{ "id": 2556165, "name": "STATE OF NORTH CAROLINA v. MARVIN EARL WILLIAMS, JR.", "name_abbreviation": "State v. Williams", "decision_date": "1994-12-30", "docket_number": "No. 264A90-2", "first_page": "1", "last_page": "58", "citations": [ { "type": "official", "cite": "339 N.C. 1" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "511 U.S.-, 127", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147675 ], "year": 1994, "opinion_index": -1, "case_paths": [ "/us/511/0127-01" ] }, { "cite": "128 L. Ed. 2d 42", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": -1 }, { "cite": "90 L. Ed. 2d 1001", "category": "reporters:federal", "reporter": "L. 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"/us/408/0939-09" ] }, { "cite": "497 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6268812, 6267060, 6268214, 6267352, 6267610, 6268507, 6267902, 6266778 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/497/1021-08", "/us/497/1021-02", "/us/497/1021-06", "/us/497/1021-03", "/us/497/1021-04", "/us/497/1021-07", "/us/497/1021-05", "/us/497/1021-01" ] }, { "cite": "381 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1989, "pin_cites": [ { "page": "651", "parenthetical": "emphasis in original" }, { "page": "652" }, { "page": "651" }, { "page": "669", "parenthetical": "\"before the jury 'finds' a nonstatutory mitigating circumstance, it must make two preliminary determinations: (1) That the evidence supports the existence of the circumstance and (2) that the circumstance has mitigating value.\"" }, { "page": "666" }, { "page": "667" } ], "opinion_index": 0 }, { "cite": "325 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487626 ], "weight": 6, "year": 1989, "pin_cites": [ { "page": "29", "parenthetical": "emphasis in original" }, { "page": "31" }, { "page": "30" }, { "page": "30" }, { "page": "59", "parenthetical": "\"before the jury 'finds' a nonstatutory mitigating circumstance, it must make two preliminary determinations: (1) That the evidence supports the existence of the circumstance and (2) that the circumstance has mitigating value.\"" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0001-01" ] }, { "cite": "490 U.S. 1110", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605344, 605440, 605598, 605284, 604996, 605303, 606028, 605552, 605715, 605876, 604885, 605077, 605879, 604955, 605086 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/490/1110-15", "/us/490/1110-10", "/us/490/1110-08", "/us/490/1110-07", "/us/490/1110-11", "/us/490/1110-01", "/us/490/1110-03", "/us/490/1110-02", 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Ed. 2d 267", "category": "reporters:federal", "reporter": "L. 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App. 420", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521142 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0420-01" ] }, { "cite": "338 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "85" } ], "opinion_index": 0 }, { "cite": "315 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717875 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0310-01" ] }, { "cite": "410 S.E.2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "886", "parenthetical": "no new trial for prosecutor's argument quoting excluded testimony where substance of statement quoted could reasonably be inferred from other evidence on record" } ], "opinion_index": 0 }, { "cite": "330 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508332 ], "year": 1991, "pin_cites": [ { "page": "423", "parenthetical": "no new trial for prosecutor's argument quoting excluded testimony where substance of statement quoted could reasonably be inferred from other evidence on record" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0419-01" ] }, { "cite": "297 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560997, 8560965, 8561036, 8560981, 8561019 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0128-03", "/nc/307/0128-01", "/nc/307/0128-05", "/nc/307/0128-02", "/nc/307/0128-04" ] }, { "cite": "294 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "763" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 723", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526079 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "725-26" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0723-01" ] }, { "cite": "231 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "651" } ], "opinion_index": 0 }, { "cite": "291 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558765 ], "year": 1977, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0528-01" ] }, { "cite": "191 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 748", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576505 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0748-01" ] }, { "cite": "33 L. Ed. 2d 761", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "181 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "584" } ], "opinion_index": 0 }, { "cite": "279 N.C. 18", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565554 ], "year": 1971, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0018-01" ] }, { "cite": "212 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "131", "parenthetical": "quoting State v. Westbrook, 279 N.C. 18, 39, 181 S.E.2d 572, 584 (1971), sentence vacated, 408 U.S. 939, 33 L. Ed. 2d 761, on remand, 281 N.C. 748,191 S.E.2d 68 (1972)" }, { "page": "131" } ], "opinion_index": 0 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "515", "parenthetical": "quoting State v. Westbrook, 279 N.C. 18, 39, 181 S.E.2d 572, 584 (1971), sentence vacated, 408 U.S. 939, 33 L. Ed. 2d 761, on remand, 281 N.C. 748,191 S.E.2d 68 (1972)" }, { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0509-01" ] }, { "cite": "220 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "291" } ], "opinion_index": 0 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "year": 1975, "pin_cites": [ { "page": "711" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0699-01" ] }, { "cite": "422 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "697" } ], "opinion_index": 0 }, { "cite": "332 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504164 ], "year": 1992, "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0487-01" ] }, { "cite": "422 U.S. 806", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9431 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/422/0806-01" ] }, { "cite": "122 L. Ed. 2d 776", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "122 L. Ed. 2d 136", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "415 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "740" } ], "opinion_index": 0 }, { "cite": "331 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498297 ], "year": 1992, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0122-01" ] }, { "cite": "434 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "848" } ], "opinion_index": 0 }, { "cite": "334 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2528837 ], "year": 1993, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0467-01" ] }, { "cite": "439 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "763", "parenthetical": "quoting State v. Boyd, 332 N.C. 101, 106, 418 S.E.2d 471, 474 (1992)" }, { "page": "764" } ], "opinion_index": 0 }, { "cite": "335 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526248 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "409", "parenthetical": "quoting State v. Boyd, 332 N.C. 101, 106, 418 S.E.2d 471, 474 (1992)" }, { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0401-01" ] }, { "cite": "410 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "844" }, { "page": "845" } ], "opinion_index": 0 }, { "cite": "330 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509584 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "222-23" }, { "page": "223-24" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0202-01" ] }, { "cite": "418 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "474" } ], "opinion_index": 0 }, { "cite": "332 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508136 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0101-01" ] }, { "cite": "418 S.E.2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506815 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0065-01" ] }, { "cite": "417 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500375 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0680-01" ] }, { "cite": "415 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499251 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0272-01" ] }, { "cite": "404 S.E.2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555965 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0259-01" ] }, { "cite": "402 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "589" } ], "opinion_index": 0 }, { "cite": "328 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538619 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0377-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1989, "pin_cites": [ { "page": "480" }, { "page": "489" }, { "page": "492" }, { "page": "493", "parenthetical": "evidence creating inference that victim remained conscious during violent, dehumanizing attack sufficient to support submission of aggravating circumstance (e)(9)" }, { "page": "505", "parenthetical": "1989" } ], "opinion_index": 0 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "weight": 5, "year": 1989, "pin_cites": [ { "page": "297" }, { "page": "316-17" }, { "page": "318" }, { "page": "337-38" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "61 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2090113 ], "year": 1866, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nc/61/0038-01" ] }, { "cite": "392 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "363" }, { "page": "363" }, { "page": "364" } ], "opinion_index": 0 }, { "cite": "326 N.C. 792", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309049 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "794" }, { "page": "794" }, { "page": "794-95" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0792-01" ] }, { "cite": "402 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540902 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0532-01" ] }, { "cite": "397 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2494686 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0475-01" ] }, { "cite": "111 L. Ed. 2d 777", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "476 U.S. 28", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12414 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "35" }, { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/us/476/0028-01" ] }, { "cite": "47 L. Ed. 2d 91", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "423 U.S. 1080", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6507644, 6507564 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/423/1080-02", "/us/423/1080-01" ] }, { "cite": "214 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562016, 8561954, 8561926, 8561903, 8561981 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0261-05", "/nc/287/0261-03", "/nc/287/0261-02", "/nc/287/0261-01", "/nc/287/0261-04" ] }, { "cite": "210 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "567" } ], "opinion_index": 0 }, { "cite": "24 N.C. App. 148", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549700 ], "year": 1974, "pin_cites": [ { "page": "164-65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/24/0148-01" ] }, { "cite": "611 F.2d 414", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 470224 ], "year": 1979, "pin_cites": [ { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/f2d/611/0414-01" ] }, { "cite": "524 N.E.2d 742", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "749", "parenthetical": "prosecutor's reference to victim as \"this little black woman\" improper since \"there was no reason ... to refer in any way to the alleged victim's race\"" } ], "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 273", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3586006 ], "year": 1988, "pin_cites": [ { "page": "283-84", "parenthetical": "prosecutor's reference to victim as \"this little black woman\" improper since \"there was no reason ... to refer in any way to the alleged victim's race\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0273-01" ] }, { "cite": "300 N.W.2d 315", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1980, "pin_cites": [ { "page": "318", "parenthetical": "prosecutor's many references to the race of the parties and persons associated with them held prejudicial" } ], "opinion_index": 0 }, { "cite": "101 Mich. App. 118", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2194835 ], "year": 1980, "pin_cites": [ { "page": "125", "parenthetical": "prosecutor's many references to the race of the parties and persons associated with them held prejudicial" } ], "opinion_index": 0, "case_paths": [ "/mich-app/101/0118-01" ] }, { "cite": "404 So. 2d 968", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9599711 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/so2d/404/0968-01" ] }, { "cite": "481 F.2d 152", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1318088 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/f2d/481/0152-01" ] }, { "cite": "583 F.2d 701", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 853569 ], "year": 1978, "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/f2d/583/0701-01" ] }, { "cite": "569 S.W.2d 762", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9949609 ], "year": 1978, "pin_cites": [ { "page": "767" } ], "opinion_index": 0, "case_paths": [ "/sw2d/569/0762-01" ] }, { "cite": "378 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "324 N.C. 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486992 ], "year": 1989, "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0420-01" ] }, { "cite": "18 L. Ed. 2d 125", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "386 U.S. 969", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6296811 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0969-01" ] }, { "cite": "385 U.S. 554", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11341302 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "564" }, { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/us/385/0554-01" ] }, { "cite": "400 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "729", "parenthetical": "questions whether jurors were \"strong enough to recommend the death penalty\" proper since intended to determine whether challenge for cause appropriate under N.C.G.S. \u00a7 15A-1212(8)" } ], "opinion_index": 0 }, { "cite": "328 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540746 ], "year": 1991, "pin_cites": [ { "page": "130", "parenthetical": "questions whether jurors were \"strong enough to recommend the death penalty\" proper since intended to determine whether challenge for cause appropriate under N.C.G.S. \u00a7 15A-1212(8)" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0099-01" ] }, { "cite": "268 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "300 N.C. 678", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564413 ], "year": 1980, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0678-01" ] }, { "cite": "112 L. Ed. 2d 155", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "498 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6430082, 6430886, 6431174, 6431528, 6430379, 6431086, 6430160, 6431409, 6431282, 6430613, 6430750, 6430970, 6431708, 6430270 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/498/0871-01", "/us/498/0871-07", "/us/498/0871-10", "/us/498/0871-13", "/us/498/0871-04", "/us/498/0871-09", "/us/498/0871-02", "/us/498/0871-12", "/us/498/0871-11", "/us/498/0871-05", "/us/498/0871-06", "/us/498/0871-08", "/us/498/0871-14", "/us/498/0871-03" ] }, { "cite": "390 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "325" } ], "opinion_index": 0 }, { "cite": "326 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309751 ], "year": 1990, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0368-01" ] }, { "cite": "108 L. Ed. 2d 601", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 3, "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4944, 5169, 5111, 5052, 5183 ], "weight": 3, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1021-01", "/us/494/1021-04", "/us/494/1021-02", "/us/494/1021-03", "/us/494/1021-05" ] }, { "cite": "372 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "863" } ], "opinion_index": 0 }, { "cite": "323 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564109 ], "year": 1988, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0208-01" ] }, { "cite": "407 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "166" } ], "opinion_index": 0 }, { "cite": "329 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555500 ], "year": 1991, "pin_cites": [ { "page": "547" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0534-01" ] }, { "cite": "21 L. Ed. 2d 186", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1968, "opinion_index": 0 }, { "cite": "393 U.S. 898", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11370993, 11370911 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/us/393/0898-02", "/us/393/0898-01" ] }, { "cite": "98 L. Ed. 2d 226", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 918", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 601570, 600420, 599435, 600587, 600654, 600347 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0918-03", "/us/484/0918-05", "/us/484/0918-06", "/us/484/0918-02", "/us/484/0918-04", "/us/484/0918-01" ] }, { "cite": "356 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 473513 ], "year": 1987, "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/ga-app/182/0279-01" ] }, { "cite": "319 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748970 ], "year": 1987, "pin_cites": [ { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0465-01" ] }, { "cite": "104 L. 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", "weight": 2, "year": 1988, "pin_cites": [ { "page": "840" }, { "page": "840" } ], "opinion_index": 0 }, { "cite": "322 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514703 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "255" }, { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0251-01" ] }, { "cite": "108 L. Ed. 2d 969", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S 1092", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4728, 5495 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1092-02", "/us/494/1092-01" ] }, { "cite": "107 L. Ed. 2d 1072", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "493 U.S. 1093", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11495046, 11495080, 11495018, 11495116, 11494999, 11494973 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/493/1093-04", "/us/493/1093-05", "/us/493/1093-03", "/us/493/1093-06", "/us/493/1093-02", "/us/493/1093-01" ] }, { "cite": "538 N.E.2d 1107", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "1111" } ], "opinion_index": 0 }, { "cite": "128 Ill. 2d 231", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228767 ], "year": 1989, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0231-01" ] }, { "cite": "391 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "152-53", "parenthetical": "quoting People v. Mack, 128 Ill. 2d 231, 239, 538 N.E.2d 1107, 1111 (1989), cert. denied, 493 U.S. 1093, 107 L. Ed. 2d 1072, reh'g denied, 494 U.S 1092, 108 L. Ed. 2d 969 (1990)" } ], "opinion_index": 0 }, { "cite": "326 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305969 ], "year": 1990, "pin_cites": [ { "page": "501", "parenthetical": "quoting People v. Mack, 128 Ill. 2d 231, 239, 538 N.E.2d 1107, 1111 (1989), cert. denied, 493 U.S. 1093, 107 L. Ed. 2d 1072, reh'g denied, 494 U.S 1092, 108 L. Ed. 2d 969 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0489-01" ] }, { "cite": "407 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1991, "pin_cites": [ { "page": "147" }, { "page": "148", "parenthetical": "clear error standard applicable to both federal and state constitutional claims" }, { "page": "147" }, { "page": "147" }, { "page": "148" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 3024, "char_count": 133539, "ocr_confidence": 0.733, "pagerank": { "raw": 4.089938450180733e-07, "percentile": 0.9092093786162823 }, "sha256": "7fef72e3c793a993346f21de5dbe64ea155131da684afcd1587a9f7df04a3972", "simhash": "1:0549452af70e1d56", "word_count": 21733 }, "last_updated": "2023-07-14T18:14:35.214532+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Parker did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. MARVIN EARL WILLIAMS, JR." ], "opinions": [ { "text": "EXUM, Chief Justice.\nDefendant was tried on indictments charging him with first-degree murder of Theron Price, and burglary with explosives, breaking and entering, armed robbery and attempted safecracking at the premises of Dewey Brothers, Inc. At the close of the State\u2019s evidence, the trial court dismissed the armed robbery charge and held the breaking and entering charge merged into that of burglary with explosives. The jury convicted deferidant of first-degree murder on theories of felony murder, the underlying felony being burglary with explosives, and premeditation and deliberation. The jury also convicted defendant of burglary with explosives and attempted safecracking.\nAt the capital sentencing proceeding on the murder charge, the trial court, upon recommendation of the jury, imposed, a sentence of death. The trial court also sentenced defendant to thirty-years imprisonment on the burglary conviction, but arrested judgment on the attempted safecracking conviction.\nI.\nOn the Court\u2019s first consideration of defendant\u2019s appeal, we granted a new trial, concluding the trial court\u2019s instruction on reasonable doubt denied defendant due process. State v. Williams, 334 N.C. 440, 434 S.E.2d 588 (1993) (Williams I). This decision was based entirely on State v. Bryant, 334 N.C. 333, 432 S.E.2d 291 (1993) (Bryant I). In Bryant I, the Court held that, under Cage v. Louisiana, 498 U.S. 39, 112 L. Ed. 2d 339 (1990), and Sullivan v. Louisiana, 508 U.S.-, 124 L. Ed. 2d 182 (1993), an essentially identical instruction violated the Due Process Clause of the Fourteenth Amendment.\nAfter our decision in Bryant I, the United States Supreme Court decided Victor v. Nebraska,-U.S.-, 127 L. Ed. 2d 583 (1994), in which it clarified its holdings in Cage and Sullivan and held that certain reasonable doubt instructions similar to those we considered in Bryant I and Williams I did not violate the Due Process Clause. Thereafter, the United States- Supreme Court vacated this Court\u2019s decisions in Bryant I and Williams I and remanded these cases to us for consideration in light of Victor. North Carolina v. Bryant, 337 U.S. 298, 128 L. Ed. 2d 42 (1994); North Carolina v. Williams,-U.S. -, 128 L. Ed. 2d 42 (1994).\nOn remand, we concluded in State v. Bryant, 337 N.C. 298, 446 S.E.2d 71 (1994) (Bryant II), that, in light of Victor, there was no reversible error in the reasonable doubt instruction. Since the instructions here are practically identical to those in Bryant I and II, Bryant II now controls this issue. We now hold on the authority of Bryant II that the reasonable doubt instruction given in defendant Williams\u2019 trial was free from error.\nOur opinion in Williams I also addressed several assignments of error we thought likely to arise at a new trial; the Court concluded none of them amounted to prejudicial error.\nWe reaffirm our earlier resolutions of these assignments of error. We now discuss defendant\u2019s remaining assignments of error.\nII.\nBriefly summarized, the State\u2019s evidence at the guilt-innocence proceeding of defendant\u2019s trial tended to show as follows:\nOn the morning of 12 February 1989, Lewis Rich, a security guard for Dewey Brothers, Inc., arrived at the company\u2019s premises and found the guardhouse gate locked. Unable to gain entry or locate Theron Price, the guard he was scheduled to relieve, Rich telephoned Richard Helms, the company president. Shortly thereafter, Helms arrived, opened the gate, and discovered the door to the payroll office partially open and a light emanating from within. Next to the door, Helms observed an acetylene torch and a cart carrying oxygen and acetylene tanks. Helms summoned the police who discovered a floor safe with evidence of carbon on its hinges left by an improperly adjusted acetylene torch.\nThe body of Theron Price was found in a steel shed next to the payroll office. Price\u2019s face and head were covered in blood. An autopsy revealed several wounds on the face and head caused by blunt-force trauma. The wounds on the head resulted in skull fractures and could have caused death. Two of these wounds would have required the force of a five-pound steel ball dropped from seven to twelve feet. The victim may have been conscious during the infliction of all the wounds, and for two to five minutes thereafter, and may have been hit while lying on the ground. The victim probably lived for five to ten minutes after the fatal blows were struck.\nAt trial the State\u2019s principal witness was Angelo Farmer, a Dewey Brother\u2019s employee. Several days following the discovery of Price\u2019s body, Farmer reported to his supervisors that he knew the identity of the killer. According to Farmer, he and defendant discussed breaking into Dewey Brothers and robbing its safe in the early part of February. On 11 February, when defendant asked Farmer if he was \u201cready to move,\u201d Farmer indicated that he was not. Defendant said: \u201cI\u2019m gone. I\u2019m on my move.\u201d The following day, Farmer, upon learning of Price\u2019s death, confronted defendant and said: \u201cDamn man. You killed a man.\u201d Defendant stated he did not intend to do it. When Farmer remarked that defendant could have tied up the victim, defendant responded that'he wanted to but \u201cthe man kept coming.\u201d\nAfter revealing this information, Farmer agreed to cooperate with the police. Wearing a tape recorder furnished by the police, Farmer engaged defendant in a conversation about the crimes. During the conversation, defendant said he had tried to break into the safe using an acetylene torch he found on the premises. When the watchman surprised him, defendant pulled a knife, but the guard \u201ckept coming.\u201d Defendant then took the guard\u2019s time clock and hit him with it \u201ctwo or three times.\u201d Defendant stated: \u201cI got scared then, but then I thought about the money. I kept checking on him and he had not come back to. I knew I had done killed the m-f-then.\u201d Defendant said he continued to work on the safe and checked the guard once more. Upon hearing a truck approach the building, he attempted to wipe away his fingerprints and hide some of the evidence. He then fled.\nGuilt-Innocence Proceeding\nIII.\nWe first discuss defendant\u2019s assignments of error pertaining to the jury selection process. Defendant argues the trial court erred in permitting the prosecutor to exercise peremptory challenges in an unconstitutional manner. According to defendant, the prosecutor exercised his peremptory challenges to exclude black jurors and jurors who did not embrace the death penalty. Defendant also contends the trial court erroneously permitted the prosecutor to raise various matters on voir dire that may have prejudiced the jury. Finally, defendant argues that the trial court erred in holding ex parte conferences with prospective jurors and other conferences with counsel at which defendant was not present.\nA.\nDefendant first contends the prosecutor violated his federal and state constitutional rights by using peremptory challenges to exclude black prospective jurors on the basis of their race and the trial court erred in overruling his objections to these challenges. The Equal Protection Clause of the Fourteenth Amendment and Article 1, \u00a7 26 of the North Carolina Constitution forbid the use of peremptory challenges in a racially discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986); State v. Crandell, 322 N.C. 487, 501, 369 S.E.2d 579, 587 (1988). Having carefully reviewed the record, and according the requisite deference to the trial court\u2019s rulings, we find this argument to be unpersuasive.\nCounsel examined seventy jurors during jury selection including the selection of two alternates. Of the forty-three jurors not excused for cause or by consent, thirty-five were white, seven were black and one was Asian. The State peremptorily challenged eight whites, five blacks and the Asian. The State accepted two blacks and did not exhaust its peremptory challenges. Defendant struck fourteen whites and one black, leaving a jury composed of eleven whites and one black with two white alternates. Defendant interposed Batson objections to three of the State\u2019s five strikes against blacks. After each of these objections, the prosecutor volunteered an explanation for the strike in question without waiting for the trial judge to determine whether defendant had made out a prima facie case of purposeful discrimination. In each instance the trial judge overruled defendant\u2019s objection.\nThe prosecutor explained that he challenged one of the jurors because her \u201cfamily\u2019s criminal involvement gives me some problems.\u201d He struck another, after having unsuccessfully lodged a challenge for cause, because of the juror\u2019s \u201canswers to the capital punishment questions.\u201d The prosecutor struck the last juror because of inconsistencies between her answers on a written questionnaire and her answers on voir dire. He also explained that he thought her neighborhood had \u201ca lot of drug activity,\u201d and that one of her previous residences, Alfa Arms, \u201cfor a long period of time has been a problem with the police.\u201d\nThe Court in Batson established a three-step process for evaluating claims of racial discrimination in the prosecutor\u2019s use of peremptory strikes. Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405 (1991). First, the defendant must establish a prima facie case that the prosecutor has peremptorily challenged prospective jurors on the basis of race. Id. Second, if such a showing is made, the burden shifts to the prosecutor to offer a racially-neutral explanation for each challenged strike. Id. To rebut the defendant\u2019s prima facie case, this neutral explanation must be \u201c \u2018clear and reasonably specific\u2019 \u201d and \u201crelated to the particular case to be tried.\u201d Batson, 476 U.S. at 98, n.20, 90 L. Ed. 2d at 88-89, n.20. Third, the trial court must determine whether the defendant has proven purposeful discrimination. Id. In North Carolina, the defendant may put on additional evidence before the trial court\u2019s final ruling to prove that the prosecutor\u2019s explanations are pretextual. State v. Green, 324 N.C. 238, 240, 376 S.E.2d 727, 728 (1989).\nIn the case at bar the prosecutor volunteered his explanations, and the trial court ruled that there was no purposeful discrimination. \u201cOnce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.\u201d Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405. Thus, there is but one issue before us: Whether the trial court correctly determined that the prosecutor had not intentionally discriminated. State v. Thomas, 329 N.C. 423, 430-31, 407 S.E.2d 141, 147 (1991). Because the trial court was in the best position to assess the prosecutor\u2019s credibility, we will not overturn its determination absent clear error. Hernandez, 500 U.S. at 369, 114 L. Ed. 2d at 412; see also Thomas, 329 N.C. at 433, 407 S.E.2d at 148 (clear error standard applicable to both federal and state constitutional claims).\nThat the prosecutor struck blacks because of their race is proved, defendant argues, by the following: (1) Since defendant is black and the victim was white, the prosecutor had incentive to keep blacks off the jury, (2) the prosecutor demonstrated racial animus by making numerous discriminatory comments, (3) the prosecutor did not apply the same disqualifying criteria to white as he did to black prospective jurors, (4) the explanation given by the prosecutor for striking one black juror was a proxy for race, and (5) the prosecutor used five of fourteen, or thirty-six percent, of his peremptory challenges on blacks, whereas blacks constituted only sixteen percent, seven of forty-three, of the jurors not challenged for cause. Of these arguments, only the last is supported by the record.\nDefendant\u2019s argument that the prosecutor had incentive to strike blacks is self-defeating. The argument proceeds from the assumption that the prosecutor thought blacks more likely to identify with other blacks. Supposing this assumption to be true, it would have been illogical for the prosecutor to remove blacks as such inasmuch as the State\u2019s key witness, Angelo Farmer, was black. Farmer testified that he originally conspired with defendant to break into Dewey Brothers to rob the company safe but that he backed out when he was later approached by defendant. Upon learning of the break-in and of Price\u2019s death, Farmer informed his supervisors and the police of his withdrawal from the plan with defendant and agreed to cooperate with the police investigation by wearing a hidden tape recorder during a conversation with defendant in order to obtain inculpatory statements. That a black witness played such a key role in defendant\u2019s prosecution substantially undercuts any incentive on the prosecutor\u2019s part to remove blacks on the basis of their race.\nDefendant\u2019s assertion that the prosecutor made numerous discriminatory comments is unsupported by the record. During voir dire, the prosecutor routinely asked prospective jurors whether, given the \u201cmixed racial composition\u201d of the case to be tried, they could \u201cput the issue of race completely out of [their minds].\u201d According to defendant, that the prosecutor evidenced an awareness of the \u201cracially-charged character of the case\u201d raises an inference of discriminatory intent and suggests racial animus. Contrary to defendant\u2019s assertion, the record speaks for itself that the prosecutor asked this question, of both blacks and whites, to ensure that racially biased jurors would not be seated on the jury. The mere mention of race in a trial such as this is not evidence of racial animus.\nDefendant also asserts that the prosecutor passed white prospective jurors who exhibited the same characteristics as blacks whom the prosecutor peremptorily challenged. The prosecutor struck one of the black jurors because of her family\u2019s involvement with crime, another because of inconsistent statements and a third because of the juror\u2019s views on the death penalty. According to defendant, the prosecutor passed two white jurors with criminal backgrounds, one white juror who made inconsistent statements and another who expressed reservations about imposing the death penalty.\nDisparate treatment of prospective jurors is not necessarily dis-positive on the issue of discriminatory intent. As the Court stated in State v. Porter:\nChoosing jurors, more art than science, involves a complex weighing of factors. Rarely will a single factor control the decision-making process.... \u201cA characteristic deemed to be unfavorable in one prospective juror, and hence grounds for a peremptory challenge, may, in a second prospective juror, be outweighed by other, favorable characteristics.\u201d\n326 N.C. 489, 501, 391 S.E.2d 144, 152-53 (1990) (quoting People v. Mack, 128 Ill. 2d 231, 239, 538 N.E.2d 1107, 1111 (1989), cert. denied, 493 U.S. 1093, 107 L. Ed. 2d 1072, reh\u2019g denied, 494 U.S 1092, 108 L. Ed. 2d 969 (1990)). Because the ultimate decision to accept or reject a given juror depends on consideration of many relevant characteristics, one or two characteristics between jurors will rarely be directly comparable.\nIndeed, the white jurors passed by the prosecutor did not in fact exhibit characteristics comparable to those of the black jurors peremptorily challenged. Though it is true that two white jurors had been connected with crime \u2014 one had a brother in prison for child abuse, the other had pled guilty to misdemeanor drug charges\u2014 neither was as likely to harbor bias against the State as the black juror peremptorily challenged. That juror had one brother who had been charged with rape and convicted of a lesser charge, another brother who had been convicted of murder, and a son who had been convicted of assault. Though neither of the white jurors had ever sat through a criminal trial, the black juror had attended the trials of both her son and her brother convicted of murder. One of the white jurors recognized a police officer scheduled to testify against defendant as the same officer who had arrested her on drug charges. The black juror recognized the prosecutor; he had prosecuted her brother for murder. Thus, the prosecutor could reasonably have concluded that the black juror was more likely to be biased against the State than the white jurors in question.\nOne white juror indicated on his questionnaire that none of his immediate family was involved in law enforcement. On voir dire he explained that some more distant relatives were involved in law enforcement. These answers were not inconsistent. The black juror peremptorily challenged for inconsistent statements failed on voir dire to mention two of her jobs and incorrectly indicated that she owned her house.\nLastly, one white juror balked temporarily at the idea of pronouncing the death penalty in the presence of defendant, though she professed a belief that the death sentence should be imposed in appropriate cases. The black juror peremptorily challenged for his views on capital punishment opposed the death penalty and expressed doubt in his ability to vote for it even if it were merited by the evidence. Again, the prosecutor could reasonably have distinguished the black juror in question on the grounds he stated.\nDefendant argues further that the prosecutor demonstrated a discriminatory intent when he struck one black juror in part because she lived in a \u201cnot very good neighborhood.\u201d Defendant contends this phrase was used as a euphemism for predominantly black, proving that the prosecutor did not want blacks on the jury. Though we recognize the potential for abuse inherent in the use of discriminatory strikes based upon residential address, the record here does not support such use.\nWhen challenged by defendant at trial, the prosecutor explained his strike by alluding to the juror\u2019s inconsistent and misleading answers. According to the prosecutor, the juror had falsely indicated on her questionnaire that she owned her house and had failed on voir dire to mention two of her recent employment positions. The prosecutor then stated that these discrepancies caused him concern, \u201cparticularly in light of the fact that. . . South Virginia Avenue where she lives is just not [sic] very good neighborhood. That they have a lot of drug activity in that neighborhood and, of course, Alfa Arms is, for a long period of time has been a problem with the police.\u201d In rebuttal, defendant\u2019s counsel argued that inconsistent statements by other jurors had not been disqualifying. He also took issue with the prosecutor\u2019s reference to the juror\u2019s neighborhood, \u201cparticularly due to the fact that I live on Virginia Street in that very same neighborhood.\u201d\nRelying on the above, defendant urges us to find that the prosecutor struck this juror because she lived in a predominantly black neighborhood. We cannot, of course, reach this conclusion without some evidence that the juror did in fact live in a black neighborhood. Though defendant\u2019s counsel appears to have thought she did, he did not specifically so state. Nor did he attempt to prove it, though he might easily have done so through testimonial or documentary evidence. The record shows only that two black people, the juror in question and one of defendant\u2019s attorneys, lived in the South Virginia Avenue area. We are left to speculate as to the race of other residents. Not knowing the racial composition of the juror\u2019s neighborhood, we cannot infer a discriminatory intent from the prosecutor\u2019s comment.\nAssuming arguendo the juror in question did live in a black neighborhood, the prosecutor\u2019s explanation gives us no cause to doubt his motives. First, he articulated a reasonable, race-neutral reason for striking this juror, one supported by the record: That she had made misleading and inconsistent statements on voir dire. Second, his stated concern about her neighborhood was not its racial composition but rather its criminal activity. The record does not support the argument that the prosecutor\u2019s hunch about this juror was based on ' impermissible racial stereotypes.\nWe conclude, then, that the record supports only one fact in this case which may be considered evidence of defendant\u2019s claim of purposeful racial discrimination: The prosecutor\u2019s disproportionate use of peremptory strikes on blacks. See Hernandez, 500 U.S. at 363, 114 L. Ed. 2d at 408 (disproportionate exclusion of members of given race may be considered evidence of discriminatory intent); see also Thomas, 329 N.C. at 431, 407 S.E.2d at 147. The prosecutor used thirty-six percent of his peremptory challenges on blacks, who made up only sixteen percent of the jury venire not challenged for cause. Notwithstanding, the trial court ruled the prosecutor had not peremptorily challenged blacks because of their race. In so ruling, the court could have considered that: The prosecutor\u2019s key witness was black, State v. Jackson, 322 N.C. 251, 255, 368 S.E.2d 838, 840 (1988), cert. denied, 490 U.S. 1110, 104 L. Ed. 2d 1027 (1989); the first juror accepted by the prosecutor was black, Thomas, 329 N.C. at 431, 407 S.E.2d at 147; the prosecutor accepted two black jurors when he still had peremptory challenges available, Jackson, 322 N.C. at 255, 368 S.E.2d at 840; the prosecutor made no discriminatory comments, State v. Robbins, 319 N.C. 465, 493, 356 S.E.2d 279, 296, cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226 (1987); and the prosecutor volunteered his explanations when defendant raised Batson objections, Hernandez, 500 U.S. at 369, 114 L. Ed. 2d at 412. Thus, though there is some evidence that the prosecutor exercised his peremptory challenges in a racially discriminatory manner, there is also substantial evidence to the contrary. We hold, therefore, that the trial court\u2019s ruling was not clearly erroneous. As we have stated: \u201cWhere there are two permissible views of the evidence, the fact finder\u2019s choice between them cannot be clearly erroneous.\u201d Thomas, 329 N.C. at 433, 407 S.E.2d at 148 (quoting Hernandez, 500 U.S. at 369, 114 L. Ed. 2d at 412).\nB.\nIn his next assignment of error, defendant contends the trial court erred in permitting the prosecutor to engineer a jury predisposed to voting for the death penalty. According to defendant, the prosecutor exercised peremptory challenges to exclude prospective jurors who expressed any reservation about imposing the death penalty and also indoctrinated prospective jurors by suggesting they would have a duty to vote for the death penalty, all in violation of defendant\u2019s rights under the North Carolina Constitution and under the Sixth and Four-. teenth Amendments. Defendant\u2019s arguments are again unpersuasive.\nThe prosecutor peremptorily challenged six prospective jurors because of their views on the death penalty, five of whom he had unsuccessfully challenged for cause under Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, reh\u2019g denied, 393 U.S. 898, 21 L. Ed. 2d 186 (1968), and its progeny. Defendant contends the prosecutor should not have been permitted to peremptorily challenge jurors not excludable for cause under Witherspoon. We consistently have rejected this argument, holding that a prosecutor may exercise peremptory challenges to exclude jurors who express qualms about the death penalty, even though those jurors are not excludable for cause, without violating either the North Carolina or the United States Constitutions. State v. Brogden, 329 N.C. 534, 547, 407 S.E.2d 158, 166 (1991); see also State v. Allen, 323 N.C. 208, 222, 372 S.E.2d 855, 863 (1988), judgment vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990). We decline to reconsider these holdings.\nDefendant also contends the prosecutor attempted on voir dire to \u201cstack the deck\u201d against him by influencing prospective jurors to vote for the death penalty. According to defendant, questions of the following type were intended to make prospective jurors believe they had a duty to return the death penalty: \u201cSo you are telling me that if you were convinced beyond a reasonable doubt that [the death penalty] was the proper punishment, that you . . . could do your duty and do that very thing?\u201d Defendant also points to questions by the prosecutor as to whether jurors were \u201cstrong enough\u201d to vote for the death penalty. By such questions, defendant contends, the prosecutor implied that only the weak would vote for life imprisonment.\nWhile it is true that counsel may not argue their cases on voir dire, State v. Leroux, 326 N.C. 368, 384, 390 S.E.2d 314, 325, cert. denied, 498 U.S. 871, 112 L. Ed. 2d 155 (1990), or attempt to indoctrinate prospective jurors, State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980), the prosecutor cannot be said to have done either. First, his questions were clearly designed to ascertain whether prospective jurors\u2019 views on the death penalty would prevent them from faithfully following the death penalty statute, thus making them excludable for cause. Under N.C.G.S. \u00a7 15A-1212(8), a juror who is \u201cunable to render a verdict with respect to the charge in accordance with the law\u201d may be challenged for cause. Thus, the prosecutor\u2019s questions were appropriate. See State v. Smith, 328 N.C. 99, 130, 400 S.E.2d 712, 729 (1991) (questions whether jurors were \u201cstrong enough to recommend the death penalty\u201d proper since intended to determine whether challenge for cause appropriate under N.C.G.S. \u00a7 15A-1212(8)).\nSecond, contrary to defendant\u2019s contentions, the prosecutor appears to have taken pains to avoid making any suggestion that prospective jurors would be obligated to vote for the death penalty. In death-qualifying prospective jurors, the prosecutor consistently asked whether they would be willing to vote for the death penalty if they found the punishment warranted by the evidence and the law, the conditional phrasing of the question clearly indicating that the jury might find the death penalty not to be so warranted. Indeed, in most instances the prosecutor candidly emphasized that the defendant must be considered innocent until proven guilty, that the State would have the burden of proving the defendant\u2019s guilt and that, in the sentencing phase, \u201cif it ever comes and it may not,\u201d the jurors could not even consider the death penalty unless they found that there were aggravating factors not outweighed by mitigating factors. Furthermore, as the prosecutor described the jurors\u2019 \u201cduty\u201d it was to render a verdict in accordance with the law, not to vote for the death penalty. For these reasons, we hold that the trial court did not abuse its discretion in allowing the prosecutor\u2019s questions.\nC.\nDefendant next argues that the trial court erred in allowing the prosecutor to comment during voir dire on several \u201cprejudicial\u201d issues, thereby denying him due process. See Spencer v. Texas, 385 U.S. 554, 564, 17 L. Ed. 2d 606, 614, reh\u2019g denied, 386 U.S. 969, 18 L. Ed. 2d 125 (1967). The manner and extent of voir dire examination is within the discretion of the trial court. State v. Parks, 324 N.C. 420, 423, 378 S.E.2d 785, 787 (1989). To establish reversible error, the defendant must show not only an abuse of discretion by the trial court but also prejudice. Id. Defendant has not carried his burden.\nDefendant first takes issue with the prosecutor\u2019s many references to race. According to defendant, the prosecutor deliberately injected racial prejudice into the proceedings by asking prospective jurors, over defendant\u2019s objection, whether they could \u201cput the issue of race completely out of [their minds],\u201d given the defendant was black and the victim white. Defendant argues that these questions drew attention to race for no justifiable purpose and therefore must have been intended to foment racial prejudice. Defendant argues in the alternative that, even if the prosecutor acted in good faith, his comments nevertheless impermissibly tainted the jury. We believe the questions were proper.\nAs an officer of the court, obligated to refrain from conduct which may deprive the defendant of a fair trial, the prosecutor may not make \u201cstatements calculated to engender prejudice or incite passion against the defendant.\u201d State v. Stamps, 569 S.W.2d 762, 767 (Mo. App. 1978); see also Miller v. North Carolina, 583 F.2d 701, 707 (4th Cir. 1978). Thus, overt appeals to racial prejudice, such as the use of racial slurs, are clearly impermissible. See United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2nd Cir. 1973); State v. Wilson, 404 So. 2d 968 (1981). Nor may a prosecuting attorney emphasize race, even in neutral terms, gratuitously. See People v. Springs, 101 Mich. App. 118, 125, 300 N.W.2d 315, 318 (1980) (prosecutor\u2019s many references to the race of the parties and persons associated with them held prejudicial); People v. Brown, 170 Ill. App. 3d 273, 283-84, 524 N.E.2d 742, 749 (1988) (prosecutor\u2019s reference to victim as \u201cthis little black woman\u201d improper since \u201cthere was no reason ... to refer in any way to the alleged victim\u2019s race\u201d).\nNonderogatory references to race are permissible, however, if material to issues in the trial and sufficiently justified to warrant \u201cthe risks inevitably taken when racial matters are injected into any important decision-making.\u201d McFarland v. Smith, 611 F.2d 414, 419 (2nd Cir. 1979). In Haynes, for instance, the Court condoned an argument by defense counsel attacking the eyewitness testimony of white witnesses on the ground that whites may have difficulty identifying with blacks. 481 F.2d at 160. Similarly, in State v. Chavis, 24 N.C. App. 148, 164-65, 210 S.E.2d 555, 567 (1974), appeal dismissed and disc, rev. denied, 287 N.C. 261, 214 S.E.2d 434 (1975), cert. denied, 423 U.S. 1080, 47 L. Ed. 2d 91 (1976), our Court of Appeals approved a prosecutor\u2019s reference to race for purposes of identification.\nThe prosecutor\u2019s questions in the case at bar clearly satisfy the test outlined above. They were nonderogatory references to race made for a legitimate reason: To ensure that racially biased prospective jurors were not seated on the jury. As the U.S. Supreme Court noted in Turner v. Murray, 476 U.S. 28, 35, 90 L. Ed. 2d 27, 35 (1986), inquiring into racial bias is especially important in capital trials: \u201cBecause of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected.\u201d Nor was there an appreciable risk that the prosecutor\u2019s mere mention of the race of the parties would engender prejudice. The prosecutor did not harp on race with any individual juror, nor is it alleged that he appealed to prejudice by his tone of voice or demeanor. Rather, in every instance he made a straightforward inquiry whether prospective jurors could judge defendant without bias, and he followed with an admonition that it was their duty to do so. We conclude his questions did not violate defendant\u2019s right to a fair trial and were properly permitted by the trial court.\nDefendant next takes issue with the prosecutor\u2019s questioning of two female prospective jurors. The prosecutor asked both jurors whether they would have any difficulty performing their duties, given that there would likely be more women on the jury than men. In addition, the prosecutor asked one of these jurors whether she felt she would be \u201cless able to return a death sentence than say a male.\u201d Defendant characterizes these questions as an attempt to \u201cfreeze the females (prospective jurors) against... a female predilection against a death verdict.\u201d We do not agree with defendant\u2019s characterization. These questions do not advocate the imposition of the death penalty. They represent instead a legitimate inquiry into the jurors\u2019 ability to perform their duties impartially. Moreover, the likelihood that these questions prejudiced the jury against defendant is almost nonexistent. This argument is without merit.\nDefendant next challenges the prosecutor\u2019s references on voir dire to the taped confession that would be introduced at trial. The State\u2019s key witness secretly recorded a conversation with defendant in which defendant admitted to having killed Theron Price. On voir dire, the prosecutor routinely informed prospective jurors that a secretly made recording, allegedly of defendant\u2019s voice, would likely be introduced at trial. He then asked whether jurors would have trouble hearing a recording and whether they would refuse to consider such a recording as evidence \u201cjust for the fact that it was secretly recorded without the knowledge of one of the parties.\u201d Defendant maintains .that he was prejudiced by these questions since they conveyed the impression that the voice recorded was in fact the defendant\u2019s voice, a fact that would be in issue at trial. We do not agree. The record reveals that the prosecutor scrupulously avoided such an insinuation, stating in each instance that the recording was \u201callegedly\u201d of defendant\u2019s voice.\nFinally, defendant argues that he was prejudiced by the prosecutor\u2019s many references on voir dire to the fact that the case had arisen pursuant to an arrest and indictment. Defendant contends that, by emphasizing this fact to the jurors, the prosecutor gave the impression that defendant\u2019s guilt had already been established. There is no more eloquent response to this argument than the prosecutor\u2019s own words, in a representative interchange:\nQ. Now there are things that have gone on in the past procedural in nature that brings it to this point in time, that gets it ready for a jury trial; do you understand that?\nMr. Jordan: Objection.\nThe Court: Overruled.\nQ. (Mr. Jacobs) There are procedural matters that have gone on, for instance, arrests?\nA. The arrest.\nQ. Return of bill of indictment, piece of paper, all of that.\nMr. Jordan: Objection.\nThe Court: Overruled.\nQ. (Mr. Jacobs) Do you understand it?\nA. Well, I know that obviously he has been arrested, yes.\nQ. But that has absolutely no bearing on the issues in this case and it is to be disregarded by the jury; do you understand that?\nA. Yes.\nQ. Because that\u2019s not any evidence at all of his guilt; do you understand that?\nA. Yes.\nQ. That the mere fact that he is here is no evidence of his guilt. Do you have any difficulty accepting that proposition.\nA. No.\nThus, the prosecutor emphasized defendant\u2019s presumed innocence, not his guilt. The trial court did not abuse its discretion in allowing the challenged questions.\nD.\nDefendant next assigns error to seven unrecorded, ex parte conferences held between the trial judge and prospective jurors, and to some fifty unrecorded, ex parte conferences held between the trial judge and counsel. Defendant argues that these conferences violated his right under Article I, \u00a7 23 of the North Carolina Constitution to be present at all stages of trial. He also argues that the trial court violated N.C.G.S. \u00a7 15A-1241 by failing to have the conferences recorded and that this failure, in turn, deprived him of the right to due process of law under the Fourteenth Amendment. We are not persuaded that prejudicial error occurred.\n1.\nDefendant first assigns error to seven alleged unrecorded, ex parte bench conferences, each with a different prospective juror.\nOne prospective juror, juror Best, communicated with the trial court ex parte regarding her \u201cknowledge of the victim.\u201d In the presence of defendant and for the record, the trial court requested juror Best to \u201ctell me in open Court what you told me here at the bench.\u201d After juror Best restated on the record what she had told the trial court privately, she was examined extensively by both the State and defendant and was ultimately empaneled to sit on the jury.\nAs a result of two other ex parte conferences with two prospective jurors, Mathis and Holmes, the trial court excused both jurors. Juror Holmes was excused after the trial court had discussed the juror\u2019s request with both the State and defendant and obtained both parties\u2019 consent. Juror Mathis was excused without consent for medical reasons. On the record, the trial court informed the parties it had received from juror Mathis\u2019 physician a written statement indicating the juror was an \u201cinsulin dependent diabetic\u201d who suffered from \u201cepisodes of low blood sugar.\u201d The trial court stated it was the opinion of the juror\u2019s physician that she should not serve as a juror. Based on this information, the trial court excused the juror.\nThree other ex parte conferences with prospective jurors Mitchell, Potter, and Patterson resulted in their being referred to a later voir dire session. The transcript affirmatively reveals these prospective jurors moved to different panels in the jury selection process. With regard to juror Mitchell, the trial court stated: \u201cI understand one juror wants to talk to the Court. All right. Come forward. I am excusing Mr. Mitchell until Thursday morning at 9:30.\u201d As for juror Potter, the trial court stated, \u201cLet the record show the Court has talked with Mrs. Peggy Potter this morning who is a juror on panel E and she will be reassigned to panel F... because of a meeting she has tomorrow.\u201d With regard to juror Patterson, the trial court stated:\nThe Court: All right. Let the record show that this is juror Willa Patterson who is on Panel E. She has demonstrated just cause for reassignment to another panel because she needs to be off this afternoon and tomorrow. In the court\u2019s discretion I will reassign her to panel F and she shall follow the instructions for panel F from this point forward.\nOne other unrecorded, ex parte conference is referenced in the trial transcript only by the following: \u201cDiscussion at the Bench with a juror.\u201d This incident occurred immediately after court opened on 14 May 1990, the ninth day of jury selection. Immediately after it occurred, the trial court greeted everyone, and the voir dire examination of jurors from panel F commenced.\nThe Confrontation Clause of the North Carolina Constitution, Article I, section 23, has been interpreted as \u201cguaranteeing the right of every accused to be present at every stage of his trial.\u201d State v. Huff, 325 N.C. 1, 29, 381 S.E.2d 635, 651 (1989) (emphasis in original), sentence vacated, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990), on remand, 327 N.C. 475, 397 S.E.2d 228 (1990), on remand, 328 N.C. 532, 402 S.E.2d 577 (1991). In State v. Smith, 326 N.C. 792, 794, 392 S.E.2d 362, 363 (1990), we stated:\nThis state constitutional protection afforded to the defendant imposes on the trial court the affirmative duty to insure the defendant\u2019s presence at every stage of a capital trial. The defendant\u2019s right to be present at every stage of the trial \u201cought to be kept forever sacred and inviolate.\u201d State v. Blackwelder, 61 N.C. 38, 40 (1866). In fact, the defendant\u2019s right to be present at every stage of his capital trial is not waiveable. State v. Artis, 325 N.C. 278, 297, 384 S.E.2d 470, 480 (1989); State v. Huff, 325 N.C. at 31, 381 S.E.2d at 652.\nThis broad right to presence helps to ensure the integrity of the judicial system \u201cby preserving the appearance of fairness and by optimizing the conditions for finding truth.\u201d Huff, 325 N.C. at 30, 381 S.E.2d at 651.\nThe selection of the jury is a stage of a capital trial at which defendant must be present, id., and it is \u201cerror for the trial court to exclude the defendant, counsel, and the court reporter from its private communications with the prospective jurors at the bench prior to excusing them.\" Smith, 326 N.C. at 794, 392 S.E.2d at 363; see also State v. Payne, 328 N.C. 377, 402 S.E.2d 582; State v. McCarver, 329 N.C. 259, 404 S.E.2d 821 (1991); State v. Cole, 331 N.C. 272, 415 S.E.2d 716 (1992); State v. Johnston, 331 N.C. 680, 417 S.E.2d 228 (1992); State v. Moss, 332 N.C. 65, 418 S.E.2d 213 (1992) and Boyd, 332 N.C. 101, 418 S.E.2d 471. The rationale for this rule was well stated in State v. Buchanan, 330 N.C. 202, 222-23, 410 S.E.2d 832, 844 (1991).\nIn [the Smith line of] cases the fact of defendant\u2019s actual presence in the courtroom essentially was negated by the court\u2019s cloistered conversations with prospective jurors. The court\u2019s actions effectively prevented defendant\u2019s participation in the proceeding, either personally or through counsel, and they deprived him of any real knowledge of what transpired. Further, the public interest in ensuring the appearance of fairness in capital trials was implicated by private discussions between the trial court and individual jurors which, without explanation, resulted in the excusal of jurors.\nThis kind of error, however, is subject to harmless error analysis, the burden being upon the State to demonstrate the harmlessness beyond a reasonable doubt. Huff, 325 N.C. at 30, 318 S.E.2d at 651. Where \u201c \u2018the transcript reveals the substance of the [ex parte] conversations, or the substance is adequately reconstructed by the trial judge at trial,\u2019 \u201d State v. Adams, 335 N.C. 401, 409, 439 S.E.2d 760, 763 (1994) (quoting State v. Boyd, 332 N.C. 101, 106, 418 S.E.2d 471, 474 (1992)), and it is manifest from the transcript that defendant was not harmed because his presence would have made no difference in the outcome of the conversation, the error has been held harmless beyond a reasonable doubt. State v. Payne, 328 N.C. 377, 389, 402 S.E.2d 582, 589 (1991); see also State v. Gay, 334 N.C. 467, 482, 434 S.E.2d 840, 848 (1993). We said in Payne, regarding ex parte communications by the trial court with prospective jurors during the jury selection process:\nWhether this kind of error is harmless depends, we conclude, on whether the questioning of prospective jurors in defendant\u2019s absence might have resulted in a jury composed differently from one which defendant might have obtained had he been present and participated in the process. We are satisfied here beyond a reasonable doubt that defendant\u2019s absence during the preliminary questioning of prospective jurors did not result in the rejection of any juror whom defendant was entitled to have on the panel or the seating of any juror whom defendant was entitled to reject either for cause or peremptorily. Those potential jurors who were excused because of their responses to questions about statutory qualifications, physical infirmities, and personal hardships were either ineligible to serve or excused for manifestly unobjectionable reasons regardless of what defendant might have observed or desired. The remaining prospective jurors were available during selection of the petit jury, and defendant had sufficient opportunity to observe their demeanor and behavior in considering whether to accept or reject them.\n328 N.C. at 389-90, 402 S.E.2d at 589.\nIn the instant case, the trial court violated defendant\u2019s constitutional right to be present by conducting ex parte conferences with prospective jurors in at least the first six instances recited above. The question is whether the State has demonstrated the error to be harmless beyond a reasonable doubt.\nWe conclude that it has under the rationale of our decision in Payne. With regard to prospective jurors Best, Mathis, Mitchell, Potter and Patterson the subject matter of the ex parte communications were reconstructed in open court in defendant\u2019s presence. After further voir dire examination by both the State and defendant, juror Best was selected to sit on the jury. Juror Mathis was excused for manifestly unobjectionable reasons. Prospective jurors Mitchell, Potter and Patterson were simply deferred to another panel where they were subject to further examination by the State and defendant. While the subject of the ex parte communication with prospective juror Holmes is not on the record, this juror was excused with defendant\u2019s consent after consultation with the trial court.\nWith respect to the reference in the transcript to a \u201cDiscussion at the Bench with a juror,\u201d it is not clear whether this was, in fact, an ex parte communication. It is defendant\u2019s burden on appeal to demonstrate in the first place that error occurred. Adams, 335 N.C. at 409, 439 S.E.2d at 764. Arguably, defendant has not met that burden because he has not shown definitively that the \u201cdiscussion\u201d complained of occurred in his absence.\nAssuming arguendo the discussion was ex parte and therefore error, it is clear the error was harmless beyond a reasonable doubt. The record does not reveal that any action was taken as a result of the communication. The next thing to occur was the trial court\u2019s greeting to those in attendance, which was immediately followed by the resumption of the jury voir dire. We can safely assume that this juror was thereafter subject to questioning by both the State and defendant, and was either seated or excused on the basis of this examination and not the discussion at the bench. The discussion, therefore, did not deprive defendant of a juror to whom he would otherwise have been entitled, nor did it result in the seating of a juror whom he might otherwise have rejected. It was, therefore, harmless under the rationale of State v. Payne, 328 N.C. 377, 402 S.E.2d 582.\nDefendant correctly points out that N.C.G.S. \u00a7 15A-1241 requires complete recordation of jury selection in capital proceedings. Thus, the trial court erred in failing to have its ex parte conferences with prospective jurors recorded. Smith, 326 N.C. at 794-95, 392 S.E.2d at 364. We conclude, however, that this failure was harmless for the reasons stated above. Because defendant was not harmed by the violation of N.C.G.S. \u00a7 15A-1241, his due process rights were not implicated. State v. Hudson, 331 N.C. 122, 138, 415 S.E.2d 732, 740 (1992), cert. denied,-U.S.-, 122 L. Ed. 2d 136, reh\u2019g denied, -U.S.-, 122 L. Ed. 2d 776 (1993).\n2.\nWe now turn to defendant\u2019s argument that the trial court committed reversible error in holding some fifty unrecorded bench conferences with counsel. Of these, defendant seriously challenges only the one that occurred during the hearing to determine whether he would proceed pro se pursuant to Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562 (1975). This five-minute, in-chambers conference took place immediately after defendant had first stated his desire to proceed pro se. The subject of the conference appears to have been this motion, for when the judge returned to the courtroom he said: \u201c[T]he Court has taken very seriously the statements that you made a few moments ago. I have been thinking about it and talked briefly with the attorneys in my chambers.\u201d The judge did not immediately rule on the motion but rather recessed the court until the next day, at which time he questioned defendant at great length before denying the motion.\nUnder Buchanan, an unrecorded bench conference between the trial judge and counsel will not be considered violative of the defendant\u2019s right to presence unless \u201cthe subject matter of the conference implicates the defendant\u2019s confrontation rights, or is such that the defendant\u2019s presence would have a reasonably substantial relation to his opportunity to defend.\u201d 330 N.C. at 223-24, 410 S.E.2d at 845. Thus, the defendant must show the \u201cusefulness\u201d of his presence in order to prove error. If he can sustain this burden, the State may still show that the error was harmless beyond a reasonable doubt. Id. Defendant has attempted to sustain his burden of proof with respect to only one of the challenged conferences. His allegation of error regarding the others must necessarily fail.\nAs to the conference which occurred during his Faretta motion, it is at least arguable that his presence could have been useful given his peculiar knowledge of the manner in which defense counsel had handled his case. Assuming arguendo that it was error to exclude defendant from this conference, we believe the error was harmless beyond a reasonable doubt. The trial judge did not decide on defendant\u2019s motion at the in-chambers conference but rather explored the issue fully with defendant in open court before ruling. Thus, defendant had ample opportunity to convey whatever knowledge he had to the judge.\nFinally, in State v. Cummings, 332 N.C. 487, 497, 422 S.E.2d 692, 697 (1992), we held that N.C.G.S. \u00a7 15A-1241 does not require recordation of \u201cprivate bench conferences between trial judges and attorneys.\u201d Thus, the trial court did not err in failing to record its bench conferences with counsel. For this reason, defendant\u2019s due process argument must also fail.\nIV.\nDefendant next assigns error to the prosecutor\u2019s closing argument. Defendant asserts the prosecutor exceeded the bounds of proper argument by reading to the jury from excluded evidence, by making assertions of fact not justified by the record and by making arguments designed solely to prejudice the jury against him. We cannot agree.\nCounsel is generally permitted \u201cwide latitude in the argument of hotly contested cases.\u201d State v. Britt, 288 N.C. 699, 711, 220 S.E.2d 283, 291 (1975). He may argue \u201cthe facts in evidence and all reasonable inferences to be drawn therefrom and the law relevant thereto.\u201d Id. His argument is not, however, free of limitations. Of relevance to the case at bar, he may not \u201c \u2018travel outside the record\u2019 by injecting into his argument facts of his own knowledge or other facts not included in the evidence.\u201d State v. Monk, 286 N.C. 509, 515, 212 S.E.2d 125, 131 (1975) (quoting State v. Westbrook, 279 N.C. 18, 39, 181 S.E.2d 572, 584 (1971), sentence vacated, 408 U.S. 939, 33 L. Ed. 2d 761, on remand, 281 N.C. 748,191 S.E.2d 68 (1972)). Nor may he make remarks \u201ccalculated to mislead or prejudice the jury.\u201d Monk, 286 N.C. at 516, 212 S.E.2d at 131. Upon review, a new trial will not be granted absent a finding of prejudicial error. State v. Britt, 291 N.C. 528, 537, 231 S.E.2d 644, 651 (1977).\n[11 ] Defendant first takes issue with the prosecutor\u2019s reading to the jury from what defendant contends was excluded evidence. During trial, the prosecution introduced over defendant\u2019s objection an audio tape allegedly containing incriminating statements by defendant. Because defendant\u2019s statements were difficult to hear, the prosecution also sought to introduce an allegedly verbatim transcript of the tape prepared by police officers. Finding the transcript inadmissible, the trial court noted: \u201cThere are things that appear on this transcript that I simply did not hear on the tape.\u201d The tape itself was introduced and played to the jury. When arguing in his summation the State\u2019s contentions concerning the contents of the tape, the prosecutor used the transcript to refresh his recollection and, apparently, quoted extensively from it. The trial court overruled defendant\u2019s objection to this, explaining that \u201cat no time during the trial was a reference made to the alleged verbatim transcript,\u201d and the transcript was \u201cmerely a part of the prosecutor\u2019s work product and did not . . . and will not influence the jury.\u201d Subsequently, defendant cautioned the jury in his own closing argument that the prosecutor\u2019s recital of the statements on the tape had been made from his own notes and that it would therefore be \u201cimproper for you to disregard your own recollection.\u201d\nDefendant\u2019s objection is well taken. The prosecutor should not have read from the excluded transcript, especially in light of the trial court\u2019s finding that the transcript contained statements not discern-able on the tape. In doing so he risked putting before the jury facts not in evidence. We conclude, nevertheless, that defendant was not prejudiced by this error and we decline to grant him a new trial on its account.\nWe are not persuaded that defendant was prejudiced for three reasons. First, he has not shown that the specific statements the prosecutor attributed to him were not in fact audible on the tape. Thus, we cannot hold with any certainty that the prosecutor in fact traveled outside the record. Second, even if the statements quoted by the prosecutor were not in fact audible on the tape, they were not without support in the record. Angelo Farmer, the prosecution\u2019s lead witness and the one who secretly recorded the conversation at issue, testified from his own knowledge to the substance of every statement later attributed to defendant by the prosecutor. Third, the jury did not know that the prosecutor was reading from a transcript; indeed, it did not know that such a transcript existed. It could not, therefore, have been unfairly influenced by believing the prosecutor\u2019s recital of defendant\u2019s statements came from the proposed transcript. Defendant\u2019s caution that the prosecutor had quoted from his own notes further protected against this possibility.\nOur holding is analogous to that of State v. Paul, 58 N.C. App. 723, 294 S.E.2d 762, disc. rev. denied, 307 N.C. 128, 297 S.E.2d 402 (1982). In Paul, the prosecutor in closing argument quoted one of his witnesses, Ms. Perry, as having seen defendant sell marijuana, a statement previously excluded by the trial court. Following an objection, the trial court cautioned the prosecutor and the prosecutor himself asked the jury to banish his last argument from their minds. In rejecting defendant\u2019s request for a new trial, the Court of Appeals noted that though Ms. Perry\u2019s statement had been excluded, another witness, Ms. Best, had testified without objection that she saw defendant sell marijuana. The court concluded that, \u201cin light of this testimony, coupled with the court\u2019s cautionary instruction and the district attorney\u2019s own curative remarks, we find that the defendant has not shown sufficient prejudice to warrant awarding him a new trial.\u201d 58 N.C. App. at 725-26, 294 S.E.2d at 763. See also State v. Oxendine, 330 N.C. 419, 423, 410 S.E.2d 884, 886 (1991) (no new trial for prosecutor\u2019s argument quoting excluded testimony where substance of statement quoted could reasonably be inferred from other evidence on record).\nDefendant next takes issue with the prosecutor\u2019s argument that the victim received at least one of seven blows while on the ground. According to defendant, there was no evidence to this effect. The following is testimony of the medical examiner:\nQ. Doctor, if [the victim] was rendered unconscious ... at any time during the seven blows, do you have an opinion . . . whether or not he was hit while on the ground?\nA. If he became unconscious during the course of these 7 blows, prior to the last blow, yes, he would have fallen down and one of them would have necessarily been inflicted while he was down.\nQ. Could it have been more than one blow that inflicted to his skull while in a prone position . . . ?\nA. Yes, since there are three groups of injuries which have the potential to cause loss of consciousness, it is possible that consciousness was lost following the first and that the two others were inflicted subsequent to that.\nThat one of the blows was inflicted while the victim was on the ground was a reasonable inference from this testimony.\nFinally, defendant takes issue with an analogy drawn by the prosecutor during his summation. In arguing that the footprints found on the scene, and shown to belong to defendant, by themselves were sufficient to identify defendant as the perpetrator, the prosecutor made the following statement:\nNow the law is that if we could show that those footprints were impressed ... at the time of the crime just like a fingerprint in a window, imagine somebody\u2019s house broken into. Often times in the cases that I read, it is a woman that has been assaulted in her house. They come through the window and there is a fingerprint pressed inside the window pane . . . and the woman cannot identify the person but she can say that man has never been in my apartment. . . . [T]he fingerprint in the window under those circumstances would identify the perpetrator and the jury could consider whether or not they find from that evidence alone beyond a reasonable doubt that offense was committed by that individual who pressed the fingerprint.\nDefendant says this \u201crape\u201d analogy was calculated solely to prejudice the women on the jury against him and that it in fact did so. We cannot agree. Far from an attempt to equate defendant with a rapist, the prosecutor\u2019s comment was a reasonable effort to explain the importance of the footprint evidence.\nV.\nBy another assignment of error, defendant contends the trial court erred where, upon refusing to honor a juror\u2019s request to be excused after deliberation had begun, it denied defendant\u2019s request for a deadlocked jury charge and commented on the likely effect of the juror\u2019s excusal. We do not agree.\nDuring jury selection, Mr. Braswell, counsel for defendant, informed the trial court that he was acquainted with prospective juror Teresa Smith as she had sought legal advice from him. The prosecution then examined Ms. Smith concerning her relationship with Mr. Braswell. Ms. Smith informed the court that she recently had visited Mr. Braswell for legal assistance in regard to a domestic problem. When asked whether she could decide the present case without regard to her consultation with Mr. Braswell, she answered affirmatively, assuring the court that it would not enter into her deliberations as a juror. The trial court accepted Ms. Smith as a juror and advised her not to contact Mr. Braswell during the trial.\nFollowing the guilt phase of the trial, upon being fully instructed by the trial court, the jury retired to the jury room for deliberation. Shortly thereafter, the following transpired:\nThe Court: Bring the defendant in please.\nThe jury has not reached a verdict; however, I have received another written communication from this time an individual juror, that being juror number 2, Teresa Grady Smith. I will read her communication verbatim and I will quote what she is saying. [\u201c]I, Teresa Smith, ask to be dismissed on the fact that my ability to make a fair and impartial decision on the guilt or innocence of Marvin E. Williams may be influenced by personal involvement with one of the defense lawyers[.] Teresa Smith[.\u201d] That concludes this written statement and that she has addressed to the Court. I don\u2019t quite know how to handle this. I am certainly open to suggestions. Do either one of you have any knowledge of what she is talking about? I suppose she means legal involvement. I think this is the lady that mentioned you had done some work for her in the past, Mr. Braswell. I think this is the juror. Is it?\nMr. Braswell': I think that\u2019s the juror.\nThe Court: All right. I\u2019m open to suggestions from counsel. First, counsel for the State as to how you think I should handle this.\nMr. Jacobs: Deny it.\nThe Court: Deny it?\nMr. Jacobs: Yes, sir. They have started deliberating. I think she has got to finish this stage. I don\u2019t think you can substitute one of the alternate jurors for her in this stage. I think she should have made that known to the Court before she went out.\nThe Court: Mr. Jordan [counsel for defendant], do you have any words of wisdom?\nMr. Jordan: Your honor, I tend to concur with the State in that matter since she has deliberated for a substantial period of time. I don\u2019t think an alternate now could replace and fairly consider the other jurors\u2019 views unless they are willing to go through entire\u2014\nThe Court: Mr. Braswell, anything you would like to say for the record?\nMr. Braswell: Your Honor, to clarify her comment, I am assuming she says personal involvement what she is actually referring to is the matter she disclosed on voir dire. That is she had consulted with me regarding a domestic problem that she had experienced and for the record, she has never retained me as an attorney but simply consulted with me about a week or so prior to the jury selection process.\nMr. Jacobs: Now she is saying something different than what she said on voir dire.\nThe Court: All right. I will ask the clerk to include this communication in the record of this case....\nAll right. We are back in session. It appears to the Court that I have two choices. First choice, which I am not going to exercise, is to declare a mistrial. To be sure, I am not going to do that. My second choice is to force the jurist [sic] to continue with the case and to bring her and the other jurors into the courtroom and give them some further instructions on the need to be fair and impartial and to base the decision in this case purely on the evidence in the case and on nothing else. That appears to be the only viable choice available to the Court. All right. Like to be heard?\nMr. Braswell: Yes, Sir. We certainly ask the Court to include in that instruction that the language to the effect that the juror, of course, does not have to abandon his or her own individual conscience if it does violence to it.\nThe Court: I\u2019m not sure the case has developed to the point where that instruction would be warranted. It may be if it appears to be a deadlocked jury, but that has not developed as far as I know.\nAll right. Bring the jury in, Mr. McDaniel.\nJury brought in at 3:45 p.m.\nMr. Braswell: Your Honor, if the Court would note an exception.\nThe Court: All right.... I believe I have received a note here from Mrs. Teresa Smith. You are juror No. 2?\nMrs. Smith: Yes, sir.\nThe Court: I have read your note and I have talked with the attorneys about this. I have placed the contents of your note into the court record and I have considered it and feel that it would be impractical to discharge you from the case at this point. I cannot substitute an alternate juror in your stead at this point in time. It is rather late in the process for me to be discharging jurors. If I discharge you as a juror, then five weeks of work would go down the drain. I would have to declare a mistrial in this case and I am not prepared to do that. And so I am going to require you to stay on the case and to deliberate with other jurors with a view towards reaching a verdict in this if one can be reached without doing violence to your individual judgment. I will say to you, as well as to other jurors, that you have a duty to consult with one another, to debate your views and your contentions and your disagreements and attempt, as best you can, to reach a verdict in the case without doing violence to your individual judgment. You- should not base your verdict in this case on anything but the evidence and the law. You have heard the evidence, as I have, for the past few days. You have heard the Court\u2019s instructions on the law and if you are not clear on those instructions, I will be delighted to reinstruct you on any particular instruction that you may not be clear on but you have a duty to decide this case purely on the evidence and the law of this State and to set aside any knowledge that you may have of any persons associated with the trial or any other information that may tend to influence your decision in this case. And so, to sum it all up, I have considered your request but your request regretfully will be denied. All right.\nIt was not error for the trial court to let the jury continue its deliberations with juror Smith remaining on the jury. During jury selection the trial court fully explored whether juror Smith\u2019s relationship with Mr. Braswell would affect her ability to act as an impartial juror. Juror Smith, herself, assured the trial court of her impartiality. No objection was made by either party to the trial court\u2019s denial of this juror\u2019s subsequent request for excusal; indeed, both the State and defendant agreed that this request should be denied.\nRelying on State v. Williams, 315 N.C. 310, 338 S.E.2d 75 (1986), and State v. Logan, 79 N.C. App. 420, 339 S.E.2d 449, disc. rev. denied, 316 N.C. 383, 342 S.E.2d 903 (1986), defendant contends the trial court erred by not giving his requested jury instruction for deadlocked juries, N.C.G.S. \u00a7 15A-1235 (1988). We conclude no such instruction was required. Both Logan and Williams are distinguishable.\nEnacted for the purpose of avoiding coerced verdicts from jurors having difficulty reaching a unanimous decision, N.C.G.S. \u00a7 15A-1235 provides:\nLength of deliber\u00e1tions; deadlocked jury.\n(a) Before the jury retires for deliberation, the judge must give an instruction which informs the jury that in order to return a verdict, all 12 jurors must agree to a verdict of guilty or not guilty.\n(b) Before the jury retires for deliberation, the judge may give an instruction which informs the jury that:\n(1) Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;\n(2) Each\u2019juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;\n(3) In the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and\n(4) No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.\n(c) If it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b). The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.\n(d) If it appears that there is no reasonable possibility of agreement, the judge may declare a mistrial and discharge the jury.\nN.C.G.S. \u00a7 15A-1235.\nIn both Logan and Williams, the jury specifically announced to the trial court that the jury was unable to reach a verdict. Under such circumstances, it was error not to give the full instruction set out in N.C.G.S. \u00a7 15A-1235. Williams, 315 N.C. at 327, 338 S.E.2d at 85; Logan, 79 N.C. App. at 424, 339 S.E.2d at 452. Here, the jury never indicated it was deadlocked or that it was having difficulty reaching a unanimous verdict. Further, defendant essentially received the instruction he sought at trial. Defendant requested the trial court instruct the jurors they \u201c[do] not have to abandon [their] own individual conscience if it does violence to it.\u201d The trial court honored defendant\u2019s request, charging:\nAnd so I am going to require you to stay on the case and to deliberate with other jurors with a view towards reaching a verdict in this if one can be reached without doing violence to your individual judgments. I will say to you, as well as to other jurors, that you have a duty to consult with one another, to debate your views and your contentions and your disagreements and attempt, as best you can, to reach a verdict in the case without doing violence to your individual judgment.\nDefendant next contends the trial court, upon denying Ms. Smith\u2019s request for excusal, committed prejudicial error when it advised the jury that \u201cfive weeks of work would go down the drain\u201d if a mistrial were declared. Inasmuch as no objection to this portion of the charge was lodged at trial, the issue, assuming error, is whether there is \u201cplain error.\u201d See State v. Syriani, 333 N.C. 350, 400, 428 S.E.2d 118, 146, cert. denied, -U.S.-, 126 L. Ed. 2d 341 (1993), reh\u2019g denied, \u2014 U.S.-, 126 L. Ed. 2d 707 (1994).\nIn State v. Barton, 335 N.C. 696, 702-03, 441 S.E.2d 295, 298 (1994), we held:\n[T]o rise to the level of plain error, the error in the instructions must be \u201cso fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him.\u201d State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993). Stated another way, the error must be one \u201cso fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u201d State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).\nWe need not therefore determine whether the trial court\u2019s comment offended the prohibition against advising juries of wasted judicial resources arising from mistrials in criminal cases, State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980). Considering the trial court\u2019s full instruction, which repeatedly advised the jurors that, while deliberating, they were not to agree to a verdict that would violate any juror\u2019s individual judgment, we are confident the trial court\u2019s isolated comment had no probable impact on the jury\u2019s verdict and did not deprive defendant of due process.\nThis assignment of error is, therefore, overruled.\nSentencing Proceeding\nVI.\nDefendant brings forward five assignments of error, relating to his capital sentencing proceeding.\nAt the sentencing hearing, the State relied on evidence submitted in the guilt-innocence proceeding. In addition, the State offered evidence that defendant had been convicted in 1983, on a plea of guilty, of the kidnapping and robbery of Hensley Ross and had been imprisoned until July 1987. Ross testified describing the incident.\nDefendant\u2019s evidence consisted primarily of the testimony of his mother. According to her, defendant was the third of six children. His father drank, was a poor provider and left the home when defendant was four years old. Defendant grew up in a run-down farmhouse with no running water and no bathroom. At the age of fifteen, defendant attended Faxmville Central High School where he made barely passing grades. In the ninth grade he was sent to a sheltered workshop for the handicapped and retarded. He dropped out after nine months and took odd jobs on a farm. He left home at around age seventeen. Defendant had never exhibited any violence toward his family members, his girlfriends or the other children at the sheltered workshop. School records indicated defendant had an overall IQ of 71 in 1974, and 60 in 1979. A vocational rehabilitation evaluation performed in 1985 showed an overall IQ of 70 and a verbal IQ in the mild retardation range.\nIn rebuttal the State offered the testimony of Chief William Waters of the Farmville Police Department: He had observed violent behavior by defendant. On one occasion, he had answered a call and found defendant holding a long-bladed knife in front of another officer. At the time, defendant was not yet sixteen years old. Defendant had been implicated in cases involving stealing and forgery and had a reputation in Farmville for violence.\nIn surrebuttal, defendant offered the testimony of the jail supervisor in Wayne County that defendant had been a model prisoner while awaiting trial and had never caused problems.\nThe trial court submitted and the jury found three aggravating circumstances: \u201cDefendant had been previously convicted of a felony involving the use of violence to the person,\u201d N.C.G.S. \u00a7 15A-2000(e)(3) (1988); the murder \u201cwas committed for pecuniary gain,\u201d N.C.G.S. \u00a7 15A-2000(e)(6); and the murder \u201cwas especially heinous, atrocious, or cruel,\u201d N.C.G.S. \u00a7 15A-2000(e)(9). The trial court submitted and the jury found the \u201ccatch-all\u201d mitigating circumstance, that there exists \u201cany other circumstance arising from the evidence which the jury deems to have mitigating value,\u201d N.C.G.S. \u00a7 15A-2000(f)(9). The trial court also submitted and the jury rejected the following eight nonstatutory mitigating circumstances:\nDefendant was reared by a hard-working mother as one of six children and worked to help out the family while at home;\nDefendant has adjusted well to confinement and has been a model detainee at the Wayne County Jail;\nDefendant pled guilty to the crimes he committed in Pitt County in 1983;\nDefendant had been previously diagnosed as having a mild range of mental retardation, is on the borderline range of intelligence and the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law may have been impaired;\nDefendant was removed from the public school system and placed in a Sheltered Workshop in Pitt County because of his learning disabilities;\nDefendant is the product, of a broken home and was never able to establish a relationship with his father;\nDefendant is considerate and loving to his mother and siblings; and\nDefendant cooperated with law enforcement officials in the acquisition of his personal property used as evidence.\nThe jury found unanimously beyond a reasonable doubt that the mitigating circumstance found was insufficient to outweigh the aggravating circumstances found and that the aggravating circumstances found were sufficiently substantial, when considered with the mitigating circumstances, to call for imposition of the death penalty.\nA.\nDefendant first contends the trial court\u2019s sentencing instructions were erroneous because they required the jury to find both that the proffered nonstatutory mitigating circumstances existed and had mitigating value before considering these circumstances in the final balancing process on issues three and four.\nDefendant\u2019s contention is contrary to law. While a juror may not be precluded from considering evidence proffered by defendant as a basis for a sentence less than death, Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973 (1978); Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256 (1989); Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1 (1983); McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990), a jury is not required to agree with a defendant that the evidence he proffers in mitigation is, in fact, mitigating, Raulerson v. Wainwright, 732 F.2d 803, 807, reh\u2019g denied, 736 F.2d 1528 (11th Cir.), cert. denied, 469 U.S. 966, 83 L. Ed. 2d 302 (1984), unless the legislature has declared it to be mitigating as a matter of law. State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated, 494 U.S. 433, 108 L. Ed. 2d 602 (1990), on remand, 327 N.C. 473, 397 S.E.2d 226 (1990), on remand, 329 N.C. 233, 404 S.E.2d 842 (1991). In Fullwood, we stated:\nIt is, however, for the jury to determine whether submitted non-statutory mitigating circumstances have mitigating value. The \u201ccatch-all\u201d provision for mitigating circumstances includes those circumstances which are not listed as statutory mitigating circumstances \u2014 \u201c[a]ny other circumstance [s] arising from the evidence which the jury deems to have mitigating value.\" N.C.G.S. \u00a7 15A-2000(f)(9) (1988) (emphasis added). The court must submit to the jury the non-statutory mitigating circumstances which the defendant requests if they are \u201csupported by the evidence, and . . . are such that the jury could reasonably deem them to have mitigating value.\u201d State v. Pinch, 306 N.C. [1,] 26, 292 S.E.2d [203,] 223 [1982] (quoting State v. Johnson, 298 N.C. 47, 72-74, 257 S.E.2d 597, 616-17 (1979)) [,cert. denied, Smith v. North Carolina, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), 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).] The jury only \u201cfinds\u201d a non-statutory mitigating circumstance if it finds that the evidence supports the existence of the circumstance and if it deems it to have mitigating value. . . . Although evidence may support the existence of the non-statutory circumstance, the jury may decide that it is not mitigating. Therefore, the court did not err in denying defendant\u2019s requested instruction that if the jury found any nonstatutory mitigating circumstances, it must give them some mitigating value.\nId. at 396-97, 373 S.E.2d at 533-34 . See also State v. Huff, 325 N.C. 1, 59, 381 S.E.2d 635, 669 (1989) (\u201cbefore the jury \u2018finds\u2019 a nonstatutory mitigating circumstance, it must make two preliminary determinations: (1) That the evidence supports the existence of the circumstance and (2) that the circumstance has mitigating value.\u201d). Significantly, in McKoy v. North Carolina, which held North Carolina\u2019s unanimity requirement for finding a mitigating circumstance unconstitutional, the Court recognized without criticism the following statutory procedure:\nIn North Carolina\u2019s capital sentencing scheme, if the jury finds a statutory mitigating circumstance to be present, that circumstance is deemed to have mitigating value as a matter of law. State v. Stokes, 308 N.C. 634, 653, 304 S.E.2d 184, 195 (1983). For non-statutory mitigating circumstances, the jury must decide both whether the circumstance has been proved and whether it has mitigating value. See State v. Pinch, 306 N.C. 1, 26, 292 S.E.2d 203, 223, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622, 103 S.Ct 474 (1982), citing State v. Johnson, 298 N.C. 47, 72-74, 257 S.E.2d 597, 616-617 (1979).\nMcKoy v. North Carolina, 494 U.S. 433, 441 n.7, 108 L. Ed. 2d 369, 379 n.7, on remand, 326 N.C. 592, 391 S.E.2d 815 (1990), subsequent opinion, 327 N.C. 31, 394 S.E.2d 426 (1990).\nThe trial court\u2019s instructions regarding the nonstatutory mitigating circumstances were proper, and defendant\u2019s assignment of error is overruled.\nB.\nBy his next assignment of error, defendant contends the trial court committed prejudicial error in its instructions to the jury relating to the aggravating circumstance that defendant had previously been convicted of a felony involving the use of violence to the person. N.C.G.S. \u00a7 15A-2000(e)(3) (1988). The trial court\u2019s instructions were as follows:\nNumber one, had defendant been previously convicted of a felony involving the use of violence to the person?\nI instruct you, ladies and gentlemen, that robbery is by definition a felony involving the use of violence to the person. A person has been previously convicted if he has been convicted and not merely charged and if his conviction is based on conduct which occurred before the evidence out of which this murder arose. If you find from the evidence, beyond a reasonable doubt, that on or about the alleged date the defendant had been convicted of robbery and that the defendant acted in order to accomplish his criminal purpose and that the defendant killed the victim after he committed the robbery, you would find this aggravating factor and would so indicate by having your Foreman write, yes, in the space after this aggravating circumstance on the Issues and Recommendation Form.\nIf you do not so find or have a reasonable doubt as to one or more of these things, you will not find this aggravating circumstance and will so indicate by having your foreman write, no, in that space.\n(Emphasis added). Defendant contends the jury could have misconstrued the italicized portion of the instruction as being an instruction on the course-of-conduct aggravating circumstance, N.C.G.S. \u00a7 15A-2000(e)(ll), which was not submitted. Defendant cites no authority and makes no argument in his brief on this point other than to state his contention and assert that the jury could have been confused by the instruction.\nThere was no objection to this instruction at trial and we are confident no plain error was committed. Indeed, properly understood, the instruction is correct. It merely tells the jury that the robbery conviction, in order to be an aggravating circumstance, must have preceded the murder for which defendant had been found guilty. State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979). Since the trial court dismissed the armed robbery charge, originally joined with the murder and other felony charges, and did not submit it to the jury as a separate offense, the jury most probably understood the reference to the robbery to mean the robbery of Hensley Ross. While the instruction is not a model of clarity, we believe it did not amount to plain error, i.e., error which probably affected the outcome and which denied defendant due process.\nC.\nDefendant next contends the trial court erred in submitting defendant\u2019s borderline retardation as a nonstatutory mitigating circumstance rather than the statutory impaired capacity mitigating circumstance, N.C.G.S. \u00a7 15A-2000(f)(6).\nDefendant submitted a written request for mitigating circumstances which included the following: \u201cThe Defendant is in the borderline range of intelligence.\u201d No request was made for an instruction on the statutory mitigating circumstance that \u201c[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired.\u201d N.C.G.S. \u00a7 15A-2000(f)6) (1988). Counsel for the State informed the trial court it had no objection to any of the requested instructions, but stated, \u201cI think that one about mental state, I think you may need to satisfy yourself about whether or not you want to consider that, the border range of intelligence, considered that with maybe one of the statutory mitigating circumstances . . . .\u201d The trial court submitted the following mitigating circumstance:\n(4) The Defendant has been previously diagnosed as having a mild range of mental retardation, is on the borderline range of intelligence and the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law may have been impaired.\nWe perceive no error prejudicial to defendant in the submission of this circumstance.\nWhether requested or not, the trial court is required to instruct the jury on statutory mitigating circumstances supported by the evidence. N.C.G.S. \u00a7 15A-2000(b) (1988); 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, 327 N.C. 470, 397 S.E.2d 223 (1990), on remand, 329 N.C. 679, 406 S.E.2d 827 (1991). The burden of persuading the jury on the issue of the existence of a mitigating circumstance is on the defendant and the standard of proof is by a preponderance of the evidence. State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979).\nIn Artis, the Court held the evidence before the trial court was insufficient to mandate submission of mitigating circumstance (f)(6) even though defendant had presented evidence showing he had a full-scale IQ of 67, indicating upper-range mild mental retardation, and was intoxicated at the time of the murder. Id. at 312, 384 S.E.2d at 489. Instate v. Stokes, 308 N.C. 634, 304 S.E.2d 184 (1983), where the defendant presented evidence of his retardation, an IQ of 63 and a long history of psychiatric treatment for mental disorder, including a diagnosis of antisocial personality disorder, the Court held the evidence sufficient to mandate instruction on mitigating circumstance (f)(6). Id. at 654-55, 304 S.E.2d at 197.\nHere, as in Artis, the evidence did not mandate submission of the statutory circumstance. The evidence was that defendant was a fair student with average grades until age fifteen, after which he barely passed his classes in school. His mother\u2019s instructions to defendant had to be repeated before he would understand her. Defendant\u2019s ninth-grade school year at Farmville Central High School was interrupted so that he could attend a sheltered workshop in Greenville for the handicapped and retarded. Defendant remained at the workshop in Greenville for nine months when he dropped out and began working on a farm. Defendant\u2019s public school and vocational rehabilitation records indicated \u201ca Verbal IQ of 69 (mild range of mental retardation), a Performance IQ of 71 (borderline range of intelligence) and a Full Scale IQ of 70 (borderline range of intelligence),\u201d thus placing defendant \u201cin the borderline range of intelligence.\u201d Overall, defendant possessed a higher IQ than both defendants Artis and Stokes. Here, unlike Stokes, there was no evidence of any treatable mental disorder. We therefore hold the trial court did not err in failing to submit the statutory mitigating circumstance defined by N.C.G.S. \u00a7 15A-2000(f)(6).\nWe are also satisfied that this mitigating circumstance as submitted by the trial court was as favorable to defendant as the evidence would permit. It required the jury to find that defendant\u2019s mental condition \u201cmay have\u201d impaired his capacity. This placed less of a burden of persuasion on defendant than the statutory version of this mitigating circumstance, which would have required the jury to find that defendant\u2019s capacity was impaired.\nD.\nDefendant also contends the testimony of William Waters, Chief of the Farmville Police Department, regarding defendant\u2019s criminal misconduct was inadmissible. Chief Waters was called as a rebuttal witness for the State. He testified that while defendant was a juvenile he observed defendant at the police station holding a long-bladed knife in front of another officer, that defendant had been implicated in stealing and forgery, and had a reputation in his community for violence. Defendant objected to Waters\u2019 testimony regarding defendant\u2019s actions before Waters arrived at the station; the objection was sustained and the testimony struck. There was no objection, however, to Waters\u2019 testimony regarding defendant\u2019s brandishing the knife and defendant\u2019s other misconduct and reputation.\nFailure to object to the introduction of evidence normally waives the right to challenge its admission on appeal. State v. Lucas, 302 N.C. 342, 275 S.E.2d 525 (1987). In every case where a death sentence has been pronounced, however, it is the practice of this Court to review carefully the entire record to determine if error appears which might have influenced the outcome and unfairly prejudiced defendant. State v. Warren, 289 N.C. 551, 223 S.E.2d 317 (1976).\nWe conclude the admission of Water\u2019s testimony was not error. Where a defendant in a capital sentencing proceeding has placed his character at issue by having witnesses testify favorably with regard to it, the State may offer evidence to rebut this testimony. State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981). During direct examination, defendant\u2019s mother was asked the following:\nQ. Did Marvin ever get into fights with his brothers and sisters around the house?\nA. No, he didn\u2019t.\nQ. Was he, was he the kind of child who was abusive toward you in terms of talking back to you?\nA. No, Marvin never has been abusive to me. He never talked back to me. He always minded me, did what I asked of him.\nQ. (Mr. Jordan) And based on that are you saying then that based on the time that he lived in your household, his relationship with his friends and other persons in the community did he ever exhibit any violence towards them?\nA. No, he didn\u2019t. He, he wasn\u2019t a violent child. I never had no problem with him fighting or nothing like that. He always got along with all his friends.\nQ. Has anyone accused him of assaulting his girlfriends?\nA. No.\nQ. And when he would come home to visit with you, did he act differently than he, as a person than he was when he was living with you?\nA. No, he didn\u2019t.\nQ. He was, he was not abusive or did he show signs of using drugs or anything of that nature?\nA. No.\nDefendant, by eliciting testimony from his mother regarding his character for nonviolence, opened the door to rebuttal testimony from the State regarding this character trait, even if such evidence would have been inadmissible in the State\u2019s case in chief. In Silhan, we stated:\nOur capital sentencing statute not only permits but requires juries to determine the sentence guided \u201cby a carefully defined set of statutory criteria that allow them to take into account the nature of the crime and the character of the accused.\u201d State v. Johnson, supra, 298 N.C. at 63, 257 S.E.2d at 610. This statute, however, limits the state in its case in chief to proving only those aggravating circumstances listed in section (e). Bad reputation or bad character is not listed as an aggravating circumstance. Therefore the state may not in its case in chief offer evidence of defendant\u2019s bad character. A defendant, however, may offer evidence of whatever circumstances may reasonably be deemed to have mitigating value, whether or not they are listed in section (f) of the statute. State v. Johnson, [] 298 N.C. at 72-74, 257 S.E.2d at 616-617. Often this may be evidence of his good character. Id. The state should be able to, and we hold it may, offer evidence tending to rebut the truth of any mitigating circumstance upon which defendant relies and which is supported by the evidence, including defendant\u2019s good character. Here, despite defendant\u2019s contentions to the contrary, he did offer evidence of his good character. It is true that the evidence was not cast in terms of defendant\u2019s reputation in his community. Nevertheless it was evidence tending to show defendant to be, generally, a good person by those most intimately acquainted with him. In face of this evidence, the state was entitled to show in rebuttal that defendant\u2019s reputation among others familiar with it was not good. Both the state and defendant are entitled to a fair sentencing hearing, and the jury is entitled to have as full a picture of a defendant\u2019s character as our capital sentencing statute and constitutional limitations will permit.\nId. at 273, 275 S.E.2d at 484.\nEvidence Rule 609, relied on by defendant, is inapplicable. Rule 609 governs the use of juvenile adjudications for purposes of impeaching the credibility of a witness. N.C.G.S. \u00a7 8C-1, Rule 609(d) (1992); State v. Whiteside, 325 N.C. 389, 383 S.E.2d 911 (1989). Here, the testimony of Waters was not offered to impeach the credibility of a witness; it was offered to rebut defendant\u2019s evidence that he was not a violent person. It was, therefore, admissible under the rationale of Silhan. See also N.C.G.S. \u00a7 8C-1, Rule 405(b). Defendant\u2019s assignment of error is overruled.\nE.\nDefendant next contends the trial court erred in submitting the statutory aggravating circumstance that the murder was \u201cespecially heinous, atrocious, or cruel.\u201d N.C.G.S. \u00a7 15A-2000(e)(9). Defendant argues (1) the aggravating circumstance is unconstitutionally vague, and (2) it is not supported by the evidence. We disagree.\nThis Court previously has held that N.C.G.S. \u00a7 15A-2000(e)(9) is neither unconstitutionally vague nor overbroad. State v. Lloyd, 321 N.C. 301, 364 S.E.2d 316 (1988), judgment vacated and remanded on other grounds, 488 U.S. 807, 102 L. Ed. 2d 18 (1988), on remand, 323 N.C. 622, 374 S.E.2d 277 (1988), judgment vacated, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990), on remand, 329 N.C. 662, 407 S.E.2d 218 (1991).\nFurthermore, the evidence in the instant case was sufficient to warrant its submission. In State v. Artis, 325 N.C. at 316-17, 384 S.E.2d at 492, we held:\n[T]his aggravating circumstance is appropriate when the level of brutality involved exceeds that normally found in first-degree murders or when the murder in question is conscienceless, pitiless or unnecessarily torturous to the victim. State v. Hamlet, 312 N.C. 162, 321 S.E.2d 837 (1984); State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979). It also arises when the killing demonstrates an unusual depravity of mind on the part of the defendant. State v. Stanley, 310 N.C. 332, 312 S.E.2d 393 (1984). We have identified two of the types of murders which meet the above criteria: (1) those that are physically agonizing or otherwise dehumanizing to the victim, and (2) those that are less violent but involve the infliction of psychological torture. State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 [(1983)].\nWhen determining whether the evidence is sufficient to submit an aggravating circumstance, the evidence must be considered in the light most favorable to the State. State v. Huff, 325 N.C. at 55, 381 S.E.2d at 666. Here, the victim was sixty-eight years old at the time of the murder. Age is a factor to be considered in determining whether to submit this aggravating circumstance. Id. at 56, 381 S.E.2d at 667. The evidence revealed defensive wounds on the victim\u2019s hands and seven areas of injuries to the victim\u2019s head. Four of these head injuries would have been sufficient to disorient or confuse the victim, cause moderate pain, but not render him unconscious. The three remaining head injuries, each of which alone could have caused death, exceeded the normal brutality found in first-degree murder cases. The victim could have remained conscious throughout all seven blows and been aware of, while incapable of preventing, his impending death. See Artis, 325 N.C. at 318, 384 S.E.2d at 493 (evidence creating inference that victim remained conscious during violent, dehumanizing attack sufficient to support submission of aggravating circumstance (e)(9)); compare State v. Hamlet, 312 N.C. 162, 175, 321 S.E.2d 837, 846 (1984) (multiple gunshots occurred after victim had been rendered unconscious by single gunshot wound; evidence insufficient to support aggravating circumstance (e)(9)).\nDefendant\u2019s assignment of error is overruled.\nPreservation Issues\nVII.\nDefendant raises two additional issues which he concedes have been recently decided against him by this Court: (1) The trial court erred in denying defendant\u2019s motion for a bill of particulars on the aggravating circumstances to be relied on by the State on the grounds this deprived defendant of his federal and state constitutional right to notice of the charges against him and adequate time to prepare his defense; and (2) the North Carolina Death Penalty Statute, N.C.G.S. \u00a7 15A-2000, and consequently the death sentence in this case, is unconstitutional, is imposed in a discriminatory manner, is vague and overbroad, and involves subjective discretion, all in violation of the Eighth and Fourteenth amendments to the United States Constitution and Article I, sections 19 and 27 of the North Carolina Constitution.\nAs defendant concedes, we have considered and rejected these arguments in earlier cases. State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981) (no constitutional right to bill of particulars on aggravating circumstances upon which State intends to rely), cert. denied, 463 U.S. 1213, 77 L. Ed. 2d 1398, reh\u2019g denied, 463 U.S. 1249, 77 L. Ed. 2d 1456 (1983); State v. Roper, 328 N.C. 337, 402 S.E.2d 600 (1991) (death penalty statute neither unconstitutionally vague nor overbroad and not applied in discriminatory and discretionary manner), cert. denied,-U.S.-, 116 L. Ed. 2d 232 (1991). We decline to depart from these prior holdings. Therefore, we overrule these assignments of error.\nProportionality Review\nVIII.\nHaving found no error in the guilt and sentencing phases of defendant\u2019s trial, we next are required by statute to review the entire record and determine: (1) Whether the evidence supports the aggravating circumstances found by the jury; (2) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (3) whether 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. Moore, 335 N.C. 567, 614, 440 S.E.2d 797, 824 (1994), cert. denied, -U.S.-,-L. Ed. 2d-, 63 USLW 3265, reh\u2019g denied,-U.S. -,-L. Ed. 2d-, 63 USLW 3422 (1994); State v. McCollum, 334 N.C. 208, 239, 433 S.E.2d 144, 161 (1993), cert. denied, -U.S.-, 129 L. Ed. 29 895, reh\u2019g denied,-U.S.-, 129 L. Ed. 2d 924 (1994).\nDefendant was convicted of first-degree murder under the theories of felony murder and premeditation and deliberation. The jury found in aggravation the following circumstances: (1) Defendant previously had been convicted of a felony involving the use of violence to the person; (2) the murder was committed for pecuniary gain; (3) and the murder was especially heinous, atrocious or cruel. The jury considered nine mitigating circumstances and rejected eight. One or more jurors did find the existence of unspecified mitigating circumstances.\nWe hold the evidence supports the jury\u2019s finding of these three aggravating circumstances. On the basis of the record, transcript and briefs submitted by the parties, we are not able to conclude the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor.\nAs our final statutory duty of proportionality review, we must determine whether the death sentence in this case is excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant. State v. Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177, reh\u2019g denied, 464 U.S. 1004, 78 L. Ed. 2d 704 (1983). In conducting this proportionality review, we compare similar cases in a pool consisting of\nall cases arising since the effective date of our capital punishment statute, 1 June 1977, which have been tried as capital cases and reviewed on direct appeal by this Court and in which the jury recommended death or life imprisonment or in which the trial court imposed life imprisonment after the jury\u2019s failure to agree upon a sentencing recommendation within a reasonable period of time.\nId. The pool \u201cincludes 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 (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 case\u201d 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.\nWe have described our general methodology on proportionality review as follows:\nIn essence, our task on proportionality review is to compare the case at bar with other cases in the pool which are roughly similar with regard to the crime and the defendant, such as, for example, the manner in which the crime was committed and defendant\u2019s character, background, and physical and mental condition. If, after making such a comparison, we find that juries have consistently been returning death sentences in the similar cases, then we will have a strong basis for concluding that a death sentence in the case under review is not excessive or disproportionate. On the other hand if we find that juries have consistently been returning life sentences in the similar cases, we will have a strong basis for concluding that a death sentence in the case under review is excessive or disproportionate.\nState v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985).\nIn making the comparison, the Court does not simply engage in rebalancing the aggravating and mitigating factors; rather, it is obligated to scour the entire record for all the circumstances of the case sub judice and the manner in which defendant committed the crime, as well as defendant\u2019s character, background, and physical and mental condition.\nState v. McLaughlin, 323 N.C. 68, 109, 372 S.E.2d 49, 75 (1988), sentence vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990), on remand, 330 N.C. 66, 408 S.E.2d 732 (1991); see also State v. Roper, 328 N.C. 337, 371-73, 402 S.E.2d 600, 620-21 (discussing process of proportionality review), cert. denied, \u2014 r U.S. -, 116 L. Ed. 2d 232 (1991); State v. Artis, 325 N.C. at 337-38, 384 S.E.2d at 505 (1989) (same).\nWhile only cases found to be free of error in both the guilt-innocence and penalty phases are included in the pool, the Court is not bound to give citation to every case in the pool of similar cases. State v. Syriani, 333 N.C. at 400, 428 S.E.2d at 146.\nThis Court has held the death penalty to be disproportionate in only seven cases. State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653; State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983). In only two of these, Stokes and Bondurant, did the juries find the \u201cespecially heinous, atrocious, or cruel\u201d aggravating circumstance. That the jury found this circumstance in the instant case distinguishes it from all other cases in which this circumstance was not involved.\nThere are significant dissimilarities between the present case and Stokes. First, Stokes was convicted of first-degree murder solely on the theory of felony murder, whereas here defendant was convicted on theories of both felony murder and premeditation and deliberation. Second, in Stokes the jury found only one aggravating circumstance, whereas the jury here found three aggravating circumstances. Third, Stokes\u2019s accomplice, who a majority of this Court believed equally culpable, was sentenced to life imprisonment; whereas in the present case defendant acted alone.\nThere are also significant dissimilarities between the present case and Bondurant. In Bondurant, the defendant promptly exhibited signs of remorse and concern by seeking medical treatment for the victim immediately after shooting him, whereas here defendant repeatedly and fatally struck the victim with a blunt object and left him helpless and dying on the ground while he resumed efforts at cracking the safe. Also the Bondurant jury found only one aggravating circumstance, that the crime was especially heinous, atrocious, or cruel; whereas three aggravating circumstances were found in the present case.\nAs for the remaining five cases,\nin only one, State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985), did the jury find multiple aggravating circumstances. In finding the death sentence in Young to be disproportionate, this Court focused on the jury\u2019s failure to find either that the murder was committed as part of a course of conduct which included the commission of violence against another person or persons or that the crime was especially heinous, atrocious, or cruel. McCollum, 334 N.C. at 241, 433 S.E.2d at 162.\nMoore, 335 N.C. at 616, 440 S.E.2d at 825 (1994). In this case the jury found the especially heinous, atrocious or cruel aggravating circumstance, the absence of which the Court noted in Young. Although the course of conduct aggravating circumstance was not present here as it was not in Young, the jury did find here the prior violent felony aggravating circumstance. In Young, the jury found the mitigating circumstance that defendant had no significant history of prior criminal activity.\nIn comparing the present case to similar cases in the pool, we recognize that\nthe factors to be considered and their relevance during proportionality review in a given capital case \u201cwill be as numerous and as varied as the cases coming before us on appeal.\u201d Williams, 308 N.C. at 80, 301 S.E.2d at 355. Therefore, the fact that in one or more cases factually similar to the one under review a jury or juries have recommended life imprisonment is not determinative, standing alone, on the issue of whether the death penalty is disproportionate in the case under review. Early in the process of developing our methods for proportionality review, we indicated that similarity of cases, no matter how many factors are compared, will not be allowed to \u201cbecome the last word on the subject of proportionality rather than serving as an initial point of inquiry.\u201d Id. at 80-81, 301 S.E.2d at 356. Instead, we stated plainly that the constitutional requirement of \u201cindividualized consideration\u201d as to proportionality could only be served if the issue of whether the death penalty was disproportionate in a particular case ultimately rested upon the \u201cexperienced judgments\u201d of the members of the Court, rather than upon mere numerical comparisons of aggravators, mitigators and other circumstances.\nState v. Green, 336 N.C. 142, 198, 443 S.E.2d 14, 46-47 (1994), cert. denied,-U.S.-,-L. Ed. 2d-, 63 USLW 3437 (1994). Merely because juries in the past \u201chave returned recommendations of life imprisonment in cases similar to the one under review does not automatically establish that juries have \u2018consistently returned life sentences in factually similar cases.\u2019 \u201d Id. at 198, 443 S.E.2d at 47 (quoting McCollum, 334 N.C. at 242, 433 S.E.2d at 163).\nHaving reviewed all the cases in the proportionality pool, we find that no case is factually identical to the present case. We conclude, however, that the present case is most analogous to cases in which this Court has held the death penalty to be proportionate. In State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985), cert. denied, 476 U.S. 1165, 90 L. Ed. 2d 733 (1986), the defendant killed a convenience store clerk during the commission of a robbery. The defendant shot the clerk six times and discarded the body on a single-lane logging path five miles outside of town. The jury convicted the defendant of first-degree murder and robbery with a dangerous weapon. At sentencing the defendant presented evidence of his close relationship with his mother and of his poor scholastic record. The jury recommended a sentence of death after finding the following aggravating circumstances: Defendant previously had been convicted of a felony involving use or threat of violence to the person; the murder was committed while the defendant was engaged in homicide, rape, robbery, etc.; and the murder was especially heinous, atrocious, or cruel. Id. at 71, 337 S.E.2d at 830. See also State v. Lawson, 310 N.C. 632, 314 S.E.2d 493 (1984) (burglary-murder in which jury found existence of two aggravating circumstances and one or more mitigating circumstances; death sentence proportionate), and State v. Craig, 308 N.C. 446, 302 S.E.2d 740 (1983) (robbery-murder in which jury found existence of one mitigating circumstance and three aggravating circumstances \u2014 the murder was committed for pecuniary gain, was especially heinous, atrocious, or cruel, and was part of course of conduct including other crimes of violence against other persons; death sentence proportionate), cert. denied, 464 U.S. 908, 78 L. Ed. 2d 247 (1983).\nThus the present case has similarities to cases in which we previously have upheld the death penalty, and is dissimilar to cases in which we have held the death penalty disproportionate. Our review of other cases in the proportionality pool does not reveal that jurors have consistently returned life sentences in cases like this one. We conclude, therefore, that the sentence of death is not disproportionate.\nWe hold defendant received a fair trial free from prejudicial error and that the resulting death sentence was not disproportionate and should be left undisturbed.\nNO ERROR.\nJustice Parker did not participate in the consideration or decision of this case.\n. The challenged instruction, given midway through the jury\u2019s deliberations in response to a juror\u2019s request for clarification, was taken almost verbatim from State v. Hammonds, 241 N.C. 226, 232, 85 S.E.2d 133, 138 (1954). The instruction stated:\nWhen it is said that the jury must be satisfied of the defendant\u2019s guilt beyond a reasonable doubt, it is meant that they must be fully satisfied or entirely convinced or to put it another way, satisfied to a moral certainty of the truth of the charge. If, after considering, comparing and weighing all the evidence, the minds of the jurors are left in such condition that they cannot say they have an abiding faith to a moral certainty in the defendant\u2019s guilt, then they have a reasonable doubt, otherwise not. A reasonable doubt as that term is employed in the administration of criminal law, is a[n] honest substantial misgiving generated by the insufficiency of the proof, an insufficiency which fails to convince your judgment and conscience and satisfy your reason as to the guilt of the accused.\n. The several issues determined in Williams I concerned whether: the evidence was sufficient to support submitting the first-degree murder charge on a theory of premeditation and deliberation; the felony of burglary with explosives could support a first-degree felony murder conviction; defendant should have been permitted to proceed pro se; a tape recording allegedly containing admissions by defendant, various photographs, evidence seized upon a search of defendant\u2019s residence, certain out-of-court statements made by defendant after his arrest and certain physical evidence seized during a search incident to his arrest should have been admitted into evidence.\n. For a more complete summary of the evidence at trial, see this Court\u2019s prior opinion, Williams, 334 N.C. at 444-46, 432 S.E.2d at 590-91.\n. Defendant argues merely that the prosecutor\u2019s comments were \u201cprejudicial,\u201d without stating the legal basis of his request for a new trial. We have inferred, from the cases he cites, that he grounds his claim in the due process right to a fair trial. In this connection, we refer defendant to Rule 28(a) of the Rules of Appellate Procedure (1993): \u201cThe function of all briefs ... is to define clearly the questions presented to the reviewing court. . . .\u201d\n. We concluded in Williams I the trial court ruled correctly. 334 N.C. at 456, 434 S.E.2d at 598.\n. The case law holdings defining the permissible scope of closing argument have been codified in part at N.C.G.S. \u00a7 15A-1230 (1988).\n. The four issues submitted to the jury were as follows:\nIssue One:\nDo you unanimously find from the evidence, beyond a reasonable doubt, the existence of one or more of the following aggravating circumstances?\nIssue Two:\nDo you find from the evidence the existence of one or more of the following mitigating circumstances?\nIssue Three:\nDo you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found is, or are, insufficient to outweigh the aggravating circumstance or circumstances found?\nIssue Four:\nDo you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances you found is, or are, 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?\n. This aggravating circumstance is as follows: \u201cThe murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons.\u201d N.C.G.S. \u00a7 15A-2000(e)(ll).", "type": "majority", "author": "EXUM, Chief Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Isaac T. Avery, III, Special Deputy Attorney General, and Linda Anne Morris, Assistant Attorney General, for the State.", "William F. W. Massengale and Marilyn G. Ozer for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARVIN EARL WILLIAMS, JR.\nNo. 264A90-2\n(Filed 30 December 1994)\n1. Criminal Law \u00a7 762 (NCI4th)\u2014 first-degree murder\u2014 instructions \u2014 reasonable doubt \u2014 moral certainty \u2014 no error\nThe trial court did not err in a prosecution for first-degree murder, burglary with explosives, breaking and entering, armed robbery, and attempted safecracking by giving an instruction on reasonable doubt which included moral certainty. The instructions were practically identical to those in State v. Bryant, 337 N.C. 298 (Bryant II), which now controls this issue.\nAm Jnr 2d, Trial \u00a7 1385.\n2. Jury \u00a7 256 (NCI4th)\u2014 first-degx'ee murder \u2014 jury selection \u2014 peremptory challenges \u2014 racial discrimination\u2014 prima facie showing \u2014 moot\nThe trial court did not err during jury selection in a first-degree murder prosecution where defendant contended that the prosecutor exercised peremptory challenges in a racially discriminatory manner in that counsel examined seventy jurors during jury selection; the State peremptorily challenged eight whites, five blacks, and one Asian; the State accepted two blacks and did not exhaust its peremptory challenges; the jury was ultimately composed of eleven whites and one black with two white alternates; defendant made Batson objections to three of the State\u2019s strikes against blacks; the prosecutor volunteered an explanation after each of those objections without waiting for the court to determine prima facie discrimination; and the court overruled the objection in each case. Since the prosecutor volunteered his explanations, the preliminary issue of a prima facie showing becomes moot and the only issue before the Court is whether the trial court correctly determined that the prosecutor had not intentionally discriminated.\nAm Jur 2d, Jury \u00a7 235.\nProof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case. 1 ALR2d 1291.\nUse of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.\n3. Jury \u00a7 260 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 peremptory challenges \u2014 racial discrimination \u2014 no intentional discrimination\nThe trial court did not err during jury selection for a first-degree murder trial by allowing the prosecutor to exercise peremptory challenges to strike blacks where defendant argued that there was evidence that the strikes were because of race in that the defendant was black and the victim was white, so the prosecutor had incentive to keep blacks off the jury on the assumption that blacks are more likely to identify with other blacks, but the State\u2019s key witness was black, which undercuts any incentive to remove blacks; the prosecutor made numerous discriminatory comments, but that assertion is not supported by the record and the mere mention of race in a trial such as this is not evidence of racial animus; the prosecutor did not apply the same disqualifying criteria to white as to black prospective jurors, but disparate treatment of prospective jurors is not necessarily dispositive on the issue of discriminatory intent and the white jurors passed by the prosecutor did not in fact exhibit characteristics comparable to those of the black jurors peremptorily challenged; the explanation given by the prosecutor for striking one black juror was a proxy for race in that it referred to the juror\u2019s neighborhood, but the Court could not reach that conclusion without some evidence that the juror did in fact live in a black neighborhood, and the prosecutor articulated a race-neutral reason for striking the juror supported by the record in that the juror had made misleading and inconsistent statements on voir dire and there was criminal activity in the neighborhood which concerned the prosecutor; and the prosecutor used five of fourteen, or thirty-six percent, of his peremptory challenges on blacks, whereas blacks constituted only sixteen percent, seven of forty-three, of the jurors not challenged for cause, but there was evidence that the prosecutor did not use his peremptory challenges in a discriminatory manner and the trial court\u2019s ruling was not clearly erroneous.\nAm Jur 2d, Jury \u00a7 235.\nProof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case. 1 ALR2d 1291.\nUse of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.\n4. Jury \u00a7\u00a7 145, 262 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 peremptory challenges \u2014 statements to jury\u2014 choosing jury predisposed to death penalty\nThe trial court did not err during jury selection for a first-degree murder prosecution where defendant contended that the prosecutor engineered a jury predisposed to voting for the death penalty by peremptorily challenging six prospective jurors because of their views on the death penalty although five had been unsuccessfully challenged for cause, and by asking questions which implied that only the weak would vote for life imprisonment. The argument that the prosecutor should not be permitted to peremptorily challenge jurors not excludable for cause under Witherspoon v. Illinois, 391 U.S. 510, has been consistently rejected. The prosecutor\u2019s questions were clearly designed to ascertain whether prospective jurors\u2019 views on the death penalty would prevent them from faithfully following the death penalty statute, the prosecutor appears to have taken pains to avoid making any suggestion that prospective jurors would be obligated to vote for the death penalty and the prosecutor described the jurors\u2019 \u201cduty\u201d as rendering a verdict in accordance with the law, not to vote for the death penalty.\nAm Jur 2d, Jury \u00a7\u00a7 201, 202, 233 et seq.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post -Witherspoon cases. 39 ALR3d 550.\n5. Jury \u00a7 137 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 references to race\nThe trial court did not deny a first-degree murder defendant due process during jury selection by allowing the prosecutor to ask prospective jurors whether they could put the issue of race completely out of their minds. Although defendant contended that the prosecutor deliberately injected racial prejudice into the proceedings and that his comments impermissibly tainted the jury even if in good faith, the comments were nonderogatory references to race made to ensure that racially biased prospective jurors were not seated on the jury and there was no appreciable risk that the prosecutor\u2019s mere mention of the race of the parties would engender prejudice.\nAm Jur 2d, Jury \u00a7\u00a7 201, 202.\nRacial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case. 94 ALR3d 15.\n6. Jury \u00a7 153 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 death penalty \u2014 gender references\nThe trial court did not deny a first-degree murder defendant due process during jury selection by allowing the prosecutor to ask two prospective female jurors whether they would have any difficulty performing their duties, given that there would likely be more women on the jury than men, and to ask one of the jurors whether she felt she would be \u201cless able to return a death sentence than say a male.\u201d These questions do not advocate the imposition of the death penalty but represent instead a legitimate inquiry into the jurors\u2019 ability to perform their duties impartially; moreover, the likelihood that these questions prejudiced the jury against defendant is almost nonexistent.\nAm Jur 2d, Jury \u00a7\u00a7 201, 202.\n7. Jury \u00a7 127 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 questions concerning secretly taped conversation\nThe trial court did not deny a first-degree murder defendant due process during jury selection by allowing the prosecutor to ask prospective jurors whether they would have trouble hearing a recording and whether they would refuse to consider such a recording as evidence \u201cjust for the fact that it was secretly recorded without the knowledge of one of the parties.\u201d Although defendant maintains that there was prejudice since the questions conveyed the impression that the voice recorded was in fact the defendant\u2019s voice, a fact that would be in issue at trial, the record reveals that the prosecutor scrupulously avoided such an insinuation, stating in each instance that the recording was \u201callegedly\u201d of defendant\u2019s voice.\nAon Jur 2d, Jury \u00a7\u00a7 201, 202.\n8. Jury \u00a7 139 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 questions concerning arrest and indictment\nThe trial court did not deny a first-degree murder defendant due process during jury selection by allowing the prosecutor to refer to the fact that the case had arisen pursuant to an arrest and indictment. The prosecutor emphasized defendant\u2019s presumed innocence, not his guilt, in his questions and the trial court did not abuse its discretion in allowing the challenged questions.\nAm Jur 2d, Jury \u00a7\u00a7 201, 202.\n9. Jury \u00a7 94 (NCI4th)\u2014 first-degree murder \u2014 jury selection\u2014 prospective jurors \u2014 ex parte bench conferences\nThere was no prejudicial error in a first-degree murder prosecution where the court had seven unrecorded ex parte bench conferences with prospective jurors where five of the conferences were reconstructed by the court; one juror was selected to sit on the jury after further examination by the State and defendant; one was excused for manifestly unobjectionable reasons; three were deferred to another panel where they were subject to further examination by the State and defendant; another was excused with defendant\u2019s consent, although the subject of the ex parte communication is not in the record; and assuming that the last, referred to in the record as \u201cDiscussion at the Bench with a juror,\u201d was in fact an ex parte conversation, the record does not reveal that any action was taken as a result of that conversation.\nAm Jur 2d, Jury \u00a7\u00a7 195 et seq.\n10. Constitutional Law \u00a7 342 (NCI4th)\u2014 first-degree murder\u2014 unrecorded bench conferences \u2014 no error\nThere was no prejudicial error in a first-degree murder prosecution where the court held unrecorded bench conferences with counsel but defendant seriously challenges only one, which occurred during a hearing to decide whether defendant would proceed pro se. Assuming it was error to exclude defendant from this conference, the error was harmless because the judge did not decide the motion at the in-chambers conference but explored the issue fully with defendant in open court before ruling. N.C.G.S. \u00a7 15A-1241 does not require recordation of private bench conferences between trial judges and attorneys.\nAm Jur 2d, Criminal Law \u00a7\u00a7 695, 916.\nExclusion or absence of defendant, pending trial of criminal case, from courtroom, or from conference between court and attorneys, during argument on question of law. 85 ALR2d 1111.\n11. Criminal Law \u00a7 461 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 excluded audio tape\nThere was no prejudicial error in a first-degree murder prosecution where the prosecutor in his closing argument used the excluded transcript of an audio tape, but the tape itself had been played for the jury and defendant did not show that the specific statements the prosecutor attributed to him were not on the tape, the statements were not without support elsewhere in the record, and the jury did not know that the prosecutor was reading from a transcript.\nAm Jur 2d, Trial \u00a7\u00a7 609 et seq.\nSupreme Court\u2019s views as to what courtoom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L. Ed. 2d 886.\n12. Criminal Law \u00a7 461 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 victim receiving blow on ground \u2014 no error\nThere was no error in a first-degree murder prosecution where the prosecutor argued that the victim received at least one blow on the ground where that was a reasonable inference from the testimony.\nAm Jur 2d, Trial \u00a7\u00a7 609 et seq.\nSupreme Court\u2019s views as to what courtoom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L. Ed. 2d 886.\n13. Criminal Law \u00a7 468 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 footprint evidence \u2014 analogy to fingerprints in rape cases\nThere was no error in a first-degree murder prosecution where the prosecutor in his summation compared footprint evidence to fingerprint evidence in rape cases. Although defendant says this rape analogy was calculated solely to prejudice the women on the jury against him, the comment was a reasonable effort to explain the importance of the footprint evidence.\nAm Jur 2d, Trial \u00a7\u00a7 609 et seq.\nSupreme Court\u2019s views as to what courtoom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L. Ed. 2d 886.\n14. Jury \u00a7 268 (NCI4th)\u2014 first-degree murder \u2014 request of juror to be replaced \u2014 deliberations underway \u2014 denied\nThe trial court did not err in a first-degree murder prosecution by refusing to honor a juror\u2019s request to be excused after deliberations had begun where defense counsel informed the court that he was acquainted with a prospective juror as she had sought legal advice from him; the juror assured the court that her consultation with the lawyer would not enter into the case; the court accepted the juror; after the jury retired for deliberation following the guilt phase of the trial, the juror sent a note to the court asking that she be dismissed because her ability to make a fair and impartial decision could be influenced by involvement with defense lawyers; and the court refused to replace the juror. The court fully explored whether the juror\u2019s relationship with defense counsel would affect her ability to be impartial during jury selection, the juror herself assured the trial court of her impartiality, no objection was made by either party to the denial of the juror\u2019s request to be excused, and both parties agreed that it should be denied.\nAm Jur 2d, Jury \u00a7 135.\nPropriety, under state statute or court rule, of substituting state trial juror with alternate after case has been submitted to jury. 88 ALR4th 711.\n15. Criminal Law \u00a7 876 (NCI4th)\u2014 first-degree murder\u2014 instruction on deadlocked jury \u2014 refused\u2014no indication of deadlock by jury \u2014 instruction given in essence\nThere was no error in a first-degree murder prosecution where the trial court did not give defendant\u2019s requested instruction on deadlocked juries but the jury never indicated that it was deadlocked or having trouble reaching a unanimous verdict and defendant essentially received the instruction he sought. N.C.G.S. \u00a7 15A-1235.\nAm Jur 2d, Trial \u00a7\u00a7 1448 et seq.\n16. Criminal Law \u00a7 880 (NCI4th)\u2014 first-degree murder\u2014 instructions \u2014 waste of five weeks work \u2014 no plain error\nThere was no plain error in a first-degree murder prosecution where the court advised the jury that \u201cfive weeks of work would go down the drain\u201d if a mistrial were declared. Considering the trial court\u2019s full instruction, which repeatedly advised the jurors that they were not to agree to a verdict that would violate any juror\u2019s individual judgment, the trial court\u2019s isolated comment had no probable impact on the jury\u2019s verdict and did not deprive defendant of due process.\nAm Jur 2d, Trial \u00a7\u00a7 1448 et seq.\n17. Criminal Law \u00a7 1323 (NCI4th)\u2014 first-degree murder\u2014 sentencing instructions \u2014 nonstatutory mitigating circumstances\nThe trial court did not err in a first-degree murder sentencing hearing by requiring the jury to find that the proffered nonstatutory mitigating circumstances existed and had mitigating value before considering these circumstances in the final balancing process on issues three and four. A jury is not required to agree with a defendant that the evidence he proffers in mitigation is, in fact, mitigating unless the legislature has declared it mitigating as a matter of law.\nAm Jur 2d, Trial \u00a7\u00a7 1441 et seq.\n18. Criminal Law \u00a7 1337 (NCI4th)\u2014 first-degree murder \u2014 sentencing hearing \u2014 aggravating circumstances \u2014 previous felony involving violence\nThere was no plain error in a first-degree murder sentencing hearing in the court\u2019s instruction on the aggravating circumstance of a previous conviction of a felony involving violence where, properly understood, the instruction was correct. Defendant had been charged with other crimes, including robbery, and this instruction merely told the jury that the robbery conviction, in order to be an aggravating circumstance, must have preceded the murder for which defendant had been found guilty. While not a model of clarity, the instruction did not amount to plain error.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society, and the like \u2014 post-Gregg cases. 65 ALR4th 838.\n19. Criminal Law \u00a7 1360 (NCI4th)\u2014 first-degree murder \u2014 mitigating circumstances \u2014 borderline retardation \u2014 submitted as nonstatutory mitigating circumstance rather than as statutory impaired capacity \u2014 no error\nThere was no error in a first-degree murder sentencing hearing where the court submitted defendant\u2019s borderline retardation as a nonstatutory mitigating circumstance rather than as the statutory impaired capacity mitigating circumstance. The evidence did not mandate submission of the statutory circumstance and the mitigating circumstance as submitted by the trial court was as favorable to defendant as the evidence would permit. N.C.G.S. \u00a7 15A-2000(f)(6).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nComment Note. \u2014 Mental or emotional condition as diminishing responsibility for crime. 22 ALR3d 1228.\n20. Criminal Law \u00a7 1311 (NCI4th)\u2014 first-degree murder \u2014 sentencing hearing \u2014 prior criminal misconduct \u2014 admissible\nThe trial court did not err in a first-degree murder sentencing hearing by admitting the testimony of the Chief of the Farmville Police Department regarding defendant\u2019s criminal misconduct where defendant, by eliciting testimony from his mother regarding his character for nonviolence, opened the door to rebuttal testimony from the State regarding this character trait, even if such evidence would have been inadmissible in the State\u2019s case in chief.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nCourt\u2019s right, in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant. 96 ALR2d 768.\n21. Criminal Law \u00a7 1343 (NCX4th)\u2014 first-degree murder \u2014 sentencing \u2014 aggravating circumstances \u2014 especially heinous, atrocious or cruel\nThe trial court did not err in a first-degree murder sentencing hearing by submitting the aggravating circumstance that the murder was especially heinous, atrocious, or cruel. The N.C. Supreme Court has previously held that N.C.G.S. \u00a7 15A-2000(e)(9) is neither unconstitutionally vague nor overbroad and the evidence in this case was sufficient to warrant submission of the circumstance in that the victim was sixty-eight years old at the time of the murder; the evidence revealed defensive wounds on the victim\u2019s hands and seven areas of injuries to the victim\u2019s head; four of these head injuries would have been sufficient to disorient or confuse the victim, cause moderate pain, but not render him unconscious; the three remaining head injuries, each of which alone could have caused death, exceeded the normal brutality found in first-degree murder cases; and the victim could have remained conscious throughout all seven blows and been aware \u25a0 of, while incapable of preventing, his impending death.\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.\n22. Criminal Law \u00a7 1334 (NCX4th)\u2014 first-degree murder \u2014 sentencing hearing \u2014 bill of particulars \u2014 no constitutional right\nA first-degree murder defendant\u2019s federal and state constitutional rights to notice of the charges against him and adequate time to prepare his defense were not violated by the denial of his motion for a bill of particulars on the aggravating circumstances to be relied upon by the State.\nAm Jur 2d, Continuance \u00a7 27.\n23. Constitutional Law \u00a7 371 (NCI4th)\u2014 first-degree murder\u2014 death penalty \u2014 constitutional\nThe North Carolina death penalty statute is constitutional. N.C.G.S. \u00a7 15A-2000.\nAm Jur 2d, Criminal Law \u00a7 628.\nSupreme Court\u2019s views on constitutionality of death penalty and procedures under which it is imposed or carried out. 90 L. Ed. 2d 1001.\n24. Criminal Law \u00a7 1373 (NCI4th)\u2014 first-degree murder\u2014 death sentence \u2014 not disproportionate\nA death sentence for a first-degree murder was not disproportionate where the evidence supports.the jury\u2019s finding of aggravating circumstances, the sentence was not imposed under the influence of passion, prejudice or any other arbitrary factor, and the case had similarities to cases in which.the death penalty was upheld and is dissimilar to cases in which the death penalty was held to be disproportionate.\nAm Jur 2d, Criminal Law \u00a7 628.\nSupreme Court\u2019s views on constitutionality of death penalty and procedures under which it is imposed or carried out. 90 L. Ed. 2d 1001.\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.\nJustice Parker did not participate in the consideration or decision of this case.\nOn remand by the Supreme Court of the United States,-U.S. -, 128 L. Ed. 2d 42 (1994), for further consideration in light of Victor v. Nebraska, 511 U.S.-, 127 L. Ed. 2d 583 (1994).\nLacy H. Thornburg, Attorney General, by Isaac T. Avery, III, Special Deputy Attorney General, and Linda Anne Morris, Assistant Attorney General, for the State.\nWilliam F. W. Massengale and Marilyn G. Ozer for defendant-appellant." }, "file_name": "0001-01", "first_page_order": 39, "last_page_order": 96 }