{ "id": 793130, "name": "STATE OF NORTH CAROLINA v. RUSSELL BRICE HINSON", "name_abbreviation": "State v. Hinson", "decision_date": "1995-07-28", "docket_number": "No. 499A94", "first_page": "66", "last_page": "78", "citations": [ { "type": "official", "cite": "341 N.C. 66" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "6 ALR4th 16", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "50 ALR3d 8", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "88 ALR4th 8", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "90 L. Ed. 2d 672", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "476 U.S. 1123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12995, 12899, 12492, 12429, 13010, 12883, 12756, 12661, 13047, 12568, 13049, 12828, 12351 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/1123-12", "/us/476/1123-01", "/us/476/1123-10", "/us/476/1123-08", "/us/476/1123-13", "/us/476/1123-11", "/us/476/1123-03", "/us/476/1123-07", "/us/476/1123-02", "/us/476/1123-06", "/us/476/1123-05", "/us/476/1123-09", "/us/476/1123-04" ] }, { "cite": "337 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "506" }, { "page": "508" } ], "opinion_index": 0 }, { "cite": "315 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716847 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0175-01" ] }, { "cite": "82 L. Ed. 2d 864", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 0 }, { "cite": "467 U.S. 1267", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6364245 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/467/1267-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "247", "parenthetical": "quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984)" }, { "page": "248" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "561", "parenthetical": "quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984)" }, { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "456 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "811" } ], "opinion_index": 0 }, { "cite": "340 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790125 ], "year": 1995, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0119-01" ] }, { "cite": "92 L. Ed. 2d 774", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6158045 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/333/0411-01" ] }, { "cite": "478 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6285759, 6286362, 6286079 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/478/1036-01", "/us/478/1036-03", "/us/478/1036-02" ] }, { "cite": "477 U.S. 168", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205694 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/477/0168-01" ] }, { "cite": "427 F.2d 1290", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2243514 ], "year": 1970, "pin_cites": [ { "page": "1291" } ], "opinion_index": 0, "case_paths": [ "/f2d/427/1290-01" ] }, { "cite": "129 L. Ed. 2d 924", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "129 L. Ed. 2d 895", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "433 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "152" }, { "page": "152" }, { "page": "152" } ], "opinion_index": 0 }, { "cite": "334 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530367 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "224" }, { "page": "224" }, { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0208-01" ] }, { "cite": "411 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "596", "parenthetical": "where this Court lists seven circumstances which are used to imply premeditation and deliberation, one of which is \"evidence that the killing was done in a brutal manner\"" } ], "opinion_index": 0 }, { "cite": "330 N.C. 557", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512329 ], "year": 1992, "pin_cites": [ { "page": "565", "parenthetical": "where this Court lists seven circumstances which are used to imply premeditation and deliberation, one of which is \"evidence that the killing was done in a brutal manner\"" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0557-01" ] }, { "cite": "131 L. Ed. 2d 738", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1995, "opinion_index": 0 }, { "cite": "449 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "442" } ], "opinion_index": 0 }, { "cite": "338 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519104 ], "year": 1994, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0001-01" ] }, { "cite": "290 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "305 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570930 ], "year": 1982, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0400-01" ] }, { "cite": "301 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "98", "parenthetical": "quoting State v. Davis, 305 N.C. 400, 421, 290 S.E.2d 574, 587 (1982)" } ], "opinion_index": 0 }, { "cite": "308 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710741 ], "year": 1983, "pin_cites": [ { "page": "169", "parenthetical": "quoting State v. Davis, 305 N.C. 400, 421, 290 S.E.2d 574, 587 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0159-01" ] }, { "cite": "346 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "317 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778236 ], "year": 1986, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0474-01" ] }, { "cite": "63 U.S.L.W. 3833", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 1995, "opinion_index": 0 }, { "cite": "98 L. Ed. 2d 406", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 970", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600992, 599913, 599204, 599758 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0970-03", "/us/484/0970-02", "/us/484/0970-01", "/us/484/0970-04" ] }, { "cite": "358 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "12-13" } ], "opinion_index": 0 }, { "cite": "320 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730916 ], "year": 1987, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0179-01" ] }, { "cite": "449 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "728", "parenthetical": "quoting State v. Brown, 320 N.C. 179, 194, 358 S.E.2d 1, 12-13, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987)" } ], "opinion_index": 0 }, { "cite": "338 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519858 ], "year": 1994, "pin_cites": [ { "page": "98", "parenthetical": "quoting State v. Brown, 320 N.C. 179, 194, 358 S.E.2d 1, 12-13, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0064-01" ] }, { "cite": "444 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537813 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0508-01" ] }, { "cite": "98 L. Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 599537, 600738 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0959-02", "/us/484/0959-01" ] }, { "cite": "357 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "911" } ], "opinion_index": 0 }, { "cite": "320 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723637 ], "year": 1987, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0233-01" ] } ], "analysis": { "cardinality": 1226, "char_count": 28888, "ocr_confidence": 0.702, "pagerank": { "raw": 1.7072771327956278e-07, "percentile": 0.7018457446746895 }, "sha256": "71d25588f8cf011e7b0269104e592baedf9bb98aa22460d33bce6f3a11141b06", "simhash": "1:6940933b9f3dc558", "word_count": 4910 }, "last_updated": "2023-07-14T22:14:42.837437+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. RUSSELL BRICE HINSON" ], "opinions": [ { "text": "ORR, Justice.\nDefendant was indicted for the 28 December 1992 first-degree murder of Felicia Hope Houston. He was tried capitally at the 6 December 1993 Criminal Session of Superior Court, Union County, and was found guilty as charged. The jury recommended and the judge sentenced defendant to life imprisonment.\nDefendant appeals to this Court asserting three assignments of error. We find no error in defendant\u2019s assignments and, accordingly, uphold defendant\u2019s conviction for murder in the first degree and sentence of life imprisonment.\nEvidence presented by the State tended to show the following facts and circumstances. Felicia Houston was a sixteen-year-old high school student. During the Christmas holidays in 1992, she visited with her cousins in Monroe, North Carolina. Felicia\u2019s cousin, Cynthia Wilson, age thirteen, testified that at approximately 6:30 p.m. on 28 December 1992, Cynthia, Felicia and Cynthia\u2019s sister, Deborah, left their apartment to visit another cousin. As they walked down the sidewalk towards a parking lot, Cynthia observed a parked red truck. Cynthia testified that immediately after observing the truck, she saw a flash of light coming from it and heard a \u201cswishing\u201d sound. Felicia fell to the ground and began screaming that she was hurt. Cynthia momentarily hid behind a tree and observed an arrow sticking in the tree. She then went for help and a neighbor called for an ambulance. By the time Cynthia returned to the victim, a crowd had gathered, and the police had arrived. When an officer turned Felicia over, Cynthia saw an arrow protruding from Felicia\u2019s chest.\nCynthia testified that none of the three girls had any kind of weapon with them and none of them had said anything to whoever was in the red truck. Because it was dark, Cynthia could not see inside the red truck.\nPadishah Poole testified that on 28 December 1992, he and about four other black males were standing outside near a tree in the area of the Wilsons\u2019 apartment complex. Poole testified that he saw a red truck drive by slowly, cruising. During the two- or three-hour period that Poole was standing in the vicinity of the apartment building, the truck drove by four or five times. Poole testified that the truck had a camper top on the back of it. Poole could not see inside the truck because the windows were tinted. As the truck approached the men, Poole heard a noise. Poole and his companions thought someone was shooting with a silencer, so they ran to the back of the apartment building. They could still, however, see the tree from where they were standing.\nPoole testified that three or four minutes later, the truck returned. He saw some girls walking towards the tree, and the truck slowed. Then Poole heard one of the girls screaming. Neither Poole nor his companions had said anything to whoever was in the truck prior to the attack on the girls.\nGuy Brown testified pursuant to a plea agreement. He had been charged with accessory after the fact of first-degree murder and was sentenced to three years. The terms of the plea agreement specified that if he testified truthfully at defendant\u2019s trial, the murder charge would be dropped, and since he had already served eleven months in jail, he would be released from jail.\nBrown testified that he had met defendant through defendant\u2019s brother and that both he and defendant worked in the same masonry business. On 28 December 1992, Brown first saw defendant at about 4:30 p.m. when defendant came to Brown\u2019s trailer. Defendant told Brown that he wanted him to \u201ctake him down the road to deliver a message.\u201d Defendant said that he and a friend named Chris had been cheated in a drug deal earlier. Defendant did not say what the message was. Brown, who was babysitting his children, told defendant they would have to wait until his wife got home from work so that they could take the truck she was driving, which was a red Chevrolet S-10 with a camper top on the back. Brown testified that his wife arrived home a little after 5:00 p.m. After Brown and his wife talked briefly, defendant and Brown left in Brown\u2019s truck and went to McDonald\u2019s. Once they reached McDonald\u2019s, defendant gave Brown directions to a housing project. Brown testified that he realized then that the housing project was the location in which defendant had mentioned that he and Chris had been cheated when they went to buy drugs. Brown asked defendant if the housing project was the place, and defendant replied that it was. Defendant pointed to the corner of a building where he said he and Chris had gone to buy crack and the seller had run off with $70.00 of Chris\u2019 money. Brown testified that he kept driving around the block. Defendant said he wanted to see if the drug dealers were standing outside and that he was looking for one particular \u201cboy.\u201d Brown drove around the block some more, but when they could not find the \u201cboy\u201d they were looking for, they drove to a liquor store where defendant bought some liquor. It was then that Brown noticed a crossbow on the passenger side floorboard of the truck. When defendant returned to the truck, Brown asked him whether he was going to deliver the \u201cmessage\u201d with the crossbow, and defendant said that he was. Brown testified, however, that he did not realize at the time that defendant was actually planning to shoot somebody with it.\nBrown testified that the two men then drove to a Fast Fare convenience store where Brown went in and bought ice and soda. After mixing some drinks, defendant suggested that he and Brown go back to the housing project because defendant had not yet delivered his \u201cmessage.\u201d By that time, it was getting dark. This time, defendant directed Brown to drive into the housing project the back way. As they drove by the apartments, defendant, who was on the passenger side, was closest to the apartments. Defendant saw an individual standing outside whom he described as \u201cone of them.\u201d He then told Brown to drive back to the McDonald\u2019s so that they could finish their drinks.\nBrown testified that he drove back to McDonald\u2019s where defendant drank some more liquor and got out to use the bathroom. Defendant then said, \u201cLet\u2019s go ahead and get this over with.\u201d Brown drove back to the apartments. When he and defendant arrived, Brown pulled up to two males because defendant recognized one of them as a drug dealer. Brown further testified that when he stopped the truck, defendant took the crossbow from under his feet and attempted to aim it out of the open passenger window. He further testified that he yelled at the two males, who were standing some distance away. Defendant fired the crossbow, and then Brown drove away. Defendant remarked that he thought he had hit a tree and reloaded the crossbow. Brown replied that he would drive around again so that they could look for the arrow. Brown testified that he and defendant drove around and that defendant said the men would probably shoot at them. Brown replied that they probably would not be there.\nWhen they reached the apartments again, Brown drove slowly but did not stop. Defendant asked Brown to stop; he was looking out of the truck towards the back as if someone was approaching from behind. Brown stopped and leaned over to see who it was. He had seen three girls coming over a rise and had heard them talking. Brown testified that defendant had the crossbow partially out of the passenger window and was aiming it towards them. Brown testified that he told defendant \u201cnot to shoot because they were girls,\u201d but that defendant replied that he \u201cdidn\u2019t care,\u201d stating that \u201cone of them was going to pay.\u201d Defendant then fired the crossbow.\nBrown testified that he heard one girl scream. As he began to drive away, he heard another, different scream. Defendant said that he thought he had hit one of the girls. Brown testified that he did not try to help the girls because he and defendant were white, were in a black neighborhood, and had shot a girl. He was scared and wanted to get out of the area. Brown and defendant stopped at a gas station to use the bathroom, and defendant bought a pack of cigarettes and a bag of ice. They sat in the truck and mixed some more drinks. Brown then drove home where he and defendant continued to drink liquor and beer in an outbuilding near Brown\u2019s house until about 10:00 p.m. Brown drove defendant home in defendant\u2019s truck because defendant was too drunk to drive. Defendant\u2019s wife drove Brown back to his trailer.\nPam Brown, Brown\u2019s wife, testified that Brown told her that\nhe had taken Russell down there and, um, they drove around and, um, Russell shot an arrow at a tree. He assumed that he hit a tree. And then he drove around another time, and, um, he said Russell threw the crossbow up again and, um, he shot it, and as Mitchell [Guy Brown] was driving off he heard girls screaming.\nShe further testified that Brown \u201ctold Russell not to shoot because there were girls at the end of the street and Russell told him that it didn\u2019t matter, that someone was going to pay.\u201d\nDeborah Radisch, M.D., Associate Chief Medical Examiner of the State of North Carolina, was stipulated to be an expert forensic pathologist, and testified that she performed an autopsy on the victim\u2019s body on 30 December 1992. Dr. Radisch opined that the victim died as the result of an arrow wound to her right armpit, which had caused her to bleed to death.\nRoger Coan, a detective with Monroe Public Safety, testified that he participated in the investigation into the victim\u2019s death. The investigation focused on defendant beginning on 30 December 1992, after a telephone call from a confidential informant. Coan and another officer later interviewed Brown at the jail and took a statement from him. Coan read the statement to the jury, which corroborated Brown\u2019s trial testimony in all essential respects.\nRichard McCoy testified that he had known defendant for ten years and identified defendant in court. McCoy testified that on 28 December 1992, he did not go to work because there was an ice storm and the electricity was off. At about 2:00 p.m., defendant arrived at McCoy\u2019s house. At one point, McCoy and defendant went outside because defendant did not want to speak in front of McCoy\u2019s family. Defendant told McCoy that \u201che wanted to deliver a message\u201d because \u201ca nigger had shit on him in a drug deal.\u201d McCoy testified that defendant told him that he \u201chad already jumped a nigger at the basketball court and pulled a long knife on him because of the drug ripoff.\u201d McCoy asked defendant whether he was just going to \u201cshoot the person in the leg and scare him,\u201d to which defendant replied that he was going \u201cto shoot a nigger through the heart.\u201d McCoy walked with defendant to his vehicle, where he saw a crossbow and arrow. Defendant took the crossbow out of his vehicle and showed McCoy where he had put oil on the shaft so that no fingerprints would remain. Defendant said that he was going to deliver his \u201cmessage\u201d in the area behind McDonald\u2019s in Monroe. McCoy refused to drive defendant.\nMcCoy testified that he heard about the victim\u2019s death later that night and that a few days afterward, he went to the police. He told the police that he had information which might be pertinent to the crossbow murder, and he gave defendant\u2019s name. Finally, he testified that the crossbow he was shown in court was similar to the one defendant had shown him on 28 December 1992.\nThe defendant presented no evidence.\nI.\nDefendant contends that errors made by the trial court with respect to the three issues presented on appeal entitle him to a new trial. As to each of these issues, defendant contends that both his federal and state constitutional rights to a fair trial were violated.\nDefendant raises as error two categories of comments made by the prosecution during the closing arguments. At the outset, we note that \u201c[p]rosecutors are granted wide latitude in the scope of their argument.\u201d State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898, 911, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987), denial of post-conviction relief rev\u2019d, 336 N.C. 508, 444 S.E.2d 443 (1994).\n\u201cCounsel for each side may argue to the jury the facts in evidence \u2022 and all reasonable inferences to be drawn therefrom together with the relevant law so as to present his or her side of the case. Decisions as to whether an advocate has abused this privilege must be left largely to the sound discretion of the trial court.\u201d\nState v. Ward, 338 N.C. 64, 98, 449 S.E.2d 709, 728 (1994) (quoting State v. Brown, 320 N.C. 179, 194, 358 S.E.2d 1, 12-13, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987)), cert. denied,-U.S. \u2014 ,- L. Ed. 2d-, 63 U.S.L.W. 3833 (1995).\nDefendant did not object to any of the challenged comments at trial. \u201c[0]ur appellate courts may, in the absence of an objection by the defendant, review a prosecutor\u2019s argument to determine whether the argument was so grossly improper that the trial court committed reversible error in failing to intervene ex mero mo tu to correct the error.\u201d State v. Williams, 317 N.C. 474, 482, 346 S.E.2d 405, 410 (1986). In such circumstances, the trial court is not required to intervene unless the arguments \u201c \u2018stray so far from the bounds of propriety as to impede the defendant\u2019s right to a fair trial.\u2019 \u201d State v. Harris, 308 N.C. 159, 169, 301 S.E.2d 91, 98 (1983) (quoting State v. Davis, 305 N.C. 400, 421, 290 S.E.2d 574, 587 (1982)). Moreover, \u201c[o]n appeal, particular prosecutorial arguments are not viewed in an isolated vacuum.\u201d State v. Moseley, 338 N.C. 1, 50, 449 S.E.2d 412, 442 (1994), cert. denied, -U.S. -, 131 L. Ed. 2d 738 (1995). \u201cFair consideration must be given to the context in which the remarks were made and to the overall factual circumstances to which they referred.\u201d Id.\nDuring the trial, State witness McCoy was twice held in contempt for refusing to testify. Commenting on McCoy\u2019s alleged reluctance to testify, the prosecutor argued as follows:\nWhy do you think Mr. McCoy when he testified was so hesitant to testily? If you recall, it took him three times. After calling him a third time he finally testified. Why do you think that was? Is it because that [sic] he was such a good friend of the defendant or was it because of his fear? His fear for his life? He didn\u2019t want to get one of these put in his chest, did he? Or right \u2014 right above the clavicle as Mr. Bowers said.\nWhy do you think Mr. McCoy had such a difficult time testifying? Is that not significant to you? Is that not significant at\u2014 what does that say about the defendant? What does that really say? No one crosses him. No one crosses the defendant. You just don\u2019t do it.\nAs noted earlier, the defendant failed to object to any of the comments made by the prosecutor which are now assigned as error. The defendant, however, argues that these comments by the prosecutor insinuating that McCoy was afraid to testify out of fear of defendant or because defendant had a propensity for violence were grossly improper and require that he be given a new trial. The State contends that the prosecutor\u2019s remarks were proper since they consisted of inferences grounded in the evidence presented at trial. Even if we were to find the State\u2019s closing argument improper, after a careful review of the comments in question, we do not believe the claimed error was of such gross impropriety as to warrant intervention by the trial court ex mero motu.\nThe evidence before the jury demonstrated that the actions of defendant were those of a mean and vengeful killer and that he had no hesitation in killing complete strangers just as long as someone \u201cpays.\u201d McCoy testified that after the murder, he had not contacted the police for several days and that he told the officer who came out to interview him that he did not want to testify. In addition, McCoy\u2019s testimony showed that defendant had planned to send his \u201cmessage\u201d for at least a day prior to the killing. He had prepared the crossbow and then sought someone other than himself to drive for him so that he would have both hands free to fire the weapon. The State\u2019s evidence also showed that defendant was cheated in a drug deal and was determined to seek revenge. The State argues that the obvious inference from this evidence is that defendant would not hesitate to exact revenge on someone he thought had wronged him. We hold that the evidence permitted such an inference.\nThis assignment of error is overruled.\nII.\nNext, defendant contends that the trial court erred in permitting the prosecutor to ask jurors to imagine the victim as their own child. Specifically, defendant challenges the following comments:\nShe didn\u2019t die right away, did she? She didn\u2019t die right away. She was shot at six thirty, she died the next morning at what, ten thirty. Can you imagine? What if this had been your daughter? What if this had been your child? Can you imagine anything worse?\nDefendant contends that he was prejudiced because this portion of the prosecutor\u2019s argument \u201cinject[ed] a highly emotional source of bias into the jury\u2019s deliberations which distorted the jury\u2019s consideration of the evidence\u201d; therefore, he is entitled to a new trial. The State argues that the prosecutor was illustrating to the jurors that the State had circumstantially proven defendant\u2019s premeditation and deliberation prior to murdering the victim by, among other factors, evidence that the killing was done in a brutal manner. State v. Olson, 330 N.C. 557, 565, 411 S.E.2d 592, 596 (1992) (where this Court lists seven circumstances which are used to imply premeditation and deliberation, one of which is \u201cevidence that the killing was done in a brutal manner\u201d). Defendant bases his claim on the assertion that the State\u2019s evidence of premeditation and deliberation was weak and that the jurors would otherwise have found him guilty of second-degree murder. As we noted previously, defendant did not object to this argument at trial, so the assignment of error is subject to the gross impropriety standard.\nAs stated in State v. McCollum, 334 N.C. 208, 224, 433 S.E.2d 144, 152 (1993), cert. denied, -U.S.-, 129 L. Ed. 2d 895, reh\u2019g denied, -U.S. -, 129 L. Ed. 2d 924 (1994), \u201c[a]n argument \u2018asking the jurors to put themselves in place of the victims will not be condoned.\u2019 \u201d Id. (quoting United States v. Pichnarcik, 427 F.2d 1290, 1291 (9th Cir. 1970)). We note, however, that in the case sub judice, counsel\u2019s argument was not as egregious as that in McCollum. Following the analysis in McCollum, if we assume arguendo that the challenged argument was improper, we still must determine \u201cwhether these portions of the prosecutors\u2019 closing argument denied the defendant due process.\u201d McCollum, 334 N.C. at 224, 433 S.E.2d at 152; see Darden v. Wainwright, 477 U.S. 168, 91 L. Ed. 2d 144, reh\u2019g denied, 478 U.S. 1036, 92 L. Ed. 2d 774 (1986).\nWhile the defendant limited his assignments of error to the excerpt above, \u201cwe have long held that arguments are to be evaluated in context.\u201d State v. Larrimore, 340 N.C. 119, 160, 456 S.E.2d 789, 811 (1995). Therefore, we should also consider the arguments preceding the challenged comments together with the challenged argument, in which the prosecutor argued:\n[Defendant\u2019s alleged intoxication] did not interrupt or prohibit his specific intent to kill Felicia Houston on December the 28th.\nThis is a plan he had had for sometime [sic]. If not \u2014 we know he had it at two p.m., if not several days, if not weeks prior to that.\nOf course, the defense will argue that\u2019s not in the evidence. You can infer facts from the evidence. You can use your common sense, you see. This is a very cruel, calculated murder.\nSo the last element is that the defendant acted after premeditation, however short.\nAnd, fifth, that the defendant acted with deliberation, which means that he acted while he was in a cool state of mind. This does not mean that there has to be a totally [sic] absence of passion or emotion. If the intent to kill was formed with a fixed purpose, it is immaterial that the defendant was in a state of passion.\nNow, the Judge will instruct you that premeditation, neither that nor deliberation, is usually susceptible of direct proof. In other words, you can\u2019t read the man\u2019s mind. Okay. But this may be proved by proof of circumstances from which they may be inferred, such as lack of provocation by the victim, right. What did Felicia Houston do \u2014 let\u2019s assume it was a drug dealer. It\u2019s all the same. It\u2019s still first degree murder, is it not?\nWhat did Felicia Houston do to deserve this? Nothing. This is first degree murder. That\u2019s just the bottom line.\nWell, you heard all of the medical evidence. You heard what a torturous death she had. You recall Dr. Bower testifying about each time she would breathe with that arrow still in her, given that \u2014 totally sliced and mutilated the nerves, how it was painful. So severely painful for her even to breathe. The pain she must have suffered.\nShe didn\u2019t die right away, did she? She didn\u2019t die right away. She was shot at six thirty, she died the next morning at what, ten thirty. Can you imagine? What if this had been your daughter? What if this had been your child? Can you imagine anything worse?\nWe hold that the prosecutor\u2019s comments here did not \u201cmanipulate or misstate the evidence, nor did they implicate other specific rights of the accused such as the right to counsel or the right to remain silent.\u201d McCollum, 334 N.C. at 224, 433 S.E.2d at 152. The trial court instructed the jurors that their decision was to be made on the basis of the evidence alone and that the arguments of counsel were not evidence. Id. Further, the testimony, as presented above, shows that defendant\u2019s intent to kill was overwhelming. Finally, the jury found as an aggravating circumstance that the murder was part of a course of conduct in which the defendant engaged.\nIn short, given all of these factors, the likelihood that the jury\u2019s decision was influenced by the challenged portion of the prosecutor\u2019s closing argument is inconsequential. The evidence that defendant committed cold, senseless and calculated first-degree murder against the victim was overwhelming. Thus, the prosecutor\u2019s closing argument was not so grossly improper that it denied defendant a fair trial.\nThis assignment of error is overruled.\nIII.\nIn defendant\u2019s final assignment of error, he contends that defense counsel rendered ineffective assistance of counsel by conceding defendant\u2019s guilt during closing argument, in violation of defendant\u2019s right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 19, 23 and 24 of the North Carolina Constitution.\nA defendant\u2019s right to counsel includes the right to the effective assistance of counsel. When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel\u2019s conduct fell below an objective standard of reasonableness. In order to meet this burden defendant must satisfy a two part test.\nFirst, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\nState v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh\u2019g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984)) (alteration in original) (citations omitted).\nHere, defendant specifically challenges the following comments by defense counsel:\nMr. Brown, when you [sic] going to stand up and take responsibility, Mr. Brown? Mr. Brown wasn\u2019t a tool. He was the engine. He was the engine that made everything possible. He is the tool without which Mr. Hinson could not have even have gotten out of his yard. But Mr. Brown\u2019s going to be home for Christmas apparently.\nDefendant relies on State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986), in support of his contention that, in making the comments noted above, defense counsel admitted defendant\u2019s guilt without his consent and, therefore, rendered ineffective assistance of counsel. Defendant argues that during closing argument, defense counsel argued, without his consent, that Mr. Brown was guilty of murder, and in doing so, he effectively conceded his own-client\u2019s guilt. We disagree. In Harbison, the defendant\u2019s counsel told the jury that he did not \u201cfeel that [defendant] should be found innocent. I think he should do some time to think about what he has done. I think you should find him guilty of manslaughter and not first degree.\u201d Id. at 178, 337 S.E.2d at 506. This Court concluded that \u201cineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant\u2019s counsel admits the defendant\u2019s guilt to the jury without the defendant\u2019s consent,\u201d id. at 180, 337 S.E.2d at 508, and arrested the defendant\u2019s judgments for murder and assault and remanded for a new trial.\nWe find the instant case wholly distinguishable from Harbison. Again, defendant has taken the challenged comments out of context. Upon review of the trial transcript, nowhere in the record did defense counsel concede that defendant himself committed any crime whatsoever. Defense counsel maintained throughout the trial that Brown, not defendant, killed the victim. Accordingly, defendant has failed to satisfy the first prong of the Strickland test by failing to show that his \u201ccounsel made errors so serious that [he] was not functioning as the \u2018counsel\u2019 guaranteed by the Sixth Amendment.\u201d Braswell, 312 N.C. at 562, 324 S.E.2d at 248.\nThis assignment of error is overruled.\nIn summary, defendant here was convicted by a jury after a fair trial, free of prejudicial error.\nNO ERROR.", "type": "majority", "author": "ORR, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Valerie B. Spalding, Assistant Attorney General, for the State.", "Malcolm, Ray Hunter, Jr., Appellate Defender, by Janine M. Crawley, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RUSSELL BRICE HINSON\nNo. 499A94\n(Filed 28 July 1995)\n1. Criminal Law \u00a7 433 (NCI4th)\u2014 closing argument \u2014 prosecutor\u2019s comments about defendant\u2019s character \u2014 comments supported by evidence\nComments made by the prosecutor in his closing argument insinuating that a witness was afraid to testify out of fear of defendant or because defendant had a propensity for violence were not grossly improper and did not require a new trial, since the evidence demonstrated that the actions of defendant were those of a mean and vengeful killer and that he had no hesitation in killing complete strangers just as long as someone \u201cpaid.\u201d\nAm Jur 2d, Trial \u00a7\u00a7 681, 682.\nNegative characterization or description of defendant, by prosecutor during summation of criminal trial, as ground for reversal, new trial, or mistrial \u2014 modern cases. 88 ALR4th 8.\n2. Criminal Law \u00a7 446 (NCI4th)\u2014 jurors imagining victim as their child \u2014 prosecutor\u2019s argument not grossly improper\nIn a prosecution of defendant for the murder of a sixteen-year-old girl who was a stranger to him by shooting her with a crossbow and arrow, the prosecutor\u2019s argument asking the jurors to imagine the victim as their own child was not so grossly improper that it denied defendant a fair trial in light of the overwhelming evidence that defendant committed a cold, senseless, and calculated first-degree murder against the victim.\nAm Jur 2d, Trial \u00a7\u00a7 664 et seq.\nPropriety and prejudicial effect of prosecutor\u2019s remarks as to victim\u2019s age, family circumstances, or the like. 50 ALR3d 8.\n3. Constitutional Law \u00a7 309 (NCI4th)\u2014 defendant\u2019s guilt \u2014 no admission by defense counsel in closing argument\nDefendant\u2019s counsel did not render ineffective assistance by conceding defendant\u2019s guilt of murder without defendant\u2019s consent when he stated during closing argument that defendant\u2019s driver \u201cwas the engine that made everything possible. He is the tool without which [defendant] could not have even gotten out of his yard\u201d where defense counsel maintained throughout the trial that the driver, not defendant, killed the victim, and nowhere in his argument did defense counsel concede that defendant himself committed any crime whatsoever.\nAm Jur 2d, Trial \u00a7\u00a7 490 et seq.\nAdequacy of defense counsel\u2019s representation of criminal client regarding argument. 6 ALR4th 16.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Freeman, J., at the 6 December 1993 Criminal Session of Superior Court, Union County. Heard in the Supreme Court 12 May 1995.\nMichael F. Easley, Attorney General, by Valerie B. Spalding, Assistant Attorney General, for the State.\nMalcolm, Ray Hunter, Jr., Appellate Defender, by Janine M. Crawley, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0066-01", "first_page_order": 100, "last_page_order": 112 }