing Issues\nDefendant first contends that he is entitled to a new capital sentencing proceeding because the prosecutor introduced evidence that defendant had previously been sentenced to death. We disagree.\nBefore jury selection, defendant moved orally to prohibit the prosecutor from introducing evidence that defendant had been sentenced to death after his first trial for the murder of Beatrice Williams. On direct examination, Dr. Groce testified about his 1984-85 psychiatric examination of defendant in connection with the murder. During recross-examination of Dr. Groce, the prosecutor sought to elicit evidence about whether defendant suffered from a conversion disorder which prevented him from walking. The prosecutor read from a report made by a Central Prison psychiatrist after defendant\u2019s first trial. The report stated that defendant\u2019s \u201cprivately retained psychiatrist [Groce] had given [defendant] the diagnosis of a conversion disorder.\u201d The prosecutor also read as follows:\nQ. Now, you go back to the second page that he had, when he finished it off, he\u2019s still talking about this same thing, is he not? That was about [defendant\u2019s] walking. Said, \u201cInmate Johnnie Spruill was felt to be somewhat inadequate. When held as a safe-keeper, he became extremely anxious and claimed that he was paralyzed, but on many occasions was observed walking without difficulty.\u201d\nA. Yes.\nQ. \u201cHe was seen by Doctor ...\u201d how do you pronounce it?\nA. \u201cSaldias . . .\u201d\nQ. \u201c. . . our neurologist here, who did extensive work which revealed no neurological deficits. It was felt as if this was inmate Spruill\u2019s conscious wish not to ambulate and there was no evidence of. . .\u201d what is that?\nA. \u201cDissociative disorder.\u201d\nQ. That means, something wrong with him?\nA. It\u2019s a specific type of something wrong, but, yes.\nQ. \u201cAt this time he seems to be making adequate adjustment to his death row environment.\u201d Is that correct?\nA. Yes.\nQ. States that, \u201cHe\u2019s taken on the Lord,\u201d and states that \u201che reads his Bible everyday [sic] and still having some back pain, but feels like he\u2019s going to recover.\u201d\nA. Yes.\nQ. And in this that you were reading right here . . .\nMr. Warmack: Objection. I think Mr. Beard can sit down now.\nThe Court: Sir?\nMr. Warmack: I said I object to Mr. Beardfs] standing up at the witness and reading him the report.\nThe objection was overruled, and the prosecutor pursued the issue of defendant\u2019s alleged conversion disorder through four more pages of the transcript. Evidence was admitted showing that another psychiatrist had confirmed that defendant could walk, and the following exchange took place:\nQ. And when you talked about being goal oriented, the defendant could be goal oriented to present things that would appear to you and to other people to put him in the best light. Isn\u2019t that a fair statement?\nMr. Warmack: Objection to what is a fair statement.\nThe Court: Overruled.\nA. That is possible. He certainly, like most individuals, tries to present himself as well as possible.\nDefense counsel then asked a few more questions, and Dr. Groce\u2019s testimony came to an end. Dr. Groce asked to be excused, but the prosecutor informed the court that during the luncheon recess he wanted to discuss with defense counsel the admitting of certain exhibits used during Dr. Groce\u2019s testimony. The court instructed Dr. Groce to stand by, excused the jurors for lunch, and recessed court. After reconvening at 2:00 p.m., the court asked of all counsel, \u201cAnything before the jury is brought in?\u201d Defense counsel answered as follows:\nMr. Warmack: Yes, sir, Judge.\nI think now would be as good a time to do it as opposed to running the jury in and out. We have some witnesses here at some point [in] time this afternoon who will testify concerning [defendant] while he has been at Central Prison. They will not be the first witnesses that we would call, but they will be somewhere down the line, and rather than pop the jury back up at that time, I\u2019m just going to go ahead and do it at this time.\nI would \u2014 earlier we had made a motion in limine to prevent the District Attorney or anyone else from referring to the fact that the defendant was on death row. And I would renew that motion at this time. My reason ...\nThe Court: (Interjected) Do you have a copy of it? Did you hand it up at one time? I\u2019m going to allow it, but I\u2019m just having trouble remembering.\nMr. Warmack: No, sir. I made that motion orally before we got started. I have not done that in writing.\nThe Court: Did I rule on it at that time? I don\u2019t even remember.\nMr. Warmack: No, sir. You just \u2014 you said we\u2019d cross it when we got to it. And I guess we\u2019re at it now.\nThe Court: All right.\nMr. Warmack: I think my reasons for it are obvious. This jury has got to make its own independent determination and if \u2014 I\u2019m sure they probably in their own minds know, but it hasn\u2019t been presented, you know, to them.\nThe Court: You\u2019re sure in their own minds they know what?\nMr. Warmack: That maybe \u2014 well, possibly I\u2019ll say, I\u2019m sure they may be wondering what he was sentenced to at the last trial, and they ma[y] think they know, but it has not been brought to their attention. They have to make their own independent determination and if they found out for sure that another jury had sentenced him to death, it would make it that much easier for them. I would \u2014 that\u2019s the basis of my motion.\nThe Court: All right. Motion is allowed. Anything else?\nMr. Warmack: No, sir.\n(Emphasis added.) Immediately thereafter, defendant presented the testimony of several witnesses, including the following people who met defendant at Central Prison: Chaplain Michael Smith, who met defendant in 1986; Correction Officer Thomas Humphrey, who met defendant in late 1985 or 1986; and Chaplain Luther Matthew Pike, Jr., who met defendant in January 1985.\nThe next morning, before the jury was brought into the courtroom, the prosecutor raised the issue of the reference to death row:\nMr. Beard: Your Honor, at this time \u2014 yesterday afternoon the Court instructed the \u2014 before the officers, the correction officers and the ministers got on the witness stand, the Court instructed the State of North Carolina not to ask any questions concerning death row, or the defendant[\u2019s] having received the death penalty. And after that occurred, later that afternoon, I recall[ed] that I had inadvertently when mister \u2014 on redirect by Mr. Warmack, Mr. Warmack had asked the \u2014 Dr. Groce when he was testifying on redirect to read at the bottom of a page entitled \u201cOffice Memorandum.\u201d And I had earlier asked on, first recross, on my first recross I had asked some questions off of his psychiatric history on that page, and I think I\u2019ve got a copy . . .\n.... [Court and prosecutor attempted unsuccessfully to determine which document was at issue.]\nThe Court: All right. Anyway, what happened? What are you referring to?\nMr. Beard: Your Honor, what I\u2019m referring to is \u2014 do you have what I\u2019m talking about?\nMr. Warmack: I don\u2019t have it, but I\u2019m familiar with the documents\nMr. Beard: All right, sir. The document had to do with a \u2014 it was to Nathan Rice, Warden, from James Smith, M.D. And counsel for the defendant had asked on recross, he said, he went through a series of questions with Dr. Groce on recross in which he said, \u201cHe seemed somewhat anxious but appeared to be handling himself in [an] appropriate manner. There was no evidence of any delusions, there was no paranoid, suicidal or homicidal ideations. Sleep and appetite were good. Cognition is fair. Insight poor. Judgment fair. Cognition of his personality style poor.\u201d That\u2019s what he had \u2014 and then he asked him to amplify on that. He also mentioned that work-up revealed he was \u2014 had marked anxiety and possible psychosis. That was on redirect where counsel was reading from the office memorandum.\nI then on recross, then went to the doctor and asked the doctor basically to read, starting with the office memorandum, started with the psychiatric history because I was attempting to show that what the doctor was referring to had to do with the operation of his legs and [was] in that context. I began reading psychiatric history .... [Recounts details of psychiatric history.]\nThen there was a second page to this that took off where counsel did not read on redirect, and that had to do with psychiatric discussion. \u201cInmate Johnnie Spruill...\u201d I read this to the witness, \u201cInmate Johnnie Spruill was felt to be somewhat inadequate when held as a safekeeper. He became extremely anxious and claimed that he was paralyzed, but on many occasions was observed walking without difficulty. He was seen by Dr. Saldias, our neurologist here, who did an extensive work-up which revealed no neurological deficits. It was felt as if this was inmate Spruill\u2019s conscious wish not to ambulate and there was no hard evidence of disassociative [sic] disorder. At this time he seems to be making an adequate adjustment to his death row environment. He states he\u2019s taken on the Lord.\u201d And it states that he. . .\nThe Court: You better slow down. The court reporter is looking very intently at you right now.\nMr. Beard: All right, sir. And about that point as I recall, somewhere right about that point[,] I broke off and did not continue reading any further.\nNow, I want to bring this to the Court\u2019s attention because [I] inadvertently read out where it said, \u201cAt this time he seems to be making an adequate adjustment to his death row environment.\u201d I did not \u2014 I was standing up at the \u2014 where the witness was and was reading through the letter to get the entire part of the letter, trying to get the entire part of the letter concerning his legs into evidence. And I did not read \u2014 did not \u2014 just was not careful, and unintentionally read that part concerning the death row environment. I want to bring that to the Court\u2019s attention, although counsel for the defendant did not object.\nThe court then asked to hear from defense counsel. Mr. Warmack stated that only then did he remember the death row reference. The court asked whether defense counsel wanted an instruction to the jury \u201cor whether you just desire to go forward with the trial without any further mention of it.\u201d After a short, off-record conference between Messrs. Warmack and Harvey, Mr. Warmack stated that they did not want the court to give a limiting instruction. Further, he had (i) objected to the prosecutor\u2019s standing before Dr. Groce and (ii) asked to be heard at the bench. If heard, he had intended to object to the prosecutor\u2019s reading into the record long passages from the report. However, Mr. Warmack agreed that defense counsel had failed to object to the death row reference. The prosecutor stated that he had received over 200 pages of material relating to Dr. Groce\u2019s testimony on the night before he testified, tried to look through it, did not intentionally refer to death row, and brought the matter to the court\u2019s attention because he did not want to hide it. The court then instructed the reporter to find the reference. After reviewing the testimony, the court noted that defense counsel\u2019s objection did not immediately follow the death row reference. Again the court asked if defense counsel wanted an instruction, and Mr. Warmack responded as follows:\nNo, sir, Judge, and I think that\u2019s one of those situations in which it would be worse to call attention to the mistake than it would be for the \u2014 and I don\u2019t, you know, and I\u2019ll say this for the record, and Mr. Beard was reading everything through it and the way he was reading it, I didn\u2019t catch him mak[ing] an issue of that. And I\u2019m not \u2014 I\u2019ll say this, I\u2019m satisfied with that explanation as far as he is concerned. We would, of course, [prefer] for it not to have been said, but at the same time I think it would do my client more harm now to go back and tell the jury to ignore what they may not have heard to begin with.\nThe court agreed not to give an instruction and then noted that it accepted the prosecutor\u2019s explanation that the reference was inadvertent.\nDefendant argues that under State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975), and State v. Simpson, 331 N.C. 267, 415 S.E.2d 351 (1992),- the prosecutor\u2019s comment entitles defendant to a new sentencing hearing. We disagree.\nIn Britt, in cross-examining the defendant, the prosecutor referred to defendant\u2019s having \u201csat on death row for the past year\u201d and having been \u201con death row . . . after you were convicted the last time.\u201d 288 N.C. at 708, 220 S.E.2d at 289. Defendant\u2019s objection was sustained, and the trial court sent the jury out. \u201c[D]efense counsel moved for a mistrial on the ground that a fair trial by this jury was no longer possible.\u201d Id. After an in camera conference, the court\nwith the consent of defense counsel, recalled the jury and instructed it that defendant previously had been convicted of first degree murder and sentenced to death but his conviction had been reversed by the Supreme Court of North Carolina so that the present trial was entirely new. The judge instructed the jury not to consider the prior trial and not to be influenced to any extent by defendant\u2019s prior conviction. Following such instruction defense counsel stated that he desired no further instructions and that his motion for mistrial was withdrawn. Subsequently, upon completion of the trial and during its charge to the jury, the court again instructed the jury to disregard defendant\u2019s prior trial and conviction, not to hold it against him, and to render their verdict solely upon new evidence offered at this particular trial.\nId. This Court stated that \u201c[c]ross-examination by which the prosecutor places before the jury inadmissible and prejudicial matter is highly improper and, if knowingly done, unethical. Id. at 712, 220 S.E.2d at 292 (emphasis added). Further, \u201c[S]ome transgressions are so gross and their effect so highly prejudicial that no curative instruction will suffice to remove the adverse impression from the minds of the jurors.\u201d Id. at 713, 220 S.E.2d at 292.\nWe find that the instant case differs significantly from Britt. First, the prosecutor made only one mention of death row, and the record makes clear that it was inadvertent. Second, when the remark was made, it went unnoticed by defense counsel or the court and so was never brought to the jury\u2019s attention by way of an objection or limiting instruction. Third, defendant did not move for a mistrial. Fourth, from the testimony of Dr. Groce, the prison chaplains, and a prison guard, it was clear that defendant had been in prison since 1984. From this evidence the jury could have inferred already that defendant had previously been sentenced to death; otherwise, he would not be receiving a new capital sentencing hearing. In light of all the circumstances, we cannot say that the prosecutor\u2019s inadvertent comment constituted a transgression so gross or highly prejudicial that it alone constituted the source of adverse impression, if any, in the minds of the jurors.\nIn Simpson, this Court joined \u201cother jurisdictions in declining to impose a per se rule that any juror with knowledge that a previous jury returned a recommendation of death for the same murder must be excused for cause.\u201d 331 N.C. at 271, 415 S.E.2d at 354. Defendant argues that (i) Simpson \u201cmandates inquiry into the issue of prior knowledge of a death sentence when it becomes apparent that a juror has [such] knowledge\u201d and (ii) this Court has said, \u201cWhen there is substantial reason to fear that the jury has become aware of improper and prejudicial matters, the trial court must question the jury as to whether such exposure has occurred and, if so, whether the exposure was prejudicial.\u201d State v. Barts, 316 N.C. 666, 683, 343 S.E.2d 828, 839 (1986) (emphasis added by defendant). Both Simpson and Barts are distinguishable from this case for the reason that both involve potentially prejudicial media exposure occurring outside the courtroom. By contrast, in the present case exposure to the potentially prejudicial information occurred during cross-examination with defense counsel present. Defendant not only had the opportunity to observe the extent and manner in which jurors were exposed, but to have a limiting instruction and, if desired, to request an inquiry. Defendant did not make such a request and specifically rejected the trial court\u2019s offer to instruct the jury. Furthermore, in the present case the jury\u2019s knowledge, if any, of defendant\u2019s previous death sentence, could not with certainty be attributed solely to conduct of the prosecutor.\nDefendant argues further that he was prejudiced by the introduction, during State\u2019s rebuttal evidence, of State\u2019s Exhibit 59, a report of clinical notes by psychiatrist James H. Carter, which ended with the following entry: \u201cDisposition: Contact was made with the nurse, Mr. Craft, on Ward 440, who will facilitate this patient\u2019s move to Death Row as soon as a bed becomes available.\u201d The report was among materials Dr. Groce reviewed in evaluating defendant in 1992. Defense counsel made only a general objection when the State moved admission of the report into evidence and apparently did not examine the report. Again, we cannot find any gross transgression on the part of the prosecutor. Further, as noted above, the jury could already have inferred from defendant\u2019s evidence that he had previously received a death sentence.\nFinally, defendant argues that he was prejudiced by the State\u2019s (i) introduction of photographs of the cellblock in which defendant had lived since 1985 and (ii) argument to the jury that defendant was \u201cunder a twenty-four hour watch in the most secure cell block in the most secure prison in the State of North Carolina.\u201d Again, we disagree.\nDefendant requested several mitigating circumstances based on his time in confinement, and this was the purpose for which he offered the testimony of the prison chaplains and guard. It was clear from defendant\u2019s evidence that he had been in maximum security in Central Prison for six or more years dating roughly from the time of the murder. Under these circumstances, the State was entitled to attempt to rebut any mitigating quality of defendant\u2019s evidence. If the jury learned from defendant\u2019s evidence that he had previously received a death sentence for the murder of Beatrice Williams, defendant cannot be heard to complain that the State argued against mitigation as arising from that same evidence.\nFor all the foregoing reasons, we conclude defendant was not prejudiced by the prosecutor\u2019s inadvertent remark, the introduction of Dr. Carter\u2019s notes, or the prosecutor\u2019s argument rebutting mitigation value of defendant\u2019s time spent in confinement. We hold defendant is not entitled to a new sentencing hearing based on these assignments of error.\nDefendant\u2019s next contention is that in questioning defendant\u2019s expert witness Coleman, the trial court improperly expressed an opinion that her evidence was deficient or suspect as to proof of mitigation. We disagree.\nDr. Coleman was accepted by the court as an expert in clinical psychology specializing in neuropsychology and forensic psychology. On direct examination she testified at length about her examination of defendant. The court\u2019s first question which defendant complains of came only after testimony consuming about twenty-six pages in the transcript. Defense counsel asked Dr. Coleman about an opinion she furnished before trial, and the following exchange took place:\nA. [Reading from letter] \u201cIt is my opinion that each of these factors meets the criteria for mitigation and I note that their combined presence is even more significant. There are interactive effects among them which result in an exacerbation of cognitive intellectual and behavioral deficits. Such as, lower judgment, decreased ability to evaluate, problem solve and consider consequences, and heightened disinhibition (sic). Thus the overall effect on cognitive processing and behavior, is much greater than would be the case with any single factor.\u201d\nThe Court: I\u2019m a little bit lost, ma\u2019am, would you tell me specifically what mitigation this points to?\nWitness: In terms of, I think, lower cognitive process and mental disease or defect and ...\nThe Court: (Interjected) Wait just a minute. What?\nWitness/Dr. Coleman: Mental disease or defect.\nThe Court: All right.\nWitness/Dr. Coleman: Secondary to alcohol and drug abuse ...\nThe Court: All right.\nWitness/Dr. Coleman: .. . history of head injury .. .\nThe Court: All right.\nWitness/Dr. Coleman: . . . and borderline intelligence. The combination of those three things.\nThe Court: Amount to what?\nWitness/Dr. Coleman: In my opinion it\u2019s a mitigating factor.\nThe Court: All right. Thank you.\nDefendant argues that the trial court knew what mitigation Dr. Coleman\u2019s testimony pointed to and amounted to. Hence, the court had no need to engage in a sufficiency inquiry before the jury and the inquiry \u201cwas a display of the judge\u2019s negative assessment of the evidence\u201d which was not lost on the jury. We do not find these arguments persuasive.\nThe Criminal Procedure Act provides, \u201cThe judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.\u201d N.C.G.S. \u00a7 15A-1222 (1988). Nevertheless, \u201c[t]he court may interrogate witnesses, whether called by itself or by a party.\u201d N.C.G.S. \u00a7 8C-1, Rule 614 (1992). Fulfilling the duty \u201cto supervise and control the course of a trial so as to insure justice to all parties, the judge may question a witness in order to clarify confusing or contradictory testimony.\u201d State v. Ramey, 318 N.C. 457, 464, 349 S.E.2d 566, 571 (1986). In a capital sentencing proceeding the trial court has the duty of deciding which instructions on mitigating circumstances are warranted by the evidence. N.C.G.S. \u00a7 15A-2000(b) (1988).\nIn our view, the questions did not denigrate either defendant\u2019s witness or her evidence. Instead, the questions helped to develop testimony favorable to the defense and assist the trial court in its task of deciding whether mitigating circumstances which might later be requested by the defense were in fact supported by the evidence. Considering all the circumstances, we conclude the court did not err in asking the questions; and we overrule this assignment of error.\nDefendant next contends that by turning his back during defendant\u2019s testimony, the trial judge expressed contempt which prejudiced defendant. Again, we disagree.\nThe only record reference to the court\u2019s action appears on a page entitled \u201cAppearance of Counsel in Superior Court.\u201d The last paragraph of a section entitled \u201cTrial Testimony, Exhibits, and Matters Not Appearing in the Trial Transcript\u201d reads as follows: \u201cDuring the examination of the defendant, the trial judge, sitting at the bench, turned his chair so that his back was to the defendant. This occurred only upon the examination of the defendant and no other witness.\u201d In addition, the Certificate of Settlement indicates the record on appeal was settled by expiration of the time for the appellee to respond. Nothing of record indicates where, in relation to the judge\u2019s position, the defendant was sitting, whether the judge\u2019s back was partially or fully turned, or how long his back might have been turned. Moreover, the transcript is devoid of any indication that the court in fact took such action. During the first part of defendant\u2019s testimony, the court ruled on five objections made by the State. Shortly after the fifth ruling, the court instructed the jury to take its midaftemoon recess. After court was reconvened, cross-examination began, and the court ruled on numerous objections by defense counsel, overruling some and sustaining others. In addition, one bench conference took place, and once the court sent the jury out and conducted a lengthy voir dire. These record facts suggest that the judge could not have had his back to defendant more than a few minutes. Even assuming that the trial judge may have turned his back for a few minutes during defendant\u2019s direct examination, the record does not clearly show any prejudice to defendant. For this reason, we overrule this assignment of error.\nDefendant\u2019s next two contentions relate to the parties\u2019 closing arguments. Defendant first contends the trial court erred by failing to intervene ex mero motu during the State\u2019s closing arguments. We agree that some of the prosecutors\u2019 statements were improper but find no prejudice.\nIn a capital sentencing proceeding \u201ccounsel is permitted wide latitude in his argument to the jury.\u201d State v. Sanderson, 336 N.C. 1, 15, 442 S.E.2d 33, 42 (1994). In Sanderson, the Court also discussed limitations on such arguments:\nAs we stated in Britt-. \u201c \u2018The trial court has a duty, upon objection, to censor remarks not warranted by either the evidence or the law, or remarks calculated to mislead or prejudice the jury. If the impropriety is gross it is proper for the court even in the absence of objection to correct the abuse ex mero motu.\u2019 \u201d 288 N.C. at 712, 220 S.E.2d at 291 (quoting State v. Monk, 286 N.C. 509, 516, 212 S.E.2d 125, 131 (1975)).\nId. In Sanderson the prosecutor\u2019s argument (i) misstated evidence, (ii) suggested personal knowledge of inflammatory facts not of record, and (iii) placed before the jury an aggravating circumstance which the trial court had declined to submit. Id. For these and other abuses, this Court concluded defendant was deprived \u201cof his due process right to a fair sentencing proceeding.\u201d Id. at 20, 442 S.E.2d at 44. Nevertheless, this Court has also said that\nprosecutorial statements are not placed in an isolated vacuum on appeal. Fair consideration must be given to the context in which the remarks were made and to the overall factual circumstances to which they referred. Moreover, it must be remembered that the prosecutor of a capital case has a duty to pursue ardently the goal of persuading the jury that the facts in evidence warrant imposition of the ultimate penalty.\nState v. Pinch, 306 N.C. 1, 24, 292 S.E.2d 203, 221-22 (citations omitted), 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), overruled on other grounds by State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988), and by State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994). With these principles in mind, we turn to defendant\u2019s arguments.\nIn closing, Assistant District Attorney Turner argued to the jury that it should not find as a mitigating circumstance that defendant suffered from a personality disorder with dependency traits, stating as follows:\nNow, first of all, what is that anyway? A personality disorder is not a mental illness, first of all. It\u2019s just a personality trick [sic], everybody\u2019s got their own little personality traits. But he suffers from one, a dependency trait. Did you hear what the doctor based that opinion on? I heard the lawyer come up and ask Dr. Coleman if [defendant] had a dependency trait. And I heard her say, \u201cOh, oh yes, he does.\u201d But did you hear what she based it on? Did you hear what she got that from? I submit to you, ladies and gentlemen, she\u2019s getting paid three thousand dollars to work on this case, she\u2019ll say anything he wants her to say. \u201cOh, yes, he\u2019s got one.\u201d Anything else? What did she base it on, a dependency trait. Is that a mitigating factor? Does that somehow lessen what [defendant] did to Beatrice Williams that night? If it does, ladies and gentlemen, if that is a mitigating factor, then only God can help the women in Northampton County.\nIn addition, District Attorney Beard argued against the jury\u2019s finding as a mitigating circumstance that defendant suffered from chronic seizure disorder. Attempting to distinguish seizures from blackout spells, Beard said as follows:\n[T]here\u2019s no evidence whatsoever that [defendant\u2019s] ever had a blackout spell where it wasn\u2019t a seizure. Do you recall m[y] asking Dr. Groce, Dr. Groce, and I\u2019ll come back to that in a moment, Dr. Groce, did you ever ask this defendant, did you ever ask him and that\u2019s \u2014 wouldn\u2019t that make sense to you, each one of you, wouldn\u2019t that make sense to you, ladies and gentlemen of the jury, reason and common sense, that if someone claims that they\u2019ve had a blackout spell on April first of 1984, when he couldn\u2019t\u2014 didn\u2019t know anything that was going on, wouldn\u2019t you, you don\u2019t have to be a psychologist or a psychiatrist, wouldn\u2019t you say, well, gee, if that\u2019s true, then let\u2019s see if he had one before when he says he was doing all this dope everyday [sic]. Let\u2019s ask one simple question. One simple question. Has he ever had a blackout spell before, doctor? Doctor, did you ask that question? Well, no, I can\u2019t remember that I did. You know dam well he did. You know, he\u2019s been paid, you know darn well he did. [Defendant] just didn\u2019t have any other blackout spells, and didn\u2019t have anything to report, so, he didn\u2019t write it down. If [defendant had] had three other blackout spells, I\u2019m not talking about \u2014 I\u2019m talking about not where \u2014 I\u2019m talking about not epilepsy spells, but blackout spells as of April first, then you might think there might be something to it, but there isn\u2019t.\nDefendant has cited only one case, State v. Vines, 105 N.C. App. 147, 412 S.E.2d 156 (1992), in support of his argument that these remarks were grossly improper. In Vines, the court found gross impropriety where a prosecutor attacked an expert witness by arguing, \u201cYou can get a doctor to say just about anything these days.\u201d 105 N.C. App. at 156, 412 S.E.2d at 162. The court also said the prosecutor elaborated on this theme and implied or suggested that the doctor\u2019s testimony was motivated by \u201cpay.\u201d Id. Although improper, the argument was not prejudicial \u201cin light of the strong and convincing case against defendant.\u201d Id. at 156, 412 S.E.2d at 163.\nIn the instant case, assuming arguendo that the prosecutors\u2019 statements were improper and should have been condemned by the trial court, they do not entitle defendant to a new sentencing proceeding. As shown from the passages quoted above, the thrust of the lengthy arguments was not that the witnesses had been paid, but that their testimony did not provide a factual basis for finding (i) personality disorder or (ii) blackout spells independent of seizures arising from a disorder. In addition, the statements are nothing like those made by the prosecutor in Sanderson.\nDefendant also argues that the prosecutors\u2019 references to the victim and her lifestyle constituted gross improprieties. We disagree.\nIn Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720 (1991), the Court said as follows:\n[A] state may properly conclude that for the jury to assess meaningfully the defendant\u2019s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. \u201c[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.\u201d\nId. at-, 115 L. Ed. 2d at 735 (quoting Booth v. Maryland, 482 U.S. 496, 517, 96 L. Ed. 2d 440, 457 (1987) (White, J., dissenting)). Before Booth was overruled by Payne, this Court held several times that prosecutors\u2019 de minimus references to victims\u2019 rights or those of then-families did not constitute gross impropriety. E.g., State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990), on remand, 329 N.C. 679, 406 S.E.2d 827 (1991). Since in the instant case the prosecutors\u2019 remarks were indistinguishable from those in Artis, we conclude the trial court did not err in failing to intervene ex mero motu.\nDefendant also argues that the prosecutors made improper attacks on defendant by arguing that he (i) had enjoyed stalking and killing the victim; (ii) was a \u201chound of hell,\u201d lay in wait for the victim \u201clike a durned snake,\u201d and changed \u201clike a lizard changes colors\u201d; (iii) took notes during the arguments; (iv) attempted to lay blame for the murder on his father; (v) perjured himself in testifying that he had not been convicted of possession of stolen property; (vi) colluded with his attorneys to present himself as remorseful; and (vii) chose to affirm rather than swear to tell the truth. We have carefully reviewed the entire arguments and find they fall within the wide latitude permitted by Sanderson and Britt.\nDefendant also argues that he was prejudiced by the prosecutor\u2019s comment, made during defense counsel\u2019s closing argument, about parole. Again, we disagree.\nDefense counsel argued to the jury that defendant\u2019s prison record, despite some fights and other problems, showed that he had adjusted well to incarceration and was not a problem inmate. The context of the prosecutor\u2019s remark was as follows:\nMr. Harvey: . . . He\u2019s shown that he can live in a structured environment. He\u2019s shown that he can live for long periods of time, eight or nine years, in a very restricted structured environment, and perform very well. Remember what the [c]haplain said about him. Remember what the guard, Sergeant Humphr[ey] said. He says he sits there eight hours a day in that control booth and he can see him. He can see inside the cells, he can see through the day room, he can see almost this entire area, and he described [defendant\u2019s] conduct and behavior as being good. I\u2019ll ask you to find that to be a mitigating factor. I\u2019ll argue to you this: That\u2019s a good reason to give him life. He\u2019s shown you that he knows how to comport himself in prison. And all we\u2019re really asking you to do is put him in prison for the rest of his life and not to kill him.\nMr. Beard: Objection to \u201cthe rest of his life,\u201d Your Honor, that\u2019s not what happens.\nThe Court: Sir?\nMr. Warmack: Objection.\nMe. Harvey: Objection.\nMr. Beard: I object to counsel saying put him in jail for the rest of his life. That\u2019s not what happens.\nMe. Harvey: Objection to the comment, Judge.\nThe Court: Well, Solicitor, your objection is overruled, and Mr. Harvey[,] your objection is sustained. Go ahead.\nMr. Harvey: Thank you very much, Judge. But that\u2019s what these last eight years have shown you. That\u2019s what all these 8 x 10 color gloss [i]es (indicated) that Mr. Bread [sic] brought in to you and showed you of the jail. That\u2019s what it shows, that [defendant] is able to live, in a structured environment of the prison and perform and function well. It\u2019s another reason not to take his life, not to kill him.\nAs discussed above, this Court has consistently held that parole and parole eligibility are not proper matters for consideration by the jury in a capital sentencing. Although at the time of defendant\u2019s offense, North Carolina was not a state in which a defendant could receive a sentence of life imprisonment without parole, if during deliberations the jurors asked about the meaning of a life sentence, they were instructed that a life sentence means life in prison. In the instant case, defense counsel was permitted to argue in accord with this practice. Since the prosecutor\u2019s objection lacked a legal basis, it was improper; and the trial court properly overruled it.\nAs Britt makes clear, when objection is made to the argument of counsel, the trial court has a duty to censor any remarks not warranted by evidence or law. Cf. Simmons v. South Carolina, \u2014 U.S. at-, 129 L. Ed. 2d. at 148 (Souter, J., concurring) (\u201c[0]n matters of law, arguments of counsel do not effectively substitute for statements by the court.\u201d); State v. Brock, 305 N.C. 532, 540, 290 S.E.2d 566, 572 (1982) (emphasizing duty of court to instruct the jury). However, defendant has not cited, and our research has not revealed, any case holding that when overruling an objection during argument, the court must instruct the jury to disregard the objection.\nIn the instant case, after the prosecutor\u2019s objection was overruled and defense counsel\u2019s objection to the objection was sustained, defense counsel was permitted to argue again that defendant\u2019s adjustment to prison was a reason not to take his life. On these facts, this Court cannot find that defendant was prejudiced by the prosecutor\u2019s objection.\nFor all the foregoing reasons, we conclude that all the prosecutors\u2019 statements complained of did not result in a denial of \u201c \u2018that fundamental fairness essential to the very concept of justice.\u2019 \u201d Donnelly v. De Christoforo, 416 U.S. 637, 642, 40 L. Ed. 2d 431, 436 (1974) (quoting Lisenba v. California, 314 U.S. 219, 236, 86 L. Ed. 166, 180 (1941)). Therefore, we overrule these assignments of error.\nDefendant next contends the trial court erred in its instruction on the statutory mitigating circumstance that the defendant had \u201cno significant history of prior criminal activity.\u201d N.C.G.S. \u00a7 15A-2000(f)(l) (1988). Defendant argues that in its wording of the instruction, the court presented the evidence relating to this circumstance in the light most favorable to the State, thereby erroneously expressing an opinion on the evidence. We disagree.\nThe court instructed as follows:\nFirst, consider whether the defendant has no significant history of prior criminal activity. Significant means important or notable. Whether any history of prior criminal activity is significant is for you to determine from all of the facts and circumstances which you find from the evidence. However you should not determine whether it is significant only on the basis of the number of convictions, if any, in the defendant\u2019s record. Rather you should consider the nature and quality of the defendant\u2019s history, if any, in determining whether it is significant.\nYou would find this mitigating circumstance if you find that on the first of December, 1983, the defendant pled guilty to misdemeanor possession of stolen property. That on the 12th of December, 1983, the defendant pled guilty to one count of assault on a female and one count of communicating threats to Beatrice Williams; that at some time in the past the defendant was convicted of driving while his license was suspended; that in the middle of March, 1984, the defendant cut Beatrice Williams with a knife; that sometime around 1978, the defendant choked Barbara Spruill, his wife and that this is not a significant history of prior criminal activity.\nDefendant argues further that this instruction did not indicate that evidence relating to his alleged unadjudicated misconduct towards the victim and his former wife was contested. However, since defendant failed to object to the instruction, our review is for plain error. State v. Gibbs, 335 N.C. 1, 49, 436 S.E.2d 321, 349 (1993). To constitute plain error, an error in jury instructions must be so fundamental as to have (i) amounted to a miscarriage of justice or (ii) probably resulted in the jury\u2019s reaching a different verdict than it would have reached without the error. State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993).\nWe find it significant that the court first reminded the jurors that they were to find the facts and circumstances from the evidence. Only then did the court instruct the jurors that they should consider the nature and quality of the defendant\u2019s history, if any, and would find the circumstance if they found that defendant had cut the victim and choked his former wife. Reading the instruction in its entirety, we are persuaded that it did not constitute an improper expression of opinion which probably resulted in the jury\u2019s reaching a different verdict. Therefore, we hold the instruction did not amount to plain error.\nDefendant next contends that the trial court erred in its instructions on two other statutory mitigating circumstances, that the murder \u201cwas committed while the defendant was under the influence of mental or emotional disturbance, N.C.G.S. \u00a7 15A-2000(f)(2), and that defendant\u2019s capacity to appreciate the criminality of his conduct or conform it to law was impaired, N.C.G.S. \u00a7 15A-2000(f)(6). Again, we disagree.\nThe court instructed as follows:\n2. Consider whether this murder was committed while the defendant was. under the influence of mental or emotional disturbance. A defendant is under such influence if he is in any way affected or influence by a mental or emotional disturbance at the time he kills.\nBeing under the influence of mental or emotional disturbance is similar to but not the same as being in a heat of passion upon adequate provocation. A person may be under the influence of mental or emotional disturbance even if he had no adequate provocation and even if his disturbance was not so strong as to constitute heat of passion or preclude deliberation. For this mitigating circumstance to exist, it is enough that the defendant\u2019s mind or emotions were disturbed, from any cause, and that he was under the influence of the disturbance when he killed the victim.\nYou would find this mitigating circumstance if you find that the defendant suffered from a mental disorder and had poor reality orientation and borderline intelligence and a personality disorder with inadequate and dependent features, and that, as a result, the defendant was under the influence of mental disturbance when he killed the victim.\n(Emphasis added.)\nDefendant argues that the court\u2019s use of \u201cand\u201d meant that a juror\u2019s failure to find any one of the factual elements meant consideration of the circumstance was entirely precluded. However, since defendant failed to object to the instruction, our review is for plain error.\nIn light of the court\u2019s preliminary directive that the defendant was under such an influence if he was in any way affected or if his mind or emotions were disturbed from any cause, we do not find defendant\u2019s argument persuasive. Reading the instruction in its entirety, we do not believe the jurors could have applied it in a way that prevented \u201cconsideration of constitutionally relevant evidence.\u201d Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d 316, 329 (1990).\nDefendant also argues that by its similar use of \u201cand\u201d in stating the factual predicates which could support the finding of mitigating circumstance (f)(6), the trial court precluded the jurors from finding the existence of this circumstance unless they first found the existence of every fact recited by the court. Again, we disagree.\nBefore restating the facts tending to support a finding of this circumstance, the court instructed the jury that \u201cfor this mitigating circumstance to exist, the defendant\u2019s capacity to appreciate does not need to have been totally obliterated.\u201d In addition, the court instructed that \u201cthe defendant need not wholly lack all capacity to conform. It is enough that such capacity as he might otherwise have had in the absence of his impairment is lessened or diminished because of such impairment.\u201d\nAgain, since defendant failed to object, our review is for plain error. Reading the instruction in its entirety, we do not believe the jury was misled into reaching a result different from the one it would have reached had the instruction not contained the word \u201cand.\u201d In sum, for all the foregoing reasons, we find that the challenged instructions did not amount to plain error.\nDefendant\u2019s next contention is that the trial court erred by instructing the jurors that each could exercise his discretion in deciding whether to consider any mitigating circumstance found in Sentencing Issue Two when answering Issues Three and Four. Again we disagree.\nThe Criminal Procedure Act provides in pertinent part:\nAfter hearing the evidence, argument of counsel, and instructions of the court, the jury shall deliberate and render a sentence recommendation to the court, based upon the following matters:\n(1) Whether any sufficient aggravating circumstance or circumstances as enumerated in subsection (e) exist;\n(2) Whether any sufficient mitigating circumstance or circumstances as enumerated in subsection (f), which outweigh the aggravating circumstance or circumstances found, exist; and\n(3) Based on these considerations, whether the defendant should be sentenced to death or to imprisonment in the State\u2019s prison for life.\nN.C.G.S. \u00a7 15A-2000(b) (1988). Under this statute, each juror must be\npermitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death. This requirement means that, in North Carolina\u2019s system, each juror must be allowed to consider all mitigating evidence in deciding Issues Three and Four: whether aggravating circumstances outweigh mitigating circumstances, and whether the aggravating circumstances, when considered with any mitigating circumstances, are sufficiently substantial to justify a sentence of death.\nMcKoy v. North Carolina, 494 U.S. 433, 442-43, 108 L. Ed. 2d 369, 381 (1990).\nIn the instant case, the trial court first instructed as follows:\nIssue Three is, \u201cDo you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found is, or are, insufficient to outweigh the aggravating circumstance found by you?\nIf you find from the evidence one or more mitigating circumstances, you must weigh the aggravating circumstance against the mitigating circumstances. When deciding this issue, each juror must consider each \u2014 strike that, each juror \u2014 When deciding this issue, each juror may consider any mitigating circumstance or circumstances that the juror determined to exist by a preponderance of the evidence in Issue Two.\nThereafter the court also instructed as follows:\nIssue Four is, \u201cDo you unanimously find beyond a reasonable doubt that the aggravating circumstance you found is sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstance or circumstances found by one or more of you?\u201d\nIn deciding this issue, you are not to consider the aggravating circumstance standing alone. You must consider it in connection with any mitigating circumstances found by one or more of you. When making this comparison, each juror may consider any mitigating circumstance or circumstances that \u2014 strike that. When making this comparison, each juror may consider any mitigating circumstance or circumstances that juror determined to exist by a preponderance of the evidence.\n(Emphasis added.)\nAgain, since defendant did not object to the instructions, our review is for plain error. Instead of precluding any individual juror from considering any mitigating circumstance or circumstances she or he found at Issue II, these instructions plainly directed that the evidence in mitigation, if found by one or more jurors, had to be weighed against the evidence in aggravation. In our view, the instructions are in accord with the dictates of McKoy and could not have been misapplied by the jury. Since there was no error, this Court cannot find plain error, State v. Torain, 316 N.C. 111, 123, 340 S.E.2d 465, 468 (1986); and we overrule this assignment of error.\nDefendant also contends the trial court erred in denying his request for an instruction on parole. However, in light of our earlier discussion of Simmons and case law prohibiting the jury from considering this matter, we overrule this assignment of error.\nDefendant next contends he is entitled to a new sentencing proceeding because the trial court failed to submit to the jury the statutory mitigating circumstance of his age at the time of the crime. N.C.G.S. \u00a7 15A-2000(f)(7) (1988). Defendant argues that (i) chronological age is not the determining factor and (ii) the circumstance was supported by evidence that he was an immature and dependent person who had borderline intelligence. While we agree that chronological age is not determinative, we do not agree that the trial court erred.\nWe note first that defendant did not request that the trial court submit this mitigating circumstance to the jury. In addition, evidence showed that he was thirty-one years, old, had worked as an automobile mechanic and in a shipyard, moved on to a better position, attended church, and functioned quite well in the community.\nIn State v. Johnson, 317 N.C. 343, 346 S.E.2d 596 (1986), the Court reiterated that the statutory mitigating circumstance of age is based on a \u201cflexible and relative concept of age.\u201d Id. at 393, 346 S.E.2d at 624. Nevertheless, evidence showing emotional immaturity is not viewed in isolation, particularly where other evidence shows \u201cmore mature qualities and characteristics.\u201d Id. Where evidence of emotional immaturity is counterbalanced by a chronological age of twenty-three years, apparently normal physical and intellectual development, and experience, the trial court is not required to submit the mitigating circumstance of age. Following Johnson, we conclude that in the instant case the court did not err in failing to submit this circumstance.\nDefendant\u2019s next contention is that the trial court erred in refusing to submit to the jury certain nonstatutory mitigating circumstances requested by defendant and supported by the evidence. Defendant argues that the jury was precluded from considering some mitigating aspects of his character or record, in violation of Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 990 (1978). We disagree with this contention.\nDefendant first argues that the trial court erred in failing to submit that prior to 1 April 1984 defendant had never been involved in a felony. However, the statutory mitigating circumstance that defendant had no significant history of criminal activity was submitted. Moreover, the instruction on this circumstance included an accurate summary of the evidence presented, which showed defendant\u2019s prior criminal activity included some offenses resulting in charges and convictions and other offenses which had not resulted in charges or convictions. Since the jury was not precluded from considering any aspect of defendant\u2019s record, we conclude the trial court did not violate the rule of Lockett by refusing to submit an additional nonstatutory circumstance relating thereto.\nDefendant next argues that the trial court erred by combining into one circumstance two aspects of defendant\u2019s educational background, that he (i) did poorly in school and dropped out before completing eleventh grade and (ii) was placed in special education classes in ninth grade. Defendant also argues that the court erred in combining into one circumstance that he (i) was struck with a poker by his father, (ii) suffered a head injury, and (iii) suffered from chronic seizure disorder. However, this Court has previously held that combining separately-proffered statements of mitigation relating to a single aspect of a defendant\u2019s character or record does not violate a defendant\u2019s federal constitutional rights. State v. Greene, 324 N.C. 1, 21, 376 S.E.2d 430, 442 (1989) (approving combining and submitting within the context of two separate statutory mitigating circumstances defendant\u2019s independently proffered mitigation statements), death sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990); on remand, 329 N.C. 771, 408 S.E.2d 185 (1991). For all the foregoing reasons, we conclude the trial court did not err by precluding the jury from considering mitigation proffered by defendant.\nPreservation Issues\nDefendant raises six additional issues which he concedes have been decided against him by this Court: (i) the trial court erred in denying his motion for individual jury voir dire; (ii) the court erred in denying him the right to examine each juror challenged by the State during death qualification; (iii) the court erred in admitting hearsay statements of the victim relating to her state of mind; (iv) the court erred in denying defendant\u2019s request for an instruction defining \u201cmitigation\u201d; (v) the court erred in instructing the jurors that it was for them to determine whether the nonstatutory mitigating circumstances in fact possessed mitigating value; and (vi) the especially heinous, \u00e1trocious, or cruel aggravating circumstance is unconstitutionally vague.\nWe have carefully considered defendant\u2019s arguments on these issues and find no compelling reason to depart from our prior holdings. Therefore, we overrule these assignments of error.\nProportionality\nHaving found defendant\u2019s capital sentencing proceeding free of prejudicial error, we are required by statute to review the record and determine whether (i) the record supports the jury\u2019s finding of the aggravating circumstance on which the court based its death sentence, (ii) the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and (iii) the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and defendant. N.C.G.S. \u00a7 15A-2000(d)(2) (1988); State v. Robbins, 319 N.C. 465, 526, 356 S.E.2d 279, 315, cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226 (1987).\nRecord evidence which supports the jury\u2019s finding that the murder was especially heinous, atrocious, or cruel included that the defendant assaulted, harassed, stalked, and threatened the victim prior to killing her. Moreover, his presence and actions at the nightclub reduced her to a state of terror, as shown by her crying, shifting her weight from one foot to the other, and wringing her hands. Other evidence showed that defendant\u2019s slashing of the victim\u2019s throat was especially brutal, since cartilage in her throat had been cut through and through. In addition, the victim drowned in her own blood, and State\u2019s expert medical witness testified that this process may take from five to ten minutes. Taken together, these facts show that (i) the murder was physically agonizing to the victim and (ii) left her, in her last moments \u201caware but helpless to prevent impending death.\u201d State v. Oliver, 309 N.C. 326, 346, 307 S.E.2d 304, 318 (1983). Therefore, we conclude the record supports the jury\u2019s finding of the sole aggravating circumstance upon which the death sentence was based. We further conclude that nothing of record suggests that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.\nWe turn to our final statutory duty, proportionality review. We first compare similar cases from a pool of all cases arising after 1 June 1977, the effective date of the capital punishment statute. We consider cases tried capitally and found free of error on direct appeal to this Court and in which the jury recommended death or life imprisonment or the trial court imposed life imprisonment after the jurors failed within a reasonable period of time to agree on a sentencing recommendation. State v. Syriani, 333 N.C. 350, 400, 428 S.E.2d 118, 146 (1993). The pool includes only those cases which this Court has found to be free of error in both phases of the trial.\u201d State v. Stokes, 319 N.C. 1, 19-20, 352 S.E.2d 653, 663 (1987). In State v. Bacon, 337 N.C. 66, 446 S.E.2d 542, petition for cert. denied,-U.S. \u2014-, 130 L. Ed. 2d 1083 (1994), this Court clarified the composition of the pool so as to account for post-conviction relief awarded to death-sentenced defendants:\nBecause the \u201cproportionality pool\u201d is limited to cases involving first-degree murder convictions, a post-conviction proceeding which holds that the State may not prosecute the defendant for first-degree murder or results in a retrial at which the defendant is acquitted or found guilty of a lesser included offense results in the removal of that case from the \u201cpool.\u201d When a post-conviction proceeding results in a new capital trial or sentencing proceeding, which, in turn, results in a life sentence for a \u201cdeath-eligible\u201d defendant, the case is treated as a \u201clife\u201d case for purposes of proportionality review. The case of a defendant sentenced to life imprisonment at a resentencing proceeding ordered in a post-conviction proceeding is similarly treated. Finally, the case of a defendant who is either convicted of first-degree murder and sentenced to death at a new trial or sentenced to death in a resentencing proceeding ordered in a post-conviction proceeding, which sentence is subsequently affirmed by this Court, is treated as a \u201cdeath-affirmed\u201d case.\nId. at 107, 446 S.E.2d at 564. \u201c[A] conviction and death sentence affirmed on direct appeal is presumed to be without error, and ... a post-conviction decision granting relief to a convicted first-degree murderer is not final until the State has exhausted all available appellate remedies.\u201d Id. at 107 n.6, 446 S.E.2d at 564 n.6.\nOur consideration is also limited to cases roughly similar as to the crime and the defendant, but we are not bound to cite every case used for comparison. Syriani, 333 N.C. at 400, 428 S.E.2d at 146. If juries have consistently returned death sentences in those similar cases, a strong basis exists for concluding that the sentence under consideration is not excessive or disproportionate. However, if juries have consistently returned life sentences in similar cases, a strong basis exists for concluding that the sentence under consideration is disproportionate. Id. at 401, 428 S.E.2d at 146.\nCharacteristics distinguishing the instant case include (i) a murder preceded by physical and mental abuse, including assaults and threats, (ii) a senseless and brutal public stabbing found to be especially heinous, atrocious, or cruel by the jury, and (iii) a distinct failure of the defendant to show remorse after the killing. Further, of twenty-three mitigating circumstances submitted, the jury rejected twenty-two, finding the existence of only one nonstatutory circumstance, that the defendant suffered from a personality disorder with dependency traits.\n\u201cOf the cases in which this Court has found the death penalty disproportionate, only two involved the \u2018especially heinous, atrocious, or cruel\u2019 aggravating circumstance.\u201d Id. at 401, 428 S.E.2d at 146-47 (citing State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983)). Significant dissimilarities between Stokes and the instant case include that (i) defendant Stokes was only seventeen years old, but defendant Spruill was thirty-one and (ii) in Stokes no evidence showed who was the ringleader, but defendant Spruill alone was responsible for his crime. Defendant\u2019s case is also significantly different from Bondurant, wherein the defendant immediately exhibited remorse and concern for the victim\u2019s life by helping him get medical treatment. By contrast, defendant Spruill (i) immediately said that he meant to kill the victim, (ii) fled the scene, and (iii) soon thereafter suggested to Trooper Harris that medical help would not arrive in time to save her.\nIn State v. Spruill, 320 N.C. 688, 360 S.E.2d 667 (1987), this Court reviewed defendant\u2019s first capital trial and sentencing proceeding and considered whether the death sentence he received was disproportionate. We noted that the distinguishing characteristics of the earlier case were as follows:\n(1) it is a case of first degree murder, preceded by prior physical and mental abuse of the victim; (2) it is a case in which a single aggravating factor [sic] was found, \u201cthat the killing was especially heinous, atrocious or cruel,\u201d N.C.G.S. \u00a7 15A-2000(e)(9); (3) it is a case in which no mitigating factors were found, although five were submitted to the jury; and (4) it is a case in which defendant showed no remorse for his actions, and appeared in full control of his mental and physical condition.\n320 N.C. at 701, 360 S.E.2d at 674. In reaching the conclusion that defendant\u2019s sentence was not disproportionate, we reviewed many cases. The only significant difference between defendant\u2019s two cases is that the present case is more egregious, the jury having considered and rejected many more mitigating circumstances. For this reason, we do not consider it necessary to review those cases which formed the basis for our conclusion that the earlier sentence was not disproportionate. See Syriani, 333 N.C. at 400, 428 S.E.2d at 146. Instead, we consider cases which have come into'the pool since our previous review.\nThere are now in the pool five cases involving murder by stabbing of a spouse or intimate friend of the opposite sex. State v. Lynch, 337 N.C. 415, 445 S.E.2d 581 (1994); State v. Fisher, 336 N.C. 684, 445 S.E.2d 866 (1994); State v. Bearthes, 329 N.C. 149, 405 S.E. 2d 170 (1991); State v. Clark, 324 N.C. 146, 327 S.E.2d 54 (1989); State v. Tidwell, 323 N.C. 668, 374 S.E.2d 577 (1989).\nIn every case but Lynch, the jury found that the murder was especially heinous, atrocious, or cruel. Given the importance of this statutory aggravating circumstance in capital cases, we conclude that defendant\u2019s case is dissimilar to Lynch. Clark also is distinguishable because the victim was the defendant\u2019s husband, but defendant\u2019s boyfriend wielded the knife. Of the remaining three cases, one resulted in a death sentence, Fisher; and two resulted in life sentences, Bearthes; Tidwell. In all three cases, however, the juries found mitigation both quantitatively and qualitatively greater than in the instant case. For this reason, and because the jury found the murder was especially heinous, atrocious, or cruel, we cannot say that the death sentence herein is disproportionate. We hold defendant received a fair trial and capital sentencing proceeding free of prejudicial error and that the death penalty is not disproportionate.\nNO ERROR.\n. This case is clearly distinguishable from State v. Jenkins, 115 N.C. App. 520, 445 S.E.2d 622, disc. rev. denied, 337 N.C. 804, 449 S.E.2d 752 (1994), in which the trial judge turned his back to the jury for forty-five minutes during the defendant\u2019s testimony on direct examination, and the Court of Appeals awarded a new trial.\n. Pursuant to a statutory amendment, North Carolina now has life without parole, N.C.G.S. \u00a7 15A-1380.5 (Supp. 1994). For offenses occurring after 1 October 1994, the judge is required to instruct the jury that a sentence of life imprisonment means a sentence of life without parole. N.C.G.S. \u00a7 15A-2002 (Supp. 1994).\n. In Fisher, the jury found eight mitigating circumstances, including two statutory circumstances, that the defendant had no significant history of prior criminal activity, N.C.G.S. \u00a7 15A-2000(f)(1) (1988), and was under the influence of mental or emotional disturbance, \u00a7 15A-2000(f)(2). 336 N.C. at 709, 445 S.E. 2d at 880. A review of the record in Bearthes shows that the jury found seven mitigating circumstances, including two statutory circumstances, no significant history of prior criminal activity and mental or emotional disturbance. In Tidwell the jury found twelve mitigating circumstances, including no significant history, mental or emotional disturbance, and diminished capacity. 323 N.C. at 672 n.1, 374 S.E.2d at 579 n.1.", "type": "majority", "author": "PARKER, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Charles M. Hensey, Special Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Staples Hughes, Assistant Appellate Defender, and Gretcken M. Engel, Death Penalty Resource Center, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNNIE LEE SPRUILL\nNo. 404A92\n(30 December 1994)\n1. Jury \u00a7 259 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 peremptory challenges \u2014 racial discrimination\nAlthough the trial court in a first-degree murder resentencing hearing did not find or conclude that the defendant had met his burden of showing a prima facie case of discrimination in the use of peremptory challenges during jury selection, the court required each party to state reasons for its challenges and the case was treated as if the defendant had made out a prima facie case. In reviewing the issue of purposeful discrimination during jury selection, relevant considerations include the race of the defendant, victims, and key witnesses; the prosecutor\u2019s questions and statements during voir dire-, the use of a disproportionate number of peremptory challenges to strike black jurors in a single case; and the acceptance rate of black jurors by the State. This case does not involve an interracial killing, most of the witnesses are African-Americans, the acceptance rate was 53%, while the prosecutor may have in part confused one prospective juror with another person, the prosecutor clearly stated a race-neutral reason manifestly supported by the record, defense counsel did not exercise his right of surrebutal to show the trial court that any of State\u2019s proffered reasons constituted pretexts, and defendant made no independent argument based on Article I, Section 26, of the North Carolina Constitution.\nAm Jur 2d, Jury \u00a7 235.\nProof as to exclusion of or discrimination against eligible class or race in respect to jnry in criminal case. 1 ALR2d 1291.\nUse of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.\n2. Jury \u00a7 145 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 questions concerning death penalty \u2014 challenges for cause ultimately granted \u2014 no error\nThere was no error during jury selection for a first-degree murder resentencing hearing where defendant on appeal addressed an argument to the voir dire of a particular juror but included no assignment of error thereon, and assigned error to two others on the same ground but included no arguments, and the court granted defendant\u2019s challenges for all three for cause, so that there could be no error under Morgan v. Illinois, 119 L. Ed. 2d 492.\nAm Jur 2d, Jury \u00a7\u00a7 201, 202.\n3. Jury \u00a7 201 (NCI4th)\u2014 first-degree murder \u2014 denial of challenges for cause \u2014 trial court not partisan\nThere was no error during jury selection for a first-degree murder resentencing hearing where defendant argued that the court showed partiality during jury selection in denying his motion to excuse for cause prospective juror Morgan and in denying the motion to excuse for cause prospective juror King after questions regarding crime and the death penalty where defendant used a peremptory challenge to excuse Morgan, renewed his challenges for cause as to these two prospective jurors, and the court granted defendant one additional peremptory challenge. Although the defendant contends that it is not possible to tell which denial the court intended to reverse, Morgan repeatedly said that she could follow the law on capital punishment even though she had some difficulty following the twists of voir dire questioning. The trial court must grant a challenge for cause only where a venireperson\u2019s responses indicate that her belief about the death penalty would interfere with the performance of her duties. Any error as to prospective juror King was cured by granting an additional peremptory challenge, and the trial court\u2019s conduct did not amount to partisan conduct denying defendant a substantial right.\nAm Jur 2d, Jury \u00a7\u00a7 289, 290.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post -Witherspoon cases. 39 ALR3d 550.\n4. Jury \u00a7 141 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 questions as to parole not permitted \u2014 no error\nThere was no error in jury selection for a first-degree murder resentencing hearing where the trial court denied defendant\u2019s motion to permit questioning of prospective jurors on their beliefs about parole eligibility. Although in Simmons v. South Carolina, 129 L. Ed. 2d 133 (1994), the United States Supreme Court held that due process had been violated where the state had secured a death sentence partly on the ground of future dangerousness while concealing from the jury the true meaning of a noncapital sentencing alternative, in this case it would have been entirely reasonable for the jury, if given accurate information about parole, to view defendant as a greater threat to society; the two prosecutors\u2019 arguments, which consume over 100 pages of the transcript, included only one reference to defendant\u2019s future dangerousness; and defendant\u2019s jury did not submit to the trial court a question about the effect of a life sentence as in Simmons. The State has answered arguments that defendants should have been permitted to inform juries that a life sentence in North Carolina means the defendant must serve twenty years in prison before he is eligible for parole with the argument that it should be able to respond with accurate information about such related issues as the possibility of pardon and commutation; it appears that common-law precedents excluding such information from the jury\u2019s consideration have offered capital defendants greater protection than does federal law.\nAm Jur 2d, Jury \u00a7\u00a7 201, 202.\n5. Criminal Law \u00a7 1312 (NCI4th)\u2014 first-degree murder\u2014 resentencing hearing \u2014 reference to prior death sentence\u2014 no error\nThere was no error in a first-degree murder resentencing hearing where the prosecutor, while cross-examining a psychiatrist, read from a report made by a Central Prison psychiatrist after defendant\u2019s first trial which contained a reference to the death row. The prosecutor made only one mention of death row and the record makes clear that it was inadvertent; the remark went unnoticed by defense counsel or the court when it was made and so was never brought to the jury\u2019s attention by way of an objection or limiting instruction; defendant did not move for a mistrial; and it was clear from other testimony that defendant had been in prison since 1984, from which the jury could have inferred that defendant had previously been sentenced to death because otherwise he would not be receiving a new capital sentencing hearing. Although defendant contends that State v. Simpson, 331 N.C. 267, mandates inquiry into the issue of prior knowledge of a death sentence when it becomes apparent that a juror has such knowledge, this case does not involve exposure to potentially prejudicial media exposure outside the courtroom; the exposure here occurred during cross-examination with defense counsel present; defendant not only had the opportunity to observe the extent and manner in which jurors were exposed, but to have a limiting instruction and, if desired, to request an inquiry, but did not make such a request and specifically rejected the trial court\u2019s offer to instruct the jury; and the jury\u2019s knowledge, if any, of defendant\u2019s previous death sentence, could not with certainty be attributed solely to conduct of the prosecutor.\nAon Jur 2d, Evidence \u00a7\u00a7 427 et seq.\n6. Criminal Law \u00a7 1312 (NCI4th)\u2014 first-degree murder\u2014 resentencing hearing \u2014 photographs of cellblock \u2014 argument that defendant in secure cell block\nThere was no error in a first-degree murder resentencing hearing from the introduction of photographs of the cellblock in which defendant had lived since 1985 and the argument that defendant was under a twenty-four hour watch in the most secure cell block in the most secure prison in the State of North Carolina. Defendant requested several mitigating circumstances based on his time in confinement, and it was clear from defendant\u2019s evidence that he had been in maximum security in Central Prison for six or more years dating roughly from the time of the murder. If the jury learned from defendant\u2019s evidence that he had previously received a death sentence, defendant cannot be heard to complain that the State argued against mitigation from that same evidence.\nAm Jur 2d, Evidence \u00a7\u00a7 427 et seq., 960 et seq.\n7. Criminal Law \u00a7 382 (NCX4th)\u2014 first-degree murder\u2014 resentencing hearing \u2014 questions by court to psychologist \u2014 no error\nThere was no error in a first-degree murder resentencing hearing where the court asked defendant\u2019s expert witness questions concerning an opinion involving mitigation. Although defendant contends that the trial court improperly expressed an opinion that the psychologist\u2019s evidence was deficient or suspect as to proof of mitigation, the questions did not denigrate either defendant\u2019s witness or her evidence, but instead helped to develop testimony favorable to the defense and to assist the trial court in deciding whether mitigating circumstances which might later be requested by the defense were in fact supported by the evidence.\nAm Jur 2d, Trial \u00a7\u00a7 274, 275.\n8. Criminal Law \u00a7 400 (NCI4th)\u2014 first-degree murder\u2014 resentencing hearing \u2014 judge turning back during defendant\u2019s testimony \u2014 no error\nThere was no error during a first-degree murder resentencing hearing where the trial judge turned his back during defendant\u2019s testimony but nothing of record indicates where, in relation to the judge\u2019s position, the defendant was sitting, whether the \u25a0judge\u2019s back was partially or fully turned, or how long his back might have been turned; the transcript is devoid of any indication that the court in fact took such action; record facts suggest that the judge could not have had his back to defendant more than a few minutes; and, even assuming that the trial judge may have turned his back for a few minutes during defendant\u2019s direct examination, the record does not clearly show any prejudice to defendant.\nAm Jur 2d, Trial \u00a7\u00a7 272 et seq.\n9.Criminal Law \u00a7 441 (NCI4th)\u2014 first-degree murder\u2014 resentencing hearing \u2014 prosecutor\u2019s argument regarding psychologists\nThere was no error in a first-degree murder resentencing hearing where, assuming arguendo that the prosecutors\u2019 statements regarding defense experts\u2019 testimony concerning defendant\u2019s mental disorders were improper and should have been condemned by the trial court, they do not entitle defendant to a new resentencing proceeding because the thrust of the lengthy arguments was not that the witnesses had been paid, but that their testimony did not provide a factual basis for finding personality disorder or blackout spells independent of seizures arising from a disorder. The statements are nothing like those made by the prosecutor in State v. Sanderson, 336 N.C. 1.\nAm Jur 2d, Trial \u00a7\u00a7 695.\nPropriety and prejudicial effect of counsel\u2019s negative characterization or description of witness during summation of criminal trial \u2014 modern cases. 88 ALR4th 209.\n10. Criminal Law \u00a7 447 (NCI4th)\u2014 first-degree murder\u2014 resentencing hearing \u2014 prosecutor\u2019s argument \u2014 victim\nThe trial court did not err by not intervening ex mero moto in the prosecutor\u2019s closing argument in a first-degree murder resentencing hearing where the prosecutor\u2019s remarks concerning the victim were indistinguishable from those in State v. Artis, 325 N.C. 278.\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.\n11. Criminal Law \u00a7 415 (NCI4th)\u2014 first-degree murder resentencing hearing \u2014 prosecutor\u2019s arguments\nArguments in a first-degree murder resentencing hearing that defendant had enjoyed stalking and killing the victim; was a \u201chound of hell,\u201d lay in wait for the victim \u201clike a durned snake,\u201d and changed \u201clike a lizard changes colors\u201d; took notes during the arguments; attempted to lay blame for the murder on his father; perjured himself in testifying that he had not been convicted of possession of stolen property; colluded with his attorneys to present himself as remorseful; and chose to affirm rather than swear to tell the truth were within the wide latitude permitted counsel in arguments to the jury.\nAm Jur 2d, Trial \u00a7\u00a7 554 et seq.\nNegative characterization or description of defendant, by prosecutor during summation of criminal trial, as ground for reversal, new trial, or mistrial \u2014 modern cases. 88 ALR4th 8.\n12. Criminal Law \u00a7 458 (NCI4th)\u2014 first-degree murder resentencing \u2014 closing arguments \u2014 parole\u2014comment during objection\nThere was no error during a first-degree murder resentencing hearing where defense counsel asked the jury not to kill defendant but to put him in prison for the rest of his life and the prosecutor objected with the comment \u201cThat\u2019s not what happens.\u201d The trial court properly overruled the objection and defendant was permitted to argue again that his adjustment to prison was another reason not to take his life. No case has been found holding that the court must instruct the jury to disregard the objection.\nAm Jur 2d, Trial \u00a7\u00a7 575, 576.\nPrejudicial effect of statement of prosecutor as to possibility of pardon or parole. 16 ALR3d 1137.\n13. Criminal Law \u00a7 1355 (NCI4th)\u2014 first-degree murder\u2014 resentencing \u2014 instructions\u2014mitigating factor \u2014 no prior criminal activity\nThere was no plain error in a first-degree murder resentencing hearing where defendant contended that the court\u2019s wording of its instruction on the statutory mitigating circumstance that the defendant had no significant history of prior criminal activity expressed the court\u2019s opinion by presenting the evidence in the light most favorable to the State. Read in its entirety, the instruction did not constitute an improper expression of opinion which probably resulted in the jury\u2019s reaching a different verdict. N.C.G.S. \u00a7 15A-2000(f)(l).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Trial \u00a7 1204.\n14. Criminal Law \u00a7\u00a7 1357, 1360 (NCI4th)\u2014 first-degree murder \u2014 resentencing\u2014mitigating circumstances \u2014 instructions \u2014 mental disturbance and impaired capacity\nThere was no plain error in a first-degree murder resentencing hearing in the instructions on mental or emotional disturbance and impaired capacity where defendant contended that the court\u2019s use of \u201cand\u201d meant that a juror\u2019s failure to find any one of the factual elements meant consideration of the circumstance was entirely precluded, but, read in its entirety, the jurors could not have applied the instruction in a way that prevented \u201cconsideration of constitutionally relevant evidence.\u201d\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Trial \u00a7\u00a7 1120 et seq.\n15. Criminal Law \u00a7 1323 (NCI4th)\u2014 first-degree murder\u2014 resentencing \u2014 instructions\u2014use of discretion in considering mitigating circumstances\nThere was no plain error in a first-degree murder resentencing hearing where defendant contended that the court erred by instructing the jury that jurors could exercise their discretion in deciding whether to consider any mitigating circumstance found in Issue Two when answering Issues Three and Four. Instead of precluding any individual juror from considering any mitigating circumstance or circumstances she or he found at Issue II, these instructions plainly directed that the evidence in mitigation, if found by one or more jurors, had to be weighed against the evidence in aggravation. The instructions are in accord with the dictates of McKoy and could not have been misapplied by the jury.\nAm Jur 2d, Trial \u00a7\u00a7 1441 et seq.\n16. Criminal Law \u00a7 1362 (NCI4th)\u2014 first-degree murder\u2014 resentencing \u2014 mitigating circumstances \u2014 age of defendant\nThe trial court did not err in a first-degree murder resentencing hearing by failing to submit the mitigating circumstance of defendant\u2019s age where defendant contended that chronological age is not the determining' factor and the circumstance was supported by evidence that he was an immature and dependent person who had borderline intelligence, but defendant did not request that the trial court submit this mitigating circumstance to the jury and the evidence showed that he was thirty-one years old, had worked as an automobile mechanic and in a shipyard, moved on to a better position, attended church, and functioned quite well in the community. N.C.G.S. \u00a7 15A-2000(f)(7).\nAm Jur 2d, Trial \u00a7\u00a7 1441 et seq.\n17. Criminal Law \u00a7 1363 (NCI4th)\u2014 first-degree murder\u2014 resentencing \u2014 nonstatutory mitigating circumstances \u2014 no prior felony involvement\nThe trial court did not err in a first-degree murder resentencing hearing where defendant argued that the court failed to submit that defendant had no prior felony involvement, but the statutory mitigating circumstance that defendant had no significant history of criminal activity was submitted and the instruction on this circumstance included an accurate summary of the evidence presented, which showed defendant\u2019s prior criminal activity included some offenses resulting in charges and convictions and other offenses which had not resulted in charges or convictions.\nAm Jur 2d, Trial \u00a7\u00a7 1441 et seq.\n18. Criminal Law \u00a7 1323 (NCI4th)\u2014 first-degree murder\u2014 resentencing \u2014 nonstatutory mitigating circumstances\u2014 combined \u2014 no error\nThere was no error in a first-degree murder resentencing hearing where the court combined aspects of defendant\u2019s mitigating evidence when submitting nonstatutory mitigating circumstances.\nAm Jur 2d, Trial \u00a7\u00a7 1441 et seq.\n19. Jury \u00a7 103 (NCI4th)\u2014 first-degree murder \u2014 individual voir dire denied \u2014 no error\nThe trial court did not err in a first-degree murder resentencing hearing by denying defendant\u2019s motion for individual jury voir dire.\nAm Jur 2d, Jury \u00a7 197.\n20. Jury \u00a7 150 (NCI4th)\u2014 first-degree murder \u2014 sentencing\u2014 voir dire \u2014 defendant denied right to question jurors challenged by State\nThe trial court did not err in a first-degree murder resentencing hearing by denying defendant the right to examine each juror challenged by the State during death qualification.\nAm Jur 2d, Jury \u00a7\u00a7 201, 202.\n21. Evidence and Witnesses \u00a7 876 (NCI4th)\u2014 first-degree murder \u2014 sentencing\u2014hearsay statements by victim \u2014 state of mind \u2014 admissible\nThe trial court did not err in a first-degree murder resentencing hearing by admitting hearsay statements of the victim relating to her state of mind.\nAm Jur 2d, Evidence \u00a7 866.\n22. Criminal Law \u00a7 1348 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 instruction defining mitigation denied \u2014 no error\nThe trial court did not err in a first-degree murder resentencing hearing by denying defendant\u2019s request for an instruction defining \u201cmitigation.\u201d\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Trial \u00a7\u00a7 1441 et seq.\n23. Criminal Law \u00a7 1363 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 nonstatutory mitigating circumstance \u2014 determination of mitigating value\nThe trial court did not err in a first-degree murder resentencing hearing by instructing the jurors that it was for them to determine whether the nonstatutory mitigating circumstances in fact possessed mitigating value.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Trial \u00a7\u00a7 1441 et seq.\n24. Criminal Law \u00a7 1343 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 especially heinous, atrocious or cruel aggravating circumstance \u2014 not unconstitutionally vague\nThe especially heinous, atrocious, or cruel aggravating circumstance is not unconstitutionally vague.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like \u2014 post-Gregg cases. 63 ALR4th 478.\nSupreme Court\u2019s views on constitutionality of death penalty and procedures under which it is imposed or carried out. 90 L. Ed. 2d 1001.\n25. Criminal Law \u00a7 1373 (NCI4th)\u2014 first-degree mnrder\u2014 death sentence \u2014 not disproportionate\nA sentence of death for first-degree murder was not disproportionate where the record supports the jury\u2019s finding of the sole aggravating circumstance upon which the death sentence was based; nothing of record suggests that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and the sentence was not disproportionate. Characteristics distinguishing this case include a murder preceded by physical and mental abuse, including assaults and threats; a senseless and brutal public stabbing found to be especially heinous, atrocious, or cruel by the jury; and a distinct failure of the defendant to \u25a0 show remorse after the killing. Further, of twenty-three mitigating circumstances submitted, the jury rejected twenty-two, finding the existence of only one nonstatutory circumstance, that the defendant suffered from a personality disorder with dependency traits.\nAm JTur 2d, Criminal Law \u00a7 628.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like \u2014 post-Gregg cases. 63 ALR4th 478.\nValidity of death penalty, under Federal Constitution, as affected by consideration of aggravating or mitigating circumstances \u2014 Supreme Court Cases. Ill L. Ed. 2d 947.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Britt (Joe Freeman), J., at the 12 October 1992 Criminal Session of Superior Court, Northampton County, upon a plea of guilty to first-degree murder. Heard in the Supreme Court 17 March 1994.\nMichael F. Easley, Attorney General, by Charles M. Hensey, Special Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Staples Hughes, Assistant Appellate Defender, and Gretcken M. Engel, Death Penalty Resource Center, for defendant-appellant." }, "file_name": "0612-01", "first_page_order": 642, "last_page_order": 695 }