{ "id": 790121, "name": "STATE OF NORTH CAROLINA v. JOHN RYAN TAYLOR, JR.", "name_abbreviation": "State v. Taylor", "decision_date": "1995-04-07", "docket_number": "No. 483A93", "first_page": "52", "last_page": "65", "citations": [ { "type": "official", "cite": "340 N.C. 52" } ], "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": "87 L. Ed. 2d 802", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "7 ALR3d 8", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "14 ALR3d 723", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "451 S.E.2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "339 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556750 ], "year": 1994, "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0059-01" ] }, { "cite": "298 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "642" } ], "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "447 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "378", "parenthetical": "quoting State v. Alston, 307 N.C. 321, 337, 298 S.E.2d 631, 642 (1983)" } ], "opinion_index": 0 }, { "cite": "337 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549276 ], "year": 1994, "pin_cites": [ { "page": "662", "parenthetical": "quoting State v. Alston, 307 N.C. 321, 337, 298 S.E.2d 631, 642 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0658-01" ] }, { "cite": "433 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "744", "parenthetical": "citing United States v. Agurs, 427 U.S. at 108, 49 L. Ed. 2d at 354" } ], "opinion_index": 0 }, { "cite": "334 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532554 ], "year": 1993, "pin_cites": [ { "page": "605", "parenthetical": "citing United States v. Agurs, 427 U.S. at 108, 49 L. Ed. 2d at 354" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0602-01" ] }, { "cite": "427 U.S. 97", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174831 ], "weight": 5, "year": 1976, "pin_cites": [ { "page": "108" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/us/427/0097-01" ] }, { "cite": "232 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567601 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0132-01" ] }, { "cite": "402 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541401 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0409-01" ] }, { "cite": "403 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "284" } ], "opinion_index": 0 }, { "cite": "328 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540682 ], "year": 1991, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0626-01" ] }, { "cite": "287 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567535 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0274-01" ] }, { "cite": "345 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777865 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0283-01" ] }, { "cite": "346 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 8716319 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/sc/289/0393-01" ] }, { "cite": "317 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774166 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0396-01" ] }, { "cite": "405 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "152" } ], "opinion_index": 0 }, { "cite": "329 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556466 ], "year": 1991, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0061-01" ] }, { "cite": "130 L. Ed. 2d 802", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "445 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "910" } ], "opinion_index": 0 }, { "cite": "336 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535693 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0710-01" ] }, { "cite": "127 L. Ed. 2d 583", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 1147397 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/511/0001-01" ] }, { "cite": "446 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1994, "pin_cites": [ { "parenthetical": "Bryant II" }, { "page": "73" }, { "page": "75" }, { "page": "75-76" }, { "page": "76" } ], "opinion_index": 0 }, { "cite": "337 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550995 ], "weight": 3, "year": 1994, "pin_cites": [ { "parenthetical": "Bryant II" }, { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0298-01" ] }, { "cite": "128 L. Ed. 2d 42", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "432 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "Bryant I" } ], "opinion_index": 0 }, { "cite": "334 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530961 ], "year": 1993, "pin_cites": [ { "parenthetical": "Bryant I" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0333-01" ] }, { "cite": "417 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501748 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0559-01" ] }, { "cite": "498 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217574 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "41" }, { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/us/498/0039-01" ] }, { "cite": "299 S.W. 755", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1927, "opinion_index": 0 }, { "cite": "175 Ark. 1170", "category": "reporters:state", "reporter": "Ark.", "year": 1927, "opinion_index": 0 }, { "cite": "240 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "445-46", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "294 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571155 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "167" }, { "page": "166-67" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0159-01" ] }, { "cite": "85 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "241 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606351 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/241/0226-01" ] } ], "analysis": { "cardinality": 1149, "char_count": 31266, "ocr_confidence": 0.759, "pagerank": { "raw": 1.2782796092179667e-07, "percentile": 0.6163303343167884 }, "sha256": "73c83335f3859d74238f895a706e2c19b06b5bb81578ec41e69ea43d2a1a8749", "simhash": "1:8b62c53a570085f3", "word_count": 5180 }, "last_updated": "2023-07-14T17:34:40.112900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOHN RYAN TAYLOR, JR." ], "opinions": [ { "text": "LAKE, Justice.\nThe defendant was indicted on 13 November 1990 for the offenses of robbery with a dangerous weapon and the first-degree murder of Janie Gaskins. The defendant was tried capitally, and the jury found defendant guilty as charged of robbery with a dangerous weapon and of first-degree murder on theories of both premeditation and deliberation and felony murder. Following a capital sentencing hearing, the jury recommended a sentence of life imprisonment for the murder conviction. Judge Phillips sentenced the defendant to consecutive terms of life imprisonment for the murder and forty years\u2019 imprisonment for the robbery with a dangerous weapon.\nAt trial, the State presented evidence tending to show that Janie Gaskins died sometime during the late evening hours of 20 October 1990 or the early morning hours of 21 October 1990 as a result of multiple stab wounds to the chest.\nLamm Lovett, a good friend of Ms. Gaskins, visited the victim almost every day of the year. Mr. Lovett described Ms. Gaskins\u2019 home as completely fenced in, with a front door, back door and screen door which she locked every night. The front door opened into the living room which contained a couch and a marble-top coffee table in which Ms. Gaskins kept a folding pocketknife. There was also a bedroom, kitchen and small bathroom in Ms. Gaskins\u2019 home.\nMr. Lovett testified that he had visited Ms. Gaskins on the evening of 20 October 1990. He noticed that the marble-top coffee table was intact and'that the bed in the bedroom was made and undisturbed. Mr. Lovett stated that he paid Ms. Gaskins twenty dollars which he owed her and noticed that she placed the money in one of two small purses she kept tucked in her bra. Ms. Gaskins was also wearing a watch on a gold chain around her neck. At Ms. Gaskins\u2019 request, Mr. Lovett went to the garden with Ms. Gaskins and moved a small chair off the porch into the yard beside the fence. At that time, the bathroom window was closed.\nThe following morning, Mr. Lovett returned to Ms. Gaskins\u2019 house but could not get Ms. Gaskins to answer the door. Mr. Lovett and a neighbor then went to the back of the house. They noticed that the chair Mr. Lovett had placed near the fence the night before was underneath the bathroom window and that the window was now open. Mr. Lovett called the police.\nOfficer Thomas Mills of the New Bern Police Department was the first officer to arrive at the scene. Officer Mills observed the chair under the partially open bathroom window and noted that the screen door and back door were locked. He gained entry into Ms. Gaskins\u2019 house by climbing through the open bathroom window. Once inside, Officer Mills noticed that the top drawer of a bedroom chest was open and that personal items had been thrown on the floor. He also noticed that the covers had been forcefully pulled from the bed. Upon entering the living room, Officer Mills discovered Ms. Gaskins lying on the floor in a pool of blood. On his way out of the house, Officer Mills discovered a sock on the floor of the storage room.\nRosa Crawford Bennett, an investigator with the New Bern Police Department, assisted in the investigation of Ms. Gaskins\u2019 death. At some point during her investigation, Ms. Bennett was called by other officers to remove a stained shirt from a trash can at Cedar Grove Cemetery. The stains on the shirt were determined to be bloodstains which matched the blood type of the victim. Investigators at the scene also discovered defendant\u2019s latent fingerprint on a bloody piece of wood.\nDr. Charles Garrett, a board certified forensic pathologist, performed an autopsy on the victim. He noted a total of sixty-three stab wounds and numerous blunt force injuries to Ms. Gaskins\u2019 body. He observed eleven defensive wounds on the hands and left forearm. In Dr. Garrett\u2019s opinion, Ms. Gaskins was conscious at the time she received the defensive wounds to the arm and hands. Dr. Garrett further opined that Ms. Gaskins died as a result of stab wounds to the chest which caused internal bleeding.\nThe State\u2019s evidence further showed that the defendant and Ms. Darcelene Cabbagestalk met and began dating during the summer of 1989 and dated on and off until October of 1990. Ms. Cabbagestalk testified that on 20 October 1990, she and the defendant were together until about ten o\u2019clock in the evening. When the defendant left, he stated he was going home for the night. At that time, defendant had no money and was wearing dark blue jeans, Rockport shoes and a long-sleeve dress shirt. The shirt was white with thick gray stripes and had a flat chest pocket with a button and a red design. The shirt pocket and cuff were not tom, and there were no stains on the defendant\u2019s shirt.\nAbout two hours after leaving, the defendant returned to Ms. Cabbagestalk\u2019s house. Upon his return, the defendant was wearing gray pants and a shirt that Ms. Cabbagestalk had never seen before. Defendant was also in possession of approximately one hundred dollars worth of cocaine and a substantial amount of money. Later in the evening, the defendant said he was going to get some more money and then went into the yard beside Cedar Grove Cemetery. The defendant returned with one hundred and sixty dollars. Ms. Cabbagestalk testified that when she asked the defendant where he got the money, he stated that he had broken into a house with a white picket fence around it. At that time, the defendant was also in possession of some jewelry and a pocketknife.\nMs. Cabbagestalk further testified that on 23 October 1990, the defendant told her that he killed a woman. According to Ms. Cabbagestalk, the defendant stated that he entered the victim\u2019s house by climbing through a bathroom window. When the defendant entered the house, the victim woke up and came after him with a knife. Defendant then obtained a knife and stabbed her as she came after him. The defendant told Ms. Cabbagestalk that his clothes were either in somebody\u2019s trash or at the city dump. Ms. Cabbagestalk identified the shirt recovered from the cemetery trash can as being the defendant\u2019s or one just like it.\nTony Chapman grew up with the defendant and saw the defendant about three or four days after he heard about Ms. Gaskins\u2019 murder. The defendant told Mr. Chapman that he was the one who killed Ms. Gaskins but that he did not mean to stab her. According to Mr. Chapman, defendant stated that the victim picked up a knife and they scuffled and that he grabbed the knife from her and began stabbing her. Mr. Chapman inquired whether the defendant had left any fingerprints, and defendant said he had not because he had socks on his hands.\nI.\nIn his first assignment of error, the defendant contends that the trial court erred by giving a reasonable doubt instruction that reduced the State\u2019s burden of proof below the standard mandated by the Due Process Clause of the United States Constitution. We disagree.\nThe trial court instructed the jury in pertinent part as follows:\nThe State must prove to you that the Defendant is guilty beyond a reasonable doubt. And a reasonable doubt is a doubt' based on reason and common sense arising out of some or all of the evidence that\u2019s been presented or the lack or insufficiency of the evidence as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the Defendant\u2019s guilt. A reasonable doubt is not a vane [sic], imaginary or fanciful doubt, but it\u2019s a sane, rational doubt. When 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 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 that 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 justice, is an 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. It is not a doubt generated by the ingenuity of counsel or by your own ingenuity not legitimately warranted by the testimony or one borne of a merciful inclination or disposition to permit the Defendant to escape the penalty of the law, or one prompted by a sympathy for him or those connected with him.\n(Emphasis added.)\nFirst, we note the defendant here is contending error with respect to the very portion of the charge on reasonable doubt which he specifically requested. The defendant, through his counsel at the charge conference, requested the inclusion of the \u201cmoral certainty\u201d language, contending this term more fully defines reasonable doubt than the generally used pattern charge. The defendant requested that paragraph from State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954), which for decades has been the standard, staple terminology used to further explain the meaning of \u201creasonable doubt\u201d to our juries. More recently, in State v. Watson, 294 N.C. 159, 240 S.E.2d 440 (1978), where the defendant requested reasonable doubt be defined as possessing \u201can abiding faith to a moral certainty in the defendant\u2019s guilt,\u201d this Court stated: \u201cAdditionally, the words \u2018to a moral certainty\u2019 are synonymous with beyond a reasonable doubt.\u201d 294 N.C. at 167, 240 S.E.2d at 446 (citing Rhinehart v. State, 175 Ark. 1170, 299 S.W. 755 (1927)).\nNow, the defendant, relying on Cage v. Louisiana, 498 U.S. 39, 112 L. Ed. 2d 339 (1990), State v. Montgomery, 331 N.C. 559, 417 S.E.2d 742 (1992) and State v. Bryant, 334 N.C. 333, 432 S.E.2d 291 (1993) (Bryant I), judgment vacated,- U.S. -, 128 L. Ed. 2d 42, on remand, 337 N.C. 298, 446 S.E.2d 71 (1994), argues that the trial court\u2019s use of the terms \u201cmoral certainty\u201d and \u201chonest, substantial misgiving\u201d in its charge to the jury violated the Due Process Clause of the United States Constitution.\nIn Cage, the United States Supreme Court held that the use of the terms \u201cgrave uncertainty,\u201d \u201cactual substantial doubt\u201d and \u201cmoral certainty\u201d when defining reasonable doubt created a reasonable likelihood that the jury unconstitutionally found the defendant guilty on a degree of proof less than a reasonable doubt. Cage, 498 U.S. at 41, 112 L. Ed. 2d at 342. In Bryant I, with the application of Cage, a new trial was awarded for an instruction similar to the instruction given the jury in this case.\nThis Court has recently reexamined Bryant in light of Victor v. Nebraska,- U.S. \u2014, 127 L. Ed. 2d 583 (1994). In Victor, the United States Supreme Court held that no particular formation of words is necessary to properly define reasonable doubt, but rather, the instructions, in their totality, must not indicate that the State\u2019s burden is lower than \u201cbeyond a reasonable doubt.\u201d Applying Victor, this Court, in State v. Bryant, 337 N.C. 298, 446 S.E.2d 71 (1994) (Bryant II), reconsidered its earlier holding (Bryant I) and found no error in a reasonable doubt instruction that was nearly identical to the instruction in the instant case. In Bryant II, the jury was instructed, in pertinent part, as follows:\nA reasonable doubt is not a mere possible doubt, for most things that relate to human affairs are open to some possible or imaginary doubt.\nA reasonable doubt is not a vain, imaginary or fanciful doubt, but it is a sane, rational doubt arising out of the evidence or lack of evidence or from its deficiency.\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 satisfied to a moral certainty of the truth of the charge.\nIf, 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.\nA reasonable doubt, as that term is employed in the administration of criminal law, is an honest substantial misgiving generated by the insufficiency of the proof. An insufficiency which fails to convince your judgment and confidence and satisfy your reasons as to the guilt of the defendant.\nBryant II, 337 N.C. at 302, 446 S.E.2d at 73. We held that when read in context and considered as a whole, the jury would not have interpreted the instruction to have overstated the level of doubt required for acquittal. Id. at 306, 446 S.E.2d at 75.\nIn Bryant II, we noted that a single reference to \u201csubstantial doubt\u201d or \u201csubstantial misgiving,\u201d when qualified by alternative definitions of reasonable doubt or other language in the instruction, does not overstate the amount of doubt necessary to acquit. Id. at 306, 446 S.E.2d at 75-76. In the present case, as in Bryant II, the jury was given several alternative definitions of reasonable doubt. The jury was instructed that a reasonable doubt is \u201cnot a vane [sic], imaginary or fanciful doubt,\u201d that it \u201cis not a doubt suggested by the ingenuity of counsel or by your own ingenuity not legitimately warranted by the testimony\u201d and that \u201creasonable doubt is a doubt based on reason and common sense arising out of . . . the evidence.\u201d Furthermore, in the case at bar, as in Bryant II, the reference was to an \u201chonest, substantial misgiving generated by the insufficiency of the proof.\u201d The qualifying phrase \u201cgenerated by the insufficiency of the proof\u2019 properly directed the jury to the evidence. The term \u201csubstantial\u201d when so qualified refers to the \u201cexistence rather than the magnitude of the doubt.\u201d Id. Therefore, it is unlikely its use would have been interpreted to overstate the degree of doubt required for acquittal.\nAdditionally, defendant now contends the trial court\u2019s use of the phrase \u201cmoral certainty\u201d would allow the jury to return a verdict based on faith or moral truth rather than reason or evidence presented. In Bryant II, we held that this argument was without merit so long as the jury was instructed to base its conclusions on the evidence in the case. Id. at 306, 446 S.E.2d at 76. In Bryant II, the jurors were instructed that they were to consider, compare and weigh all the evidence to determine if reasonable doubt existed. Id. Likewise, in the present case, the jurors were instructed that they were to \u201cconsider, compare and weigh all the evidence\u201d to determine if reasonable doubt exists, that a reasonable doubt \u201cis a doubt based on reason and common sense arising out of some or all of the evidence that\u2019s been presented or the lack or insufficiency of the evidence as the case may be\u201d and that it is \u201can honest, substantial misgiving generated by the insufficiency of the proof.\u201d This language clearly directs the jury to base its decision on the evidence. We therefore conclude, as in Bryant II, that there is no reasonable likelihood that the jury would have understood the term \u201cmoral certainty\u201d to be disassociated from the evidence.\nThe defendant also argues that the instruction is constitutionally deficient because it lacks two alternative definitions of reasonable doubt found in Victor v. Nebraska and further uses the phrase \u201cabiding faith\u201d in conjunction with \u201cmoral certainty.\u201d\nAs to these arguments, defendant contends that in order to be constitutionally firm, the instruction should have defined reasonable doubt as \u201ca doubt that would cause a reasonable person to pause and hesitate before acting thereon\u201d and should have instructed that the probabilities of guilt must be \u201cstrong enough to exclude any doubt.\u201d As noted above, several alternative definitions of reasonable doubt were provided to the jury. There is no requirement that the \u201chesitate to act\u201d and \u201cstrong enough to exclude any doubt\u201d definitions be used. We also note that this Court has upheld jury instructions stating, contrary to the defendant\u2019s argument, that reasonable doubt \u201cdoes not mean that you [the jury] must be satisfied beyond any doubt or all doubt.\u201d Watson, 294 N.C. at 166-67, 240 S.E.2d at 445-46 (emphasis added). Finally, the instruction in this case is identical to the instruction upheld in State v. Moseley, 336 N.C. 710, 445 S.E.2d 906 (1994), cert. denied,- U.S. -, 130 L. Ed. 2d 802 (1995), in which we recognized that the \u201cuse of the terms \u2018fully satisfied or entirely convinced\u2019 and \u2018abiding faith\u2019 in conjunction with \u2018moral certainty\u2019 made it clear to the jury that the State\u2019s burden of proof was not less than the constitutional standard.\u201d Id. at 717, 445 S.E.2d at 910. Accordingly, this assignment of error is overruled.\nII.\nDefendant next assigns error to the trial court\u2019s denial of his motion for mistrial based on the contention that the prosecutor, during closing argument, improperly commented on defendant\u2019s failure to testify.\nSection 15A-1061 of the North Carolina General Statutes states that \u201c[t]he judge must declare a mistrial upon the defendant\u2019s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant\u2019s case.\u201d N.C.G.S. \u00a7 15A-1061 (1988). \u201cThe decision to grant or deny a mistrial rests with the sound discretion of the trial court.\u201d State v. Bonney, 329 N.C. 61, 73, 405 S.E.2d 145, 152 (1991). Consequently, the trial court\u2019s decision will not be disturbed on appeal absent a clear showing that the trial court abused its discretion. Id. In this case, we find no such abuse of discretion in the trial judge\u2019s denial of defendant\u2019s motion for mistrial.\nThe defendant asserts that the prosecutor made a direct comment on his failure to testify. The defendant contends that after the prosecutor argued to the jurors that they had heard no testimony or evidence as to the defendant\u2019s whereabouts between ten o\u2019clock and eleven-thirty the night before the victim\u2019s body was found, the prosecutor directly commented on the defendant\u2019s silence by asking: \u201cWhere is his alibi? . . . Where was he \u2014 .\u201d The defendant argues that the prosecutor\u2019s assertion that he needed an alibi was improper, in that the prosecutor\u2019s question to the jury, \u201c[w]here was he \u2014 ,\u201d directly invited the jurors to consider that the defendant, by not testifying, failed to tell them where he was at the time of the crime.\nThis Court has, on numerous occasions, considered and rejected the contention that statements by the prosecutor in closing argument questioning the failure of the defendant to produce an alibi witness amount to impermissible comments on the defendant\u2019s failure to testify. See State v. Young, 317 N.C. 396, 346 S.E.2d 626 (1986); State v. Mason, 317 N.C. 283, 345 S.E.2d 195 (1986); State v. Jordan, 305 N.C. 274, 287 S.E.2d 827 (1982). In the present case, the defendant asked for and received an alibi instruction over the State\u2019s objection. The defendant in his closing argument also contended that Ms. Cabbagestalk\u2019s testimony created an \u201ciron-clad alibi\u201d for defendant for all but one and one-half hours between the time the victim was last seen alive and the time her body was found. Defense counsel then argued to the jury that the State, after producing no evidence as to time of death, would have the jury believe that because the defendant had \u201cno alibi for an hour, that\u2019s the time of death.\u201d The defendant then objected when the prosecutor, in response to this argument, questioned the defendant\u2019s alibi and whereabouts.\nBased on these facts, we conclude that the prosecutor\u2019s remarks were directed solely toward the defendant\u2019s failure to offer evidence to rebut the State\u2019s case, were in response to the defendant\u2019s jury argument and were not an impermissible comment on the defendant\u2019s failure to testify. As such, we can find no abuse of discretion by the trial judge in denying the defendant\u2019s motion for mistrial.\nThe defendant further contends that several comments in the State\u2019s closing argument, in which the prosecutor argued that certain evidence was uncontradicted, were impermissible. It is well settled that the State may properly draw the jury\u2019s attention to the failure of the defendant to produce exculpatory evidence or evidence to contradict the State\u2019s case. State v. Erlewine, 328 N.C. 626, 633, 403 S.E.2d 280, 284 (1991); see also State v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991); State v. Tilley, 292 N.C. 132, 232 S.E.2d 433 (1977). This assignment of error is overruled.\nIII.\nThe defendant next assigns error to the trial court\u2019s denial of his motion to dismiss based on the State\u2019s failure to timely provide discovery and divulge exculpatory information, thereby violating his constitutional rights to a fair trial, due process and effective assistance of counsel.\nIn this case, the defendant filed separate motions for voluntary discovery and for exculpatory information. The trial judge heard these discovery motions and ordered the State to preserve any exculpatory information in the State\u2019s possession and make it available to the defendant at least twenty days prior to trial. The State was also ordered to provide all other information subject to discovery at least twenty days prior to trial. Defendant contends that the State should have provided him with five specific pieces of exculpatory information, prior to trial, which tended to implicate Shade Mashburn as the perpetrator of the crime and not the defendant. Each piece of information was ultimately provided to the defendant at trial. However, the defendant argues that the untimely disclosure of this information compromised defense counsel\u2019s ability to digest the material and present effective cross-examinations.\nIn United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342 (1976), the Supreme Court of the United States rejected the notion that every nondisclosure constitutes automatic error. State v. Howard, 334 N.C. 602, 605, 433 S.E.2d 742, 744 (1993) (citing United States v. Agurs, 427 U.S. at 108, 49 L. Ed. 2d at 354). Instead, the Court held that \u201cprejudicial error must be determined by examining the materiality of the evidence.\u201d Id. \u201c \u2018In determining whether the suppression of certain information was violative of the defendant\u2019s right to due process, the focus should not be on the impact of the undisclosed evidence on the defendant\u2019s ability to prepare for trial, but rather should be on the effect of the nondisclosure on the outcome of the trial.\u2019 \u201d State v. Smith, 337 N.C. 658, 662, 447 S.E.2d 376, 378 (1994) (quoting State v. Alston, 307 N.C. 321, 337, 298 S.E.2d 631, 642 (1983)).\nThe defendant ultimately received the requested information at trial and was allowed to fully explore his theory that Shade Mashburn murdered Ms. Gaskins. The record reflects that the defendant\u2019s attorneys competently and zealously argued this theory before the jury. However, the evidence of the defendant\u2019s guilt was overwhelming. The defendant admitted his involvement in the robbery and murder of Ms. Gaskins to two witnesses. A shirt identified as belonging to the defendant, blood stained with the victim\u2019s blood type, was found near the victim\u2019s residence, and the defendant\u2019s fingerprint was found in blood on a piece of wood in the victim\u2019s residence. The jury was given the opportunity to consider the defendant\u2019s theory that Shade Mashburn committed the murder and was simply unpersuaded. The burden is on the defendant to show that the evidence not disclosed was material and affected the outcome of the trial. Id. We find that the defendant has failed to show he was prejudiced by the nondisclosure, prior to trial, of specific information relating to Shade Mashburn\u2019s possible involvement in the murder of Ms. Gaskins.\nIn a related argument, the defendant asserts that he was prejudiced by the admission of testimony by law enforcement officers that Shade Mashburn had not committed the murder. The defendant argues that this error affected the outcome of the case, as the officers\u2019 testimony overcame any tendency the jurors may have had to believe that Shade Mashburn may have committed the murder. We do not agree that the admission of the officers\u2019 testimony affected the outcome of the defendant\u2019s trial. Defense counsel moved that the jurors receive a curative instruction to strike that testimony from their minds. The trial judge complied with defense counsel\u2019s request. After receiving the lengthy instruction, each member of the jury indicated that he or she understood and would follow the court\u2019s instruction. Jurors are presumed to follow a trial judge\u2019s instructions. State v. Rouse, 339 N.C. 59, 92, 451 S.E.2d 543, 561 (1994). We find no prejudice to the defendant, as the trial judge properly cured any potential error.\nWe therefore conclude that there is no reasonable probability that earlier disclosure by the State would have affected the outcome of the defendant\u2019s trial. This assignment of error is overruled.\nIV.\nBy further assignment of error, defendant asserts the trial court erred in denying his motion to dismiss at the close of the State\u2019s evidence and at the close of all the evidence based on insufficiency of the evidence. Defendant has elected not to bring forward this assignment of error. It is therefore deemed abandoned pursuant to. Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure.\nV.\nLastly, defendant assigns as error the trial court\u2019s denial of his motion for mistrial on the grounds that: (1) testimony that the defendant\u2019s fingerprint was made in blood was admitted into evidence, and (2) testimony that Shade Mashburn was not the perpetrator of these crimes was admitted into evidence. The defendant has elected not to bring forward this assignment of error except as it relates to the above-referenced testimony regarding Shade Mashburn. Therefore, this assignment of error, as it relates to evidence of the fingerprint, is deemed abandoned pursuant to Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure. This assignment of error, with respect to testimony regarding Shade Mashburn as the perpetrator of these crimes, is overruled for the reasons set forth above.\nFor the foregoing reasons, we conclude that the defendant received a fair trial free of prejudicial error.\nNO ERROR.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Mary D. Winstead, Associate Attorney General, for the State.", "Thomas H. Eagen for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN RYAN TAYLOR, JR.\nNo. 483A93\n(Filed 7 April 1995)\n1. Criminal Law \u00a7 762 (NCI4th)\u2014 instructions on reasonable doubt \u2014 no due process violation\nThe trial court\u2019s use of the terms \u201cmoral certainty\u201d and \u201chonest, substantial misgiving\u201d in its charge on reasonable doubt did not overstate the degree of doubt required for acquittal in violation of due process where several alternative definitions of reasonable doubt were provided to the jury, and the jury was instructed to base its conclusions on the evidence in the case. Nor did the court\u2019s reasonable doubt instructions violate due process because they failed to include \u201chesitate to act\u201d and \u201cstrong enough to exclude any doubt\u201d as alternative definitions and used the phrase \u201cabiding faith\u201d in conjunction with \u201cmoral certainty.\u201d\nAm Jur 2d, Trial \u00a7 1385.\n2. Criminal Law \u00a7 427 (NCI4th)\u2014 prosecutor\u2019s jury argument \u2014 no comment on defendant\u2019s failure to testify\nWhere defense counsel argued to the jury in a murder and armed robbery trial that testimony by a prosecution witness created an iron-clad alibi for defendant for all but one and one-half hours between the time the victim was seen alive and the time her body was found and that the State, after producing no evidence as to the time of death, would have the jury believe that because the defendant had \u201cno alibi for an hour, that\u2019s the time of death,\u201d and the prosecutor argued that the jurors had heard no evidence as to defendant\u2019s whereabouts between ten o\u2019clock and eleven-thirty the night before the victim\u2019s body was found, the prosecutor\u2019s questions \u201cWhere is his alibi?\u201d and \u201cWhere was he?\u201d did not constitute an impermissible comment on defendant\u2019s failure to testify since they were directed solely toward defendant\u2019s failure to offer evidence to rebut the State\u2019s case, and were in response to defense counsel\u2019s jury argument. Therefore, the trial court did not abuse its discretion in the denial of defendant\u2019s motion for a mistrial based on the prosecutor\u2019s remarks. N.C.G.S. \u00a7 15A-1061.\nAm Jur 2d, Trial \u00a7\u00a7 577 et seq.\nComment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused\u2019s failure to testify. 14 ALR3d 723.\n3. Criminal Law \u00a7 113 (NCI4th)\u2014 failure to comply with discovery order \u2014 absence of prejudice\nAlthough the trial court ordered the State to make any exculpatory evidence in its possession available to defendant at least twenty days prior to defendant\u2019s trial for murder and armed robbery, defendant was not prejudiced by the State\u2019s nondisclosure, prior to trial, of specific information tending to implicate another person as the perpetrator of the crimes where all of this information was ultimately provided to defendant at trial; defendant was allowed to fully explore at trial the theory that the other person murdered the victim; defendant\u2019s attorneys competently and zealously argued this theory before the jury; and the State presented overwhelming evidence of defendant\u2019s guilt, including evidence that defendant admitted his involvement in the robbery and murder to two witnesses, that a shirt identified as belonging to defendant and stained with blood of the victim\u2019s type was found near the victim\u2019s residence, and that defendant\u2019s fingerprint was found in blood on a piece of wood in the victim\u2019s apartment.\nAm Jur 2d, Depositions and Discovery \u00a7\u00a7 426, 427.\nRight of accused in state courts to inspection or disclosure of evidence in possession of prosecution. 7 ALR3d 8.\nProsecutor\u2019s duty, under due process clause of Federal Constitution, to disclose evidence favorable to accused\u2014 Supreme Court cases. 87 L. Ed. 2d 802.\n4. Evidence and Witnesses \u00a7 748 (NCI4th)\u2014 opinion testimony \u2014 murder not committed by another \u2014 curative instruction\nA defendant on trial for murder was not prejudiced by the testimony of law officers that the murder was not committed by another suspect who defendant contended was the perpetrator where the trial court complied with defendant\u2019s request that a curative instruction be given to the jurors to strike that testimony from their minds, and after receiving a lengthy instruction, each juror indicated that he or she understood and would follow the court\u2019s instruction.\nAm Jur 2d, Appeal and Error \u00a7 807.\nAppeal as of right by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from judgment imposing a sentence of life imprisonment entered by Phillips, J., at the 20 November 1991 Criminal Session of Superior Court, Craven County, upon a jury verdict of first-degree murder. Defendant\u2019s motion to bypass the Court of Appeals as to an additional judgment imposed for robbery with a dangerous weapon was allowed 1 December 1993. Heard in the Supreme Court 11 January 1995.\nMichael F. Easley, Attorney General, by Mary D. Winstead, Associate Attorney General, for the State.\nThomas H. Eagen for defendant-appellant." }, "file_name": "0052-01", "first_page_order": 84, "last_page_order": 97 }