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Ed. 2d 133 (1987)" }, { "page": "687-88" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0676-01" ] }, { "cite": "337 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "449 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "411" }, { "page": "411" } ], "opinion_index": 0 }, { "cite": "338 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517275 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "208" }, { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0193-01" ] }, { "cite": "393 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "854" } ], "opinion_index": 0 }, { "cite": "327 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498438 ], "year": 1990, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0089-01" ] }, { "cite": "85 L. 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Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "449 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "449" } ], "opinion_index": 0 }, { "cite": "338 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519104 ], "year": 1994, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0001-01" ] } ], "analysis": { "cardinality": 2404, "char_count": 100820, "ocr_confidence": 0.736, "pagerank": { "raw": 3.6294751567090207e-07, "percentile": 0.8890508674443954 }, "sha256": "04c37258e34885e91191b299947b9cd2bac9fcbc3de95e6b43d8b026873e0156", "simhash": "1:0f1f4422366a9a76", "word_count": 16146 }, "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. JOHNNY RAY DAUGHTRY" ], "opinions": [ { "text": "WHICHARD, Justice.\nDefendant was convicted of the first-degree murder of Jennifer Narron, his former girlfriend, and sentenced to death. He appeals from his conviction and sentence. We conclude that defendant received a fair trial, free of prejudicial error, and that the sentence of death is not disproportionate.\nThe State\u2019s evidence tended to show that the victim was killed on 9 April 1992. At that time she was living with her boyfriend, Michael Hopkins, in his Smithfield apartment. Hopkins testified that he last saw the victim alive at about 4:00 p.m., just before he went to bed. When he awoke around 7:30 p.m., he discovered the victim\u2019s body lying in a pool of blood near the front steps outside his apartment. Hopkins ran to his landlady\u2019s house and called the police; he waited at the end of the driveway until the officers arrived.\nThe Smithfield Police Department received a call at 7:38 p.m., and officers arrived at Hopkins\u2019 apartment a few minutes later. They found the victim\u2019s naked body face down next to the apartment steps. Her head lay in a pool of blood, and a stick protruded from her rectum. Her left arm extended along the left side of her body, palm up; her right index finger was in her mouth. SBI Special Agent David McDougall examined the scene. He found several articles of the victim\u2019s clothing on the ground near the body and a three-inch-thick log containing blood and strands of hair atop a woodpile not far away. He saw no signs of a struggle or other violence inside the apartment.\nDr. Karen Chancellor, a forensic pathologist who performed the autopsy, testified that she found multiple bruises and abrasions on the victim\u2019s head, face, and neck. The lower jawbone was fractured in two places, and the back of the scalp had four separate lacerations, each exposing bone. She also found multiple skull fractures, hemorrhaging around the brain and brain stem, and bruises of the brain tissue. Chancellor testified that both internal and external lacerations existed in and around the vagina and rectum. Further, the injuries around the rectal area were consistent with an object being rotated in the rectum. She opined that death resulted from blunt-force trauma to the head, the victim had been hit at least five times, and the log McDougall found could have been used to inflict the injuries.\nSBI Special Agent Scott Worsham testified that hair taken from the log was consistent with the victim\u2019s. He removed the stick from the victim\u2019s rectum under McDougall\u2019s supervision. The stick had been embedded about six and one-half inches into the rectum and inserted at such an angle that it could have penetrated some other part of the body, such as the vaginal area.\nSBI Special Agent Mark T. Boodee, an expert in forensic serology, testified about the results of DNA testing, which revealed that blood samples taken from the pants defendant wore on the night of the murder contained DNA material that matched the victim\u2019s. SBI Special Agent Peter Duane Deaver, another expert forensic serologist, testified that blood found on the log and on defendant\u2019s pants was the same type as the victim\u2019s blood but not the same as defendant\u2019s.\nDefendant testified that he and the victim had lived together for about three and one-half years; they broke up in March 1992. On the day of the murder he left work around 3:00 p.m., drank some beer on the way home, and also drank a few beers at a local tavern. He arrived at his grandmother\u2019s house, where he was living, between 5:30 and 6:00 p.m. He then went to Mike Hopkins\u2019 home at about 6:30. He and the victim sat on the steps outside the apartment talking for a while. The next thing he remembered was being two or three blocks away from Hopkins\u2019 apartment, walking in an agitated state. He noticed a little blood on his hand. He then met some friends and drank with them from 8:30 until about 11:00 p.m. He did not get drunk.\nTwo psychiatric experts testified for defendant. Dr. Robert Rollins testified that defendant had average intelligence and no major disturbance of mood or thinking. Defendant was distrustful, expected people to mistreat him, and lacked concern about other people. Rollins diagnosed defendant with alcohol abuse and dependence as well as adjustment disorder, which included depression. Dr. Billy Royal diagnosed defendant with depression, alcohol and marijuana abuse, and personality disorder. He considered the disorder to include immaturity, impulsivity, and dependence in the relationship with the victim. Both doctors opined that defendant\u2019s ability to form a specific intent to kill and to premeditate and deliberate was impaired on 9 April 1992. Both also noted defendant\u2019s history of violence toward the victim.\nAt sentencing the State relied on its guilt phase evidence and also introduced an eight-by-ten-inch photograph that depicted the stick protruding from the victim\u2019s rectum. This photograph had been excluded from the guilt phase.\nDefendant\u2019s sister testified at sentencing that defendant supported the victim as best he could and always helped his two deaf brothers. She also stated that their father, who was not at home much due to his work, hit defendant and assaulted their mother. Further, defendant used various drugs, including marijuana and cocaine.\nPsychiatric testimony offered at sentencing showed that defendant grew up in a dysfunctional family environment that included abuse of his mother and severe punishment of defendant for his transgressions. He became dependent upon alcohol early in his teenage years; this dependence exacerbated the difficulty he experienced in dealing with the end of his relationship with the victim. According to the expert testimony, defendant suffered from depression, substance dependence, and personality disorder at the time of trial.\nThe jury found defendant guilty of first-degree murder under the theory of premeditation and deliberation and under the felony murder rule; it also convicted defendant of first-degree sexual offense. At sentencing the jury found two aggravating circumstances: \u201cThe capital felony was committed while the defendant was engaged in a sex offense\u201d; and \u201cThe capital felony was especially heinous, atrocious, or cruel.\u201d The jury found one statutory mitigating circumstance, \u201cThe capital felony was committed while the defendant was under the influence of mental or emotional disturbance,\u201d and fourteen of the nineteen nonstatutory mitigating circumstances submitted. It unanimously recommended a sentence of death, which the trial court accordingly imposed.\nAdditional facts will be presented as necessary for analysis of the issues.\nPretrial Phase\nFirst, defendant contends the trial court erred by denying his pretrial motion to suppress the statement he made to Lieutenant Cuddington and Agent Dees at the Smithfield Police Department on 10 April 1992 and all evidence obtained as a result thereof. He argues that his statement was obtained illegally and that the physical evidence should have been excluded as the fruit of the poisonous tree. The State\u2019s evidence at the pretrial hearing tended to show that Cuddington and Dees began to look for defendant at approximately 1:00 a.m. on 10 April after they learned of defendant\u2019s past relationship with the victim. They found defendant at his grandmother\u2019s house at 3:00 aun. While Cuddington asked defendant if he would go to the police station for questioning, Dees remained in the yard near the street. Both Cuddington and Dees drove unmarked police cars and wore plain clothes at that time. Defendant agreed to accompany Cuddington to the police station and rode in the front seat of Cuddington\u2019s squad car. He was not handcuffed or frisked.\nCuddington and Dees escorted defendant into the shift commander\u2019s room at the Smithfield Police Department at about 3:25 a.m. Dees sat at one desk, Cuddington sat at another, and defendant sat in a chair six or eight feet in front of Dees. The officers left the door open at first but later closed it to shut out hallway noise. They told defendant they wanted to shut the door and explained why; defendant voiced no objection. The officers assured defendant that they would not lock the door and that he was not under arrest and could leave at any time. Dees then advised defendant of his Miranda rights as a precaution. Defendant indicated that he understood each right, and at about 3:28 a.m. he agreed to waive them. Dees then began asking defendant general questions about his occupation and usual daily activities before inquiring into his actions on 9 April 1992. Defendant stated that he had stopped at a tavern after work that day and consumed six or seven beers. He also stated that he saw the victim on his way home from the tavern and that they said \u201chello\u201d in passing.\nDefendant then sat back in his chair and said, \u201cI think I need to speak to a lawyer.\u201d Cuddington asked if defendant had a particular lawyer in mind; defendant said he was not sure. Cuddington handed defendant a telephone directory opened to the Yellow Pages section containing attorney listings for the Smithfield area. As he did so, Dees told defendant he could talk to a lawyer and could continue to talk to the police if he wanted to. Defendant briefly perused the Yellow Pages and then said, \u201cwell, let\u2019s go ahead and talk,\u201d or words to that effect. Dees reminded defendant of his rights to remain silent and to the assistance of an attorney; defendant indicated he understood his rights. Defendant had not been placed under arrest at that time. During the ensuing interview, defendant stated that he had seen the victim, they sat on the steps of her house, they argued, and he hit her. The next thing he knew, he was walking down the road toward his grandmother\u2019s house. He did not know how many times he hit her but said, \u201cI didn\u2019t mean to do it.\u201d Twice he asked Cuddington to kill him because he had killed the victim. At some point during the interview, defendant told Dees and Cuddington where in his grandmother\u2019s house they would find the clothes he was wearing when he hit the victim. SBI Special Agent McDougall and Patrolman Craig Fish were dispatched to retrieve the clothing. Dees wrote out a short statement indicating that defendant hit the victim but did not remember anything else; defendant refused to sign it. Defendant first mentioned hitting the victim at about 4:00 a.m. and was placed under arrest at about 6:45 a.m. when the interview concluded.\nDefendant testified at the hearing that he had accompanied Cuddington to the police station because he felt he had to, even though no one placed handcuffs on him, pulled a weapon, or touched him in any way. None of the officers made defendant feel that he was under arrest at that time. Even after Cuddington and Dees shut the door to the interview room, defendant knew he was free to leave. Defendant further testified that while he looked at the Yellow Pages, he asked what time it was. The officers said it was about 3:30 a.m.; defendant then said he probably could not find a lawyer willing to come to the station at that time. According to defendant, one of the officers agreed and then said they only had a few more questions to ask, if defendant was willing to answer them without a lawyer present. The court denied defendant\u2019s motion to suppress; both defendant\u2019s statement and the clothing found at his grandmother\u2019s house were admitted at trial.\nDefendant argues that the trial court erred in two ways when it denied his pretrial motion to exclude his incriminating statement. First, defendant submits the court erred by not determining whether he was seized in violation of the Fourth Amendment to the United States Constitution. Defendant did not make an argument based on the Fourth Amendment to the United States Constitution at trial; therefore, \u201che may not properly present an argument based thereon in this Court.\u201d State v. Gibbs, 335 N.C. 1, 42, 436 S.E.2d 321, 334 (1993), cert. denied, \u2014 U.S. \u2014, 129 L. Ed. 2d 881 (1994).\nSecond, defendant contends the trial court erred by concluding that he voluntarily reinitiated interrogation after requesting an attorney by saying, \u201cwell, let\u2019s go ahead and talk.\u201d Defendant relies on Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, reh\u2019g denied, 385 U.S. 890, 17 L. Ed. 2d 121 (1966), and Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 376, reh\u2019g denied, 452 U.S. 973, 69 L. Ed. 2d 984 (1981), which together establish that custodial interrogation must cease when an accused requests an attorney and may not be resumed by police officers without an attorney present. He contends the police improperly resumed interrogation after his request for an attorney when they told him he could still talk to them if he wanted to. We conclude that defendant was not in custody when he requested an attorney; thus, Miranda and Edwards do not apply.\nBoth Miranda and Edwards protect suspects during custodial interrogation. Minnick v. Mississippi, 498 U.S. 146, 150-51, 112 L. Ed. 2d 489, 495-96 (1990); State v. Medlin, 333 N.C. 280, 290, 426 S.E.2d 402, 407 (1993). A suspect is in custody for purposes of Miranda and Edwards when, considering the totality of the circumstances, \u201ca reasonable person in the suspect\u2019s position would [not] feel free to leave at will [but would] feel compelled to stay.\u201d Medlin, 333 N.C. at 291, 426 S.E.2d at 407. \u201c[T]he ultimate inquiry is simply whether there is a \u2018formal arrest or restraint on freedom of movement\u2019 of the degree associated with a formal arrest.\u201d California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 1279 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977)).\nThe record reveals that defendant\u2019s freedom of movement was not restrained during his interview so as to render him in custody for purposes of the Fifth Amendment to the United States Constitution. Defendant testified that he knew he was free to leave, even when the door to the interview room was shut. He was never handcuffed or frisked; at most the police patted him down before the interview to make sure he was unarmed. Dees and Cuddington never threatened defendant, raised their voices, or ordered defendant to do anything. We conclude that when defendant asked for a lawyer, a reasonable person would have felt free to leave. Thus, the prohibitions of Edwards do not apply here, and defendant\u2019s rights were not violated when Dees told him he could continue talking to the officers if he wished. The trial court properly denied defendant\u2019s motion to suppress his incriminating statements. It follows that the \u201cfruit of the poisonous tree\u201d doctrine did not require suppression of the physical evidence obtained as a result thereof. See Medlin, 333 N.C. at 295, 426 S.E.2d at 409. These assignments of error are overruled.\nJury Selection\nDefendant assigns as error the manner in which the trial court conducted voir dire. After the court preliminarily instructed the venire regarding the charges pending against defendant and read the names of potential witnesses, it divided the group into four panels of about twelve persons each. The persons on each panel would be questioned individually as requested by defendant. The court instructed panel one to remain in the courtroom, panel two to return at 2:00 p.m. that day, panel three to report at 9:30 the following morning, and panel four to report at 2:00 the following afternoon. It then stated, \u201cI\u2019m going to allow another courtroom to borrow [panels three and four] this morning and maybe this afternoon on a case that\u2019s going to be tried.\u201d On the second day of voir dire, the trial court called the persons on panels three and four who had not been selected to serve on the jury at the other trial, placing those who had been selected at the end of the line.\nOne person from panel four, who had not been selected to serve at the other trial, sat on defendant\u2019s jury. Defendant contends that the jury selection process in the other courtroom became part of the jury selection in his trial when the trial court separated the persons on panels three and four according to whether they had been selected to serve on the jury in the other courtroom. He further contends that because he was not present in the other courtroom for that jury selection, he was absent from a stage of his trial.\nDefendant\u2019s right to be present in the courtroom at every stage of his trial is protected by the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, State v. Buchanan, 330 N.C. 202, 208-09, 410 S.E.2d 832, 836 (1991), as well as Article I, Section 23 of the North Carolina Constitution, State v. Smith, 326 N.C. 792, 794, 392 S.E.2d 362, 363 (1990). A defendant may not waive this right. Smith, 326 N.C. at 794, 392 S.E.2d at 363. However, defendant has failed to show error in this regard. Defendant\u2019s contention that the court\u2019s procedure somehow prejudiced him rests on pure speculation. We will not find reversible error on this basis. See State v. Bell, 338 N.C. 363, 379, 450 S.E.2d 710, 719 (1994), cert. denied, \u2014 U.S. \u2014, 132 L. Ed. 2d 861 (1995). This assignment of error is overruled.\nDefendant next contends the trial court erred by striking prospective jurors Capps and Keen for cause. He asserts that the court should have excused them for their views on the death penalty only if those views would have prevented or substantially impaired the performance of their duties as jurors in accordance with their instructions and their oaths. Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985). Defendant contends that while Capps and Keen stated an opposition to the death penalty, they were not excludable under Wilt because they also indicated that their beliefs would not \u201csubstantially impair\u201d their ability to carry out their duties as jurors. We disagree.\nThe voir dire testimony of Capps and Keen demonstrated a bias against the death penalty. In response to questions from both the prosecution and the trial court, Capps indicated on three separate occasions that she either would not or could not impose the death penalty. Similarly, Keen told both the prosecutor and the court that under no circumstances could he vote to impose death. Despite this testimony, defendant argues, these jurors were improperly excused for cause because both stated during rehabilitation that they could \u201cfairly consider\u201d both life imprisonment and death as possible punishments. This Court has noted that a prospective juror\u2019s equivocation regarding the death penalty may indicate a \u201cconscientious desire to do his duty as a juror and to follow the trial court\u2019s instructions in the face of recognizing his personal inability to impose the death penalty.\u201d State v. Yelverton, 334 N.C. 532, 544, 434 S.E.2d 183, 190 (1993). The trial court properly could have determined that the rehabilitation testimony of Capps and Keen reflected such a desire rather than an actual ability to sentence defendant to death. \u201cThe granting of a challenge for cause where the juror\u2019s fitness or unfitness is arguable is a matter within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion.\u201d State v. Abraham, 338 N.C. 315, 343, 451 S.E.2d 131, 145 (1994). We conclude that the court anted within its discretion by excusing these jurors for cause. This assignment of error is overruled.\nDefendant next contends the trial court erred by striking prospective juror Sanders for cause without allowing defendant an opportunity to rehabilitate. Sanders indicated during voir dire that she strongly opposed the death penalty and that her views would interfere with her ability to execute her duties as a juror. For example, the prosecutor asked her if she would \u201cautomatically vote against the death penalty\u201d; Sanders replied that she would. She again answered affirmatively when the trial court asked, \u201cMs. Sanders, as I understand it, under no circumstances could you render a verdict that meant the death penalty. Is that what you\u2019re saying?\u201d The court then allowed the State\u2019s challenge for cause without allowing defendant an attempt at rehabilitation.\nWhether to excuse a prospective juror for cause lies within the trial court\u2019s discretion. State v. McDowell, 329 N.C. 363, 379-80, 407 S.E.2d 200, 209 (1991). A trial court does not abuse its discretion when it precludes rehabilitation by a defendant where the State\u2019s challenge for cause is supported by a prospective juror\u2019s voir dire testimony and the defendant fails to show that further questioning would likely have produced different testimony. State v. McCollum, 334 N.C. 208, 234, 433 S.E.2d 144, 158 (1993), cert. denied, \u2014 U.S. -, 129 L. Ed. 2d 895, reh\u2019g denied, \u2014 U.S. \u2014, 129 L. Ed. 2d 924 (1994). Defendant argues that had the court allowed him an attempt at rehabilitation, Sanders might have revealed a willingness to set aside her personal feelings and follow the court\u2019s instructions regarding the death penalty.\nDefendant has failed to identify anything in the record to support his position. There is no reason to believe an attempt to rehabilitate Sanders would have yielded different testimony. Sanders\u2019 responses to questions from both the prosecution and the trial court established that under no circumstances would she vote to impose death. Faced with such unequivocal testimony, the trial court had the discretion not to allow rehabilitation. Defendant has not shown an abuse of that discretion. This assignment of error is overruled.\nGuilt Phase\nNext, defendant contends the trial court erred by admitting four photographs into evidence and improperly instructing the jury regarding them. Defendant filed a motion in limine seeking to exclude certain photographs on the grounds that they were repetitive, unduly grisly, and more prejudicial than probative. The trial court granted the motion as to two photographs but denied it as to four, exhibits fourteen through seventeen, which showed the victim\u2019s naked body at the crime scene. The court excluded exhibits twelve and thirteen from the guilt phase but ruled that both photos would be admissible at sentencing. Exhibits fourteen through seventeen were admitted over defendant\u2019s objection at trial for the limited purpose of illustrating testimony.\nDefendant argues that the exhibits should have been excluded because they were repetitious and their probative value was outweighed by the danger of unfair prejudice. See N.C.G.S. \u00a7 8C-1, Rule 403 (1992). What represents \u201can excessive number of photographs\u201d and whether the \u201cphotographic evidence is more probative than prejudicial\u201d are matters within the trial court\u2019s discretion. State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). Where, as here, a party introduces photographs for illustrative purposes and not solely to arouse prejudice or passion, they are admissible even if revolting and repetitious. State v. Peterson, 337 N.C. 384, 394, 446 S.E.2d 43, 49 (1994). Each photograph about which defendant argues was relevant to illustrate specific testimony. They depicted the victim\u2019s body from four different angles at the crime scene as examined by McDougall. Three also revealed blood stain patterns, about which Agent Deaver testified. Such photographs are not rendered inadmissible \u201cby the portrayal of the gruesome events which the witness testifies they accurately portray.\u201d State v. Elkerson, 304 N.C. 658, 665, 285 S.E.2d 784, 789 (1982). The number of photographs (four) was not excessive. Their admission, therefore, was not error.\nThe trial court instructed without objection that the jury could consider certain photographs \u201cas evidence of facts that they illustrate.\u201d Defendant argues that this was plain error because some photographs were admitted for illustrative purposes only. The plain error rule applies in those rare cases where an error \u201c \u2018amounts to a denial of a fundamental right of the accused\u2019 \u201d or is \u201c \u2018something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.\u2019 \u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). To determine whether plain error occurred, we must examine the whole record and decide whether the instruction had a \u201cprobable impact\u201d on the jury\u2019s verdict. Id. at 661, 300 S.E.2d at 378-79. Our review of the record reveals that the instruction could not have had such an impact. Given the physical and circumstantial evidence, as well as defendant\u2019s confession, any error concerning whether photographs constituted substantive or illustrative evidence probably did not affect the jury\u2019s deliberations or decision. These assignments of error are overruled.\nDefendant next argues the trial court erred by allowing Agent Boodee to testify about the results of DNA testing and the statistical significance thereof. Boodee testified as an expert in DNA analysis and molecular genetics. He testified that DNA in blood samples found on the pants defendant wore on the night of the murder matched the victim\u2019s DNA. He further testified that the probability of another person unrelated to the victim having the same DNA banding pattern was one in 5.5 billion for each of the Caucasian, African-American, and Lumbee populations in North Carolina. Defendant argues that the trial court should not have allowed Boodee to testify because he did not personally perform the DNA tests, prepare the guidelines by which the testing was done, or write the report from which he testified. Defendant contends Boodee\u2019s testimony violated the Confrontation Clause of the Sixth Amendment to the United States Constitution as well as N.C.G.S. \u00a7 8C-1, Rules 702, 703, and 403. We disagree.\nInherently reliable information is admissible to show the basis for \u2022 an expert\u2019s opinion, even if the information would otherwise be inadmissible hearsay. See State v. Huffstetler, 312 N.C. 92, 106-08, 322 S.E.2d 110, 119-21 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985). SBI Special Agent Anita Matthews, an intern in the DNA unit, performed the DNA analysis under Boodee\u2019s direct supervision. Boodee reviewed her final report, as did two additional special agents in the DNA unit. Thus, the report was inherently reliable, and Boodee could use it to form his opinions. Boodee was vigorously cross-examined about the DNA testing procedures at the SBI and about his opinions. Therefore, the testimony did not violate defendant\u2019s Confrontation Clause rights.\nN.C.G.S. \u00a7 8C-1, Rule 702 provides: \u201cIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert... may testify thereto in the form of an opinion.\u201d Boodee qualified as an expert, and his scientific testimony could assist the jury in determining whether defendant killed the victim. Thus, he was competent to testify, and allowing him to do so did not violate Rule 702.\nN.C.G.S. \u00a7 8C-1, Rule 703 permits an expert to give an opinion based on evidence not otherwise admissible at trial, provided the evidence is of the type reasonably relied upon by other experts in the field. Boodee based his opinion on the results of DNA analysis performed by Matthews and supervised by Boodee. DNA evidence is admissible in North Carolina. State v. Pennington, 327 N.C. 89, 100, 393 S.E.2d 847, 854 (1990). Boodee\u2019s testimony in no way violated Rule 703.\nFinally, defendant argues that Boodee\u2019s testimony should have been excluded under N.C.G.S. \u00a7 8C-1, Rule 403. This argument has no merit. The DNA evidence was highly probative of the identity of the victim\u2019s killer. It did not unfairly prejudice defendant, confuse the issues, or mislead the jury. The trial court properly allowed Boodee to testify about the results of DNA analysis and the statistical significance thereof.\nDefendant next argues the trial court erred by overruling his objections to the testimony of Special Agent Deaver, an expert in forensic serology and bloodstain pattern interpretation. Defendant contends Deaver\u2019s testimony was incompetent and irrelevant because it lacked an adequate foundation and was speculative. Moreover, argues defendant, its probative value was outweighed by the danger of unfair prejudice and confusion of the issues. Defendant complains about the portion of Deaver\u2019s testimony regarding the number of blows inflicted upon the victim, the position of the victim\u2019s body when she was struck, and the force of the blows. Deaver based his opinions on his examination of the bloodstain patterns found on the ground, the porch steps, and the log discovered on the woodpile.\nDefendant has failed to show error in this regard. The prosecutor laid an adequate foundation for Deaver\u2019s testimony. Deaver had completed a basic and advanced course in bloodstain pattern interpretation and was teaching that subject to SBI agents. Before testifying about his findings in this case, he described in detail the process of interpreting bloodstain patterns. Deaver did not speculate but gave opinions based on his examination of the physical evidence at the crime scene. The testimony was competent and relevant to show the manner of the victim\u2019s murder; its probative value was not outweighed by the danger of unfair prejudice. The trial court, therefore, properly admitted the evidence. This assignment of error is overruled.\nNext, defendant argues the trial court erred by allowing inadmissible hearsay testimony, which defendant had moved to exclude, about statements the victim made and a letter she purportedly wrote to defendant. The State presented two witnesses who testified about statements the victim made during the six to eight weeks preceding the murder. Michael Hopkins testified that the victim told him while they were living together that \u201cshe had broken up with [defendant] and \u2014 but, as far as seeing \u2014 seeing anybody, she wasn\u2019t.\u201d David Bunch, the victim\u2019s co-worker, testified that the victim told him that defendant beat her on weekends when he was drunk, that she was going to leave defendant because of the beatings, that she had broken off her relationship with defendant and was seeing Hopkins, and that defendant wanted to talk to her before he left the state so they could part as friends. Bunch also testified about a conversation between the victim and her mother and sisters in which the victim stated, \u201cI can\u2019t understand why you all want me to be with [defendant], I have who I want, if you all can\u2019t be around me without having [defendant] . . . leave, stay the hell away from me.\u201d Finally, Lieutenant Cuddington read into evidence a letter the victim apparently wrote in which she mentioned the abuse she suffered from defendant.\nThe portion of Hopkins\u2019 testimony about which defendant complains was neither mentioned in defendant\u2019s motion nor objected to at trial. Defendant therefore failed to preserve this assignment of error for appellate review under N.C. R. App. P 10(b)(2); see State v. Hamilton, 338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994). Defendant also failed specifically and distinctly to contend that the error amounts to plain error, thereby waiving appellate review under N.C. R. App. P. 10(c)(4). See Hamilton, 338 N.C. at 208, 449 S.E.2d at 411.\nAt the hearing on defendant\u2019s motion, the trial court rqled that Bunch\u2019s testimony and the letter from the victim to defendant were admissible under N.C.G.S. \u00a7 8C-1, Rule 804(b)(5), which provides in part:\nA statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness [is admissible] if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.\nDefendant argues this ruling was erroneous because the statements were not probative of a material fact and lacked circumstantial guarantees of trustworthiness. Defendant also argues the trial court failed to make the findings of fact regarding circumstantial guarantees of trustworthiness required by State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).\nThe trial court found that the statements were evidence of motive and identity. Further, they were relevant to defendant\u2019s intent: \u201c \u2018[I]ll-will or previous difficulty between the parties\u2019 is among the circumstances that a jury may consider in deciding that defendant killed with premeditation and deliberation.\u201d State v. Faucette, 326 N.C. 676, 686, 392 S.E.2d 71, 76 (1990) (quoting State v. Jackson, 317 N.C. 1, 23, 343 S.E.2d 814, 827 (1986), sentence vacated on other grounds, 479 U.S. 1077, 94 L. Ed. 2d 133 (1987)). Our review of the record reveals that the evidence supports the court\u2019s determination that the statements were probative of material facts.\nWhile the trial court concluded that the statements possessed the requisite trustworthiness, it failed to make findings of fact in that regard. This omission was erroneous under Smith. We conclude, however, that the record sustains the court\u2019s conclusions. Moreover, it contains overwhelming evidence of defendant\u2019s guilt \u2014 including his confession, DNA test results, and blood-type matching \u2014 which points unerringly to defendant as the perpetrator of this crime. The error, therefore, is harmless beyond a reasonable doubt. N.C.G.S. \u00a7 15A-1443(b) (1988); see Faucette, 326 N.C. at 687-88, 392 S.E.2d at 77 (failure to make the requisite findings held harmless beyond a reasonable doubt where evidence of defendant\u2019s guilt was overwhelming). This assignment of error is overruled.\nDefendant also argues that the trial court\u2019s instructions regarding voluntary intoxication and diminished capacity were erroneous. The trial court instructed the jury as follows:\nThere is evidence in this case which tends to show that the defendant was intoxicated at the time of the acts alleged in this case, and/or that he was suffering from a mental or emotional condition which affected his ability to plan. Now, generally, voluntary intoxication is not a legal excuse for a crime, however if you find that the defendant was . . . intoxicated and that/or that he was suffering from a mental condition or a combination of these, you should consider whether this affected his ability to formulate the specific intent which is required for conviction of first degree murder under this theory.\nIn order for you to find the defendant guilty of first degree murder under this theory, that is the theory of malice, premeditation and deliberation, you must find, beyond a reasonable doubt, that he killed the deceased... with malice and [as] a result of premeditation and deliberation. If as a result of intoxication and/or because of his mental or emotional condition ... he did not have the specific intent to kill Jennifer Narron, formed after premeditation and deliberation, then he is not guilty of murder in the first degree under this theory, that is the theory of malice, premeditation and deliberation.\nFinally, in considering whether malice, premeditation and deliberation existed, you may consider the opinions rendered by expert witnesses regarding those elements, in other words, Dr. Rollins and Dr. Royal.\nAfter so instructing the jury, the court asked counsel if they had any objections. Defense counsel entered one exception for the record that is unrelated to the instruction at issue. Defendant\u2019s proposed instruction included what defendant now calls a \u201cfinal mandate\u201d: \u201cTherefore, I charge you that if upon considering the evidence with respect to the [defendant's intoxication you have a reasonable doubt as to whether the [defendant formulated the specific intent required for a conviction of first degree murder, you will not return a verdict of first degree murder.\u201d Defendant now argues that the trial court shifted the burden of proof by omitting defendant\u2019s proposed \u201cfinal mandate.\u201d We disagree.\nBecause defendant did not object to the instruction, we will reverse only upon a finding of plain error, which defendant has not shown. The trial court gave the substance of the instruction defendant requested. \u201c[W]hen a request is made for a specific instruction that is supported by the evidence and is a correct statement of the law, the court, although not required to give the requested instruction verbatim, must charge the jury in substantial conformity therewith.\u201d State v. Holder, 331 N.C. 462, 474, 418 S.E.2d 197, 203 (1992). The omission of the \u201cfinal mandate\u201d could not have misled the jury about the burden of proof, especially considering the court\u2019s explicit instructions about reasonable doubt and the State\u2019s burden of proof. Further, in Holder we upheld an instruction substantially similar to this one. See id. at 473-75, 418 S.E.2d at 203-04. The trial court\u2019s instruction was not erroneous.\nDefendant further contends the trial court erred by failing to instruct on diminished capacity as that defense related to the charge of first-degree sexual offense. Defendant did not request such an instruction, did not object at trial to its absence, and has not shown plain error. First-degree sexual offense is not a specific-intent crime; the intent to commit the crime \u201cis inferred from the commission of the act.\u201d State v. Boone, 307 N.C. 198, 209, 297 S.E.2d 585, 592 (1982). Thus, diminished capacity is not a defense to first-degree sexual offense, and the trial court did not commit error, plain or otherwise, by failing to instruct on that defense.\nIn a related argument, defendant contends that because the trial court failed to instruct on diminished capacity as a defense to the charge of first-degree sexual offense, the following rulings were also erroneous: the denial of defendant\u2019s motion to dismiss the charge of first-degree sexual offense, the refusal to submit the offense of second-degree sexual offense, and the submission of the charge of first-degree murder under the felony murder rule. Defendant also argues that the court\u2019s failure to instruct on diminished capacity made its instruction on the \u201ccontinuous transaction\u201d rule erroneous. Defendant cites no authority in support of his contentions, a violation of Rule 28(b)(5) of the Rules of Appellate Procedure. More importantly, we held above that the trial court did not err in its instructions regarding first-degree sexual offense; it follows that the rulings and instruction complained of here were not erroneous. This assignment of error is overruled.\nDefendant next argues that he must have a new trial because he was absent from his trial on several occasions. The transcript specifically notes defendant\u2019s presence at some, but not all, times during the trial; defendant\u2019s argument apparently rests on the fact that the court reporter did not consistently record defendant\u2019s presence while court was in session. He contends that \u201c[t]he record does not indicate that [defendant was present in the courtroom while trial proceeding [s] were ongoing\u201d and that he was absent from the sentencing proceeding during the presentation of his own witnesses and the opening and closing statements.\nDefendant appears to rely on the incompleteness of the record to argue that the State cannot prove this error harmless beyond a reasonable doubt. \u201c[HJowever, whatever incompleteness may exist in the record precludes defendant from showing that error occurred.\u201d State v. Adams, 335 N.C. 401, 410, 439 S.E.2d 760, 764 (1994). The transcript does not indicate, and defendant has not shown, that he was absent. We will not assume error \u201cwhen none appears on the record.\u201d State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968). This assignment of error is overruled.\nSentencing Phase\nDefendant next argues that the trial court erred by allowing the State to introduce at sentencing an eight-by-ten-inch color photograph of the victim\u2019s naked body, from the rear, that showed the stick protruding from the body and the injuries to the rectal area. The court had excluded this photograph from the guilt phase. Defendant contends that the court failed to perform the balancing test required by N.C.G.S. \u00a7 8C-1, Rule 403 and that the photograph was inadmissible under this rule because it possessed little probative value, created a great danger of unfair prejudice, and served merely to inflame the passions of the jury. We disagree.\nThe Rules of Evidence do not apply in sentencing proceedings. N.C.G.S. \u00a7 8C-1, Rule 1101(b)(3) (1992). Any evidence the court \u201cdeems relevant to sentence\u201d may be introduced at this stage. N.C.G.S. \u00a7 15A-2000(a)(3) (Supp. 1994). The State \u201cmust be permitted to present any competent, relevant evidence . . . which will substantially support the imposition of the death penalty.\u201d State v. Brown, 315 N.C. 40, 61, 337 S.E.2d 808, 824 (1985), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988). Thus, the trial court was not required to perform the Rule 403 balancing test. Photographs of the victim depicting injuries to the body and the manner of death can be relevant to issues to be determined at sentencing. See State v. Lee, 335 N.C. 244, 279, 439 S.E.2d 547, 565, cert. denied, \u2014 U.S. \u2014, 130 L. Ed. 2d 162, reh\u2019g denied, \u2014 U.S. \u2014, 130 L. Ed. 2d 532 (1994). The court found that the photograph was relevant to the aggravating circumstance that the murder was especially heinous, atrocious, or cruel. See N.C.G.S. \u00a7 15A-2000(e)(9). The record supports that determination. We therefore conclude the trial court did not err by admitting the photograph at sentencing. This assignment of error is overruled.\nIn another assignment of error, defendant argues that the trial court erred by sustaining the State\u2019s objection to two questions asked of defense expert Dr. Royal. Defense counsel asked Dr. Royal whether he \u201chad seen indications of remorse on [defendant\u2019s] part\u201d and what he had observed of \u201c[defendant's reaction to [the victim\u2019s] death.\u201d Defendant argues that the trial court should have allowed Royal to answer the questions because the testimony was relevant and admissible to prove the mitigating circumstance that defendant felt remorse following the murder. We agree that the trial court erred but conclude that the error was harmless beyond a reasonable doubt.\nWe note that defendant failed to make an offer of proof as to how Royal would have answered the questions. That failure is not fatal, however, because the record clearly reveals the \u201c \u2018essential content\u2019 of the excluded testimony and its significance.\u201d State v. Hester, 330 N.C. 547, 555, 411 S.E.2d 610, 615 (1992). Defense counsel sought to elicit testimony about defendant\u2019s remorse for the crime through these two pointed questions. Such evidence was relevant to the non-statutory mitigating circumstance \u201c[t]hat within a short time following the crime defendant exhibited remorse and sorrow.\u201d\nAssuming arguendo that this error had constitutional implications under Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973 (1978), and its progeny, we nevertheless conclude that it was harmless beyond a reasonable doubt. Despite uncontroverted evidence thereof, the jury did not find the mitigating circumstance regarding defendant\u2019s remorse. For example, Lieutenant Cuddington testified that defendant cried during his police interview and asked Cuddington to kill him for what he had done. Further, the jury saw defendant cry during his direct examination. Given these clear indications of defendant\u2019s sorrow and remorse, we conclude that the exclusion of Dr. Royal\u2019s testimony was harmless beyond a reasonable doubt. N.C.G.S. \u00a7 15A-1443(b). This assignment of error is overruled.\nDefendant next contends that two portions of the prosecutor\u2019s closing argument were grossly improper in that they contained statements unsupported by law or the evidence. Both related to the aggravating circumstance that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9). Defendant objected during one part and assigns error to the trial court\u2019s overruling of his objections. Defendant failed to object during the remaining portion but asserts that the trial court should have intervened ex mero mo tu to censor the prosecutor\u2019s comments. We disagree with both contentions.\nFirst, defendant argues that the trial court should have sustained his objections to the segment of the closing argument in which the prosecutor stated that the evidence supported inferences that: (1) the victim was alive as defendant bludgeoned her, (2) the victim was alive when defendant inserted the tree limb into her rectum, and (3) defendant twisted the stick in the rectum as he inserted it. Defendant contends the trial court\u2019s overruling of his objections allowed the prosecutor to urge the jury to find the (e)(9) circumstance based on the evidence of the sex offense. We conclude, however, that the statements to which defendant objected represented references to the pitiless and dehumanizing manner of the murder. The acts depicted highlight the excessive brutality and cruelty of the killing. Thus, the trial court properly overruled defendant\u2019s objections.\nSecond, defendant argues that the trial court should have intervened during the portion of the closing argument in which the prosecutor gave a chronological summary of the crime. The prosecutor stated:\nThis was not a normal killing____Picture in your mind, if you will, a knock on the door. [The victim] answers, comes out sits on the steps and talks. . . . Then the man who has used a stick before, to break jaws, gets mad again. He disrobes her in broad daylight outside of the apartment. Then he grabs a log and he begins to use it like a club. . . . She falls, and is helpless on the ground. . . . [H]e . . . strikes with the log against her head again and again and again. . . . [Then h]e grabs a different kind of stick [and] inserts one prong in her genital area, . . . the other prong into [her] rectum, and with such force, ... six inches into her rectum. Then he leaves her there, the stick still in her rectum, the blood still gushing from her head.\nDefendant did not object to this portion of the argument; therefore, we will find error only if the comments were so grossly improper as to require intervention ex mero mo tu. State v. Basden, 339 N.C. 288, 300-01, 451 S.E.2d 238, 247 (1994). No such gross impropriety exists here. The argument sought to give the jury a complete picture of the merciless nature of the crime. It did not encourage the jury to find the murder especially heinous, atrocious, or cruel simply on the basis of the sex offense but rather on the basis of the overwhelming brutality of the crime. Further, the evidence supported the argument. The testimony of the medical examiner indicated that a laceration in the victim\u2019s vagina connected to the rectum and the abdominal cavity and that the injuries were consistent with the stick having been rotated. This permits the inference that defendant inserted part of the stick into the genital area and part into the rectum, and twisted it. The argument did not require the trial court to intervene absent an objection by defendant. This assignment of error is overruled.\nNext, defendant argues that the trial court erred by submitting the aggravating circumstances that the capital felony was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9), and that the capital felony was committed while defendant was engaged in the commission of a sex offense, N.C.G.S. \u00a7 15A-2000(e)(5). Defendant contends the evidence supporting the former circumstance completely incorporated that supporting the latter. Because separate evidence must exist to support each aggravating circumstance submitted, State v. Gay, 334 N.C. 467, 495, 434 S.E.2d 840, 856 (1994), defendant argues that the trial court erred by submitting two circumstances sustained only by the evidence of the sex offense. Defendant further argues that even if the trial court properly submitted both circumstances, it erred by failing to instruct the jury that it could not consider the same evidence in support of more than one circumstance. We find no error.\nWhere separate evidence exists \u201cto support each aggravating circumstance, it is not improper for both ... to be submitted.\u201d Id. Different evidence supported each circumstance at issue here. A reasonable juror could have found that the murder was especially heinous, atrocious, or cruel based on the severe blunt-trauma wounds. The medical examiner\u2019s testimony revealed the extent of those injuries. The victim suffered multiple skull fractures and lacerations which exposed the skull, and her lower jaw was fractured in two places. She sustained contusions to the brain tissue, brain hemorrhaging at the subdural and subarachnoid levels, and hemorrhaging of the brain stem. This indicated diffuse, severe brain injury. The victim also had numerous abrasions on her head, face, neck, and chest as well as her back, hands, and arms. This evidence, independent of the additional evidence establishing the commission of a sex offense, supported submission of the circumstance that the murder was especially heinous, atrocious, or cruel.\nThe evidence tending to support the (e)(5) circumstance showed that multiple external abrasions and lacerations existed around the victim\u2019s rectum and vagina. Further, the medical examiner testified that some object had been inserted into the rectum or the vagina, causing internal lacerations. A reasonable juror could have determined based solely on this evidence that the murder was committed while defendant was engaged in the commission of a sex offense. The evidence of each aggravating circumstance was sufficient and did not overlap; thus, the trial court did not commit error, constitutional or otherwise, by submitting both to the jury.\nThe trial court instructed the jury not to \u201cfocus on the sexual offense but instead focus on the manner of [the victim\u2019s] killing\u201d when considering the aggravating circumstance that the murder was especially heinous, atrocious, or cruel. Defendant contends this instruction was erroneous because it failed to prohibit jurors from considering the same evidence in support of both aggravating circumstances submitted.\nDefendant did not object at trial, so we review for plain error. Odom, 307 N.C. at 660, 300 S.E.2d at 378. Trial courts \u201cshould . . . instruct the jury in such a way as to ensure that jurors will not use the same evidence to find more than one aggravating circumstance.\u201d Gay, 334 N.C. at 495, 434 S.E.2d at 856. Though it could have been more precise, the instruction here sufficed to meet the requirements of Gay. Plenary evidence existed apart from that of the sex offense to support the (e)(9) circumstance. We cannot conclude that the trial court\u2019s failure to give a more precise instruction had a probable impact on the jury\u2019s sentence recommendation. Thus, we hold that no plain error occurred. See Odom, 307 N.C. at 661, 300 S.E.2d at 379. This assignment of error is overruled.\nDefendant next assigns as error the trial court\u2019s failure to submit two statutory mitigating circumstances. Defendant contends this failure represents constitutional error which the State cannot prove harmless beyond a reasonable doubt. We disagree.\nFirst, defendant contends the trial court should have submitted the mitigating circumstance that defendant had no significant history of prior criminal activity, N.C.G.S. \u00a7 15A-2000(f)(l). Before submitting this circumstance, a court must \u201cdetermine whether a rational jury could conclude that defendant had no significant history of prior criminal activity.\u201d State v. Wilson, 322 N.C. 117, 143, 367 S.E.2d 589, 604 (1988). If the court decides that a rational jury could so conclude from the evidence, the jury is entitled to determine whether the evidence reveals a significant history. Id. A significant history for purposes of N.C.G.S. \u00a7 15A-2000(f)(l) is one likely to influence the jury\u2019s sentence recommendation. State v. Sexton, 336 N.C. 321, 375, 444 S.E.2d 879, 910, cert. denied, \u2014 U.S. \u2014, 130 L. Ed. 2d 429 (1994).\nThe evidence here of defendant\u2019s prior criminal history includes references to defendant\u2019s numerous beatings of the victim, to an incident in which defendant shot an acquaintance in the leg, to a conviction for driving under the influence, and to a guilty plea to assault inflicting serious injury. The assault conviction arose out of an altercation in which defendant hit a man in the head with a large stick, causing a concussion and breaking the man\u2019s jaw and ribs. Given the extent of this history, particularly defendant\u2019s prior use of a large stick as a dangerous weapon and his multiple beatings of the victim, the trial court properly could have determined that no reasonable juror could have concluded that defendant\u2019s criminal history was insignificant. Therefore, the trial court did not err by not submitting the (f)(1) circumstance. See id. at 375-76, 444 S.E.2d at 910.\nSecond, defendant contends the trial court erred by failing to submit the mitigating circumstance of defendant\u2019s age at the time of the crime, N.C.G.S. \u00a7 15A-2000(f)(7). Defendant testified that he was twenty-nine years old at the time of trial, which would have made him twenty-seven at the time of the crime. Defendant argues, however, that the evidence showed his emotional age to be younger and that testimony regarding his immaturity, dependence on family for housing and transportation, and lack of experience and knowledge required the trial court to submit the (f)(7) circumstance.\nDefendant correctly notes that chronological age is not determinative. See State v. Johnson, 317 N.C. 343, 393, 346 S.E.2d 596, 624 (1986). The factor of a defendant\u2019s age \u201c \u2018must be considered as relative and . . . weighed in the light of varying conditions and circumstances.\u2019 \u201d State v. Oliver, 309 N.C. 326, 372, 307 S.E.2d 304, 333 (1983) (quoting Giles v. State, 261 Ark. 413, 421, 549 S.W.2d 479, 483, cert. denied, 434 U.S. 894, 54 L. Ed. 2d 180 (1977)). The evidence here showed that defendant completed high school and that his general knowledge was \u201csufficient for most purposes.\u201d He has average intelligence, with no major disturbance of mood or thinking, and was gainfully employed prior to his arrest. No testimony linked defendant\u2019s immaturity and impulsive nature to his age; rather, those traits apparently stemmed from a personality disorder and somewhat dysfunctional family life. Considering these \u201cconditions and circumstances,\u201d we conclude that the trial court properly declined to submit the (f)(7) circumstance. These assignments of error are overruled.\nNext, defendant assigns error to the trial court\u2019s failure to submit six nonstatutory mitigating circumstances. Defendant timely requested all six in writing. To show error in this regard, defendant must establish that the jury could reasonably have found the circumstances to have mitigating value and that the record contains sufficient evidence of the circumstances to require their submission. State v. Benson, 323 N.C. 318, 325, 372 S.E.2d 517, 521 (1988). Defendant has not met that burden here.\nThe following two circumstances were not supported by sufficient evidence: \u201cThe defendant had provided child support for his child by another woman for several years,\u201d and \u201cdefendant was the sole supporter of [the victim] while they were living together.\u201d The evidence showed only that the woman with whom defendant conceived a child received government support; there was no evidence that defendant paid money to the government agency for the support of his child. Similarly, while the record shows that defendant supported the victim while they lived together, it does not show that he was her \u201csole supporter.\u201d Thus, the trial court did not err by failing to submit these circumstances.\nThe trial court also declined to submit the circumstance, \u201cThe defendant became dependent upon alcohol and marijuana as a young adolescent and remained so during his adulthood to the degree that they [a]ffected his judgment and behaviors,\u201d concluding it was redundant. Trial judges may consolidate related mitigating circumstances to eliminate redundancy. See State v. Greene, 324 N.C. 1, 19-21, 376 S.E.2d 430, 441-43 (1989), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990), on remand, 329 N.C. 771, 408 S.E.2d 185 (1991). We agree that the portion of the circumstance referring to alcohol dependence was subsumed within the circumstance, \u201cThe defendant has a history of chronic alcohol dependency and abuse.\u201d As to the portion referring to marijuana dependence, the evidence did not support the circumstance. Dr. Rollins testified that defendant had abused marijuana but did not state that he was dependent upon it. Rollins did testify that defendant both abused and was dependent upon alcohol, and he described the difference between abuse and dependence. Because the evidence was insufficient to support submission of a mitigating circumstance concerning defendant\u2019s dependence on marijuana, the trial court properly refused to submit it.\nAnother circumstance requested but not submitted was: \u201cThe defendant never developed a normal father[-]son relationship with his father.\u201d This was subsumed within two submitted circumstances: \u201cThe defendant\u2019s mental and/or emotional disturbances were caused in part by the emotional instability of his family,\u201d and \u201cdefendant had grown up in a dysfunctional family with much discord between his parents and with both parents being \u2018workaholics\u2019 with limited time for their children.\u201d Thus, the trial court did not err by refusing to submit the requested circumstance. See State v. Spruill, 338 N.C. 612, 661, 452 S.E.2d 279, 305-06 (1994), cert.denied, - U.S. -, - L. Ed. 2d \u2014, 64 U.S.L.W. 3242 (1995).\nDefendant also argues that the trial court should have submitted the circumstance: \u201cThat within a short time following the crime defendant exhibited remorse and sorrow and has continued to do so.\u201d (Emphasis added.) The court deleted the emphasized portion but submitted the remainder. Defendant contends the record supported the omitted portion in that defendant cried on the stand when asked on direct examination about his reaction to the victim\u2019s death and the sexual offense committed against her. We conclude this evidence showed defendant\u2019s continuing remorse and sorrow, and the mitigating circumstance thus should have been submitted as requested.\nAssuming arguendo that the error was of constitutional dimension under Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973 (1978), and its progeny, we conclude it was harmless beyond a reasonable doubt. See N.C.G.S. \u00a7 15A-1443(b); State v. Hill, 331 N.C. 387, 415-17, 417 S.E.2d 765, 779-80 (1992) (failure to submit nonstatutory mitigating circumstance harmless beyond a reasonable doubt where error did not preclude jury from considering any mitigating evidence), cert. denied, \u2014 U.S. \u2014, 122 L. Ed. 2d 684, reh\u2019g denied, \u2014 U.S. \u2014, 123 L. Ed. 2d 503 (1993). The jury saw defendant on the stand and heard the evidence relevant to the circumstance, and the court instructed on the \u201ccatchall\u201d circumstance, N.C.G.S. \u00a7 15A-2000(f)(9), which no juror found to exist. The trial court\u2019s ruling did not preclude defendant from presenting, or the jury from considering, any mitigating evidence.\nFinally, defendant argues the trial court should have submitted the circumstance that \u201cthe defendant at no time resisted arrest or attempted to flee from Johnston County, North Carolina.\u201d As with the preceding circumstance, we conclude the trial court should have granted defendant\u2019s request. However, the jury knew from the evidence that defendant cooperated with the police and never tried to escape from the police station. Further, the trial court submitted and instructed on the \u201ccatchall\u201d circumstance. Thus, we hold that the failure to submit this circumstance was harmless beyond a reasonable doubt. This assignment of error is overruled.\nPreservation Issues\nDefendant contends the trial court committed constitutional error by denying his motion for disclosure of the aggravating circumstances upon which it intended to rely. As defendant concedes, we have considered and rejected his contention. See, e.g., State v. McKoy, 323 N.C. 1, 44, 372 S.E.2d 12, 36 (1988), sentence vacated on other grounds, 494 U.S. 433, 108 L. Ed. 2d 369, on remand, 327 N.C. 31, 394 S.E.2d 426 (1990).\nDefendant contends the trial court erred by denying his motion for separate juries for the guilt and sentencing phases. Defendants are not entitled to separate juries \u201cunless the original jury is unable to reconvene.\u201d State v. Holden, 321 N.C. 125, 133, 362 S.E.2d 513, 520 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). We see no reason to reconsider our position on this issue.\nDefendant argues that the trial court committed constitutional error by denying his motion to prohibit death-qualifying questions during voir dire. As defendant recognizes, we have decided this issue contrary to his position. See, e.g., State v. Conner, 335 N.C. 618, 627-28, 440 S.E.2d 826, 831-32 (1994).\nDefendant argues that the trial court erred by allowing the State to exercise peremptory challenges to excuse prospective jurors who indicated opposition to the death penalty. We have rejected this contention. See, e.g., State v. Skipper, 337 N.C. 1, 57, 446 S.E.2d 252, 283 (1994). Defendant presents no reason to reverse our precedent.\nDefendant also contends the trial court erred by giving an inherently vague instruction regarding the aggravating circumstance that the murder was especially heinous, atrocious, or cruel. We have consistently upheld the instruction given. See, e.g., State v. Syriani, 333 N.C. 350, 388-92, 428 S.E.2d 118, 139-41, cert. denied, \u2014 U.S. \u2014, 126 L. Ed. 2d 341 (1993), reh\u2019g denied, \u2014 U.S. \u2014, 126 L. Ed. 2d 707 (1994).\nDefendant assigns as error the trial court\u2019s instructions regarding Issues Three and Four on the Issues and Recommendation as to Punishment form. We have consistently approved the instructions given. See, e.g., Lee, 335 N.C. at 286-87, 439 S.E.2d at 569-70. Defendant presents no reason to revisit this issue.\nDefendant contends the trial court erroneously instructed the jury on his burden of proving mitigating circumstances. We have considered and rejected this contention. See, e.g., State v. Keel, 337 N.C. 469, 494, 447 S.E.2d 748, 762 (1994), cert. denied, \u2014 U.S. \u2014, 131 L. Ed. 2d 147 (1995). We perceive no reason to overturn our precedent.\nDefendant asserts that the trial court committed constitutional error when it defined reasonable doubt in the jury instructions at both phases of the trial. Defendant concedes we have rejected his claim on numerous occasions. See, e.g., State v. Moseley, 336 N.C. 710, 716-19, 445 S.E.2d 906, 909-10 (1994), cert. denied, \u2014 U.S. \u2014, 130 L. Ed. 2d 802 (1995). Defendant offers no argument meriting reconsideration of our position on this issue.\nDefendant also argues that the trial court\u2019s imposition of the death penalty violated his rights under the Eighth Amendment to the United States Constitution. We have repeatedly upheld North Carolina\u2019s death penalty statute against such a constitutional challenge. See, e.g., Skipper, 337 N.C. at 58, 446 S.E.2d at 284.\nFinally, defendant contends the trial court erred by failing to inform the jury about the amount of time defendant would spend in jail if sentenced to life imprisonment. As defendant acknowledges, we have considered and rejected his position. See, e.g., State v. Green, 336 N.C. 142, 157-58, 443 S.E.2d 14, 23, cert. denied, \u2014 U.S. -, 130 L. Ed. 2d 547 (1994).\nDefendant makes numerous assignments of error that he fails to address in his brief to this Court. These assignments are deemed abandoned, and we therefore decline to address them. N.C. R. App. P. 28(a), (b)(5).\nProportionality Review\nHaving found no error in either the guilt or sentencing phase, we must determine whether: (1) the evidence supports the aggravating circumstances found by the jury; (2) passion, prejudice, or \u201cany other arbitrary factor\u201d influenced the imposition of the death sentence; and (3) the sentence is \u201cexcessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\u201d N.C.G.S. \u00a7 15A-2000(d)(2).\nThe jury found defendant guilty of first-degree murder under the theory of malice, premeditation, and deliberation, as well as under the felony murder rule. It also convicted defendant of first-degree sexual offense. The trial court submitted two aggravating circumstances, both of which the jury found: that the murder was committed while defendant was engaged in a sexual offense, N.C.G.S. \u00a7 15A-2000(e)(5); and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9). We conclude that plenary evidence supports both circumstances. We further conclude, based on our thorough review of the record, that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor. We therefore turn to proportionality review.\nThe trial court submitted three statutory mitigating circumstances: that defendant committed the murder while under the influence of a mental or emotional disturbance, N.C.G.S. \u00a7 15A-2000(f)(2); that defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, N.C.G.S. \u00a7 15A-2000(f)(6); and the \u201ccatchall,\u201d N.C.G.S. \u00a7 15A-2000(f)(9). The jury found only the first of these. One or more jurors found fourteen of the nineteen nonstatutory mitigating circumstances submitted. The jury determined that the aggravating circumstances outweighed the mitigating circumstances and recommended a sentence of death.\nThis murder has several distinguishing characteristics. First, it was a brutal, merciless, and dehumanizing attack, which included severe blunt-trauma injuries and a depraved sexual offense. A defendant who commits a murder \u201cin a particularly egregious manner\u201d is likely to be sentenced to death. State v. Harris, 338 N.C. 129, 162, 449 S.E.2d 371, 387 (1994), cert. denied, \u2014 U.S. \u2014, 131 L. Ed. 2d 752 (1995). Second, the jury convicted defendant on the basis of both the felony murder rule and the theory of malice, premeditation, and deliberation. \u201cThe finding of premeditation and deliberation indicates a more cold-blooded and calculated crime.\u201d State v. Artis, 325 N.C. 278, 341, 384 S.E.2d 470, 506 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990), on remand, 329 N.C. 679, 406 S.E.2d 827 (1991). Third, defendant committed the murder at the victim\u2019s place of residence. A murder in the home \u201cshocks the conscience, not only because a life was senselessly taken, but because it was taken [at] an especially private place, one [where] a person has a right to feel secure.\u201d State v. Brown, 320 N.C. 179, 231, 358 S.E.2d 1, 34, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987).\nDefendant contends this case is similar to State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987), one of the cases in which we found a death sentence disproportionate, and that his sentence must therefore be vacated. We disagree. In Stokes four males in their late teens and early twenties robbed and beat a man at his warehouse; the victim died fourteen hours after the attack. Two of the cofelons pled guilty to lesser charges. A third, James Murray, pled not guilty; a jury sentenced him to life imprisonment, and we found no error. Stokes was convicted in a separate trial under the felony murder theory. The jury found one aggravating circumstance \u2014 that the murder was especially heinous, atrocious, or cruel. It found one or more of the following four statutory mitigating circumstances: that the defendant had no significant history of prior criminal activity, that the defendant was under the influence of a mental or emotional disturbance at the time of the crime, that the defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, and the defendant\u2019s age at the time of the crime (seventeen). Id. at 10, 352 S.E.2d at 658. Because the jury did not specify which circumstances it found, we assumed that it found all four. Id. at 21, 352 S.E.2d at 664.\nIn concluding that Stokes\u2019 death sentence was disproportionate, we noted that Murray, who received a life sentence, committed \u201cthe same crime in the same manner\u201d as Stokes, id. at 27, 352 S.E.2d at 667, but that he was older and had a worse criminal record, id. at 21, 352 S.E.2d at 664. Further, Murray\u2019s jury did not find any of the mitigating circumstances found in Stokes\u2019 case. We also noted that no evidence existed as to the identity of the group\u2019s ringleader. We held that Stokes\u2019 death sentence was disproportionate in large part because he was \u201cno more deserving of death than his accomplice, . . . indeed he may [have been] less deserving of death in view of the mitigating circumstances involved in [his] case.\u201d Id. at 27, 352 S.E.2d at 667.\nDefendant here, by contrast, acted alone and was twenty-seven at the time of the crime. The jury found only one statutory mitigating circumstance and did not rely on the felony murder rule alone to convict. Stokes\u2019 crime, unlike defendant\u2019s, did not include a brutal, painful, and pitiless sexual offense and was not committed at the victim\u2019s residence. These features distinguish this case from Stokes as well as from the six other cases wherein we have held the death sentence disproportionate: State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); 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).\nWe have found eleven capitally tried cases in which the two aggravating circumstances and the statutory mitigating circumstance found here were submitted and found. Of those, five were remanded for a new trial or a new sentencing proceeding, thereby eliminating them from our proportionality pool. See State v. Bacon, 337 N.C. 66, 106-07, 446 S.E.2d 542, 563-64 (1994), cert. denied, - U.S. -, 130 L. Ed. 2d 1083 (1995). Life sentences were imposed in only two of the remaining six cases; the remaining four defendants were sentenced to death. We cannot conclude, therefore, that juries have consistently recommended life sentences in cases similar to this one.\nWe have affirmed the sentence of death in cases similar to this one. In State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985), the defendant beat his mother-in-law to death in her home with a cast iron skillet, inflicting wounds to her head, neck, and shoulders and breaking her jaw in two places. There, as here, the crime was \u201ca senseless, unprovoked, exceptionally brutal, prolonged and murderous assault.\u201d Id. at 118, 322 S.E.2d at 126. This case is even more egregious because there was no sexual offense in Huffstetler as there was here.\nIn State v. Fisher, 336 N.C. 684, 445 S.E.2d 866, reconsideration denied, 337 N.C. 697, 448 S.E.2d 535 (1994), cert. denied, - U.S. -, 30 L. Ed. 2d 665 (1995), the defendant stabbed his long-time girlfriend repeatedly in the presence of her daughter, whom he also injured during the attack. In contrast to this case, however, the trial court submitted and the jury found the statutory mitigating circumstance that the defendant had no significant history of prior criminal activity. Here, we have determined that the trial court did not abuse its discretion by refusing to submit that circumstance because it properly could have determined that no reasonable juror could have found defendant\u2019s criminal history insignificant. The Fisher jury also found that the defendant had acted while under the influence of a mental or emotional disturbance, a mitigating circumstance found here. Finally, the murder in Fisher did not involve a brutal and dehumanizing sexual offense, as did the murder here.\nIn State v. Rose, 335 N.C. 301, 439 S.E.2d 518, cert. denied, \u2014 U.S. \u2014, 129 L. Ed. 2d 883 (1994), the victim died as a result of shaxp- and blunt-trauma wounds as well as manual strangulation. The jury found two aggravating circumstances: that the defendant had been previously convicted of a felony involving the use or threat of violence to the person, and that the murder was especially heinous, atrocious, or cruel. The jury found no statutory mitigating circumstances but found all nine of the nonstatutory mitigating circumstances submitted. As here, the evidence showed that the victim suffered painful injuries and may have remained conscious for a period of time prior to death.\nFinally, we note that this case involved the aggravating circumstance that the murder was especially heinous, atrocious, or cruel, as well as an egregious sexual offense. We have upheld the death penalty in numerous cases where the jury found the especially heinous, atrocious, or cruel circumstance. See State v. Moseley, 338 N.C. 1, 64, 449 S.E.2d 412, 449 (1994), cert. denied, \u2014 U.S. \u2014, 131 L. Ed. 2d 738 (1995). Further, \u201c[w]e have never found a death sentence disproportionate in a case involving a victim of first-degree murder who was also sexually assaulted.\u201d State v. Payne, 337 N.C. 505, 537, 448 S.E.2d 93, 112 (1994), cert. denied, \u2014 U.S. \u2014, 131 L. Ed. 2d 292 (1995).\nConsidering the foregoing, as well as the crime and defendant, we conclude that the death sentence in this case was not excessive or disproportionate. We hold that defendant received a fair trial and sentencing proceeding, free of prejudicial error.\nNO ERROR.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by William B. Grumpier and Valerie B. Spalding, Assistant Attorneys General, and Simone E. Frier, Staff Attorney, for the State.", "W. Terry Sherrill and Ann L. Hester for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNNY RAY DAUGHTRY\nNo. 412A93\n(Filed 28 July 1995)\n1. Appeal and Error \u00a7 150 (NCI4th)\u2014 constitutional issue\u2014 failure to raise in trial court\nWhere defendant did not make an argument at trial for exclusion of his incriminating statement to the police based on the Fourth Amendment to the U.S. Constitution, he may not properly present an argument based thereon in the Supreme Court.\nAm Jur 2d, Evidence \u00a7 752.\n2. Evidence and Witnesses \u00a7 1240 (NCI4th)\u2014 incriminating statement \u2014 defendant not in custody \u2014 Edwards v. Arizona inapplicable\nDefendant\u2019s freedom of movement was not restrained during his interview by the police so as to render him in custody for Fifth Amendment purposes where defendant testified that he knew he was free to leave, even when the door to the interview room was shut; defendant was never handcuffed or frisked; at most the police patted him down before the interview to make sure he was unarmed; and the officers never threatened defendant, raised their voices, or ordered defendant to do anything. When defendant asked for a lawyer, a reasonable person would have felt free to leave, the prohibitions of Edwards v. Arizona, 451 U.S. 477, which established the custodial interrogation must cease when an accused requests an attorney and may not be resumed by police officers without an attorney present, thus did not apply, and defendant\u2019s rights were not violated when an officer told him he could continue talking to the officers without an attorney if he wished.\nAm Jur 2d, Criminal Law \u00a7\u00a7 788-797.\nWhat constitutes \u201ccustodial interrogation\u201d within rule of Miranda v. Arizona requiring that suspect be informed of his federal constitutional rights before custodial interrogation. 31 ALR3d 565.\n3. Constitutional Law \u00a7 344 (NCI4th)\u2014 right to presence at all trial stages \u2014 jury venire \u2014 members borrowed for another trial \u2014 no violation\nDefendant\u2019s right to be present at every stage of his trial was not violated when the court divided the jury venire into four groups of twelve persons each; the court allowed the persons on panels three and four to be borrowed for a trial in another courtroom; on the second day of voir dire in defendant\u2019s trial, the court separated the persons on panels three and four according to whether they had been selected to serve on the jury in the other case, placing those who had been selected at the end of the line; and one person from panel four who had not been selected to serve at the other trial sat on defendant\u2019s jury.\nAm Jur 2d, Criminal Law \u00a7 695.\n4. Jury \u00a7 227 (NCI4th)\u2014 capital trial \u2014 jury selection \u2014 death penalty views \u2014 excusal for cause despite rehabilitation testimony\nWhere, in response to questions by the prosecutor and the court in a capital trial, one prospective juror indicated on three separate occasions that she either would not or could not impose the death penalty, and a second prospective juror stated that under no circumstances could he vote to impose death, the trial court acted within its discretion by excusing these jurors for cause even though both stated during rehabilitation that they could \u201cfairly consider\u201d both life imprisonment and death as possible punishments, since the trial court properly could have determined that their rehabilitation testimony reflected a desire to do their duty and to follow the court\u2019s instructions rather than an actual ability to sentence defendant to death.\nAm Jur 2d, Jury \u00a7 279.\n5. Jury \u00a7 226 (NCI4th)\u2014 capital trial \u2014 jury selection \u2014 death penalty views \u2014 excusal for cause without rehabilitation\nThe trial court did not abuse its discretion in excusing a prospective juror for cause based on her death penalty views without allowing defendant an opportunity to rehabilitate her where the juror\u2019s responses to questions from both the prosecution and the trial court established that she would not vote to impose the death penalty under any circumstances, and defendant failed to show that further questioning would likely have produced different testimony.\nAm Jur 2d, Jury \u00a7 279.\n6. Evidence and Witnesses \u00a7 1694 (NCI4th)\u2014 photographs of murder victim\u2019s body \u2014 admissibility\nThe trial court did not err by admitting for illustrative purposes four photographs of a murder victim\u2019s naked body at the crime scene where the photographs depicted the body from four different angles as examined by an SBI agent; three also revealed bloodstain patterns about which a serologist testified; and the number of photographs was not excessive.\nAm Jur 2d, Homicide \u00a7 417.\nAdmissibility in evidence of enlarged photographs or photostatic copies. 72 ALR2d 308.\n7. Evidence and Witnesses \u00a7 1659 (NCI4th)\u2014 photographs\u2014 substantive or illustrative evidence \u2014 instruction not plain error\nAny error in the trial court\u2019s instruction that the jury in a murder trial could consider certain photographs \u201cas evidence of facts that they illustrate\u201d when some photographs were admitted for illustrative purposes only was not plain error given the physical and circumstantial evidence, as well as defendant\u2019s confession, since any error concerning whether photographs constituted substantive or illustrative evidence probably did not affect the jury\u2019s deliberations or decision.\nAm Jur 2d, Evidence \u00a7\u00a7 960, 961.\n8. Evidence and Witnesses \u00a7 2211 (NCI4th)\u2014 DNA test results \u2014 expert testimony \u2014 tests performed by another\u2014 right of confrontation \u2014 evidence rules not violated\nThe trial court did not err by allowing an SBI agent, who was an expert in DNA analysis and molecular genetics, to testify about the results of DNA testing on blood samples found on pants worn by defendant on the night of a murder and the statistical significance thereof based upon DNA analysis performed by another agent in the SBI unit under his direct supervision since the DNA report prepared by the other agent was reliable and could be used by the witness to form his opinions. The witness\u2019s DNA testimony did not violate defendant\u2019s Confrontation Clause rights since the witness was vigorously cross-examined about the DNA testing procedures at the SBI and about his opinions. Nor did the testimony violate N.C.G.S. \u00a7 8C-1, Rules 702, 703 or 403.\nAm Jur 2d, Evidence \u00a7 574.\nAdmissibility of DNA identification evidence. 84 ALR4th 313.\n9. Evidence and Witnesses \u00a7 2210 (NCI4th)\u2014 expert testimony \u2014 bloodstain patterns \u2014 manner of victim\u2019s murder\nThe trial court did not err by allowing an expert in forensic serology and bloodstain pattern interpretation to state opinions about the position of a murder victim\u2019s body when she was struck by a blunt object and the number and force of blows inflicted upon her based upon his examination of the bloodstain patterns found on the ground, porch steps at the crime scene, and a log discovered on a woodpile near the body. The testimony was competent and relevant to show the manner of the victim\u2019s murder, and its probative value was not outweighed by the danger of unfair prejudice.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 300.\nAdmissibility, in criminal prosecution, of expert opinion evidence as to \u201cblood splatter\u201d interpretation. 9 ALR5th 369.\n10. Appeal and Error \u00a7 155 (NCI4th)\u2014 admission of testimony \u2014 failure to preserve for appellate review\nDefendant failed to preserve an assignment of error to the admission of testimony for appellate review under N.C. R. App. P. 10(b)(2) where the portion of a witness\u2019s testimony about which defendant complains was neither mentioned in defendant\u2019s motion to exclude nor objected to at trial. Defendant also waived appellate review under N.C. R. App. P. 10(c)(4) by failing specifically and distinctly to contend that the error amounts to plain error.\nAm Jur 2d, Appellate Review \u00a7 614.\n11. Evidence and Witnesses \u00a7\u00a7 1009, 1010 (NCI4tli)\u2014 abuse by defendant \u2014 statements made by murder victim \u2014 residual exception to hearsay rule\nStatements made by a murder victim to a witness and in a letter to defendant concerning abuse she suffered from defendant were properly admitted in defendant\u2019s murder trial under the residual exception to the hearsay rule set forth in N.C.G.S. \u00a7 8C-1, Rule 804(b)(5). The trial court properly found that the statements were probative of a material fact in that they were evidence of motive, identity and intent. Error by the trial court in failing to make findings of fact to support its conclusion that the statements possessed the requisite trustworthiness was harmless beyond a reasonable doubt where the record sustains the court\u2019s conclusion and contains overwhelming evidence of defendant\u2019s guilt, including his confession, DNA test results, and blood-type matching.\nAm Jur 2d, Evidence \u00a7\u00a7 683-685.\n12. Homicide \u00a7 659 (NCI4th)\u2014 instructions \u2014 voluntary intoxication \u2014 specific intent to kill \u2014 omission of proposed final mandate\nThe trial court in a first-degree murder case did not shift the burden of proof by omitting defendant\u2019s proposed \u201cfinal mandate\u201d from the instructions on voluntary intoxication as it related to defendant\u2019s ability to form a specific intent to kill since the trial court gave the substance of the instruction defendant requested, and the omission of the \u201cfinal mandate\u201d could not have misled the jury about the burden of proof, especially considering the court\u2019s explicit instructions about reasonable doubt and the State\u2019s burden of proof.\nAm Jur 2d, Homicide \u00a7\u00a7 483, 508, 517.\n13. Rape and Allied Offenses \u00a7\u00a7 28, 164 (NCI4th)\u2014 first-degree sexual offense \u2014 diminished capacity no defense\nThe trial court did not err by failing to instruct on diminished capacity as that defense related to a charge of first-degree sexual offense since first-degree sexual offense is not a specific intent crime, and diminished capacity is thus not a defense to such crime.\nAm Jur 2d, Rape \u00a7 37.\n14. Constitutional Law \u00a7 342 (NCI4th)\u2014 failure of record to show defendant\u2019s presence at trial \u2014 absence not assumed\nIt will not be assumed that defendant was absent from his capital trial on several occasions where the court reporter did not consistently record defendant\u2019s presence while court was in session, but the transcript does not indicate, and defendant has not shown, that he was absent from the trial.\nAm Jur 2d, Criminal Law \u00a7\u00a7 697, 906.\n15. Criminal Law \u00a7 1309 (NCI4th)\u2014 capital sentencing\u2014 admissibility of evidence \u2014 Rule 403 balancing test inapplicable\nThe trial court was not required to perform the Rule 403 balancing test in deciding whether to permit the State to introduce a photograph in a capital sentencing proceeding because the Rules of Evidence do not apply in sentencing proceedings; any evidence the court deems relevant to sentence may be introduced at this stage; and the State must be permitted to present any competent, relevant evidence which will substantially support imposition of the death penalty. N.C.G.S. \u00a7 8C-1, Rule 1101(b)(3); N.C.G.S. \u00a7 15A-2000(a)(3).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n16. Criminal Law \u00a7 1314 (NCI4th)\u2014 capital sentencing \u2014 photograph of victim\u2019s body \u2014 relevancy to heinous, atrocious, or cruel aggravating circumstance\nThe trial court did not err by admitting in a capital sentencing proceeding an eight-by-ten-inch color photograph of the murder victim\u2019s naked body, from the rear, that showed a stick protruding from the body and injuries to the rectal area which had been excluded from the guilt phase because the record supports the court\u2019s finding that the photograph was relevant to the especially heinous, atrocious, or cruel aggravating circumstance.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n17. Criminal Law \u00a7 1314 (NCX4th)\u2014 capital sentencing\u2014 remorse shown by defendant \u2014 exclusion of evidence\u2014 harmless error\nThe trial court in a capital sentencing proceeding erred by refusing to permit defendant\u2019s psychiatric expert to answer questions as to whether he had seen indications of remorse on defendant\u2019s part and what he had observed of defendant\u2019s reaction to the victim\u2019s death since this evidence was relevant to the nonstatutory mitigating circumstance that defendant exhibited remorse within a short time following the crime. Assuming that this error had constitutional implications, it was nevertheless harmless beyond a reasonable doubt where the jury did not find the mitigating circumstance regarding defendant\u2019s remorse even though other uncontroverted evidence thereof was presented at the sentencing hearing.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n18. Criminal Law \u00a7 463 (NCI4th)\u2014 capital sentencing \u2014 prosecutor\u2019s closing argument \u2014 statements showing cruelty of killing\nThe trial court did not err by (1) overruling defendant\u2019s objections to the prosecutor\u2019s jury argument in a capital sentencing proceeding that the evidence supported inferences that the victim was alive as defendant bludgeoned her, the victim was alive when defendant inserted a stick in her rectum, and defendant twisted the stick in the rectum as he inserted it, and (2) failing to intervene during the portion of the argument in which the prosecutor gave a chronological summary of the crime, since the evidence supported the arguments, and the arguments did not improperly encourage the jury to find the murder especially heinous, atrocious, or cruel simply on the basis of the sex offense but sought to give the jury a complete picture of the merciless nature of the crime and urged the jury to find this aggravating circumstance on the basis of the overwhelming brutality of the killing.\nAm Jur 2d, Criminal Law \u00a7\u00a7 588 et seq.\n19. Criminal Law \u00a7 1339 (NCI4th)\u2014 capital sentencing \u2014 aggravating circumstances \u2014 heinous, atrocious, or cruel murder \u2014 murder during another felony \u2014 separate evidence supporting both circumstances\nSeparate evidence existed in a capital sentencing proceeding to support the trial court\u2019s submission of both the aggravating circumstance that the murder was especially heinous, atrocious, or cruel and the aggravating circumstance that it was committed while defendant was engaged in the commission of a sex offense where a reasonable juror could have found the especially heinous, atrocious, or cruel circumstance based on the medical examiner\u2019s testimony about the victim\u2019s severe blunt-trauma wounds, and a reasonable juror could find that the murder was committed while defendant was engaged in the commission of a sex offense based on evidence that multiple external abrasions and lacerations existed around the victim\u2019s rectum and vagina and that some object had been inserted into the rectum or the vagina, causing external lacerations.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\nSufficiency of evidence, for death penalty purposes, to establish statutory aggravating circumstance that murder was committed in course of committing, attempting, or fleeing from other offense, and the like \u2014 post-Gregg cases. 67 AX,R4th 887.\n20. Criminal Law \u00a7 1343 (NCI4th)\u2014 capital sentencing \u2014 aggravating circumstances \u2014 consideration of separate evidence \u2014 sufficiency of instruction\nIn a capital sentencing proceeding in which the trial court submitted the aggravating circumstances that the murder was especially heinous, atrocious, or cruel and that it was committed while defendant was engaged in a sex offense, the trial court\u2019s instruction that the jury should not \u201cfocus on the sexual offense but instead focus on the manner of [the victim\u2019s] killing\u201d when considering the heinous, atrocious, or cruel aggravating circumstance was sufficient to prohibit the jury from considering the same evidence in support of both circumstances submitted and was not plain error.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\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.\n21. Criminal Law \u00a7 1355 (NCI4th)\u2014 capital sentencing \u2014 mitigating circumstance \u2014 no significant criminal history \u2014 submission not required\nThe trial court could properly determine that no reasonable juror in this capital sentencing proceeding could conclude that defendant\u2019s criminal history was insignificant and thus did not err in failing to submit the mitigating circumstance that defendant had no significant history of prior criminal activity where defendant\u2019s prior criminal history included numerous beatings of the victim, an incident in which defendant shot an acquaintance in the leg, a conviction for driving under the influence, and a guilty plea to assault inflicting serious injury in an altercation in which defendant hit a man in the head with a large stick, causing a concussion and breaking the man\u2019s jaw and ribs.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\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.\n22. Criminal Law \u00a7 1362 (NCI4th)\u2014 capital sentencing \u2014 mitigating circumstance \u2014 age of defendant \u2014 submission not required\nThe trial court properly declined to submit defendant\u2019s age as a mitigating circumstance in this capital sentencing proceeding, although defendant contended that the evidence showed his emotional age to be younger than his chronological age of twenty-seven at the time of the crime, where the evidence showed that defendant completed high school and that his general knowledge was \u201csufficient for most purposes\u201d; he has average intelligence, with no major disturbance of mood or thinking, and was gainfully employed prior to his arrest; and the evidence did not link defendant\u2019s immaturity and impulsive behavior to his age but showed that those traits stemmed from a personality disorder and dysfunctional family life.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\n23 Criminal Law \u00a7 1363 (NCI4th)\u2014 capital sentencing \u2014 non-statutory mitigating circumstances \u2014 support of child \u2014 sole supporter of victim \u2014 insufficiency of evidence\nThe evidence did not require the trial court to submit the non-statutory mitigating circumstances that \u201cdefendant had provided child support for his child by another woman for several years\u201d and \u201cdefendant was the sole supporter of [the victim] while they were living together\u201d where the evidence showed only that the woman with whom defendant conceived a child received government support, and it also showed that defendant provided support to the victim but failed to show that he was her \u201csole supporter.\u201d\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\n24. Criminal Law \u00a7 1363 (NCI4th)\u2014 capital sentencing\u2014 request for nonstatutory mitigating circumstance \u2014 redundancy of alcohol dependence \u2014 insufficient evidence of marijuana dependence\nThe trial court properly ruled that the portion of a requested mitigating circumstance referring to the effect of defendant\u2019s alcohol dependence upon his judgment was subsumed within the submitted circumstance that \u201cdefendant has a history of chronic alcohol dependency and abuse.\u201d Furthermore, the evidence was insufficient to require submission of the portion of the requested instruction referring to marijuana dependence where a psychiatrist testified that defendant had abused marijuana but did not state that he was dependent upon it.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\n25. Criminal Law \u00a7 1363 (NCI4th)\u2014 capital sentencing\u2014 requested mitigating circumstance \u2014 subsumption by circumstances submitted\nThe trial court did not err by refusing to submit the mitigating circumstance that \u201cdefendant never developed a normal father-son relationship with his father\u201d because it was subsumed within submitted mitigating circumstances that \u201cdefendant\u2019s mental and/or emotional disturbances were caused in part by the emotional instability of his family\u201d and \u201cdefendant had grown up in a dysfunctional family with much discord between his parents and with both parents being \u2018workaholics\u2019 with limited time for their children.\u201d\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\n26. Criminal Law \u00a7 1363 (NCI4th)\u2014 capital sentencing \u2014 mitigating circumstance \u2014 continued remorse by defendant\u2014 failure to submit as harmless error\nThe trial court erred by failing to submit defendant\u2019s requested mitigating circumstance that within a short time following the crime defendant exhibited remorse and sorrow \u201cand has continued to do so\u201d where defendant cried on the stand when asked on direct examination about his reaction to the victim\u2019s death and the sexual offense committed against her. However, even if this error was of constitutional dimension, it was harmless beyond a reasonable doubt where the jury saw defendant on the stand and heard the evidence relevant to this circumstance, and the court instructed on the \u201ccatchall\u201d circumstance, which no juror found to exist.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\n27. Criminal Law \u00a7 1363 (NCI4th)\u2014 capital sentencing \u2014 mitigating circumstance \u2014 no attempt to flee \u2014 failure to submit as harmless error\nThe trial court\u2019s failure to submit defendant\u2019s requested mitigating circumstance that \u201cdefendant at no time resisted arrest or attempted to flee from Johnston County\u201d was harmless error where the jury knew from the evidence that defendant cooperated with the police and never tried to escape from the police station, and the trial court submitted the \u201ccatchall\u201d mitigating circumstance.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\n28. Criminal Law \u00a7 1334 (NCI4th)\u2014 aggravating circumstances \u2014 notice not required\nThe trial court did not commit constitutional error by denying defendant\u2019s motion for disclosure of the aggravating circumstances upon which the State intended to rely.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\n29. Criminal Law \u00a7 1300 (NCI4th)\u2014 capital case \u2014 guilt and sentencing phases \u2014 separate juries not required\nThe trial court did not err by denying defendant\u2019s motion for separate juries for the guilt and sentencing phases of his capital trial.\nAm Jur 2d, Criminal Law \u00a7\u00a7 609 et seq., 628.\nComment Note. \u2014 Effect of abolition of capital punishment on procedural rules governing crimes punishable by death \u2014 post-Furman decisions. 71 ALR3d 453.\n30. Jury \u00a7 235 (NCI4th)\u2014 death-qualified jury \u2014 constitutionality\nThe trial court did not commit constitutional error by denying defendant\u2019s motion to prohibit death-qualifying questions during voir dire.\nAm Jur 2d, Jury \u00a7\u00a7 189 et seq.\n31. Jury \u00a7 261 (NCI4th)\u2014 peremptory challenges \u2014 opposition to death penalty\nThe trial court did not err by allowing the State to exercise peremptory challenges to excuse prospective jurors who indicated opposition to the death penalty.\nAm Jur 2d, Jury \u00a7\u00a7 234 et seq.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post-Mt/ierspoon cases. 39 ALR3d 550.\n32. Criminal Law \u00a7 1343 (NCI4th)\u2014 heinous, atrocious, or cruel aggravating circumstance \u2014 constitutional instruction\nThe trial court\u2019s instruction on the heinous, atrocious, or cruel aggravating circumstance was not unconstitutionally vague.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\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.\n33. Criminal Law \u00a7 1325 (NCI4th)\u2014 consideration of mitigating circumstances \u2014 propriety of instructions\nThe trial court\u2019s instructions on Issues Three and Four on the Issues and Recommendation as to Punishment form in a capital trial were proper.\nAm Jur 2d, Trial \u00a7\u00a7 888 seq.\n34. Criminal Law \u00a7 1326 (NCI4th)\u2014 mitigating circumstances \u2014 instruction on burden of proof\nThe trial court did not erroneously instruct the jury on defendant\u2019s burden of proving mitigating circumstances.\nAm Jur 2d, Trial \u00a7\u00a7 888 seq.\n35. Criminal Law \u00a7 762 (NCI4th)\u2014 instructions on reasonable doubt\nThe trial court did not commit constitutional error when it defined reasonable doubt in the jury instructions at both phases of a capital trial.\nAm Jur 2d, Jury \u00a7\u00a7 890 et seq.\n36. Constitutional Law \u00a7 371 (NCI4th)\u2014 death penalty \u2014 not cruel and unusual punishment\nImposition of the death penalty upon defendant did not violate his rights under the Eighth Amendment to the U.S. Constitution.\nAm Jur 2d, Criminal Law \u00a7\u00a7 588 et seq.\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.\n37. Criminal Law \u00a7 1322 (NCI4th)\u2014 life imprisonment \u2014 jail time \u2014 refusal to instruct\nThe trial court did not err by failing to inform the jury in a capital trial about the amount of time defendant would spend in jail if sentenced to life imprisonment.\nAm Jur 2d, Trial \u00a7\u00a7 100, 890.\nProcedure to be followed where jury requests information as to possibility of pardon or parole from sentence imposed. 35 ALR2d 769.\nPrejudicial effect of statement or instruction of court as to possibility of parole or pardon. 12 ALR3d 832.\n38. Criminal Law \u00a7 1373 (NCI4th)\u2014 death penalty not disproportionate\nA sentence of death imposed upon defendant for first-degree murder was not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, where the jury found defendant guilty upon theories of premeditation and deliberation and felony murder; the evidence supported the jury\u2019s finding of the aggravating circumstances that the murder was especially heinous, atrocious, or cruel and was committed while defendant was engaged in a sexual offense; the only statutory mitigating circumstance found by the jury was that defendant was under the influence of a mental or emotional disturbance; the victim was murdered in a brutal, merciless, and dehumanizing attack which included severe blunt-trauma injuries and a depraved sexual offense; and defendant committed the murder at the victim\u2019s home.\nAm Jur 2d, Criminal Law \u00a7 628.\nAppeal of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Barnette, J., at the 20 September 1993 Criminal Session of Superior Court, Johnston County, on a jury verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 11 April 1995.\nMichael F. Easley, Attorney General, by William B. Grumpier and Valerie B. Spalding, Assistant Attorneys General, and Simone E. Frier, Staff Attorney, for the State.\nW. Terry Sherrill and Ann L. Hester for defendant-appellant." }, "file_name": "0488-01", "first_page_order": 520, "last_page_order": 562 }