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        "text": "LAKE, Justice.\nThe defendant was indicted on 28 May 1991 for the first-degree murder of Pamela Renee Perry. The defendant was tried capitally, and the jury found the defendant guilty of first-degree murder on the theory of premeditation and deliberation. Following a sentencing proceeding pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended that defendant be sentenced to death. For the reasons discussed herein, we conclude that the jury selection and the guilt and sentencing phases of defendant\u2019s trial were free from prejudicial error, and that the sentence of death is not disproportionate.\nAt trial, the State presented evidence tending to show that Pamela Perry died sometime during the late evening hours of 30 November 1990 or the early morning hours of 1 December 1990. Vonceil Perry, the victim\u2019s mother, discovered her daughter\u2019s body on the morning of 1 December 1990 after returning home from work. Ms. Perry testified that when she first saw her daughter, her daughter was lying face down on a pillow in her daughter\u2019s bedroom. When Ms. Perry lifted her daughter\u2019s head, she observed that the victim\u2019s face had been beaten severely.\nDr. John D. Butts, the Chief Medical Examiner for the State of North Carolina, testified that he performed an autopsy on the victim on 1 December 1990. Dr. Butts\u2019 testimony revealed that the victim received a number of blunt-force injuries to her face. He stated that the victim suffered substantial bruising and swelling over her entire face and neck, bruising and lacerations to her right eye, bruising on the left side of her neck, a tear in the skin at the corner of her mouth, a series of tears in the skin on the right cheek, tears in the skin on her left ear, tears to the skin along the left side of her jaw which were approximately one inch deep, a tear to the inner surface of her lip, and several scrapes and abrasions. Dr. Butts\u2019 internal examination disclosed blood over the surface of the brain, resulting from the blows to the face, and hemorrhaging inside the victim\u2019s neck, larynx, and trachea. The victim also had bruises and bleeding in the eyes. Dr. Butts testified that these injuries were caused by a blunt, hard object, having two edges or prongs which could break the skin and produce parallel scrapes. Dr. Butts opined that a hammer found on the victim\u2019s bed could have caused the injuries to the victim\u2019s face.\nDr. Butts further testified that the victim did not die as a result of the blunt-force injuries, but died as a result of asphyxiation or suffocation. Dr. Butts did, however, testify that the victim was alive when she received the blunt-force injuries. Dr. Butts testified that in his opinion, a pillow could have been used to suffocate the victim, and that it normally took at least three to four minutes for a person to suffocate. Dr. Butts further opined that the victim could not have suffocated by merely lying face down in the pillow, but would have to have been forced down into the pillow.\nVonceil Perry\u2019s testimony revealed that the defendant and the victim had been dating each other for approximately one year. However, at some point in time prior to the murder, difficulties arose between the victim and the defendant. Ms. Perry was allowed to testify, over defendant\u2019s objection, that her daughter had been receiving threatening phone calls from the defendant. Specifically, Ms. Perry stated that her daughter told her that the defendant kept telling her (the victim) that she had a beautiful face and that he would hate to have to \u201csmash it in\u201d and \u201cmess [it] up.\u201d As a result of the phone calls, the victim filed a complaint with the Warren County Sheriff\u2019s Department. Deputy Sean Brake, the deputy who took the complaint, testified that the victim indicated that the caller sounded like the defendant and had threatened to kill her during one of the phone calls.\nMs. Perry further testified that her daughter was a waitress and received a large quantity of quarters from tips earned on her job. Most of the coins had been rolled and placed in a large jar on a table in the victim\u2019s bedroom. When the victim\u2019s body was discovered, the jar was found empty at the edge of the victim\u2019s bed. The night of her death, the victim had more than one hundred dollars\u2019 worth of change in the jar.\nBrenda Turner testified that she worked at Willoughby\u2019s Convenience Store on 1 December 1990, and that the defendant came into Willoughby\u2019s at approximately 11:00 p.m. that night and purchased gas and a soft drink with quarters. Ms. Turner stated that defendant\u2019s total expenditure was four or five dollars. Sherry Jiggetts testified that she knew the defendant, and that defendant came to her house and purchased forty to forty-five dollars\u2019 worth of crack cocaine. Ms. Jiggetts testified that the defendant paid for the drugs with change consisting of quarters, dimes and nickels. Although she could not remember at trial when this transaction occurred, she acknowledged that she had previously given a statement to the police that this transaction occurred within a week of the murder. Another witness, Phyllis Alexander, testified that she lived with Ms. Jiggetts and that around the time of the murder, the defendant came to her house and wanted to exchange about forty to forty-five dollars in quarters for cash.\nOther testimony revealed that on a separate occasion, the defendant broke into the victim\u2019s home and assaulted her and a friend. During this incident, the defendant struck the victim in the head approximately three times. The defendant was charged with assault, and the victim testified against defendant at the assault trial. The defendant was found guilty, placed on probation and ordered to pay for the victim\u2019s medical bills. Two days later, the victim was found dead.\nThe defendant moved to dismiss at the close of the State\u2019s evidence. The trial court denied the motion. The defendant presented no evidence during the guilt phase of the trial.\nAt the penalty phase of trial, the defendant called five witnesses in an attempt to establish a factual basis for the statutory and non-statutory circumstances he requested be submitted to the jury. The State did not present any additional evidence.\nThree aggravating circumstances were submitted to the jury: (1) the murder was especially heinous, atrocious, or cruel; (2) the murder was committed against a former witness; and (3) the murder was committed for pecuniary gain. Three statutory mitigating circumstances and three nonstatutory mitigating circumstances were also submitted to the jury. The statutory mitigating circumstances included: (1) no significant history of prior criminal activity; (2) capital felony committed while the defendant was under the influence of emotional or mental disturbance; and (3) any other circumstances arising from the evidence. The nonstatutory mitigating circumstances submitted were: (1) the defendant has a good reputation in the community; (2) the defendant was regularly employed at the time of the offense; and (3) the defendant has a supportive family structure. The jury found the existence of all three aggravating circumstances and declined to find the existence of any of the six mitigating circumstances. Consequently, the jury found that the aggravating circumstances outweighed the mitigating circumstances and recommended a sentence of death.\nPretrial/Jtjry Selection\nI.\nThe defendant first assigns error to the trial court\u2019s denial of his motion to permit voir dire of potential jurors regarding their beliefs about parole eligibility. The defendant, relying on Simmons v. South Carolina, - U.S. -, 129 L. Ed. 2d 133 (1994), argues that the trial court\u2019s restriction during voir dire prevented defense counsel from identifying and educating those potential jurors who held erroneous beliefs regarding parole eligibility and, thus, effectively concealed accurate sentencing information from the jurors ultimately selected. This Court, however, has previously held that information regarding parole eligibility is not relevant to the issues at trial and is not a proper matter for the jury to consider in a capital sentencing proceeding. See State v. McNeil, 324 N.C. 33, 44, 375 S.E.2d 909, 916 (1989), sentence vacated on other grounds, 494 U.S. 1050, 108 L. Ed. 2d 756, on remand, 327 N.C. 388, 395 S.E.2d 106 (1990), cert. denied, 499 U.S. 942, 113 L. Ed. 2d 459 (1991).\nSimmons does not affect our prior rulings on this issue. In Simmons, the Supreme Court held that \u201cwhere the defendant\u2019s future dangerousness is at issue, and state law prohibits the defendant\u2019s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.\u201d Simmons, \u2014 U.S. at -, 129 L. Ed. 2d at 138. The Supreme Court, however, acknowledged the rule stated in California v. Ramos, 463 U.S. 992, 1014, 77 L. Ed. 2d 1171, 1189 (1983), that when the defendant is eligible for parole, it is ultimately for the states to determine whether and under what circumstances juries are to be instructed regarding the availability of parole. Simmons, \u2014 U.S. at -, 129 L. Ed. 2d at 145. Unlike the defendant in Simmons, the defendant in the case sub judice would have been eligible for parole had he received a life sentence. This Court has consistently rejected the argument that Simmons requires North Carolina juries be informed as to the length of time a defendant must serve before becoming eligible for parole. See State v. Price, 337 N.C. 756, 763, 448 S.E.2d 827, 831 (1994) (Simmons limited to those situations where the alternative to a sentence of death is life imprisonment without the possibility of parole), cert. denied, \u2014 U.S. \u2014, 131 L. Ed. 2d 224, reh\u2019g denied, - U.S. -, 131 L. Ed. 2d 879 (1995). Consistent with prior decisions of this Court, we decline to expand Simmons to cases involving parole-eligible defendants. Accordingly, this assignment of error is overruled.\nn.\nThe defendant next assigns error to (1) the trial court\u2019s denial of his motion to prohibit death qualification voir dire questions; (2) the State\u2019s use of peremptory challenges to excuse jurors not meeting the standard for excusal for cause under Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841 (1985) and Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, reh\u2019g denied, 393 U.S. 898, 21 L. Ed. 2d 186 (1968); and (3) the trial court\u2019s excusal for cause of three prospective jurors based on their responses to death-qualification questions.\nThe defendant first asserts that the trial court erred by denying his motion to prohibit death-qualification questioning during voir dire. The defendant argues that death qualification of the jury results in a jury that is biased in favor of the State and is predisposed to convict. Defendant further argues that the process of death qualification deprived him of his right to due process and to a trial by an impartial jury drawn from a representative cross-section of the community. We have repeatedly rejected these arguments and likewise do so here. See State v. Oliver, 309 N.C. 326, 336-37, 307 S.E.2d 304, 312-13 (1983); State v. Avery, 299 N.C. 126, 137-38, 261 S.E.2d 803, 810 (1980).\nThe defendant next contends that the State\u2019s use of peremptory challenges to remove prospective jurors who were not excludable for cause under Wainwright and Witherspoon but who wavered in their ability to impose the death penalty violated his constitutional rights. This Court has previously rejected defendant\u2019s argument, holding that a prosecutor\u2019s use of peremptory challenges to excuse veniremen expressing qualms about the death penalty violates neither the federal nor the state Constitution even though the jurors could not have been excused for cause because of those concerns. State v. Williams, 339 N.C. 1, 22, 452 S.E.2d 245, 258 (1994), cert. denied, - U.S, -, - L. Ed. 2d -, 64 U.S.L.W. 3242 (1995); see also State v. Allen, 323 N.C. 208, 222, 372 S.E.2d 855, 863 (1988), sentence vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990), on remand, 331 N.C. 746, 417 S.E.2d 227 (1992), cert. denied, - U.S. -, 122 L. Ed. 2d 775, reh\u2019g denied, - U.S. -, 123 L. Ed. 2d 503 (1993). The defendant has presented no argument to convince us that the prior decisions of this Court are incorrect.\nFinally, the defendant argues that under Wainwright and Witherspoon, it was error for the trial court to dismiss prospective jurors Reid, Richardson and Marrow for cause based upon their opposition to capital punishment. In Witherspoon, the Supreme Court held that a prospective juror may not be excused for cause simply because he \u201cvoiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.\u201d 391 U.S. at 522, 20 L. Ed. 2d at 784-85. However, a juror may be excused for cause if his views on capital punishment would \u201cprevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.\u201d Wainwright, 469 U.S. at 424, 83 L. Ed. 2d at 851-52. Further, jurors may be properly excused if they are unable to \u201c \u2018state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.\u2019 \u201d State v. Brogden, 334 N.C. 39, 43, 430 S.E.2d 905, 907-08 (1993) (\u00e9mphasis omitted) (quoting Lockhart v. McCree, 476 U.S. 162, 176, 90 L. Ed. 2d 137, 149 (1986)).\nWhen questioned by the prosecutor, prospective juror Reid stated that he was opposed to the death penalty and that he did not think he could vote for the death penalty. Following the prosecutor\u2019s challenge for cause, Reid was questioned by the trial court, and the following exchange took place:\nCourt: Mr. Reid, I want to ask you some questions to be sure I understand your answers. For my clarification did you say that you are opposed to the death penalty?\nJuror: Yes, sir.\nCourt: Would you consider that a strong opposition to the death penalty?\nJuror: Yes.\nCourt: And did I understand you to say that you could not vote to impose the death penalty under any circumstances?\nJuror: Yes, sir; that\u2019s right.\nReid\u2019s responses indicated with unmistakable clarity that his bias against the death penalty would substantially impair his ability to perform his duties as a juror. Therefore, we conclude that the trial court did not err by granting the State\u2019s motion and excusing Reid for cause.\nProspective jurors Richardson and Marrow also indicated that they were opposed to the death penalty. Both jurors stated, unequivocally at times, that their views on the death penalty would substantially impair their ability to follow the law. At other times, each juror vacillated when asked whether she could set aside her beliefs and vote for the death penalty. Neither Richardson nor Marrow was able to state clearly her willingness to temporarily set aside her own beliefs in deference to the rule of law. This Court has recognized \u201cthat a prospective juror\u2019s bias may not always be \u2018provable with unmistakable clarity,\u2019 \u201d and in such instances, \u201c \u2018reviewing courts must defer to the trial court\u2019s judgment concerning whether the prospective juror would be able to follow the law impartially.\u2019 \u201d Brogden, 334 N.C. at 43, 430 S.E.2d at 908 (quoting State v. Davis, 325 N.C. 607, 624, 386 S.E.2d 418, 426 (1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990)). After a thorough review of the exchange between the prosecutor, counsel for the defendant, the trial court and each juror, we cannot say that the trial court abused its discretion in determining that the views of prospective jurors Richardson and Marrow would prevent or substantially impair them from performing their duties as jurors. Deferring to the trial court\u2019s judgment, we find no error in excusing, for cause, prospective jurors Richardson and Marrow. This assignment of error is overruled.\nIII.\nThe defendant next assigns error to the trial court\u2019s refusal to afford him an opportunity to rehabilitate fifteen prospective jurors excused for cause pursuant to Witherspoon. We find no error with respect to any of the jurors.\nWe first note that two of the jurors were dismissed for reasons other than their views on capital punishment. Juror Seward was peremptorily excused by the defense. Juror Williams was excused for cause after it became apparent to the trial court that she had been very sick with the measles and encephalitis, and that she did not understand the proceedings. The jury voir dire reveals that the defendant did not object to Williams\u2019 excusal, and that the excusal was with the consent of all parties. Clearly, there is no error with respect to jurors Seward and Williams.\nUnder questioning by the prosecutor and the trial court, the remaining thirteen jurors clearly and unequivocally stated that they were opposed to the death penalty, and that their opposition to the death penalty would cause them to vote against its imposition under any circumstances. It is well established that \u201c[t]he defendant is not allowed to rehabilitate a juror who has expressed unequivocal opposition to the death penalty in response to questions propounded by the prosecutor and the trial court.\u201d State v. Cummings, 326 N.C. 298, 307, 389 S.E.2d 66, 71 (1990). We note further that the defendant did not request an opportunity to rehabilitate any of the prospective jurors, and only once did defendant take exception to a prospective juror\u2019s excusal. In the absence of any such request, and there being no showing that further questioning by the defendant would have produced different answers, it was not error for the trial court to deny defendant the opportunity to question the prospective jurors further. This assignment of error is overruled.\nIV.\nBy his next assignment of error, defendant contends that the State exercised its peremptory challenges to exclude nine black jurors on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986). Specifically, defendant claims that the trial court should have intervened ex mero mo tu to prevent the State from excusing these jurors. We disagree.\nIn Batson, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the use of peremptory challenges to exclude a juror solely on account of his or her race. Batson, 476 U.S. at 89, 90 L. Ed. 2d at 83. The Supreme Court established a three-part test to determine if a prosecutor has impermissibly excluded a juror based on race. First, the defendant must establish a prima facie case of purposeful discrimination. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88; State v. Robinson, 330 N.C. 1, 15, 409 S.E.2d 288, 296 (1991). If the defendant succeeds in establishing a prima facie case of discrimination, the burden shifts to the prosecutor to offer a race-neutral explanation for each challenged strike. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88; State v. Wiggins, 334 N.C. 18, 31, 431 S.E.2d 755, 763 (1993). The prosecutor\u2019s explanation need not, however, rise to the level justifying a challenge for cause. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88. Finally, the trial court must determine whether the defendant has proven purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405 (1991).\nIn each of the nine instances where defendant contends the trial court erred, the defense neither objected nor sought to establish a prima facie case of racial discrimination. Defendant\u2019s failure to object to the prosecutor\u2019s challenges precludes him from raising this issue on appeal. State v. Adams, 335 N.C. 401, 411, 439 S.E.2d 760, 765 (1994). We must assume that defendant, through counsel, was familiar with Batson but elected not to raise the issue at trial, because he did not in fact believe the State was exercising its peremptory chailenges in a discriminatory manner. Defendant\u2019s assignments of error on these grounds are accordingly overruled.\nV.\nBy his next assignment of error, the defendant contends that the prosecutor misstated the definition of \u201creasonable doubt,\u201d thereby diminishing the State\u2019s burden of proof below the standard mandated by the United States Constitution. The defendant specifically contends that the prosecutor\u2019s statements during jury voir dire, that a reasonable doubt is one that is \u201creal and substantial\u201d and one which gives the jury \u201csubstantial misgivings about the State\u2019s case,\u201d were so grossly improper that the trial court erred by failing to intervene ex mero mo tu.\nWe first note that the defendant has cited no authority in support of his argument that the prosecutor misstated the law during jury voir dire. Pursuant to Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure, an assignment of error is deemed abandoned if the defendant fails to cite reasonable authority in its support. See State v. Bonney, 329 N.C. 61, 82, 405 S.E.2d 145, 157 (1991).\nAssuming, arguendo, that this assignment of error is not abandoned by the defendant\u2019s failure to cite reasonable authority, we find no error, constitutional, plain or otherwise, with the prosecutor\u2019s statements. This Court has consistently found no error in the use of the terms \u201csubstantial doubt\u201d or \u201csubstantial misgivings\u201d in a jury instruction defining reasonable doubt, if the instruction, as a whole, properly conveys the concept of reasonable doubt. See State v. Taylor, 340 N.C. 52, 60, 455 S.E.2d 859, 863 (1995); State v. Bryant, 337 N.C. 298, 306, 446 S.E.2d 71, 75-76 (1994). We similarly find no error in the use of these terms during jury selection. Further, any misstatement in the law by the prosecutor was cured by the trial court\u2019s subsequent correct jury instruction defining reasonable doubt. See State v. Dodd, 330 N.C. 747, 755, 412 S.E.2d 46, 50 (1992). This assignment of error is overruled.\nVI.\nBy his next assignment of error, the defendant contends that the trial court erred in denying his pretrial motion for a change of venue or, in the alternative, a special venire. Defendant asserts that extensive publicity, coverage of the murder by the media, and the potential for bias precluded his receiving a fair trial in Warren County.\nIn order to obtain a change of venue or a special venire, the burden is on the defendant to prove prejudice so great that he cannot obtain a fair and impartial trial. State v. Jerrett, 309 N.C. 239, 251, 307 S.E.2d 339, 345 (1983). Stated otherwise, a defendant must show a reasonable likelihood that the prospective jurors will base their decision in the case upon pretrial information rather than the evidence presented at trial and will be unable to remove from their minds any preconceived impressions they might have formed. Id. at 255, 307 S.E.2d at 347. This determination is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of a gross abuse of discretion. State v. Gardner, 311 N.C. 489, 497, 319 S.E.2d 591, 598 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 369 (1985). Our review of the record reveals that the defendant has shown no abuse of discretion in the trial court\u2019s denial of the motion for change of venue or special venire.\nAt the hearing on the motion, the only evidence produced in support of defendant\u2019s motion was the testimony of private investigator Larry Mitchell. Mitchell testified that he had conducted a survey which revealed that 17 percent of the individuals surveyed either knew or had heard of the decedent and that 22 percent of those surveyed had read or heard about the case. Upon the State\u2019s objection to the survey, the trial court allowed Mitchell\u2019s voir dire, during which Mitchell indicated that he had no formal training in the field of statistics, that he had not determined the validity of the statistical sample, and that he could not say that a fair representation of the community was surveyed. The State\u2019s objection was properly sustained, and the survey results were not admitted into evidence. In addition to the survey results, Mitchell produced five newspaper articles, of which only two related to the present case. These articles were shown to be factual, informative and noninflammatory in nature. Standing alone, factual news accounts regarding the commission of a crime and the pretrial proceedings do not warrant a change of venue. Gardner, 311 N.C. at 498, 319 S.E.2d at 598.\nFurther, we have held that when a defendant alleges prejudice as a result of pretrial publicity, he must show that he exhausted his peremptory challenges and that a juror objectionable to defendant on this ground sat on the jury. Jerrett, 309 N.C. at 255, 307 S.E.2d at 347-48. In the case sub judice, the defendant has neither referred to the voir dire of the jurors who served nor has he argued that a juror objectionable to him sat on the jury. Our review of the record reveals no basis upon which to conclude that any juror based his or her decision upon pretrial information rather than the evidence presented at trial. Of the twelve jurors hearing defendant\u2019s case, ten had never heard of the case before serving on the jury. The remaining two jurors had either read or heard something about the case but had no recollection of what they had read or heard, had formed no opinions about the case or knew of no reason why they could not be fair and impartial. We accordingly overrule this assignment of error.\nGttilt/Innocence Phase\nVII.\nThe defendant\u2019s seventh assignment of error concerns the admissibility of evidence tending to show that the defendant had assaulted the victim in this case approximately one month before her murder. Defendant contends that the trial court committed reversible error by allowing the State to present the following evidence: (1) testimony of Curtis Hymon, a friend of the victim\u2019s; (2) testimony of James Hayes, the defendant\u2019s probation officer; (3) testimony of Johnny Williams, a deputy with the Warren County Sheriff\u2019s Department; (4) court files charging the defendant with the prior assault on the victim, trespass and first-degree burglary; and (5) a letter written by the victim describing the prior assault.\nCurtis Hymon testified for the State that he witnessed defendant assault and injure the victim on the night of 20 October 1990. Specifically, Mr. Hymon testified that while he was watching a movie with the victim, they heard a knock on the door. The victim indicated that she knew who was at the door. They heard another knock and then a loud \u201cboom,\u201d at which time the defendant came into the room, stood over the victim and stated, \u201cWhat the hell is going on?\u201d Mr. Hymon testified that the defendant then slapped the victim.\nJames Hayes, defendant\u2019s probation officer, testified for the State that defendant was convicted for the 20 October 1990 assault and that defendant was ordered to pay restitution to the victim in the amount of her medical bills. Mr. Hayes further testified that he met with the victim to discuss her medical bills, and during his meeting with the victim, she informed him that she was receiving threatening phone calls from someone she believed to be the defendant.\nJohnny Williams, a deputy with the Warren County Sheriff\u2019s Department, testified for the State that he went to the victim\u2019s residence on 20 October 1990 to investigate defendant\u2019s assault upon the victim, and that he took statements from Curtis Hymon and the vietim. Deputy Williams testified that he was told by Curtis Hymon that defendant kicked in the victim\u2019s door, and that he (Hymon) and the defendant got in a fight. Deputy Williams further testified that he was told by the victim that she and Mr. Hymon were sitting in the bedroom when she heard a knock and then heard the door being kicked in and that defendant came through the door and then \u201chit her upside the head\u201d three times, causing a severe headache. Deputy Williams also testified that the victim had a \u201cknot\u201d on her head and that her hair was \u201call tore up.\u201d\nThe State also introduced into evidence court files indicating that the defendant was charged with the 20 October 1990 assault on the victim, first-degree trespass, and first-degree burglary, and a letter written by the victim to her congressman describing the assault. The letter reads as follows:\nDear Mr. Congressman,\nMy name is Pamela Perry and I am 25 years of age, single, with no children. On the nite [sic] of October 20,1990,1 was in my home with a friend when my house was broke into. His name is Charlie Mason Alston, Jr. This is my story:\nMr. Alston knocked at my door and I refused to answer the knock. It was about 11:15 p.m. that nite [sic], and my mother had gone to work. A few seconds later, he broke in my front door and made his way to my bedroom. In my bedroom my friend and myself were in the process of getting ready to watch a VCR tape that I had rented. Mr. Alston\u2019s first words were \u201cwhat in hell is this?\u201d Mr. Alston and I had a thing going on in the past, but regardless, he didn\u2019t have the right to enter my home. Once he entered my room, he pushed me into my T.V. and I fell backwards. My friend was cornered and beatened [sic]. When I got to my feet, I tried to get him off. Finally Mr. Alston left and I phoned the police and my friend contacted a member of his family. He then went to the bathroom to clean his face and I was on the floor putting on my shoes waiting for the police officer. Mr. Alston came back to my home, this time with a large stick. He went for my friend once again but, I grabbed Mr. Alston begging him to leave. My friend ran out upon my request. Mr. Alston then struck me several times in my living room. I really didn\u2019t think he would strike me again, but I was wrong. He beat me over my head with his fists and struck me with his stick. I finally broke away and ran out my back door. He replied, \u201cDaddy can\u2019t help you now.\u201d My father is dead. Someone from your office helped us get my sister here from Germany in 1989. We still have the sympathy letter that was sent. My point is, we had gone to court but my friend wasn\u2019t present. I wasn\u2019t able to tell my story. True enough, he\u2019s paying all doctor bills and is on probation for 5 years, but the system isn\u2019t fair. I never had a chance to tell my story. I was told if he had gotten any time he would have been out within 30 days. The system didn\u2019t give me a chance. He lives walking distance from me. We live in a very small town. I\u2019m being treated as tho [sic] I asked him to beat me. I wasn\u2019t put here for a punching bag. All I want is satisfaction. The system is saying it\u2019s alright [sic] to beat a woman. A simple open and closed case makes me feel like a victim forever. Is there anything I can do? I don\u2019t have money the way his family do [sic].\nAll I have is my mom and her support. When I close my eyes at nite [sic], I see Mr. Alston coming into my room. After this offense, I wasn\u2019t able to sleep in my own house. My mother works nights, and she worries. I work days. I am a 25 year old lady. I just want some satisfaction with the system. I\u2019ve spoken all I could think of. Some are saying I\u2019ve won, but he\u2019s still walking around the streets of small town Warrenton, North Carolina.\nThank you. I hope there is something that I can do. I\u2019ve been praying since, and I\u2019ll continue to pray.\nThank you for listening. At least I\u2019ve told my story to someone.\nMs. Pamela Renee Perry\nThe defendant argues that this evidence of his prior assault on the victim was improperly offered to prove character, in violation of Rule 404(b) of the North Carolina Rules of Evidence.\nThe admissibility of specific acts of misconduct by the defendant is governed by Rule 404(b), which provides:\n(b) Other crimes, wrongs, or acts. \u2014 Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nN.C.G.S. \u00a7 8C-1, Rule 404(b) (1992). Rule 404(b) is a general rule of inclusion of relevant evidence of other crimes or wrongs committed by a defendant and is subject to but one exception which requires exclusion of such evidence only if offered to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged. State v. Syriani, 333 N.C. 350, 377, 428 S.E.2d 118, 132, cert. denied, - U.S. \u2014 , 126 L. Ed. 2d 341 (1993), reh\u2019g denied, - U.S. -, 126 L. Ed. 2d 707 (1994). In applying Rule 404(b), this Court has repeatedly held that a defendant\u2019s prior assaults on the victim, for whose murder defendant is presently being tried, are admissible for the purpose of showing malice, premeditation, deliberation, intent or ill will against the victim. Id. at 376-78, 428 S.E.2d at 132; State v. Spruill, 320 N.C. 688, 692-93, 360 S.E.2d 667, 669 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 934 (1988). In the case sub judice, the evidence of the defendant\u2019s prior assault on the victim, likewise, tends to establish malice, intent, premeditation and deliberation, all elements of first-degree murder. The evidence also tends to establish the defendant\u2019s ill will toward the victim. Thus, the evidence is relevant to an issue other than defendant\u2019s character. We therefore hold that the evidence of defendant\u2019s prior assault on the victim was admissible under Rule 404(b).\nThe defendant argues, in the alternative, that even if admissible under Rule 404(b), evidence of the prior assault still should not have been admitted, as the danger of unfair prejudice substantially outweighed the probative value of the disputed evidence, thereby rendering such evidence inadmissible under Rule 403 of the North Carolina Rules of Evidence. We disagree. The exclusion of evidence under Rule 403 is a matter generally left to the sound discretion of the trial court. Syriani, 333 N.C. at 379, 428 S.E.2d at 133. Abuse will be found only where the trial court\u2019s ruling is \u201cmanifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision.\u201d Id. We conclude that the trial court did not abuse its discretion by admitting evidence of misconduct otherwise admissible under Rule 404(b).\nVIII.\nIn another assignment of error, the defendant contends that the trial court erroneously admitted hearsay statements by the victim that she was afraid of the defendant, pursuant to the exception to the hearsay rule found in N.C.G.S. \u00a7 8C-1, Rule 803(3).\nThe defendant specifically challenges testimony from five of the State\u2019s witnesses: Vonceil Perry, James, Hayes, Lawrence Boyd, Sean Brake and Annette Burrows. Witnesses Perry, Hayes, Boyd and Brake each testified generally that they had spoken with the victim shortly before her murder. During these conversations, the victim had told them that she was afraid of the defendant, that she was receiving threatening phone calls from the defendant, that the defendant was telling her that she had a beautiful face and that he (defendant) was going to \u201cmess [it] up\u201d or \u201csmash it in,\u201d and that she believed the defendant was going to kill her. In addition, Annette Burrows, an assistant clerk of court, testified that one or two days before the victim\u2019s murder, she spoke to the victim about the defendant\u2019s assault proceedings. The victim was upset with the court system, and the victim stated that she was scared of the defendant and that the defendant\u2019s conviction \u201cwas not going to stop him.\u201d\nAfter a voir dire of the five witnesses, the trial court admitted the statements into evidence on the grounds that the statements showed the victim\u2019s then-existing state of mind pursuant to an exception to the hearsay rule found in Rule 803(3), and that the victim\u2019s state of mind was relevant to show the state of her relationship with the defendant. The defendant contends that the trial court erred in this regard because the victim\u2019s state of mind was not relevant to the case at hand. Relying on United States v. Brown, 490 F.2d 758 (D.C. Cir. 1973), the defendant argues that a victim\u2019s state of mind becomes relevant only when the defendant places it in issue by raising the defenses of suicide, self-defense or accident. The defendant further argues that the statements were not admissible under Rule 803(3), as they were statements of memory or belief which are explicitly excluded from the state of mind exception.\nIt is well established in North Carolina that a murder victim\u2019s statements falling within the state of mind exception to the hearsay rule are highly relevant to show the status of the victim\u2019s relationship to the defendant. State v. McHone, 334 N.C. 627, 637, 435 S.E.2d 296, 301-02 (1993) (state of mind relevant to show a stormy relationship between victim and defendant prior to the murder), cert. denied, - U.S. -, 128 L. Ed. 2d 220 (1994); State v. Lynch, 327 N.C. 210, 222, 393 S.E.2d 811, 818-19 (1990) (defendant\u2019s threats to victim shortly before the murder admissible to show victim\u2019s then-existing state of mind); State v. Cummings, 326 N.C. 298, 313, 389 S.E.2d 66, 74 (victim\u2019s statements regarding defendant\u2019s threats relevant to the issue of her relationship with defendant). Contrary to the defendant\u2019s assertions, we have long declined to follow Brown\u2019s strict rule. See State v. Alston, 307 N.C. 321, 298 S.E.2d 631 (1983).\nAfter a thorough review of the record, we conclude that the conversations between the victim and the five witnesses related directly to the victim\u2019s fear of defendant and that the victim\u2019s statements were properly admitted pursuant to the state of mind exception to the hearsay rule to show the nature of the victim\u2019s relationship with the defendant and the impact of defendant\u2019s behavior on the victim\u2019s state of mind prior to her murder.\nThe defendant alternatively contends that even if the statements were relevant to show the victim\u2019s state of mind, the statements\u2019 prejudicial effect outweighs any probative value. The responsibility to determine whether the probative value of relevant evidence is outweighed by its tendency to prejudice the defendant is left to the sound discretion of the trial court. State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990). In the instant case, the trial court carefully weighed the probative value of the testimony against its prejudicial effect and made detailed findings to support its conclusion in this regard. The defendant has not demonstrated any abuse of discretion, and therefore, the trial court\u2019s ruling will not be disturbed on appeal. This assignment of error is accordingly overruled.\nIX.\nThe defendant next argues that the trial court erred in admitting into evidence the letter purportedly written by the victim, first, on the ground that the letter was not properly authenticated and, second, because the letter was inadmissible hearsay.\nRule 901 of the North Carolina Rules of Evidence provides that \u201c[t]he requirement of authentication ... is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.\u201d N.C.G.S. \u00a7 8C-1, Rule 901(a) (1992). By way of illustration, the rule specifically recognizes that the requirement of authentication may be satisfied by a non-expert opinion as to the genuineness of handwriting if that witness has familiarity with the purported writer\u2019s handwriting. N.C.G.S. \u00a7 8C-1, Rule 901(b)(2).\nIn the case at bar, Vonceil Perry, the victim\u2019s mother, testified that she was familiar with her daughter\u2019s handwriting, that she recognized her daughter\u2019s handwriting, and that the letter was written in her daughter\u2019s handwriting. Ms. Perry also testified that the letter was signed \u201cPamela Renee Perry,\u201d and that she recognized the signature as that of her daughter. Based on this evidence, we hold that there was sufficient evidence of authenticity to support the trial court\u2019s admission of the letter into evidence.\nThe defendant next asserts that the trial court erred in admitting the letter under the residual exception to the hearsay rule found in N.C.G.S. \u00a7 8C-1, Rule 804(b)(5). However, it is unnecessary to consider whether the letter was properly admitted under the residual hearsay exception. \u201c \u2018When a hearsay statement is made expressly admissible by a specific exemption category, there is no necessity for the trial court to consider the catch-all provisions of the other rules.\u2019 \u201d State v. Lynch, 327 N.C. 210, 222, 393 S.E.2d 811, 818 (quoting State v. Cummings, 326 N.C. 298, 313, 389 S.E.2d 66, 74). The letter, set out in its entirety in Issue VII, shows that at the time it was written, the victim feared the defendant. As shown in Issue VIII, a victim\u2019s statements of fear are admissible and relevant to show the status of the victim\u2019s relationship with the defendant. See State v. Cummings, 326 N.C. at 313, 389 S.E.2d at 74. Thus, the letter was properly admissible under the state-of-mind exception to the hearsay rule found in N.C.G.S. \u00a7 8C-1, Rule 803(3). As the letter was more probative than prejudicial, we find no error in its admission. This assignment of error is overruled.\nX.\nBy his next assignment of error, the defendant contends that the trial court erroneously admitted testimony of two of the State\u2019s witnesses: Deputy Johnny Williams and Detective Fonzie Flowers.\nDuring the presentation of its case, the State called Deputy Williams, one of the investigating officers in this case as well as the assault case. Deputy Williams testified that on 5 December 1990, Vonceil Perry, the victim\u2019s mother, informed him that the victim had been \u201chaving trouble\u201d with the defendant. Deputy Williams later testified that during his investigation, he also spoke with Brenda Turner, who informed him that she was working at Willoughby\u2019s Convenience Store on 1 December 1990, and that the defendant came into Willoughby\u2019s at approximately 11:00 p.m. that night and purchased gas and a soft drink with quarters. In each instance, the prosecutor announced that the testimony was being offered solely for the purpose of corroborating the earlier testimony of Ms. Perry and Ms. Turner. The trial court allowed Deputy Williams to testify concerning the prior consistent statements made by Ms. Perry and Ms. Turner and gave proper limiting instructions to the jury. The defendant now contends that Deputy Williams\u2019 testimony was inadmissible hearsay and was therefore improperly admitted to corroborate Ms. Perry\u2019s and Ms. Turner\u2019s earlier testimony. We disagree.\n\u201cA prior statement by a witness is corroborative if it tends to add weight or credibility to his or her trial testimony.\u201d State v. Coffey, 326 N.C. 268, 293, 389 S.E.2d 48, 63. \u201cOne of the most widely used and well-recognized methods of strengthening the credibility of a witness is by the admission of prior consistent statements.\u201d State v. Locklear, 320 N.C. 754, 761-62, 360 S.E.2d 682, 686 (1987). The fact that the testimony would otherwise be inadmissible hearsay will not prevent its admission for purposes of corroboration. State v. Rose, 335 N.C. 301, 321, 439 S.E.2d 518, 529, cert. denied, - U.S. -, 129 L. Ed. 2d 883 (1994). Admission of Deputy Williams\u2019 testimony was accordingly free of error.\nThe defendant next asserts that the trial court erred by admitting the following testimony from Detective Flowers on redirect examination:\nQ. Let me let you look at this document here, Mr. Flowers, and see if that might refresh your recollection.\nA. Yes, sir.\nQ. And was Ms. [Vonceil] Perry interviewed by you, Mr. Sims, and Mr. Williams at that time?\nA. Yes, sir.\nQ. And, Mr. Flowers, did she not state to you on that occasion \u2014 \u2022\n[Defense Counsel]: I object to the form of the question.\nCourt: Objection is overruled. On cross examination the witness was asked if Ms. Perry ever made any statement that her daughter was afraid of Charlie Alston, and so this is proper redirect. You may proceed.\nQ. \u2014Ah, whether or not she made a statement to you on that occasion that her daughter \u201c. . . Did not have any enemies, although she was afraid of Charlie Mason Alston, a former boyfriend. Ms. Perry stated she knew her daughter was frightened of him. She also remembered her daughter to tell her that she was not going to let anybody run her away from home.\u201d Did she make that statement to you on December the 5th, 1990?\nA. Yes, sir; she did.\nWhile the defendant contends that the above statement within the prosecutor\u2019s question was hearsay, he concedes that the trial court properly allowed the question for the nonhearsay purpose of showing that the statement was in fact made, rebutting the defense\u2019s assertion on cross-examination that no such statement had been made. However, the defendant asserts that the form of the question exceeded the scope for which the nonhearsay purpose allowed admission. Defendant contends that the jury could not discern between the two different uses of the evidence and most likely construed the question to be an assertion of truth.\nThis Court has consistently permitted the introduction of evidence in explanation or rebuttal of a particular fact or transaction even though such latter evidence would be incompetent or irrelevant had it been offered initially. State v. Syriani, 333 N.C. 350, 378, 428 S.E.2d 118, 133; State v. Garner, 330 N.C. 273, 290, 410 S.E.2d 861, 870 (1991); State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981). In the case sub judice, the defendant \u201copened the door\u201d to the introduction of any incompetent or irrelevant hearsay contained in the prosecutor\u2019s question by creating an inference during Detective Flowers\u2019 cross-examination that the victim was not, in fact, afraid of the defendant. We find no impropriety with regard to the form of the prosecutor\u2019s question, nor do we find that the risk of prejudice to the defendant outweighs the probative value of this evidence. This assignment of error is overruled.\nXI.\nIn his next assignment of error, the defendant contends that the trial court erred by admitting into evidence court files relating to defendant\u2019s prior conviction for assault. The defendant argues that the court files should not have been admitted pursuant to the business record exception to the hearsay rule found in N.C.G.S. \u00a7 8C-1, Rule 803(6). We hold that the court files were admitted for a non-hearsay purpose and therefore find it unnecessary to address whether they were properly admitted under Rule 803(6). As previously held in Issue VII, the court files were admitted for the nonhearsay purpose of showing motive, intent and plan. Because the files were not introduced to prove the truth of the matter asserted, the trial court did not err in their admission.\nFurther, three witnesses testified that the defendant broke into the victim\u2019s home on 20 October 1990 and attacked her, and that the victim prosecuted the defendant for the assault and trespass. Other witnesses testified that the defendant harassed the victim, threatened to \u201csmash in\u201d or \u201cmess up\u201d her face, and that the victim believed the defendant was going to kill her. The court files added little, if anything, to the State\u2019s case. The defendant has shown no prejudice by the admission of these files. This assignment of error is accordingly overruled.\nXII.\nBy another assignment of error, the defendant contends that the trial court erred by admitting evidence of the defendant\u2019s drug use shortly after the victim\u2019s death. The defendant argues that such evidence was inadmissible character evidence and thereby improperly introduced at the guilt phase, and it was improperly considered by the jury at the penalty phase of the trial. We disagree.\nEvidence of prior bad conduct is admissible if it is relevant to any fact or issue other than the character of the accused. State v. Coffey, 326 N.C. 268, 279, 389 S.E.2d 48, 54. In the case sub judice, Sherry Jiggetts testified that she knew the defendant; that the defendant came to her house and bought forty to forty-five dollars\u2019 worth of crack cocaine; and that the defendant paid for the drugs with change consisting of quarters, dimes and nickels. Ms. Jiggetts also acknowledged that she had given a statement to the police and the prosecutor stating that this transaction occurred during the week of the murder. Prior to Ms. Jiggetts\u2019 testimony, Vonceil Perry testified that the victim worked at a restaurant and received a large quantity of change from tips; that the victim had over one hundred dollars in quarters in a jar in her bedroom the night before her death; and that when she found the victim, the jar was empty.\nThe obvious purpose of Ms. Jiggetts\u2019 testimony was to show that in the days following the murder, the defendant was making large purchases with change. The testimony was strong circumstantial evidence tending to show that the defendant murdered the victim and stole her tip money from the jar in the bedroom. The evidence was relevant, admissible, and clearly not introduced for the purpose of showing that the defendant was a drug user. This assignment of error is without merit and is accordingly overruled.\nXIII.\nBy another assignment of error, the defendant contends that the trial court erred by admitting testimony concerning the defendant\u2019s actions before and after the victim\u2019s murder. The defendant argues that the testimony from three of the State\u2019s witnesses (1) was irrelevant and therefore inadmissible under Rule 402 of the North Carolina Rules of Evidence, or (2) if relevant, was so prejudicial as to outweigh any probative value.\nEvidence is relevant if it has \u201cany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1992). Generally, all relevant evidence is admissible. N.C.G.S. \u00a7 8C-1, Rule 402 (1992). This Court has interpreted Rule 401 broadly and has consistently stated that in criminal cases, every circumstance calculated to-throw light on the alleged crime is admissible. State v. Collins, 335 N.C. 729, 735, 440 S.E.2d 559, 562 (1994). We have thoroughly reviewed the testimony of each witness of whom the defendant complains and find each witness\u2019 testimony relevant and admissible.\nPhyllis Alexander testified for the State that she lived with Sherry Jiggetts, that she remembered seeing the defendant at her home and that the defendant wanted to exchange quarters for forty or forty-five dollars in currency. Ms. Alexander did not recall the exact date but stated she saw the defendant \u201cabout the time that [the murder] happened.\u201d More than one hundred dollars, consisting mostly of quarters, was stolen from the victim on the night of her murder. Ms. Alexander\u2019s testimony is clearly relevant, as it tends to implicate the defendant in the theft of the quarters and therefore the murder.\nEsteen Hymon testified that on the night the victim was murdered, the defendant was at her house until 10:00 p.m. The defendant left and returned approximately one hour and thirty minutes later. When he returned, the defendant was \u201csweating and steam was coming from his body.\u201d Mattie Broussart testified that she often gave the defendant rides in her car when he was walking. Ms. Broussart further testified that on the night of the murder, shortly before 11:00 p.m., she saw the defendant walking; that the defendant was walking in the direction of his and the victim\u2019s homes, but not in the direction of Ms. Hymon\u2019s home; and that she offered defendant a ride, which was refused. Defendant cannot realistically argue that his disappearance for over one hour and thirty minutes, including therein the time period when the victim was murdered, was not relevant. Both Ms. Hymon\u2019s and Ms. Broussart\u2019s testimony tends to show that the defendant had the opportunity to carry out his threats to kill the victim on the night of the murder. The testimony clearly sheds light on the murder and makes defendant\u2019s guilt more probable than it would be without the evidence.\nThe defendant argues, in the alternative, that if relevant, the probative value of the testimony was substantially outweighed by the danger of unfair prejudice and was therefore inadmissible under Rule 403 of the North Carolina Rules of Evidence. The exclusion of evidence under Rule 403 is a matter generally left to the sound discretion of the trial court. Syriani, 333 N.C. at 379, 428 S.E.2d at 133. The defendant has not demonstrated any abuse of discretion, and therefore, the trial court\u2019s ruling will not be disturbed on appeal. This assignment of error is overruled.\nXIV.\nThe defendant next contends that the trial court erred by admitting into evidence a number of crime scene and autopsy photographs. Specifically, the defendant objects to State\u2019s exhibit 3, a crime scene photograph depicting the face of the decedent at the time her body was discovered, and State\u2019s exhibits 8, 9, 10 and 11, autopsy photographs illustrating the decedent\u2019s injuries.\n\u201cPhotographs of a homicide victim may be introduced even if they are gory, gruesome, horrible or revolting, so long as they are used for illustrative purposes and so long as their excessive or repetitious use is not aimed solely at arousing the passions of the jury.\u201d State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988). Whether the use of photographic evidence is excessive in light of its illustrative value and whether the evidence is more probative than prejudicial are matters generally left to the sound discretion of the trial court. Id. at 285, 372 S.E.2d at 527. Abuse'will be found only where the trial court\u2019s ruling is \u201cmanifestly unsupported by reason or is so arbitrary that it could not have b^en the result of a reasoned decision.\u201d Id.\nIn the case sub judice, the defendant argues that State\u2019s exhibit 3 was irrelevant and cumulative on the ground that State\u2019s exhibit 2, another crime scene photograph, had previously been admitted into evidence. We disagree. Exhibits 2 and 3 were introduced during the testimony of Vonceil Perry. Ms. Perry identified exhibit 2 as a photograph of the victim\u2019s body as it appeared on the morning the body was discovered. Ms. Perry further testified that she discovered the victim lying face down on a pillow, that she turned over the victim\u2019s head, and that the victim\u2019s face was \u201call smashed in.\u201d Ms. Perry testified that State\u2019s exhibit 3 accurately depicted the victim\u2019s face as it appeared when she turned the victim over and that the photograph would help her explain what she meant by \u201call smashed in.\u201d Both photographs were received with limiting instructions that they were being admitted for the purpose of \u201cillustrating and explaining the testimony of Vonceil Perry\u201d and were \u201cnot to be considered for any other purpose.\u201d Such a cautionary instruction limits the likelihood of unfair prejudice. State v. Syriani, 333 N.C. 350, 385, 428 S.E.2d 118, 137. Further, each photograph illustrated a different aspect of the witness\u2019 testimony and therefore foreclosed the possibility that their use was excessive or repetitive. Defendant has failed to show an abuse of discretion by the trial court in admitting the crime scene photograph of the victim\u2019s face.\nThe defendant next argues that the four autopsy photographs introduced by the State possessed little probative value relative to the risk of prejudice to the defendant and added little to the substance of the medical examiner\u2019s testimony. Again, we disagree. Each autopsy photograph depicted isolated areas of injury to the victim\u2019s face. Dr. John Butts, the Chief Medical Examiner for the State of North Carolina, testified that each of the four photographs would aid him in illustrating his testimony relative to the injuries he observed on the victim\u2019s body. The trial court again gave a proper limiting instruction before admitting the photographs. Contrary to the defendant\u2019s assertions, the photographs were not repetitive or excessive and helped illustrate the medical examiner\u2019s testimony regarding the victim\u2019s injuries and the cause of death. We find no abuse of discretion by the trial court in admitting the autopsy photographs. This assignment of error is overruled.\nXV.\nBy another assignment of error, the defendant contends that the trial court erred in allowing the prosecutor to use inadmissible evidence during closing arguments, thereby violating his constitutional right to due process. Defendant points to the prosecutor\u2019s arguments referring to (1) hearsay statements made by the victim regarding defendant\u2019s threats to \u201csmash in\u201d her face and her fear of defendant, (2) the letter written by the victim to her congressman, (3) evidence of the prior assault, and (4) the crime scene and autopsy photographs.\nAs discussed in Issues VII, VIII, IX, X and XI, each piece of evidence of which the defendant now complains was properly admitted into evidence. A prosecutor\u2019s argument is proper where it is consistent with the record and does not espouse conjecture or personal opinion. 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). Counsel may argue to the jury the law, the facts in evidence, and all reasonable inferences drawn therefrom. Syriani, 333 N.C. at 398, 428 S.E.2d at 144. In the present case, the prosecutor argued facts properly admitted into evidence. Defendant\u2019s argument is without merit and is accordingly overruled.\nXVI.\nBy another assignment of error, the defendant contends that the trial court erred by failing to intervene ex mero motu to correct seven instances of grossly improper conduct by the prosecutor during closing arguments during the guilt-innocence phase of the trial. We note for purposes of our review that the defendant failed to object with respect to any of these instances at any time during the State\u2019s closing arguments.\nIt is well established that control of counsel\u2019s arguments is left largely to the discretion of the trial court. State v. Johnson, 298 N.C. 355, 368, 259 S.E.2d 752, 761 (1979). When no objections are made at trial, as here, the prosecutor\u2019s argument is subject to limited appellate review for gross improprieties which make it plain that the trial court abused its discretion in failing to correct the prejudicial matters ex mero motu. State v. Pinch, 306 N.C. 1, 17, 292 S.E.2d 203, 218, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), reh\u2019g denied, 459 U.S. 1189, 74 L. Ed. 2d 1031 (1983), overruled on other grounds by State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988), and by State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied, - U.S. -, 130 L. Ed. 2d 650 (1995). In order to determine whether the prosecutor\u2019s remarks are grossly improper, the remarks must be viewed in context and in light of the overall factual circumstances to which they refer. Pinch, 306 N.C. at 24, 292 S.E.2d at 221.\nFurther, prosecutors are given wide latitude in the scope of their argument. State v. Syriani, 333 N.C. 350, 398, 428 S.E.2d 118, 144. \u201cEven so, counsel may not place before the jury incompetent and prejudicial matters by injecting his own knowledge, beliefs and personal opinions not supported by the evidence.\u201d Johnson, 298 N.C. at 368, 259 S.E.2d at 761. Counsel may, how\u00e9ver, argue to the jury the law, the facts in evidence, and all reasonable inferences drawn therefrom. Syriani, 333 N.C. at 398, 428 S.E.2d at 144.\nIn light of these principles, the defendant first argues that he is entitled to a new trial because the prosecutor used hearsay testimony admitted to show the victim\u2019s state of mind, not for the purpose admitted, but primarily to show identity, to disprove accident and to prove premeditation and deliberation. Specifically, the defendant complains of portions of the closing argument in which the prosecutor referred to the victim\u2019s statements of fear, her belief that the defendant was going to kill her, and her statements relating to the defendant\u2019s threats and prior assault.\nAs discussed in Issue VIII, hearsay evidence must be relevant before it will be admitted under the state of mind exception. Here, the victim\u2019s statements were highly relevant to show the status of the victim\u2019s relationship to the defendant. The evidence indicated that the relationship was a stormy one at best. The defendant had assaulted the victim approximately one month before the murder, and after his conviction for the assault, the defendant harassed and threatened the victim. It was proper for the prosecutor to argue all reasonable inferences that may be drawn from this evidence. Syriani, 333 N.C. at 398, 428 S.E.2d at 144. Clearly, the victim\u2019s statements were relevant evidence from which the jury could conclude that the defendant intentionally killed the victim, and that he had done so with malice, premeditation and deliberation. We therefore find no impropriety with the prosecutor\u2019s argument in this regard and no error with the trial court\u2019s decision not to intervene to prevent this argument.\nThe defendant next argues that the prosecutor acted improperly by arguing facts outside the record and by expressing his own personal and highly prejudicial opinions. The defendant specifically contends that the prosecutor impermissibly and prejudicially: (1) argued that the defendant killed the victim in retaliation for prosecuting him for assault and that the defendant did not want any other man to have her, (2) argued that the victim was intentionally suffocated, (3) argued that there was \u201cclinical\u201d and \u201cmanifold\u201d evidence of defendant\u2019s guilt, (4) made irrelevant arguments regarding women\u2019s rights, (5) commented that the photographs of the victim made him sick, and (6) expressed opinions regarding the strength of the evidence and the weakness of the defendant\u2019s position. After thoroughly reviewing the record, we find that the prosecutor\u2019s arguments fall well within the wide latitude accorded prosecutors in the scope of their argument, are consistent with and reasonably inferable from the record, and therefore are not so grossly improper as to require the trial court\u2019s intervention.\nThe defendant next argues that the prosecutor improperly opened his closing argument with a biblical reference which indicated that the jury was ordained by God to condemn the defendant. The defendant, who failed to object at trial, now takes exception to the following statement by the prosecutor:\nLadies and gentlemen of the jury, \u201cThe voice of thy brother\u2019s blood crieth unto me from the ground.\u201d So spoke the Lord when the first murder was committed on this earth; a murder committed, as this one was, in secrecy, in private and in stealth.\nThis Court, noting the wide latitude afforded counsel in closing arguments, has disapproved of biblical references only in limited instances where the arguments indicate that the law enforcement powers of the State were divinely inspired or ordained by God. See State v. Moose, 310 N.C. 482, 501, 313 S.E.2d 507, 519-20 (1984); State v. Oliver, 309 N.C. 326, 359, 307 S.E.2d 304, 326. Here, when viewed in context, the prosecutor was effectively arguing that even though the murder was committed in secret and without any witnesses, the evidence \u201ccried out\u201d that the defendant perpetrated the crime. This remark is in no manner equivalent to saying that state law is divinely inspired or ordained by God. We therefore hold that the remarks were not so improper as to require intervention by the trial court ex mero mo tu.\nThe defendant next argues that the prosecutor acted improperly by commenting on personal characteristics of the victim. The defendant specifically complains of the prosecutor\u2019s argument that the defendant hated the victim\u2019s father. We find that this argument was a reasonable inference drawn from the evidence in light of the defendant\u2019s threat to the victim that \u201c[d]addy can\u2019t help you anymore.\u201d\nAssuming, arguendo, that this argument was improper, it was not so grossly improper as to require intervention by the trial court. The defendant has failed to show any prejudice caused by this argument or an abuse of discretion by the trial court in not intervening to prevent an argument that even defense counsel did not believe to be prejudicial when heard.\nThe defendant next sets out, without discussion, thirteen instances in which he contends the prosecutor improperly commented on his exercise of his rights to remain silent, proof beyond a reasonable doubt, and the presumption of innocence, thereby effectively negating the exercise of these rights. After thoroughly reviewing each argument at issue, we find none constituting a comment on the defendant\u2019s exercise of his right to remain silent, shifting the burden of proof, or depriving defendant of the presumption of innocence.\nFinally, the defendant argues (1) that the prosecutor improperly encouraged the jury to convict the defendant on the basis of community sentiment by arguing, \u201cIf you can\u2019t be safe in your own home, members of the jury, if the law is not going to protect you there, then where is it going to protect you?\u201d and (2) that the prosecutor\u2019s use of excerpts from decisions of the appellate courts \u201cconfused and misled the jury as to the State\u2019s burden to prove every element of the offense beyond a reasonable doubt.\u201d Defendant has failed to show how either of these arguments was improper or that he was prejudiced in any manner by the arguments. Accordingly, we hold that these arguments were not so improper as to require the trial court\u2019s intervention ex mero mo tu. This assignment of error is overruled.\nXVII.\nBy another assignment of error, the defendant contends that the trial court erred by overruling his objection to the prosecutorial argument that defendant had failed to contradict or rebut the State\u2019s case. The prosecutor made the following argument, to which defendant took exception:\nAnd all of the evidence that you\u2019ve heard from this witness stand in this courtroom this week has not been denied, contradicted or rebutted. And so when the evidence comes in, members of the jury, that he was down there at Willoughby\u2019s buying gas and a soda with quarters, and when he went off to somebody\u2019s house and asked to change forty-five dollars for quarters, that evidence has not been denied, it\u2019s not been contradicted, it\u2019s not been rebutted. And when evidence comes in that he was over there beating on Pamela Renee Perry with Mr. Hymon there, that evidence has not been denied, contradicted, or rebutted.\nMembers of the jury, the evidence of the man across the street who said he was on the phone the very night that Pamela Perry was dead and she told him that Charlie Mason Alston was calling her, and threatening to beat in her face and to kill her, that\u2019s not been denied, contradicted or rebutted.\nThe defendant contends that by arguing that the State\u2019s evidence was uncontradicted, the prosecutor was improperly commenting on the defendant\u2019s exercise of his right not to testify. Defendant argues that since the answers raised by the evidence not \u201cdenied, contradicted or rebutted\u201d were solely within his knowledge, the prosecutor\u2019s argument must be construed as a comment on his failure to testify. We disagree.\nThis Court has, on numerous occasions, considered and rejected the contention that statements by the prosecutor in closing argument that the evidence was uncontradicted or unrebutted amount to impermissible comments on the defendant\u2019s failure to testify. State v. Erlewine, 328 N.C. 626, 633, 403 S.E.2d 280, 284 (1991); see also State v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991); State v. Tilley, 292 N.C. 132, 232 S.E.2d 433 (1977). It is well settled that the State may properly draw the jury\u2019s attention to the failure of the defendant to produce exculpatory evidence to contradict the State\u2019s case. Id.\nWe also disagree with the defendant\u2019s argument that this case is distinguishable because the answers raised by the evidence not \u201cdenied, contradicted or rebutted\u201d were solely within his knowledge. This Court specifically rejected such an argument in State v. Foust, 311 N.C. 351, 357-58, 317 S.E.2d 385, 389 (1984), overruled on other grounds by State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986). As in Foust, we do not consider the unavailability of a witness for the defense to be a determinative factor. Id. The evidence was theoretically contradictable by testimony of persons other than the defendant or by cross-examination of the witnesses themselves. This assignment of error is without merit.\nXVIII.\nThe defendant next contends that the trial court erred by denying his request to instruct the jury on second-degree murder as a lesser-included offense of first-degree murder.\nMurder in the first degree, the crime of which the defendant was convicted, is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. State v. Fisher, 318 N.C. 512, 517, 350 S.E.2d 334, 337 (1986). Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Brown, 300 N.C. 731, 735, 268 S.E.2d 201, 204 (1980). A defendant is entitled to have a lesser-included offense submitted to the jury only when there is evidence to support that lesser-included offense. Id. at 735-36, 268 S.E.2d at 204. \u201cThe determinative factor is what the State\u2019s evidence tends to prove.\u201d State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983). If the State\u2019s evidence establishes each and every element of first-degree murder, and there is no evidence to negate these elements, it is proper for the trial court to exclude second-degree murder from the jury\u2019s consideration. Id.\nHere, evidence of the lesser-included offense of second-degree murder is totally lacking. The defendant presented no evidence. The State\u2019s evidence tended to show that the defendant harbored malice toward the victim and had threatened to kill the victim by \u201csmashing in\u201d her face. The medical examiner testified that before the victim was killed, she was beaten on the face and neck with an instrument consistent with a hammer, causing extensive injuries. After the beating, the victim was smothered, causing her death. The medical examiner testified that it would have taken at least three or four minutes before the victim died as a result of being suffocated. The medical examiner further testified that the manner of suffocation and the injuries to the victim\u2019s face indicated that her face was forcibly held against the pillow until her death.\nThe fact that the defendant did not bring the murder weapon to the scene of the killing, without more, will not support an instruction for second-degree murder. The evidence permits no other inference than the defendant went to the victim\u2019s residence to carry out his threat to \u201csmash in\u201d her face, bludgeoned her mercilessly, and then killed her by forcing her face into a pillow for three or four minutes. The evidence supports a finding of premeditation and deliberation and accordingly an instruction for first-degree murder. To suggest that the defendant acted without premeditation and deliberation is to invite total disregard of the evidence. We therefore conclude that the trial court correctly denied the defendant\u2019s request to submit the offense of second-degree murder to the jury. In this assignment, we find no error.\nXIX.\nBy another assignment of error, the defendant contends that the trial court erred by denying the defendant\u2019s motion to set aside the verdict based upon the insufficiency of the evidence.\nFor the evidence to be sufficient in a criminal case, there must be substantial evidence to support a finding of each essential element of the offense charged. State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971). Substantial evidence means \u201cthat amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981). The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Robbins, 309 N.C. 771, 774-75, 309 S.E.2d 188, 190 (1983).\nIn the case sub judice, the defendant argues that the evidence was not sufficiently substantial to support a finding that the murder was committed with premeditation and deliberation. We disagree. Premeditation means that the act was thought out beforehand for some length of time, however short. State v. Skipper, 337 N.C. 1, 27, 446 S.E.2d 252, 265-66 (1994), cert. denied, - U.S. -, 130 L. Ed. 2d 895 (1995). Deliberation means that the defendant formed an intent to kill and carried out that intent in a cool state of blood, in furtherance of a fixed design for revenge or other unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation. Id. at 27, 446 S.E.2d at 266. Premeditation and deliberation are ordinarily not susceptible to proof by direct evidence and therefore must usually be proven by circumstantial evidence. State v. Brown, 315 N.C. 40, 59, 337 S.E.2d 808, 822-23 (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). Circumstances to be considered in determining whether a killing was committed with premeditation and deliberation include the following: (1) want of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and during the killing, (3) threats and declarations of the defendant, (4) ill will or previous difficulty between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, and (6) evidence that the killing was done in a brutal manner. Id. at 59, 337 S.E.2d at 823.\nWe conclude that there was substantial evidence that the killing was premeditated and deliberate. The evidence tended to show all six circumstances set out above. The victim did not provoke the defendant in any manner; the defendant harassed, threatened and assaulted the victim prior to the murder; the victim was rendered helpless by being bludgeoned in the face with a hammer-like instrument; and without question, the killing was accomplished in a brutal manner. In light of such evidence, we hold that there was sufficient evidence to support the defendant\u2019s conviction for first-degree murder on the theory of premeditation and deliberation. The trial court did not err by denying the defendant\u2019s motion to set aside the verdict.\nSentencing Phase\nXX.\nBy another assignment of error, the defendant contends that the trial court erred by failing to intervene ex mero motu to correct seven instances of grossly improper conduct by the prosecutor during closing arguments in the sentencing phase of the trial. As in Issue XVI, the defendant failed to object to any of the arguments of which he now complains, and therefore, the prosecutor\u2019s argument will be subject to limited appellate review for gross improprieties which make it plain that the trial court abused its discretion by failing to intervene ex mero motu. State v. Pinch, 306 N.C. 1, 17, 292 S.E.2d 203, 218.\nThe defendant first argues that the prosecutor acted improperly by using the hearsay testimony admitted to show the victim\u2019s state of mind, not for the purpose admitted, but primarily to argue (1) that the defendant planned the crime and did not act under emotional disturbance, (2) that the defendant had a significant history of criminal activity, and (3) that the murder was committed in retaliation for the victim\u2019s testimony against defendant in an earlier trial for assault. Other than his unsupported allegations of impropriety, the defendant fails to show how the foregoing arguments were improper or how the trial court abused its discretion by not intervening to prevent these arguments. Based on our review of the record, we find no impropriety with the prosecutor\u2019s arguments and no error with the trial court\u2019s decision not to intervene to prevent them.\nThe defendant next argues that the prosecutor acted improperly by arguing facts outside the record and by expressing his own personal and prejudicial opinions. The defendant specifically contends that the prosecutor impermissibly (1) argued that the defendant held and choked the victim, (2) argued that the defendant \u201cdidn\u2019t lose his temper when he went to [the victim\u2019s] house,\u201d (3) argued that the defendant \u201ctook the law into his own hands,\u201d and (4) opined that \u201cwe [the prosecution] have proven [our case] beyond a reasonable doubt.\u201d After thoroughly reviewing the record, we hold that the prosecutor\u2019s arguments fall well within the wide latitude accorded prosecutors in the scope of their arguments and are consistent with the record.\nThe prosecutor\u2019s argument that the defendant held the victim down and continued to hold her until she suffocated is supported by the medical examiner\u2019s testimony that, in his opinion, the victim had to have been forced face down in the pillow for three or four minutes to suffocate. The comment that the victim was \u201cchoked\u201d rather than \u201csuffocated\u201d was not so grossly improper as to warrant the trial court\u2019s intervention. Each word essentially means to interfere with another\u2019s breathing. The evidence clearly established the cause of the victim\u2019s death was asphyxiation. We find no reasonable possibility that the use of the word \u201cchoke\u201d confused the jury in any manner.\nThe prosecutor\u2019s argument that the defendant did not \u201close his temper\u201d at the victim\u2019s house is a permissible inference drawn from facts upon which the jury could conclude that the defendant went to the victim\u2019s house to carry out a long-intended killing and did not act under the influence of a sudden, violent passion or legal provocation. The prosecutor\u2019s statement that the defendant \u201ctook the law into his own hands\u201d was nothing more than an expression that the defendant took matters into his own hands by killing the victim. Finally, the argument that the State had proven its case beyond a reasonable doubt was not expert testimony as argued by defendant, but rather was a permissible statement of the State\u2019s position. The trial court\u2019s intervention was not required to prevent any of the foregoing arguments by the prosecutor.\nThe defendant next argues that the prosecutor improperly commented on his failure to testify. The prosecutor made the following argument, about which the defendant now complains:\nIf there was any evidence he [defendant] was under any mental or emotional disturbance when he got in the car of that trooper, don\u2019t you know they would have him on the stand testifying that he was under some mental or emotional disturbance that evening?\nWhen read in context, this argument does not appear to be a comment on the defendant\u2019s failure to testify. Although less than clear, it appears the prosecutor was referring to the trooper not testifying, not the defendant. This segment of the argument, as it seems intended, was that the trooper observed the defendant\u2019s behavior, and had the defendant been under any emotional disturbance, the defense would certainly have called the trooper to so testify. In any event, assuming, arguendo, that the prosecutor\u2019s argument was improper, the impropriety was not so gross or excessive that we would conclude the trial court abused its discretion by failing to intervene ex mero motu.\nThe defendant next contends that the prosecutor inaccurately stated the law as to the statutory aggravating circumstances submitted by the trial court and as to the defendant\u2019s burden of proof regarding mitigating circumstances. The defendant, however, fails to point to any particular statement by the prosecutor which he contends misstated the law, nor has the defendant cited any authority showing that a particular statement was incorrect. After a careful review of the record, we find no instance in which the prosecutor\u2019s argument misstated the law. Further, had there been a misstatement of the law by the prosecutor, any such misstatement would have been cured by the trial court\u2019s proper instructions to the jury. See State v. Dodd, 330 N.C. 747, 755, 412 S.E.2d 46, 50.\nThe defendant next argues that the trial court erred by not intervening ex mero motu to prevent the prosecutor\u2019s three-minute pause intended to show the period of time it took for the victim to die of asphyxiation. This Court rejected a similar argument in State v. Artis, 325 N.C. 278, 323-25, 384 S.E.2d 470, 496-97 (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).\nIn Artis, the prosecutor asked the jurors, over defendant\u2019s objection, to hold their breath as long as they could during a four-minute pause clocked by the prosecutor. Noting that the argument occurred in the sentencing phase of trial, this Court found it neither improper nor prejudicial. Id. at 325, 384 S.E.2d at 497. We reasoned that during sentencing, the emphasis is on the nature of the crime and the character of the criminal, and therefore, urging the jurors to appreciate the circumstances of the crime by voluntarily suffering oxygen deprivation was not improper. Id.\nIn the case sub judice, the defendant argues that this case is distinguishable from Artis for two reasons. First, in Artis, the cause of death was manual strangulation which required conscious physical exertion to cause death. Here, the defendant argues, there is no credible proof that the defendant held the victim to cause her asphyxiation and, therefore, no correlative amount of moral blameworthiness. Second, the defendant argues that unlike Artis, the actual sequence of events was unknown. Therefore, without knowing whether the victim was conscious when she suffocated, the amount of time between the beginning of asphyxiation and death is not relevant to the victim\u2019s suffering.\nWe disagree. The evidence clearly established that the defendant forcibly held the victim\u2019s head down into a pillow for at least three or four minutes. The medical examiner testified that, in his opinion, the victim could not have suffocated by any other manner. Clearly, this crime entails a correlative amount of moral blameworthiness to that in Artis, which bears directly on the defendant\u2019s character. Further, the length of time it took for the victim to die of asphyxiation is relevant to the character and circumstances of the crime regardless of whether the victim suffered. Finally, the defendant here, unlike Artis, failed to object to the prosecutor\u2019s argument and therefore must show that the prosecutor\u2019s argument amounted to a gross impropriety before we will find that the trial court abused its discretion by failing to intervene ex mero motu. State v. Pinch, 306 N.C. at 17, 292 S.E.2d at 218. In light of our previous holding in Artis, we find no impropriety whatsoever with the prosecutor\u2019s argument and accordingly no error with the trial court\u2019s decision not to intervene to prevent it.\nThe defendant next contends that the prosecutor acted improperly by requesting that the jury not consider sympathy for the defendant\u2019s family in its consideration of mitigating circumstances.\nThis Court has stated that \u201ca defendant\u2019s eighth amendment rights are jeopardized only when the jury is urged to ignore such feelings that are supported by facts in the record.\u201d State v. Price, 326 N.C. 56, 87, 388 S.E.2d 84, 102, sentence vacated on other grounds, 498 U.S. 802, 112 L. Ed. 2d 7 (1990), on remand, 331 N.C. 620, 418 S.E.2d 169 (1992), sentence vacated on other grounds, \u2014 U.S. \u2014, 122 L. Ed. 2d 113, on remand, 334 N.C. 615, 433 S.E.2d 746 (1993), sentence vacated on other grounds, - U.S. -, 129 L. Ed. 2d 888, on remand, 337 N.C. 756, 448 S.E.2d 827 (1994), cert. denied, - U.S. -, 131 L. Ed. 2d 224, reh\u2019g denied, - U.S. -, 131 L. Ed. 2d 879 (1995). In the present case, the prosecutor argued:\nWhen the defense asks you to find this as an aggr \u2014 as a mitigating factor, they\u2019re asking you to do it out of sympathy. They\u2019re asking you to do it because you feel sorry for Mr. Alston\u2019s parents. But in this case, ladies and gentlemen of the jury, the evidence simply does not support any finding that this defendant had any mental or emotional disturbance. . . . He\u2019s before you today, asking you to find some reason in your hearts to feel sympathy for him. And you may feel some sympathy for his family, ladies and gentlemen of the jury. But when . . . you were selected as jurors, you were asked if you could do your duty in this case. And your duty in this case, I submit to you, is to find as an aggravating factor ....\nIt is clear that when read in context, the prosecutor was not asking the jurors to ignore any feelings of sympathy that are supported by the facts. The prosecutor acknowledged that the jurors may have feelings of sympathy for the defendant\u2019s family, but argued that their duty nevertheless required them to recommend the death penalty. The defendant has failed to show that the prosecutor\u2019s argument was improper or that the trial court abused its discretion by not intervening ex mero mo tu.\nThe defendant next contends that the prosecutor\u2019s argument diminished the jury\u2019s sense of responsibility for determining the appropriateness of death, in violation of Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231 (1985).\nIn Caldwell, the Supreme Court held it unconstitutional to argue that the responsibility for determining the appropriateness of the defendant\u2019s death rests elsewhere. Id. at 328-29, 86 L. Ed. 2d at 239. This Court has limited Caldwell\u2019s applicability to those cases in which the prosecutor \u201csuggests] to the jurors that they could depend upon judicial or executive review to correct any errors in their verdict.\u201d State v. McCollum, 334 N.C. 208, 226, 433 S.E.2d 144, 153 (1993), cert. denied, - U.S. -, 129 L. Ed. 2d 895, reh\u2019g denied, - U.S. -, 129 L. Ed. 2d 924 (1994). In this case, the prosecutor argued that the jurors had a duty, under the evidence presented, to recommend the death penalty, and that they were \u201cservants of the law.\u201d The prosecutor did not, however, suggest to the jurors that they could depend upon judicial or executive review to correct any errors they might make. Accordingly, we find no error with regard to this aspect of the prosecutor\u2019s argument.\nFinally, the defendant contends generally that he is entitled to a new sentencing hearing in light of the \u201cpersistent\u201d prosecutorial misconduct above referenced. As we have reviewed the defendant\u2019s arguments and found no error or gross improprieties with respect to the prosecutor\u2019s closing argument, this general argument must also be dismissed. These assignments of error are accordingly overruled.\nXXI.\nBy another assignment of error, the defendant contends that the trial court erred by failing to sustain his objection to the prosecutor\u2019s improper comments on the relative deterrent values of life imprisonment and the death penalty and to racially inflammatory remarks. The prosecutor made the following argument, to which the defendant took exception:\nThe only way you can be sure that this man will never walk out again is to give him the death penalty. Oh, you might say, let\u2019s let him have life in the penitentiary. Do you know where the word penitentiary came from? The same root word as penitent. You see, the notion was when we built penitentiaries hundreds of years ago, that we would lock people up in a cell for a while and let them be penitent, and think about what they had done, and they would rationally come out and be different people. I argue and I suggest to you, members of the jury, it\u2019s difficult to be penitent with televisions, and basketball courts, and weight rooms. It\u2019s difficult to be penitent\u2014\n[Defense Counsel]: Your honor, I object.\n[Prosecutor]: \u2014when you stand around and rap all day\u2014\nCourt: Ladies and gentlemen, again, you will take your instructions on the law from the court. The attorneys have an opportunity to argue to you what they contend the punishment should be.\n[Prosecutor]: It\u2019s difficult to be penitent, members of the jury, sitting around rapping.\nIt is well established that control of counsel\u2019s arguments is left largely to the control and discretion of the trial court. State v. Johnson, 298 N.C. 355, 368, 259 S.E.2d 752, 761. It is equally well settled that prosecutors are given wide latitude in the scope of their argument. State v. Syriani, 333 N.C. 350, 398, 428 S.E.2d 118, 144.\nThe defendant first argues that the prosecutor\u2019s argument violated this Court\u2019s decision in State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, by \u201carguing against the general deterrent\u201d value of a life sentence. However, when the portion of the argument to which defendant refers is read in context with the rest of the argument, it is clear that the prosecutor did not espouse the position that prison does not deter.\nThe prosecutor began this portion of his closing argument, \u201cThe only way you can be sure that this man will never walk out again is to give him the death penalty.\u201d This is a permissible argument that the jury should recommend the death penalty to foreclose further crimes by the defendant. See Zuniga, 320 N.C. at 269, 357 S.E.2d at 920 (allowing argument that imposition of death penalty will foreclose further commission of crimes by defendant). The prosecutor\u2019s subsequent argument that it is hard to be penitent with televisions, basketball courts, and weight rooms emphasized the prosecution\u2019s position that life in prison was not an adequate punishment. In State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994), cert. denied, - U.S. -, 131 L. Ed. 2d 860 (1995), this Court upheld an argument in which the prosecutor commented that if sentenced to life, the defendant would have a \u201ccozy little prison cell . . . with [a] television set, air conditioning and three meals a day.\u201d Id. at 732, 448 S.E.2d at 817. As in Reeves, we hold that the argument did not relate to general deterrence, but served to emphasize the State\u2019s position that the defendant deserved the penalty of death rather than a comfortable life in prison. In light of the wide latitude accorded prosecutors during their arguments, we find that the defendant has failed to show that the prosecutor\u2019s argument was improper, or that the trial court abused its discretion in allowing it.\nThe defendant next argues that the prosecutor\u2019s comments \u201cstand around and rap all day\u201d and \u201csitting around rapping\u201d violated his right to equal protection by denigrating a form of music closely identified with the black race, thereby encouraging the jury to make its decision on the basis of racial prejudice. We disagree. The common definition of \u201crap\u201d is \u201cto talk.\u201d The defendant has presented no argument to convince this Court that the word \u201crap,\u201d as used by the prosecutor, meant anything else. Accordingly, we find no error in the use of the word \u201crap.\u201d\nThe defendant next contends that the prosecutor\u2019s argument violated his First Amendment rights because \u201crapping\u201d is protected by the First Amendment and the prosecutor may not argue a First Amendment activity, or the prevention thereof, as a basis for imposing the death penalty. Regardless of whether the prosecutor intended the word \u201crap\u201d to mean \u201ctalk\u201d or \u201csing,\u201d it is clear that he did not argue that the defendant should be put to death because he \u201crapped.\u201d We find no error with respect to this argument. This assignment of error is overruled.\nXXII.\nIn a related assignment of error, the defendant contends that the trial court erred by failing to intervene ex mero motu, with respect to the above argument, to prevent the prosecutor\u2019s improper innuendo that the duration of a life sentence would be minimal, when in fact he would not become eligible for parole for twenty years. There is no manner in which the prosecutorial argument set forth above can reasonably be construed to address the defendant\u2019s parole eligibility. Contrary to defendant\u2019s assertion, the prosecutor argued that the jury should impose the death penalty in order to insure that the defendant never kills again. It has always been a fact of prison life that murder is no stranger there. This is a proper argument in all respects. Zuniga, 320 N.C. at 269, 357 S.E.2d at 920. Accordingly, this assignment of error is overruled, as defendant has failed to show any gross impropriety requiring the trial court\u2019s intervention ex mero mo tu.\nXXIII.\nIn another assignment of error, the defendant contends that the evidence was insufficient to support the submission of three aggravating circumstances to the jury.\nFirst, the defendant argues that the evidence was not sufficient to. submit to the jury the aggravating circumstance that the murder \u201cwas especially heinous, atrocious, or cruel.\u201d N.C.G.S. \u00a7 15A-2000(e)(9) (Supp. 1994).\nThis Court has identified several types of murders which may warrant submission of the \u201cespecially heinous, atrocious, or cruel\u201d aggravating circumstance:\nOne type includes killings physically agonizing or otherwise dehumanizing to the victim. A second type includes killings less violent but \u201cconscienceless, pitiless, or unnecessarily torturous to the victim,\u201d including those which leave the victim in her \u201clast moments aware of but helpless to prevent impending death.\u201d A third type exists where \u201cthe killing demonstrates an unusual depravity of mind on the part of the defendant beyond that normally present in first-degree murder.\u201d\nState v. Sexton, 336 N.C. 321, 373, 444 S.E.2d 879, 908-09, cert. denied, - U.S. -, 130 L. Ed. 2d 429 (1994) (citations omitted).\nIn determining the sufficiency of the evidence to support the submission of an aggravating circumstance to the jury, the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference drawn therefrom. Syriani, 333 N.C. at 392, 428 S.E.2d at 141. Applying these principles, we conclude that the evidence here supports not only a conclusion that the killing was physically agonizing, conscienceless, pitiless and unnecessarily dehumanizing to the victim, but also supports a finding that the killing involved psychological terror not normally present in murder.\nThe evidence tends to show that the defendant repeatedly beat the victim with a hammer or similar blunt object. The majority of the wounds were to the victim\u2019s face. The victim suffered severe swelling, bruising and lacerations to her face. Other blows to the victim\u2019s neck caused hemorrhaging inside her neck, in the area around the larynx and inside the trachea. The victim\u2019s skull was not fractured, but the beating was severe enough to cause bleeding over the surface of her brain and in her eyes. These blows, however, did not cause the victim\u2019s death. At this point, the victim\u2019s life was in the hands of the defendant. Instead of sparing the victim\u2019s life after inflicting this punishment, the defendant, acting without conscience or pity, forced the victim\u2019s face into a pillow, suffocating her. The medical examiner testified that it takes at least three or four minutes for a person to die by suffocation, but if the blood supply to the brain is completely interrupted, the person will become unconscious within seven to ten seconds. Although seemingly a short period of time, \u201cwhen struggling for the breath of life it can be an eternity.\u201d State v. Artis, 325 N.C. 278, 320, 384 S.E.2d 470, 494.\nAdditionally, evidence of the defendant\u2019s threats to \u201csmash in\u201d the victim\u2019s face and kill the victim, defendant\u2019s assault on the victim a little more than one month prior to the killing and the victim\u2019s letter and statements made prior to her death, suggest that she feared the defendant. It is reasonable to infer that the victim suffered psychological torture and anxiety as her fears were realized and the defendant carried out his threats. In the last minutes of the victim\u2019s life, as her face was forced into the pillow and she struggled to breath, she undoubtedly was left aware of, but unable to prevent, her impending death.\nThis evidence supports a finding that the killing was physically agonizing and involved psychological terror not normally present in murder. See State v. Sexton, 336 N.C. at 373-74, 444 S.E.2d at 909 (finding evidence of extreme anguish and psychological terror where death caused by strangulation took three to four minutes, left the victim conscious for at least ten seconds, and left the victim knowing that death was impending but helpless to prevent it); State v. Artis, 325 N.C. at 319-20, 384 S.E.2d at 493-94 (finding evidence of psychological suffering where victim killed by strangulation rendering her helpless, but aware of, impending death). We conclude that the evidence of psychological terror combined with the unrelenting murderous effort on the part of the defendant to kill the victim clearly supported a finding that the murder was \u201cespecially heinous, atrocious, or cruel.\u201d\nNext, the defendant argues that the evidence was not sufficient to submit to the jury the aggravating circumstances that the murder was committed for pecuniary gain and that the murder was committed against a former witness against the defendant because of the exercise of her official duty. N.C.G.S. \u00a7 15A-2000(e)(6), (e)(8). We disagree. First, the victim was found dead two days after testifying against the defendant in the assault trial. This evidence supports the submission of the former witness aggravating circumstance. Second, over one hundred dollars in change was stolen from the victim\u2019s bedroom and witnesses testified that shortly after the murder, the defendant was making purchases with change. This evidence supports the pecuniary gain aggravating circumstance. There was no evidence that the defendant\u2019s sole motive for killing the victim was jealousy. Clearly, the evidence was sufficient to support an inference that the defendant sought to kill the victim in retaliation for testifying against him and to rob her of her money. Each aggravating circumstance was supported by the evidence and was properly submitted.\nThis Court has held that the erroneous submission of an aggravating circumstance in a capital sentencing procedure is not reversible per se, but rather, is subject to a harmless error analysis. See State v. Taylor, 304 N.C. 249, 285-86, 283 S.E.2d 761, 784 (1981), cert. denied, 463 U.S. 1213, 77 L. Ed. 2d 1398, reh\u2019g denied, 463 U.S. 1249, 77 L. Ed. 2d 1456 (1983). Assuming, arguendo, that the trial court erred by submitting the pecuniary gain and former witness aggravating circumstances, we hold that any such error was harmless.\nThe victim was murdered in a brutal and senseless manner. The jury found that the murder was especially heinous, atrocious, or cruel. The jury did not find any mitigating circumstances. Based on the foregoing, it is unreasonable to believe that absent a finding that the victim was a former witness or that the defendant killed the victim for the money in the jug, the jury would have ignored the fact that the defendant mercilessly and brutally killed the victim and thus would have found that the death penalty was not justified. Accordingly, this assignment of error is overruled.\nXXIV.\nIn his next assignment of error, the defendant contends that the jury\u2019s failure to find clearly proven mitigating circumstances violated his constitutional rights. Specifically, defendant argues that the evidence was uncontroverted as to the existence of one statutory mitigating circumstance and two nonstatutory mitigating circumstances and that the jury\u2019s failure to find them constitutes error.\nFirst, the defendant argues that given the uncontradicted evidence that the defendant did not have a significant history of prior criminal activity, the jury was required to find the existence of this statutory mitigating circumstance. The defendant misinterprets the law relative to uncontradicted evidence of statutory mitigating circumstances. We first find that the evidence before the jury in the present case was not uncontradicted in regard to the defendant\u2019s prior criminal history. Evidence regarding defendant\u2019s prior assault on the victim was susceptible to a finding by the jury that the defendant had a significant history of criminal activity.\nIn those cases where the evidence is truly uncontradicted, the defendant is, at most, entitled to a peremptory instruction when he requests it. State v. Johnson, 298 N.C. 47, 76, 257 S.E.2d 597, 618 (1979). A peremptory instruction tells the jury to answer the inquiry in the manner indicated by the trial court if it finds that the fact exists as all the evidence tends to show. Id. at 75, 257 S.E.2d at 617. The defendant did not request a peremptory instruction in the present case. However, even where all of the evidence supports a finding that the mitigating circumstance exists and a peremptory instruction is given, the jury may nonetheless reject the evidence and not find the fact at issue if it does not believe the evidence. Id.\nThe jury\u2019s failure to find this statutory mitigating circumstance does not indicate that the jury was prevented from or failed to consider it. To the contrary, this mitigating circumstance was submitted, thus, the jury was required to consider it. The jury simply declined to find that the evidence supported this mitigating circumstance.\nThe defendant also contends that the jury was required to find two nonstatutory mitigating circumstances: (1) that the defendant was regularly employed at the time of the offense, and (2) that the defendant has a supportive family structure. As stated above, it is the prerogative of the jury to believe or reject the evidence presented by the defendant as to the existence of a mitigating circumstance. Unlike statutory mitigating circumstances, the jury may determine that a nonstatutory mitigating circumstance has no value even if that circumstance is found to exist. State v. Fullwood, 323 N.C. 371, 395-97, 373 S.E.2d 518, 533-34 (1988), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 602 (1990), on remand, 329 N.C. 233, 404 S.E.2d 842 (1991). Thus, as to these two mitigating circumstances, the jury either did not believe the evidence and on that basis determined that the mitigators did not exist, or it determined that the mitigators did exist but decided that they had no mitigating value and on that basis rejected them.\nWe therefore conclude that the jury\u2019s failure to find these three mitigating circumstances did not violate any of the defendant\u2019s constitutional rights. This assignment of error is accordingly overruled.\nPreservation Issues\nThe defendant raises three issues which he concedes have been decided against him by this Court: (1) the trial court erred by instructing the jury that it must determine whether the evidence supported each nonstatutory mitigating circumstance submitted and whether it had mitigating value, (2) the trial court erred by instructing the jury that it had a \u201cduty\u201d to recommend a sentence of death if it determined that the mitigating circumstances were insufficient to outweigh the aggravating circumstances and that the aggravating circumstances were sufficiently substantial to warrant the imposition of the death penalty, and (3) the trial court erred by denying his motion to eliminate the death penalty on the grounds that the North Carolina death penalty statute is unconstitutional. We have considered the defendant\u2019s arguments on these issues and find no compelling reason to depart from our prior holdings. Therefore, we overrule these assignments of error.\nThe defendant raises five additional issues which are not conceded, but which nevertheless should have been treated as preservation issues.\nFirst, the defendant contends that the trial court erred by instructing the jury on the \u201cespecially heinous, atrocious, or cruel\u201d aggravating circumstance because the instruction was inherently vague. This Court has previously considered and rejected the defendant\u2019s argument. See State v. Syriani, 333 N.C. 350, 389-92, 428 S.E.2d 118, 139-41.\nSecond, the defendant contends that the trial court\u2019s instruction defining mitigating circumstances erroneously focused the jury\u2019s attention on the killing itself, thereby limiting the jury\u2019s ability to consider the defendant\u2019s character and background as a basis for a sentence less than death. We note that the instructions given were virtually identical to the North Carolina Pattern Jury Instructions. This Court has previously rejected this argument, holding that instructions identical to those given in the present case were a correct statement of the law of mitigation. See State v. Robinson, 336 N.C. 78, 122, 443 S.E.2d 306, 327-28.\nThird, the defendant contends that the trial court\u2019s instruction on defendant\u2019s burden of proof in establishing mitigating circumstances erroneously defined \u201cpreponderance of the evidence\u201d as evidence which \u201cmust satisfy you\u201d of the existence of any mitigating circumstance. Specifically, defendant argues that the term \u201csatisfy\u201d is vague and subjective and that \u201cpreponderance of the evidence\u201d should have been defined as \u201cmore likely than not.\u201d This precise argument has previously been considered and rejected by this Court. See State v. Payne, 337 N.C. 505, 531-33, 448 S.E.2d 93, 108-09 (1994), cert. denied, - U.S. -, 131 L. Ed. 2d 292 (1995).\nFourth, the defendant contends that the trial court erred by instructing the jury that premeditation and deliberation may be inferred from \u201clack of provocation by the victim.\u201d Defendant argues that this instruction misled the jury and impermissibly shifted the burden of proof to the defendant on an element of the offense. This Court has previously considered and rejected this argument. See State v. Skipper, 337 N.C. 1, 32-34, 446 S.E.2d 252, 269-70; State v. Handy, 331 N.C. 515, 525, 419 S.E.2d 545, 549-50 (1992).\nFinally, defendant contends that the trial court erred by refusing to submit as a nonstatutory mitigating circumstance that \u201cthe State\u2019s case in chief against the defendant was based solely upon circumstantial evidence.\u201d This Court has previously held that trial courts should not submit lingering doubt of guilt as a mitigating circumstance, as it has no bearing on a defendant\u2019s character or record or the circumstances of the offense. State v. Hill, 331 N.C. 387, 415, 417 S.E.2d 765, 778-79 (1992), cert. denied, - U.S. -, 122 L. Ed. 2d 684, reh\u2019g denied, - U.S. -, 123 L. Ed. 2d 503 (1993).\nWe have considered the defendant\u2019s arguments on these additional issues and find no compelling reason to depart from our prior holdings. Therefore, we overrule these assignments of error as well.\nProportionality Review\nHaving found no error in either the guilt-innocence or sentencing phases, we are required by statute to review the record and determine (1) whether the evidence supports the aggravating circumstances found by the jury; (2) whether passion, prejudice, or \u201cany other arbitrary factor\u201d influenced the imposition of the death sentence; and (3) whether the sentence \u201cis excessive 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). We have thoroughly reviewed the record, transcript and briefs in the present case. We conclude that the record fully supports the aggravating circumstances found by the jury. Further, we find no indication that the sentence of death in this case was imposed under the influence of passion, prejudice or any other arbitrary factor. We therefore turn to our final statutory duty of proportionality review.\nOne purpose of proportionality review \u201cis to eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury.\u201d State v. Holden, 321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). Another is to guard \u201cagainst the capricious or random imposition of the death penalty.\u201d State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137, reh\u2019g denied, 448 U.S. 918, 65 L. Ed. 2d 1181 (1980). We defined the pool of cases for proportionality review in State v. Williams, 308 N.C. 47, 79-80, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177, reh\u2019g denied, 464 U.S. 1004, 78 L. Ed. 2d 704 (1983), and 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), and we compare the instant case to others in the pool that \u201care roughly similar with regard to the crime and the defendant.\u201d State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985). Whether the death penalty is disproportionate \u201cultimately rest[s] upon the \u2018experienced judgments\u2019 of the members of this Court.\u201d State v. Green, 336 N.C. 142, 198, 443 S.E.2d 14, 47, cert. denied,U.S. -, 130 L. Ed. 2d 547 (1994).\nIn the case sub judice, the jury found the defendant guilty of first-degree murder under the theory of malice, premeditation and deliberation. The trial court submitted three aggravating circumstances, each of which the jury found: that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9); that the murder was committed against a former witness because of the exercise of her official duty, N.C.G.S. \u00a7 15A-2000(e)(8); and that the murder was committed for pecuniary gain, N.C.G.S. \u00a7 15A-2000(e)(6). The jury declined to find the existence of any of the six statutory and non-statutory mitigating circumstances submitted for its consideration.\nThis case has several distinguishing characteristics: the jury convicted the defendant under the theory of premeditation and deliberation; the victim\u2019s brutal murder was found by the jury to be especially heinous, atrocious, or cruel; the victim was killed in her own bedroom during the night; the victim suffered great physical and psychological pain before death; the victim was not only in pain, but was aware of her impending death as she was suffocated; the victim was of unequal physical strength to defendant; the victim feared the defendant; and finally, the defendant failed to exhibit remorse after the killing. These characteristics distinguish this case from those in which we have held the death penalty disproportionate.\n\u201cOf the cases in which this Court has found the death penalty disproportionate, only two involved the \u2018especially heinous, atrocious, or cruel\u2019 aggravating circumstance. State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983).\u201d Syriani, 333 N.C. at 401, 428 S.E.2d at 146-47. Neither Stokes nor Bondurant is similar to this case.\nIn Stokes, the defendant and a group of coconspirators robbed the victim\u2019s place of business. The evidence failed to show who the \u201cringleader\u201d of the group was or that defendant Stokes deserved a sentence of death any more than another party to the crime who received only a life sentence. In the present case, the defendant alone was responsible for the victim\u2019s death. Defendant Stokes was only seventeen years old at the time of the crime. In this case, the defendant was thirty-one years old at the time of the crime. In Stokes, the defendant was convicted under a theory of felony murder, and there was virtually no evidence of premeditation and deliberation. In the present case, the defendant was convicted upon a theory of 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. Finally, in Stokes, the victim was killed at his place of business. In this case, the victim was killed in her bedroom. A murder in one\u2019s 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).\nIn Bondurant, the victim was shot while riding with the defendant in a car. Bondurant is distinguishable because the defendant immediately exhibited remorse and concern for the victim\u2019s life by directing the driver to go to the hospital. The defendant also went into the hospital to secure medical help for the victim, voluntarily spoke with police officers, and admitted to shooting the victim. In the present case, by contrast, after rendering the victim helpless by repeatedly beating her in the face with a hammer, the defendant literally held the victim\u2019s life in his hands. Instead of seeking aid for the victim, the defendant chose to take her life, smothering her with a pillow as she lay aware yet helpless to prevent her impending death. Additionally, after taking the victim\u2019s life, the defendant showed an utter lack of remorse by stealing her money and using it to buy drugs.\nAs noted above, one distinguishing characteristic of this case is that three aggravating circumstances were found by the jury. Of the seven cases in which this Court has found a sentence of death disproportionate, including Stokes and Bondurant, in only one, State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985), did the jury find the existence of multiple aggravating circumstances. In Young, this Court focused on the failure of the jury to find the existence of the \u201cespecially heinous, atrocious, or cruel\u201d aggravating circumstance. The present case is distinguishable from Young in that one of the three aggravating circumstances found by the jury was that the murder was especially heinous, atrocious, or cruel.\nFor the foregoing reasons, we conclude that each case where this Court has found a sentence of death disproportionate is distinguishable from the case sub judice.\nThere are two similar cases in the pool in which the jury recommended a sentence of death after finding as an aggravating circumstance that the murder was especially heinous, atrocious, or cruel. State v. Sexton, 336 N.C. 321, 444 S.E.2d 879; State v. Rose, 335 N.C. 301, 439 S.E.2d 518.\nIn Sexton, this Court found the sentence of death proportionate on facts strikingly similar to the present case. In both cases, the victims were killed by asphyxiation, and many of the same injuries were inflicted. As here, the jury found three aggravating circumstances, one of which was the \u201cespecially heinous, atrocious, or cruel\u201d aggravator, and no mitigating circumstances. This Court held the sentence of death proportionate, noting, as we have above, that only two cases in which the \u201cespecially heinous, atrocious, or cruel\u201d aggravating circumstance was found have ever been held disproportionate, and that only one case in which the jury found multiple aggravating circumstances has ever been held disproportionate.\nIn Rose, the defendant murdered his victim by beating and strangling her. The jury found two aggravating circumstances, including that the murder was especially heinous, atrocious, or cruel. The sentence of death was held proportionate.\nThe defendant relies on two cases in which the jury recommended life sentences as being similar to this case. State v. Bullock, 326 N.C. 253, 388 S.E.2d 81 (1990); State v. Whiteside, 325 N.C. 389, 383 S.E.2d 911 (1989).\nBullock is similar to the present case in the manner of death, yet is still distinguishable. In the present case, the defendant was thirty-one years of age. In Bullock, the defendant was only nineteen years of age. In addition, in the present case, the jury found multiple aggravating circumstances but failed to find any mitigating circumstances. In Bullock, the jury found the existence of four statutory mitigating circumstances, including that the defendant was- mentally or emotionally disturbed and that the defendant\u2019s ability to appreciate the criminality of the crime was impaired.\nWhiteside is similar to the present case in that the medical examiner testified that, in his opinion, the cause of death was strangulation. Other evidence tended to show that the victim was severely beaten as well. However, the medical examiner\u2019s testimony indicated that his evidence of death was not consistent with that of a severe beating. The jury found one aggravating circumstance, that the murder was \u201cespecially heinous, atrocious, or cruel,\u201d and four statutory mitigating circumstances. In the present case, multiple aggravating circumstances were found by the jury, and no mitigating circumstances were found. In addition, in Whiteside, the evidence showed that the killing resulted from an altercation provoked by the victim. In the present case, the decedent was the victim of an unprovoked and long-intended killing.\nFurther, regardless of how similar the cases cited by defendant may be to the present case, we noted in State v. Daniels, 337 N.C. 243, 446 S.E.2d 298 (1994), cert. denied, - U.S. -, 130 L. Ed. 2d 895 (1995), that similarity of cases is not the last word on the subject of proportionality. Id. at 287, 446 S.E.2d at 325. Similarity \u201cmerely serves as an initial point of inquiry.\u201d Id.; see also State v. Green, 336 N.C. 142, 198, 443 S.E.2d 14, 46-47. The issue of whether the death penalty is proportionate in a particular case ultimately rests \u201con the experienced judgment of the members of this Court, not simply on a mere numerical comparison of aggravators, mitigators, and other circumstances.\u201d Daniels, 337 N.C. at 287, 446 S.E.2d at 325.\nBased on the nature of this crime, and particularly the distinguishing features noted above, we cannot conclude as a matter of law that the sentence of death was excessive or disproportionate. We hold that the defendant received a fair trial and sentencing proceeding, free of prejudicial error.\nNO ERROR.",
        "type": "majority",
        "author": "LAKE, Justice."
      }
    ],
    "attorneys": [
      "Michael F. Easley, Attorney General, by Mary Jill Ledford, Assistant Attorney General, for the State.",
      "Joseph B. Cheshire, V and Robert Manner Hurley for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHARLIE MASON ALSTON\nNo. 416A92\n(Filed 8 September 1995)\n1. Jury \u00a7 141 (NCI4th)\u2014 first-degree murder \u2014 capital trial\u2014 jury selection \u2014 questions about parole eligibility \u2014denied\nThere was no error in a first-degree murder capital trial where defendant\u2019s motion to permit voir dire of potential jurors , regarding their beliefs about parole eligibility was denied. Information regarding parole eligibility is not relevant to the issues at trial and is not a proper matter for the jury to consider in a capital sentencing proceeding. The argument that Simmons v. South Carolina, 129 L. Ed. 2d 133 requires that North Carolina juries be informed as to the length of time a defendant must serve before becoming eligible for parole has been consistently rejected by the North Carolina Supreme Court.\nAm Jur 2d, Jury \u00a7\u00a7 189-192, 199.\n2. Jury \u00a7 235 (NCI4th)\u2014 first-degree murder \u2014 capital trial\u2014 jury selection \u2014 death qualification\nThere was no error in a first-degree murder prosecution in which the death penalty was sought in the denial of defendant\u2019s motion to prohibit death-qualification questioning.\nAm Jur 2d, Jury \u00a7 279.\n3. Jury \u00a7 262 (NCI4th)\u2014 first-degree murder \u2014 capital trial\u2014 jury selection \u2014 peremptory challenges \u2014 jurors ambivalent about death penalty\nThere was no error in a first-degree murder prosecution in which the death penalty was sought in the use of peremptory challenges to remove prospective jurors who were not excludable for cause but who wavered in their ability to impose the death penalty.\nAm Jur 2d, Criminal Law \u00a7 685.\n4. Jury \u00a7 227 (NCI4th)\u2014 first-degree murder \u2014 capital trial\u2014 jury selection \u2014 challenges for cause\u2014 jurors ambivalent about or opposed to death penalty\nThere was no abuse of discretion in a first-degree murder prosecution in which the death penalty was sought in removing for cause a prospective juror whose responses indicated with unmistakable clarity that his bias against the death penalty would substantially impair his ability to perform his duties as a juror, and to remove two prospective jurors who indicated that they were opposed to the death penalty, who stated at times that their views on their death penalty would substantially impair their ability to follow the law, who vacillated at other times when asked whether they could set aside their beliefs and vote for the death penalty, and who were not able to state clearly their willingness to temporarily set aside their own beliefs in deference to the rule of law.\nAm Jur 2d, Jury \u00a7\u00a7 228-233.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post -Witherspoon cases. 39 ALR3d 550.\n5. Jury \u00a7 150 (NCI4th)\u2014 first-degree murder \u2014 capital trial\u2014 excusal for cause \u2014 no rehabilitation\nThere was no error in a first-degree murder trial in which capital punishment was sought in the trial court\u2019s refusal to afford defendant the opportunity to rehabilitate 15 prospective jurors excused for cause pursuant to Witherspoon v. Illinois, 391 U.S. 510. Two were dismissed for reasons other than their views on capital punishment and the remaining 13 clearly and unequivocally stated that they were opposed to the death penalty and that their opposition to the death penalty would cause them to vote against its imposition under any circumstances. Defendant did not request an opportunity to rehabilitate any of the prospective jurors and only once took exception to a prospective juror\u2019s excusal; also, there was no showing that further questioning would have produced different answers.\nAm Jur 2d, Jury \u00a7 279.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post-Witherspoon cases. 39 ALR3d 550.\n6. Jury \u00a7 251 (NCI4th)\u2014 first-degree murder \u2014 peremptory challenges \u2014 Batson challenge\nThere was no error in a first-degree murder prosecution in which the death penalty was sought in the State\u2019s use of peremptory challenges to exclude nine African American jurors. Defendant neither objected nor sought to establish a prima facie case of racial discrimination and his failure to object precludes him from raising the issue on appeal.\nAm Jur 2d, Jury \u00a7 244.\nUse of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.\nUse of peremptory challenges to exclude ethnic and racial groups, other than black Americans, from criminal jury \u2014 post -Batson state cases. 20 ALR5th 398.\n7. Criminal Law \u00a7 756 (NCI4th); Jury \u00a7 139 (NCI4th)\u2014 first-degree murder \u2014 jury selection \u2014 prosecutor\u2019s definition of reasonable doubt \u2014 no error\nThere was no error in a first-degree murder prosecution in which the death penalty was sought where defendant contended that the prosecutor misstated the definition of reasonable doubt during voir dire by stating that a reasonable doubt is one that is real and substantial and one which gives the jury substantial misgivings about the State\u2019s case. The North Carolina Supreme Court has consistently found no error in the use of the terms \u201csubstantial doubt\u201d or \u201csubstantial misgivings\u201d in a jury instruction defining reasonable doubt if the instruction as a whole properly conveys the concept of reasonable doubt. Furthermore, any misstatement was cured by the trial court\u2019s subsequent correct jury instruction.\nAm Jur 2d, Trial \u00a7\u00a7 1374-1380.\n8. Criminal Law \u00a7 76 (NCI4th)\u2014 first-degree murder \u2014 change of venue \u2014 publicity\u2014denied\nThere was no abuse of discretion in a first-degree murder prosecution in the trial court\u2019s denial of defendant\u2019s pretrial motion for a change of venue or a special venire based upon extensive publicity and coverage by the media where the trial court properly sustained the State\u2019s objection to the only evidence produced in support of defendant\u2019s motion, the testimony of a private investigator who had conducted a survey but who indicated that he had no formal training in statistics, that he had not determined the validity of the statistical sample, and that he could not say that a fair representation of the community was surveyed, and who produced five newspaper articles, only two of which related to the present case and those were factual, informative, and noninflammatory in nature. Furthermore, defendant neither referred to the voir dire of the jurors who served nor argued that a juror objectionable to him sat on the jury and a review of the record reveals no basis upon which to conclude that any juror based his or her decision upon pretrial information rather than the evidence presented at trial.\nAm Jur 2d, Criminal Law \u00a7 378.\nPretrial publicity in criminal case as ground for change of venue. 33 ALR3d 17.\n9. Evidence and Witnesses \u00a7 339 (NCI4th)\u2014 first-degree murder \u2014 prior assaults on victim \u2014 admissible to show malice, intent, premeditation and deliberation\nThe trial court did not abuse its discretion in a first-degree murder prosecution in the admission of testimony tending to show that defendant had previously assaulted the victim. The evidence tends to establish malice, intent, premeditation and deliberation, elements of first-degree murder, and tends to establish the defendant\u2019s ill will toward the victim, and thus is relevant to an issue other that defendant\u2019s character. Although defendant argues that the danger of unfair prejudice substantially outweighed the probative value of the disputed evidence, the exclusion of evidence under N.C.G.S. \u00a7 8C-1, Rule 403 is a matter generally left to the sound discretion of the trial court and abuse will be found only where the trial court\u2019s ruling is manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision. N.C.G.S. \u00a7 8C-1, Rule 404(b).\nAm Jur 2d, Homicide \u00a7\u00a7 310, 311.\n10. Evidence and Witnesses \u00a7 959 (NCI4th)\u2014 first-degree murder \u2014 statements by victim \u2014 afraid of defendant \u2014 state of mind exception to hearsay rule\nThe trial court did not err in a first-degree murder prosecution in admitting hearsay statements by the victim that she was afraid of the defendant. The conversations between the victim and the five witnesses related directly to the victim\u2019s fear of defendant and were properly admitted pursuant to the state of mind exception to the hearsay rule to show the nature of the victim\u2019s relationship with the defendant and the impact of defendant\u2019s behavior on the victim\u2019s state of mind prior to her murder. The trial court carefully weighed the probative value of the testimony against its prejudicial effect and defendant has not demonstrated any abuse of discretion. N.C.G.S. \u00a7 8C-1, Rule 803(3).\nAm Jur 2d, Evidence \u00a7\u00a7 666, 667.\nException to hearsay rule, under Rule 803(3) of Federal Rules of Evidence, with respect to statement of declarant\u2019s mental, emotional, or physical condition. 75 ALR Fed 170.\n11. Evidence and Witnesses \u00a7 601 (NCI4th)\u2014 first-degree murder \u2014 letter by victim \u2014 authentication\nThe trial court did not err in a first-degree murder prosecution by admitting into evidence a letter purportedly written by the victim where the victim\u2019s mother testified that she was familiar with her daughter\u2019s handwriting, that the letter was written in her daughter\u2019s handwriting, and that she recognized the signature as that of her daughter. There was sufficient evidence of authenticity. N.C.G.S. \u00a7 8C-1, Rule 901(a).\nAm Jur 2d, Evidence \u00a7\u00a7 1381-1390.\n12. Evidence and Witnesses \u00a7 959 (NCI4th)\u2014 first-degree murder \u2014 letter\u2014hearsay\u2014victim\u2019s fear\nThe trial court did not err in a first-degree murder prosecution by admitting a letter from the victim where defendant contended that the letter was erroneously admitted under the residual exception to the hearsay rule, but the letter was admissible under the state-of-mind exception to show the status of the victim\u2019s relationship with defendant. N.C.G.S. \u00a7 8C-1, Rule 803(c).\nAm Jur 2d, Evidence \u00a7\u00a7 666, 667.\nException to hearsay rule, under Rule 803(3) of Federal Rules of Evidence, with respect to statement of declarant\u2019s mental, emotional, or physical condition. 75 ALR Fed 170.\n13. Evidence and Witnesses \u00a7 3126 (NCI4th)\u2014 first-degree murder \u2014 corroborating witness \u2014 hearsay\nThe trial court did not err in a first-degree murder prosecution by admitting the testimony of one of the investigating officers, Deputy Williams, who testified concerning prior consistent statements made by earlier witnesses where the prosecutor announced that the questioned testimony was being offered solely for the purpose of corroborating the earlier testimony. The fact that the testimony would otherwise be inadmissible hearsay will not prevent its admission for purposes of corroboration.\nAm Jur 2d, Witnesses \u00a7\u00a7 1001-1005, 1011-1026.\n14. Evidence and Witnesses \u00a7 2908 (NCI4th)\u2014 first-degree murder \u2014 corroborating witness \u2014 hearsay\u2014door opened\nThere was no error in a first-degree murder prosecution where the trial court admitted testimony by a detective regarding a statement made by the victim\u2019s mother concerning the victim\u2019s fear of defendant. Defendant concedes that the question was properly allowed for the purpose of showing that the statement was made, but asserts that the form of the question exceeded the scope for which the nonhearsay purpose allowed admission. The defendant opened the door to the introduction of any incompetent or irrelevant hearsay contained in the question by creating an inference during cross-examination that the victim was not afraid of the defendant.\nAm Jur 2d, Witnesses \u00a7\u00a7 737-742.\n15. Evidence and Witnesses \u00a7 755 (NCI4th)\u2014 first-degree murder \u2014 defendant\u2019s prior assault conviction \u2014 court files \u2014 no prejudice\nThere was no prejudice in a first-degree murder prosecution where the trial court admitted court files relating to defendant\u2019s prior conviction for assault. The files were admitted for the non-hearsay purpose of showing motive, intent and plan and witnesses testified that defendant broke into the victim\u2019s home and attacked her, that the victim prosecuted the defendant for the assault and trespass, that the defendant harassed and threatened the victim, and that the victim believed that the defendant was going to kill her. The files added little, if anything, to the State\u2019s case.\nAm Jur 2d, Evidence \u00a7\u00a7 408-410.\n16. Evidence and Witnesses \u00a7 320 (NCI4th)\u2014 first-degree murder \u2014 drug use subsequent to crime \u2014 admitted for identification\nThere was no error in a first-degree murder prosecution where the trial court admitted evidence that defendant had bought forty to forty-five dollars\u2019 worth of crack cocaine with quarters, dimes and nickels where the victim\u2019s mother had testified that the victim worked at a restaurant and received a large quantity of change from tips, that the victim had over one hundred dollars in quarters in a jar in her bedroom the night before her death, and that the jar was empty when she found the victim. The testimony was strong circumstantial evidence tending to show that defendant murdered the victim and stole her tip money from the jar in the bedroom and was relevant, admissible, and clearly not introduced for the purpose of showing that the defendant was a drug user.\nAm Jur 2d, Evidence \u00a7\u00a7 452-457.\n17. Evidence and Witnesses \u00a7\u00a7 213, 221 (NCI4th)\u2014 first-degree murder \u2014 defendant\u2019s actions prior to and after murder\nThe trial court did not err in a first-degree murder prosecution by admitting testimony concerning defendant\u2019s actions prior to and after the murder where the testimony tends to implicate defendant in the theft of quarters missing from the victim\u2019s bedroom and therefore in the murder, and tends to show that defendant had the opportunity to carry out his threats to kill the victim on the night of the murder. Although defendant argued that the probative value of the testimony was substantially outweighed by the danger of unfair prejudice, the defendant did not demonstrate any abuse of discretion.\nAm Jur 2d, Evidence \u00a7\u00a7 525, 541, 542.\n18. Evidence and Witnesses \u00a7 1694 (NCI4th)\u2014 first-degree murder \u2014 photographs of victim \u2014 admissible\nThe trial court did not err in a first-degree murder prosecution by admitting into evidence crime scene and autopsy photographs where the crime scene photographs were received with limiting instructions and illustrated different aspects of the witness\u2019 testimony. The autopsy photographs were also admitted with a proper limiting instruction, were not repetitive or excessive, and helped illustrate the medical examiner\u2019s testimony regarding the victim\u2019s injuries and cause of death.\nAm Jur 2d, Homicide \u00a7\u00a7 416-419, 453; Trial \u00a7 507.\nAdmissibility of photograph of corpse in prosecution for homicide or civil action for causing death. 73 ALR2d 769.\n19. Criminal Law \u00a7 463 (NC14th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 supported by evidence\nThere was no error in a first-degree murder prosecution where defendant contended that the trial court erred in allowing the prosecutor to use inadmissible evidence during closing arguments, but all of the evidence of which defendant complains was properly admitted.\nAm Jur 2d, Trial \u00a7 554.\n20. Criminal Law \u00a7 463 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 use of hearsay testimony\nThere was no plain error in a first-degree murder prosecution where defendant contended that the trial court should have intervened ex mero mo tu where the prosecutor referred in closing arguments to the victim\u2019s statements of fear, her belief that the defendant was going to kill her, and her statements relating to the defendant\u2019s threats and prior assault. Although defendant contended that the prosecutor used the hearsay testimony admitted to show the victim\u2019s state of mind other than for the purpose admitted, the victim\u2019s statements were highly relevant to show the status of the victim\u2019s relationship with defendant and it was proper for the prosecutor to argue all reasonable inferences that may be drawn from this evidence. Clearly the victim\u2019s statements were relevant evidence from which the jury could conclude that the defendant intentionally killed the victim and that he had done so with malice, premeditation, and deliberation.\nAm Jur 2d, Trial \u00a7 554.\n21. Criminal Law \u00a7 468 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 not grossly improper\nThere was no error so grossly improper as to require the trial court\u2019s intervention ex mero mo tu in a first-degree murder prosecution where defendant argued that the prosecutor argued facts outside the record and expressed his own personal and highly prejudicial opinions, but the prosecutor\u2019s arguments fall well within the wide latitude accorded prosecutors in the scope of their argument and are consistent with and reasonably inferable from the record.\nAm Jur 2d, Trial \u00a7 554.\n22. Criminal Law \u00a7 442 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 biblical references\nThere was no error requiring intervention ex mero mo tu in a first-degree murder prosecution where defendant contended that the prosecutor improperly opened his closing argument with a biblical reference which indicated that the jury was ordained by God to condemn defendant, but, viewed in context, the prosecutor was effectively arguing that the evidence cried out that defendant perpetrated the crime even though it was committed in secret and without any witnesses. This is in no manner equivalent to saying that state law is divinely inspired or ordained by God.\nAm Jur 2d, Trial \u00a7\u00a7 567, 568.\n23. Criminal Law \u00a7 447 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 defendant\u2019s hatred of his father\nThere was no error requiring intervention ex mero mo tu in a first-degree murder prosecution where defendant argued that the prosecutor improperly commented on the personal characteristics of the victim, but the argument was a reasonable inference drawn from the evidence.\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.\n24. Criminal Law \u00a7 468 (NCX4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 right to remain silent, shifting burden of proof, presumption of innocence\nPortions of a prosecutor\u2019s closing argument in a first-degree murder case did not constitute a comment on defendant\u2019s exercise of his right to remain silent, a shifting of the burden of proof, or the deprivation of defendant\u2019s presumption of innocence, as defendant contended.\nAm Jur 2d, Trial \u00a7\u00a7 554, 579, 580.\n25. Criminal Law \u00a7\u00a7 436, 465 (NCI4th)\u2014 first-degree murder\u2014 prosecutor\u2019s closing argument \u2014 decision from appellate courts\nThere was no error in a first-degree murder prosecution where defendant contended that the prosecutor improperly encouraged the jury to convict the defendant on the basis of community sentiment and that the prosecutor\u2019s use of excerpts from decisions of the appellate courts confused and misled the jury.\nAm Jur 2d, Trial \u00a7\u00a7 554, 569.\nPrejudicial effect of prosecuting attorney\u2019s argument to jury that people of city, county, or community want or expect a conviction. 85 ALR2d 1132.\n26. Criminal Law \u00a7 427 (NCI4th)\u2014 first-degree murder \u2014 prosecutor\u2019s argument \u2014 State\u2019s evidence not rebutted\nThere was no error in a first-degree murder prosecution where defendant contended that the prosecutor\u2019s argument that the State\u2019s evidence was uncontradicted was an improper comment on his exercise of his right not to testify. It is well settled that the State may properly draw the jury\u2019s attention to the failure of the defendant to produce exculpatory evidence to contradict the State\u2019s case. The unavailability of a witness for the defense is not a determinative factor; theoretically, the evidence was contradictable by testimony of persons other than defendant or by cross-examination of the witnesses themselves.\nAm Jur 2d, Trial \u00a7\u00a7 554, 579, 580.\nComment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused\u2019s failure to testify. 14 ALR3d 723.\n27. Homicide \u00a7 552 (NCI4th)\u2014 first-degree murder \u2014 request for instruction on second-degree murder denied\nThe trial court did not err in a first-degree murder prosecution by denying defendant\u2019s request to instruct the jury on second-degree murder as a lesser-included offense. The evidence supports a finding of premeditation and deliberation and evidence of the lesser-included offense was totally lacking. The fact that the defendant did not bring the murder weapon to the scene of the killing, without more, will not support an instruction of second-degree murder.\nAm Jur 2d, Homicide \u00a7\u00a7 470, 471, 525.\n28. Homicide \u00a7 253 (NCI4th)\u2014 first-degree murder \u2014 sufficiency of evidence \u2014 premeditation and deliberation\nThe trial court did not err in a first degree murder prosecution by denying defendant\u2019s motion to set aside the verdict based upon insufficient evidence of premeditation and deliberation where the victim did not provoke the defendant in any manner; the defendant harassed, threatened and assaulted the victim prior to the murder; the victim was rendered helpless by being bludgeoned in the face with a hammer-like instrument; and the killing was without question done in a brutal manner.\nAm Jur 2d, Homicide \u00a7\u00a7 452, 501.\nModern status of the rules requiring malice \u201caforethought,\u201d \u201cdeliberation,\u201d or \u201cpremeditation,\u201d as elements of murder in the first degree. 18 ALR4th 961.\n29. Criminal Law \u00a7 468 (NCI4th)\u2014 first-degree murder \u2014 sentencing phase\u2014 prosecutor\u2019s argument \u2014 victim\u2019s state of mind \u2014 no error\nThere was no error in the sentencing phase of a first-degree murder prosecution in the court\u2019s decision not to intervene ex mero mo tu in the prosecutor\u2019s closing argument where defendant contended that the prosecutor improperly used hearsay testimony introduced to show the victim\u2019s state of mind to argue that defendant planned the crime and did not act under emotional disturbance, that defendant had a significant history of criminal activity, and that the murder was committed in retaliation for the victim\u2019s testimony against defendant in an earlier trial for assault. Other than unsupported allegations of impropriety, defendant fails to show how the arguments were improper or how the trial court abused its discretion by not intervening.\nAm Jur 2d, Trial \u00a7\u00a7 554, 569, 664.\n30. Criminal Law \u00a7 462 (NCI4th)\u2014 first-degree murder \u2014 sentencing phase \u2014 prosecutor\u2019s argument \u2014 not outside record\nThere was no error requiring intervention ex mero motu in the sentencing phase of a first-degree murder prosecution where defendant contended that the prosecutor improperly argued facts outside the record and expressed his own personal and prejudicial opinions. The evidence clearly established that the cause of the victim\u2019s death was asphyxiation and there was no reasonable possibility that the use of the word \u201cchoked\u201d rather than \u201csuffocated\u201d confused the jury. The argument that defendant did not lose his temper is a permissible inference drawn from the facts, the statement that defendant took matters into his own hands was nothing more than an expression that defendant took things into his own hands by killing the victim, and the argument that the State had proven its case beyond a reasonable doubt was a permissible statement of the State\u2019s position.\nAm Jur 2, Trial \u00a7\u00a7 554, 569.\n31. Criminal Law \u00a7 427 (NCI4th)\u2014 first-degree murder \u2014 sentencing phase \u2014 prosecutor\u2019s argument \u2014 defendant\u2019s failure to testify\nThere was no abuse of discretion in the trial court\u2019s failure to intervene in the sentencing phase of a first-degree murder prosecution where defendant contended that the prosecutor commented in his closing argument on his failure to testify, but the argument, when read in context, although less than clear, appears to refer to a state trooper not testifying rather than defendant. Assuming that the prosecutor\u2019s argument was improper, the impropriety was not so gross or excessive that the trial court abused its discretion by not intervening ex mero motu.\nAm Jur 2d, Trial \u00a7\u00a7 554, 579, 580.\n32. Criminal Law \u00a7 465 (NCI4th)\u2014 first-degree murder \u2014 sentencing phase \u2014 prosecutor\u2019s argument \u2014 inaccurate statement of law\nThere was no reversible error in a first-degree murder sentencing hearing where defendant contended that the prosecutor inaccurately stated the law as to the statutory aggravating circumstances submitted by the court and as to defendant\u2019s burden of proof regarding mitigating circumstances. The defendant fails to point to any particular statement by the prosecutor which he contends misstated the law and did not cite any authority showing that a particular statement was incorrect. Any misstatement of the law would have been cured by the trial court\u2019s proper instructions to the jury.\nAm Jur 2d, Trial \u00a7\u00a7 640, 641, 643.\n33. Criminal Law \u00a7 454 (NCI4th)\u2014 first-degree murder \u2014 sentencing hearing \u2014 prosecutor\u2019s argument \u2014 pause to show time for death by asphyxiation \u2014 no error\nThere was no error in a first-degree minder sentencing hearing where defendant argued that the court erred by not intervening ex mero motu to prevent the prosecutor\u2019s three minute pause intended to show the period of time it took for the victim to die of asphyxiation. The evidence clearly established that the defendant forcibly held the victim\u2019s head down into a pillow for at least three or four minutes, the length of time it took for the victim to die of asphyxiation is relevant to the character and circumstances of the crime regardless of whether the victim suffered, and defendant failed to object to the prosecutor\u2019s argument. In light of State v. Artis, 325 N.C. 278, there was no impropriety whatsoever with the prosecutor\u2019s argument and no error in the decision not to intervene.\nAm Jur 2d, Trial \u00a7\u00a7 547 et seq., 554, 569.\n34. Criminal Law \u00a7 468 (NCI4th)\u2014 first-degree murder \u2014 sentencing hearing \u2014 prosecutor\u2019s argument \u2014 sympathy for defendant\u2019s family\nThe trial court did not abuse its discretion by not intervening ex mero mo tu in a first-degree murder sentencing hearing where defendant contended that the prosecutor acted improperly by requesting that the jury not consider sympathy for defendant\u2019s family in its consideration of mitigating circumstances. It is clear that, when read in context, the prosecutor was not asking the jurors to ignore any feelings of sympathy that are supported by the facts, but was arguing that their duty nevertheless required them to recommend the death penalty.\nAm Jur 2d, Trial \u00a7\u00a7 648, 649.\n35. Criminal Law \u00a7 442 (NCI4th)\u2014 first-degree murder\u2014 sentencing hearing \u2014 prosecutor\u2019s argument \u2014 jury\u2019s responsibility\nThere was no error in a first-degree murder sentencing hearing where defendant argued that the prosecutor\u2019s argument diminished the jury\u2019s sense of responsibility for determining the appropriateness of death because the prosecutor argued that the jurors had a duty, under the evidence presented, to recommend the death penalty and that they were servants of the law. The prosecutor did not suggest to the jurors that they could depend upon judicial or executive review to correct any errors they might make.\nAm Jur 2d, Trial \u00a7\u00a7 567 et seq.\n36. Criminal Law \u00a7 455 (NCI4th)\u2014 first-degree murder \u2014 sentencing hearing \u2014 prosecutor\u2019s argument \u2014 deterrent value\nThere was no error in a first-degree murder sentencing hearing where defendant contended that the trial court erred by failing to sustain his objection to the prosecutor\u2019s comments on the relative deterrent values of life imprisonment and the death penalty and allegedly racist remarks. The argument that the death penalty was the only way to be sure that this defendant would never walk out again was a permissible argument that the jury should recommend the death penalty to foreclose further crimes by the defendant and the prosecutor\u2019s subsequent argument that it is hard to be penitent with televisions, basketball courts, and weight rooms emphasized the prosecution\u2019s position that life in prison was not an adequate punishment. Although defendant contended that a comment concerning \u201csitting around rapping\u201d encouraged the jury to make its decision on the basis of racial prejudice, the common definition of rap is to talk and defendant presented no argument to convince the Court that rap as used by the prosecutor meant anything else. There was no violation of defendant\u2019s First Amendment rights because, regardless of whether the prosecutor intended rap to mean talk or sing, he did not argue that defendant should be put to death because he rapped.\nAm Jur 2d, Homicide \u00a7\u00a7 463, 464; Trial \u00a7\u00a7 572, 658 et seq.\n37. Criminal Law \u00a7 458 (NCI4th)\u2014 first-degree murder \u2014 sentencing hearing \u2014 prosecutor\u2019s argument \u2014 duration of life sentence\nThere was no gross impropriety requiring the trial court to intervene ex mero motu in a first-degree murder sentencing hearing where defendant contended that the court erred by failing to prevent the prosecutor\u2019s innuendo that the duration of a life sentence would be minimal when he would not be eligible for parole for twenty years. The prosecutor argued that the jury should impose the death penalty in order to insure that the defendant never kills again; there is no manner in which the argument could be construed to address the defendant\u2019s parole eligibility.\nAm Jur 2d, Trial \u00a7\u00a7 575, 576.\nPrejudicial effect of statement of prosecutor as to possibility of pardon or parole. 16 ALR3d 1137.\n38. Criminal Law \u00a7 1343 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 aggravating circumstances \u2014 especially heinous, atrocious or cruel\nThere was sufficient evidence in the sentencing hearing for a first-degree murder to submit the aggravating circumstance that the murder was especially heinous, atrocious, or cruel where the evidence supported a conclusion that the killing was physically agonizing, conscienceless, pitiless and unnecessarily dehumanizing to the victim and a finding that the killing involved psychological terror not normally present in murder. N.C.G.S. \u00a7 15A-2000(e)(9).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n39. Criminal Law \u00a7\u00a7 1341, 1342 (NCI4th)\u2014 first-degree murder \u2014 sentencing\u2014aggravating circumstances \u2014 pecuniary gain, former witness who exercised official duty\nThe evidence was sufficient in a sentencing hearing for first-degree murder to submit the aggravating circumstances of pecuniary gain and that the murder was committed against a former witness against the defendant because of the exercise of her official duty. The victim was found dead two days after testifying against defendant, over one hundred dollars in change was stolen from the victim\u2019s bedroom, and witnesses testified that defendant was making purchases with change shortly after the murder. Any error in submitting these aggravating circumstances was harmless because, based on the jury finding that the murder was especially heinous, atrocious, or cruel and the jury not finding any mitigating circumstances, it is unreasonable to believe that the jury would have ignored the fact that the defendant mercilessly and brutally killed the victim and thus would have found that the death penalty was not justified absent a finding that the victim was a former witness or that the defendant killed the victim for money.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n40. Criminal Law \u00a7 1355 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 mitigating circumstances \u2014 no significant history of prior criminal activity\nThere was no error in the sentencing hearing for a first-degree murder where defendant argued that the jury was required to find the existence of the statutory mitigating circumstance that defendant did not have a significant history of prior criminal activity given the uncontradicted evidence, but evidence regarding defendant\u2019s prior assault on the victim was susceptible to a finding by the jury that the defendant had a significant history of criminal activity. In those cases where the evidence is truly uncontradicted, the defendant is at most entitled to a peremptory instruction when he requests it and the defendant did not request a peremptory instruction in this case. The mitigating circumstance was submitted, the jury was required to consider it, and the jury simply declined to find that the evidence supported this mitigating circumstance.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n41. Criminal Law \u00a7 1363 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 nonstatutory mitigating circumstances\nThere was no error in the sentencing hearing for a first-degree murder prosecution where the jury did not find the non-statutory mitigating circumstances that defendant was regularly employed at the time of the offense and that defendant has a supportive family structure. It is the prerogative of the jury to believe or reject the evidence presented by the defendant as to the existence of a mitigating circumstance and the jury may determine that a nonstatutory mitigating circumstance has no value even if that circumstance is found to exist.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n42. Criminal Law \u00a7 1363 (NCI4th)\u2014 first-degree murder\u2014 sentencing \u2014 nonstatutory mitigating circumstances\u2014 instructions\nThe trial court in a first-degree murder prosecution did not err by instructing the jury that it must determine whether the evidence supported each nonstatutory mitigating circumstance submitted and whether it had mitigating value.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n43. Criminal Law \u00a7 1327 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 duty to recommend death\nThe trial court did not err in a first-degree murder prosecution by instructing the jury that it had a duty to recommend a sentence of death if it determined that the mitigating circumstances were insufficient to outweigh the aggravating circumstances and that the aggravating circumstances were sufficiently substantial to warrant the imposition of the death penalty.\nAm Jur 2d, Trial \u00a7\u00a7 841, 1446, 1447.\n44. Constitutional Law \u00a7 371 (NCI4th)\u2014 death penalty\u2014 constitutional\nThe North Carolina death penalty statute is constitutional.\nAm Jur 2d, Criminal Law \u00a7 628.\n45. Criminal Law \u00a7 1343 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 especially, heinous, atrocious or cruel aggravating circumstance \u2014 not inherently vague\nThe instruction for the especially heinous, atrocious or cruel aggravating circumstance is not inherently vague.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n46. Criminal Law \u00a7 1348 (NCI4th)\u2014 first-degree murder \u2014 sentencing \u2014 mitigating circumstances \u2014 instructions\nThe instruction on mitigating circumstances in a first-degree murder sentencing hearing did not erroneously focus the jury\u2019s attention on the killing, thereby limiting their ability to consider defendant\u2019s character and background as a basis for a sentence less than death.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n47. Criminal Law \u00a7 1351 (NCI4th)\u2014 first-degree murder\u2014 instructions \u2014 burden of proof\nThe trial court in a first-degree murder sentencing hearing did not err when instructing the jury on defendant\u2019s burden of proof by defining preponderance of the evidence as evidence which \u201cmust satisfy you\u201d rather than as \u201cmore likely than not.\u201d\nAm Jur 2d, Evidence \u00a7 171.\n48. Homicide \u00a7 493 (NCI4th)\u2014 first-degree murder\u2014 instructions \u2014 premeditation and deliberation \u2014 lack of provocation\nThere was no error in a first-degree murder prosecution where the trial court instructed the jury that premeditation and deliberation could be inferred from lack of provocation by the victim.\nAm Jur 2d, Homicide \u00a7\u00a7 482, 483, 501.\n49. Criminal Law \u00a7 1363 (NCI4th)\u2014 first-degree murder\u2014 mitigating circumstances \u2014 instructions\u2014circumstantial evidence\nThe trial court did not err in a first-degree murder prosecution by refusing to submit as a nonstatutory mitigating circumstance that the State\u2019s case was largely based upon circumstantial evidence.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n50. Criminal Law \u00a7 1373 (NCI4th)\u2014 first-degree murder\u2014 death sentence \u2014 not disproportionate\nA sentence of death for a first-degree murder was not disproportionate where the record fully supports the aggravating circumstances found by the jury, there is no indication that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and the sentence was not excessive or disproportionate to the penalty imposed in similar cases. The distinguishing characteristics of the case are that the jury convicted defendant under the theory of premeditation and deliberation; the victim\u2019s brutal murder was found by the jury to be especially heinous, atrocious, or cruel; the victim was killed in her own bedroom during the night; the victim suffered great physical and psychological pain before death; the victim was not only in pain, but was aware of her impending death as she suffocated; the victim was of unequal physical strength to defendant; the victim feared defendant; and the defendant failed to exhibit remorse after the killing.\nAm Jur 2d, Criminal Law \u00a7 628.\nAppeal as of right by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Allen (J.B., Jr.), J., at the 19 October 1992 Criminal Session of Superior Court, Warren County, upon a jury verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 14 February 1995.\nMichael F. Easley, Attorney General, by Mary Jill Ledford, Assistant Attorney General, for the State.\nJoseph B. Cheshire, V and Robert Manner Hurley for defendant-appellant."
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