{ "id": 795950, "name": "STATE OF NORTH CAROLINA v. JEFFREY CLAYTON KANDIES", "name_abbreviation": "State v. Kandies", "decision_date": "1996-02-09", "docket_number": "No. 197A94", "first_page": "419", "last_page": "456", "citations": [ { "type": "official", "cite": "342 N.C. 419" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "90 L. Ed. 2d 1001", "category": "reporters:federal", "reporter": "L. 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JEFFREY CLAYTON KANDIES" ], "opinions": [ { "text": "WHICHARD, Justice.\nDefendant was tried capitally for the first-degree murder and first-degree rape of Natalie Lynn Osborne, the four-year-old daughter of defendant\u2019s fianc\u00e9e. The jury found defendant guilty on both charges and recommended a sentence of death for the first-degree murder. The trial court sentenced accordingly on the murder charge and sentenced defendant to life imprisonment for the rape, to begin at the expiration of the murder sentence. We hold that defendant received a fair trial and capital sentencing proceeding, free of prejudicial error, and that the sentence of death is not disproportionate.\nPatricia Craven lived in Asheboro with her four-year-old daughter, Natalie, and her sons, Zachary and Jeremy, ages six and one, respectively. Defendant was Craven\u2019s fianc\u00e9 and Jeremy\u2019s father. Although defendant had a separate residence approximately ten miles away in Randleman, he. often stayed with Craven at her apartment in Asheboro.\nOn Easter Monday, 20 April 1992, defendant and Craven disciplined Natalie for eating Zachary\u2019s Easter candy by requiring her to stay in her room for the remainder of the day. Craven saw Natalie periodically throughout the day, but last saw her alive between 4:00 and 4:30 p.m. Around 4:45 p.m., defendant left the apartment to go to the grocery store. He did not return until 7:30 that evening. He attributed his tardiness to helping an elderly couple who had mechanical problems with their Winnebago. Once home, defendant began fixing a pizza for the children. When it was ready, he told Zachary to call for Natalie. When Zachary did not find Natalie in her bedroom, defendant and Craven began looking for her. One neighbor told Craven that he had noticed Natalie outside playing sometime that afternoon, but no one recalled seeing her since that time. After a while, defendant called the Asheboro Police Department to report Natalie missing. An extensive search for her was conducted that night, but without success.\nEarlier that evening, around 7:00 p.m., defendant entered the Tank and Tummy, a small convenience store located about one-half mile from the Craven residence. Carolyn Wood, the clerk, testified that at that time, defendant was complaining about his hand hurting. He told Wood that he had gotten into a fight with his brother. Wood noticed that the hand was beginning to swell and suggested that defendant let a medical technician who happened to be in the store look at his hand to see if it was broken. Defendant declined and immediately left the store.\nLater that evening, close to midnight, defendant returned to the store to ask if Wood had seen Natalie. He showed Wood a picture of Natalie and told her to call the police if she saw the little girl. At the time, Wood observed black garbage bags in the back of defendant\u2019s truck.\nOn Tuesday, 21 April 1992, defendant agreed to accompany officers to his residence in Randleman to look for Natalie. The police surmised that perhaps Craven and defendant had hidden Natalie at the Randleman residence because Craven had been in a custody dispute over Natalie with her former husband, Ed Osborne. The police looked through the house but did not find Natalie.\nOn Wednesday, 22 April, Craven and defendant went to the Asheboro Police Department for questioning. Craven was questioned and released around 7:30 p.m., while defendant remained at the station for further interrogation. Defendant was finally taken home by Sergeant Rickey Wilson about 1:00 a.m. Upon defendant\u2019s return to the apartment, Craven asked him if he knew anything about what happened to Natalie. Defendant responded by telling Craven that he had hit Natalie with his truck when he was leaving to go to the grocery store on Easter Monday. Natalie was outside rather than in her room, and defendant did not see her in time to stop. Defendant said he panicked because he had been drinking. He picked Natalie up and took her to the house in Randleman to clean her and see how badly she was hurt. During the drive to Randleman, defendant said that Natalie was making gurgling noises and that her head did not look right. After trying to clean her, defendant concealed Natalie and her clothes in a garbage bag and put the bag in a bedroom closet. Defendant then got in his truck and took his time returning to Asheboro.\nCraven called the police immediately upon hearing defendant\u2019s story. Defendant was taken to the Asheboro Police Department, where Sergeant Wilson read him his Miranda rights and then interviewed him. Defendant told Sergeant Wilson what he had told Craven. Shortly after giving a statement to Sergeant Wilson, defendant gave a statement to Lieutenant Lanny Mclver. This statement was more detailed but in substance was the same as that given to Sergeant Wilson. Defendant gave details as to the location of Natalie\u2019s body and signed consent to search forms for the Randleman house.\nThe police searched the Randleman residence and found Natalie\u2019s body in a plastic bag, buried under a pile of clothes and carpet pieces in a bedroom closet. A bloody playsuit and a bloody pair of panties, both turned inside out, were also found in the bag. The process of recovering the body was videotaped, and photographs of the crime scene were taken.\nDr. Thomas Clark, a forensic pathologist, performed an autopsy on the body shortly after it was recovered. He found two lacerations to the top of the head which he characterized as blunt-force injuries. He also found lacerations on the right side of the head and abrasions on the left side of the head and on the front of the neck; there was evidence the skull had been fractured. There were multiple bruises on the back and both sides; the bruises were small and rounded and had a distribution and shape suggestive of an adult hand. Clark also found injuries to the pelvic region. There were bruises on both sides of the vagina, which was full of blood. The opening of the vagina was patulous, and there was a laceration a half-inch wide and an inch long on the back wall of the vagina. Clark opined that these injuries were indicative of sexual assault and that they had occurred at or about the time of death.\nThat evening, after the results of the autopsy had been revealed, Lieutenant Mclver again interrogated defendant. When Mclver mentioned the possibility of sexual assault, defendant stated, \u201cI told Pat you were going to say I did something like that to Natalie.\u201d Thereafter, in his statement, defendant denied doing anything sexual to Natalie. He remembered taking Natalie to his house, putting her in the bathtub, and taking off her clothes to see how badly she was hurt. At that time Natalie was bleeding extensively but appeared to be alive and moving. Defendant stated that he could not handle the situation and may have strangled Natalie.\nA rape suspect collection kit test was completed on defendant. The kit included samples of head and pubic hair, saliva, and blood, and was submitted to the SBI crime lab for examination. Agent Lucy Milks, an SBI forensic serologist, performed a luminal and blood test on the Randleman residence and on defendant\u2019s truck. At the Randleman residence, she found the presence of blood on the bathroom floor and tub; the bedroom floor; the laundry room floor; the kitchen floor; and the floor between the bedroom, bathroom, and den. She also found a small amount of blood on the interior of the passenger door of defendant\u2019s truck.\nDefendant presented no evidence during the guilt-innocence phase. During the sentencing phase, defendant presented evidence through Dr. Brian Glover, a clinical psychologist, who testified as an expert in substance abuse treatment. Glover testified that by age seventeen, defendant was using alcohol and marijuana on a daily basis and that for the several years preceding this offense, defendant was drinking between twelve and twenty-four beers per day. It was Glover\u2019s opinion that defendant had severe alcohol dependence and that on the day of the offense, defendant was suffering from acute intoxication which affected his judgment and ability to control his emotions. Glover also opined that on 20 April 1992, defendant was under a mental disorder and that his ability to appreciate the criminality of his actions was impaired.\nThe jury found defendant guilty of first-degree murder based on both the felony murder rule and on premeditation and deliberation. It also found him guilty of first-degree rape. At the capital sentencing proceeding, the jury found as aggravating circumstances that the murder was committed while defendant was engaged in the commission of first-degree rape and that the murder was especially heinous, atrocious, or cruel. The jury found three of the five proposed statutory mitigating circumstances and eighteen of the twenty-eight non-statutory mitigating circumstances submitted. It unanimously recommended a sentence of death, which the trial court accordingly imposed.\nJury Selection Issues\nDefendant first argues that the prosecutor violated his state and federal constitutional rights by peremptorily challenging prospective jurors solely on the basis of their race. Article I, Section 26 of the Constitution of North Carolina prohibits such use of peremptory challenges. State v. Glenn, 333 N.C. 296, 301, 425 S.E.2d 688, 692 (1993). The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution also prohibits such discrimination. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986).\nIn Batson the United State Supreme Court set out a three-pronged process to determine whether a prosecutor impermissibly excluded prospective jurors because of their race. First, a criminal defendant must make out a prima facie case of discrimination by demonstrating that the prosecutor exercised peremptory challenges on the basis of race and that this fact and other relevant circumstances raise an inference of discrimination. Id. at 96, 90 L. Ed. 2d at 87-88, as modified by Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411 (1991). Here the prosecutor voluntarily gave reasons for the dismissal of each juror in question. Accordingly, we need not address the question of whether defendant met his initial burden of showing discrimination and may proceed as if a prima facie case had been established. State v. Robinson, 330 N.C. 1, 17, 409 S.E.2d 288, 297 (1991).\nSecond, the State must \u201carticulate legitimate reasons which are clear and reasonably specific and related to the particular case to be tried which give a neutral explanation for challenging jurors of the cognizable group.\u201d State v. Jackson, 322 N.C. 251, 254, 368 S.E.2d 838, 840 (1988), cert. denied, 490 U.S. 1110, 104 L. Ed. 2d 1027 (1989). These reasons \u201c \u2018need not rise to the level justifying exercise of a challenge for cause.\u2019 \u201d State v. Porter, 326 N.C. 489, 498, 391 S.E.2d 144, 151 (1990) (quoting Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88). \u201cSo long as the motive does not appear to be racial discrimination, the prosecutor may exercise peremptory challenges on the basis of \u2018legitimate \u201chunches\u201d and past experience.\u2019 \u201d Id. (quoting State v. Antwine, 743 S.W.2d 51, 65 (Mo. 1987) (en banc), cert. denied, 486 U.S. 1017, 100 L. Ed. 2d 217 (1988)).\nFinally, the trial court must \u201cdetermine whether the defendant has carried his burden of proving purposeful discrimination.\u201d Hernandez v. New York, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405 (1991). In evaluating the State\u2019s explanations, a reviewing court should remember that the trial court\u2019s findings \u201clargely will turn on evaluation of credibility, [and so] should give those findings great deference.\u201d Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21. The findings of a trial court are not to be overturned unless the appellate court is \u201cconvinced that its determination was clearly erroneous.\u201d Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 412.\nFactors to which this Court has looked to determine the presence or absence of intentional discrimination include (1) \u201c \u2018the susceptibility of the particular case to racial discrimination,\u2019 \u201d Porter, 326 N.C. at 498, 391 S.E.2d at 150 (quoting State v. Antwine, 743 S.W.2d at 65); (2) whether the State used all of its peremptory challenges, Jackson, 322 N.C. at 255, 368 S.E.2d at 840; (3) the race of witnesses in the case, id.; (4) questions and statements by the prosecutor during jury selection which tend to support or refute an inference of discrimination, State v. Smith, 328 N.C. 99, 121, 400 S.E.2d 712, 724-25 (1991); (5) whether the State accepted any black jurors, id.; and (6) whether similarly situated whites were accepted as jurors, Robinson, 330 N.C. at 19, 409 S.E.2d at 298. Additionally, \u201c[a]n examination of the actual explanations given by the district attorney for challenging black veniremen is a crucial part of testing defendant\u2019s Batson claim.\u201d Smith, 328 N.C. at 125, 400 S.E.2d at 726.\nIn this case the defendant is white, the victim was white, and several witnesses are white. The prosecutor accepted three black jurors when he had peremptory challenges remaining.\nWith these general facts and guidelines in mind, we turn to the State\u2019s reasons for peremptorily challenging each of the nine black prospective jurors. Defendant raised his first Batson challenge when the prosecutor struck potential jurors Randleman, Jinwright, and Massey. As the basis for his exercise of the peremptory challenges, the prosecutor stated that (1) Randleman was hesitant on the death penalty, and although her juror questionnaire indicated no convictions, her record indicates that she had been convicted of worthless checks and two speeding violations; (2) Jinwright worked with three- and four-year-old children and was hesitant on the death penalty question; and (3) Massey was hard of hearing and had difficulty understanding questions. Defendant made no further showing at trial regarding these jurors. He now argues that the prosecutor passed several similarly situated white jurors and that this disparate treatment of black and white jurors reveals a pretextual explanation for excluding blacks from the jury.\nDefendant\u2019s approach \u201cinvolves finding a single factor among the several articulated by the prosecutor . . . and matching it to a passed juror who exhibited that same factor.\u201d Porter, 326 N.C. at 501, 391 S.E.2d at 152. We have rejected this approach and do so again because it \u201cfails to address the factors as a totality which when considered together provide an image of a juror considered . . . undesirable by the State.\u201d Id. We conclude that the trial court did not err in overruling defendant\u2019s objection to the State\u2019s use of its peremptory challenges for these jurors.\nIn his second Batson objection, defendant questioned the State\u2019s dismissal of prospective jurors Rawlinson and McClure. As his reason for these dismissals, the prosecutor stated that a source within the High Point Police Department indicated that Rawlinson and McClure would not be good jurors for this case because they were weak on the death penalty. Further, a court officer noticed McClure nodding off at least twice during voir dire.\nAfter the prosecutor volunteered these explanations, the trial court noted that the prosecutor passed a minority juror called as a replacement. The trial court then held that the reasons enunciated by the prosecutor were valid bases and not solely motivated by impermissible racial discrimination. We hold that the trial court did not err in overruling defendant\u2019s objection to the State\u2019s excusal of these prospective jurors.\nDefendant\u2019s subsequent Batson challenges arose when the State excused prospective jurors Campbell, Hines, and Wilson. The prosecutor voluntarily responded to each challenge. He stated that he excused Campbell because he stated that he did not believe in the death penalty. Moreover, a record check indicated that a person named Fred Campbell had a prior common law robbery conviction. Hines was dismissed because he was worried about his employment and loss of income; he had never thought about the death penalty; and although Hines denied it, the State\u2019s records indicated that he had prior convictions for driving while impaired and driving while license revoked. The prosecutor excused Wilson because it appeared that he had a record of reckless driving, driving while impaired, four worthless checks, two injury to personal property convictions, a simple assault, and assault by pointing a gun. A juror\u2019s criminal history is a sufficiently neutral reason to challenge that juror. See Porter, 326 N.C. at 499, 391 S.E.2d at 151. We find no error in the trial court\u2019s dismissal of prospective jurors Campbell, Hines, and Wilson.\nDefendant raised his final Batson challenge when the State excused prospective alternate juror Oliver. The prosecutor voluntarily explained that Oliver appeared to have trouble hearing, as evidenced by her failure to heed the court\u2019s instruction about not watching television and not listening to any radio broadcasts concerning this case. The prosecutor was concerned that she would have difficulty hearing and understanding as the trial proceeded. In overruling defendant\u2019s objection, the trial court noted Oliver\u2019s inability to hear the prosecutor\u2019s questions without requesting clarification on numerous occasions during voir dire. We hold that the trial court properly overruled defendant\u2019s objection to the State\u2019s excusal of this prospective juror.\nTaken singly or in combination, the State\u2019s dismissal of each of these jurors was based on race-neutral reasons which were clearly supported by their individual responses during voir dire. The trial court correctly ruled that the State did not exclude any jurors based solely upon their race in violation of Batson or the Constitution of North Carolina. Defendant\u2019s assignments of error on these grounds are overruled.\nIn his next assignment of error, defendant contends that the trial court erred in denying his motion to require the State to produce copies of criminal records of prospective jurors. Defendant moved pretrial for copies of all the criminal record checks for prospective jurors obtained by the prosecution. The trial court denied this motion. Defendant subsequently renewed the motion three times during jury selection when the prosecutor asserted that the reason he was challenging a prospective black juror was because the juror failed to disclose a prior criminal record either on his questionnaire or during voir dire. Defendant argues that the trial court\u2019s acceptance at face value of the prosecutor\u2019s reason for discharging a black juror because of an undisclosed criminal record violates defendant\u2019s due process rights as well as his right to a fair and impartial jury. We disagree.\nIt is well settled in North Carolina that \u201cthe trial judge has broad discretion to see that a competent, fair and impartial jury is impaneled and rulings of the trial judge in this regard will not be reversed absent a showing of abuse of discretion.\u201d State v. Johnson, 298 N.C. 355, 362, 259 S.E.2d 752, 757 (1979). Defendant has failed to show an abuse of discretion here. First, there is no statutory requirement that a prosecutor must reveal juror information in his possession. Section 15A-903 of the North Carolina General Statutes describes types of information obtained by the State that may be subject to disclosure. No mention is made of criminal records of prospective jurors. N.C.G.S. \u00a7 15A-904 pertains to information not subject to disclosure; it provides in pertinent part that except as otherwise required by N.C.G.S. \u00a7 15A-903, production of reports, memoranda, or other internal documents made by the State or persons acting in its behalf in connection with the prosecution of the case is not required. Where a statute expressly restricts discovery, as does N.C.G.S. \u00a7 15A-904(a), the trial court has no authority to order discovery. State v. Hardy, 293 N.C. 105, 125, 235 S.E.2d 828, 840 (1977).\nFurther, the district attorney is an officer of the court and, as such, is sworn to represent the State honestly and to the best of his ability. Absent evidence to the contrary, it is not unreasonable for the trial court to assume that the prosecutor is telling the truth with regard to the criminal records of prospective jurors.\nFinally, once the prosecutor has articulated a nonracial explanation for each challenged peremptory strike, the burden shifts to the defendant to introduce evidence that the State\u2019s reasons are a pretext. Robinson, 330 N.C. at 16, 409 S.E.2d at 296. Thus, the ultimate burden of rebutting the State\u2019s representations and proving purposeful discrimination lies with the defendant. Defendant had sufficient opportunity to produce evidence that the prospective jurors in question did not have criminal records. He could have obtained a record check himself or secured a court order requiring production of these documents. There were resources available to defendant to rebut the State\u2019s explanations, and he chose not to utilize them.\nAbsent authority mandating that the trial court allow defendant to discover these documents and absent any evidence produced by defendant questioning the validity of the prosecutor\u2019s representations, it cannot be said that the trial court abused its discretion in denying defendant\u2019s motion. This assignment of error is overruled.\nDefendant next contends that the trial court erred in failing to excuse juror Mayberry for cause because his views regarding first-degree murder would prevent him from considering life imprisonment as an appropriate punishment. The standard for determining whether a prospective juror may properly be excused for cause for his views on capital punishment is whether those views would \u201cprevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.\u201d Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985). Our reading of the transcript reveals that defendant did not establish that Mayberry\u2019s views on capital punishment would substantially impair the performanee of his duties as a juror; therefore, the trial court properly denied defendant\u2019s challenge.\nDefendant initially challenged Mayberry for cause based upon his response that life imprisonment for someone convicted of first-degree murder was \u201cnot fair to the general public.\u201d Without ruling on the challenge, the trial court allowed the prosecutor to question Mayberry. After several perplexing answers to the prosecutor\u2019s questions, the trial court spoke with Mayberry. The trial court\u2019s voir dire proceeded in pertinent part as follows:\nThe Court: All right. So a juror must be able to consider both penalties at that sentencing hearing and must be able to weigh whether the State has carried its burden of proof on each of the three issues. So a juror who would automatically vote to impose the death penalty on any first degree murder case would not be carrying out his duty to consider the three additional issues that any juror must consider under our law. So the question becomes whether you can follow the law and require the State to prove those three things beyond a reasonable doubt if we reach a sentencing hearing and whether you can consider the imposition of a sentence of life imprisonment if you, as part of that sentencing jury, finds [sic] that the State has not carried its burden of proof on those three issues.\nMr. Mayberry: Okay. I follow what you\u2019re saying.\nThe Court: Okay. Now, we\u2019ll go back. Do you believe, searching your own conscience, that you would be able to consider both possible penalties and require the State to prove the things the law says must be proved before the jury can consider the death penalty, if we reach that stage?\nMr. Mayberry: Understanding the law now, I guess I would have to.\nThe Court: Would you be able to abide by the Court\u2019s instructions and apply that procedure in determining the appropriate punishment?\nMr. Mayberry: Yeah, I guess I would have to.\nThe Court: And you are \u2014 Is it correct for me to say then that you would not automatically vote for the death penalty in the event this Defendant is found guilty by the jury of first degree murder?\nMr. Mayberry: Provided the second phase has been followed.\nThe Court: If you were part of the jury that returned a verdict of first degree murder would you be willing to require the State to prove those additional three issues before you would consider recommending the death penalty?\nMr. Mayberry: That\u2019s the way the system works, isn\u2019t it? I would.\nThe Court: Would you be willing to follow the law as the Court explains it to you?\nMr. Mayberry: Yes.\nThereafter, defense counsel was permitted to question Mayberry further, whereupon Mayberry restated that he would consider the law as instructed by the trial court.\nBecause Mayberry said he could put aside his prejudice concerning the death penalty and could follow the law as instructed, he was properly not excused for cause under the Witt standard. See State v. Quesinberry, 319 N.C. 228, 235, 354 S.E.2d 446, 450-51 (1987). We conclude the trial court did not err in refusing to remove Mayberry upon defendant\u2019s challenge for cause.\nIn a related assignment of error, defendant argues that the trial court improperly limited his voir dire of jurors Mayberry and Peterson. On several occasions the trial court sustained objections to questions pertaining to these jurors\u2019 views on capital punishment. Examples include:\nWhat feelings or what life experiences do you bring into the courtroom that would make you feel [very strongly for the death penalty]?\nDo you think the defendant should prove to you why he should be given life imprisonment rather than the death penalty if he\u2019s convicted of first degree murder?\nWould the age of the victim in this case, any particular first degree murder, make a difference to you as to whether you would impose a life sentence or a death sentence?\nDo you have any difficulty in imposing a life sentence on someone you just convicted of first degree murder?\nDo you feel that it would be difficult for you to consider any other punishment other than death if you were entirely convinced and fully satisfied that someone had committed first degree murder?\nWould it be hard or difficult or substantially impair your ability to consider that [the State] had to prove more [aggravating circumstances as well as defendant\u2019s guilt] to you?\nDefendant argues that he must be permitted the opportunity \u201cto lay bare the foundation of [his] challenge for cause against those prospective jurors who would always impose death following conviction.\u201d Morgan v. Illinois, 504 U.S. 719, 733, 119 L. Ed. 2d 492, 506 (1992). To this end, he contends that these questions were proper under Morgan because they inquired into whether a juror could be fair and impartial and whether predetermined views regarding the death penalty would substantially impair that prospective juror\u2019s ability to serve. We conclude that Morgan does not require that a defendant be allowed to ask the questions at issue.\nIn State v. Robinson, 339 N.C. 263, 273, 451 S.E.2d 196, 202 (1994), cert. denied, - U.S. -, 132 L. Ed. 2d 818 (1995), this Court held that it was improper to ask potential jurors if they would impose the death penalty under the particular facts and circumstances of the case. In Robinson the defendant attempted to ask prospective jurors if they would be able to follow the trial court\u2019s instructions and weigh the aggravating and mitigating circumstances even though the defendant had killed three people, including a child, and had a previous conviction for first-degree murder. Id. at 272, 451 S.E.2d at 202. This Court held that the trial court did not err by disallowing the question because the question was \u201can improper attempt to \u2018stake out\u2019 the jurors as to their answers to legal questions before they are informed of legal principles applicable to their sentencing recommendation.\u201d Id. at 273, 451 S.E.2d at 202. This Court further noted that \u201c \u2018[c]ounsel should not fish for answers to legal questions before the judge has instructed the juror on applicable legal principles by which the juror should be guided .... Jurors should not be asked what kind of verdict they would render under certain named circumstances.\u2019 \u201d Id. (quoting State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980)). We conclude that the questions at issue here were an improper attempt to \u201cstake out\u201d the jurors and determine what kind of verdict the jurors would render under a given set of circumstances.\nUnder this same assignment of error, defendant also contends the trial court erred by repeatedly sustaining the prosecutor\u2019s objections to defense questions regarding the prospective juror\u2019s exposure or relationship to children. In each instance defendant complains of, the prospective juror either answered the question before the objection was made; or had answered a similar question previously; or an objection was made as to form, and defense counsel was allowed to restate the question. Thus, defendant has failed to show an abuse of discretion by the trial court.\nGuilt-Innocence Phase\nDefendant\u2019s next assignment of error concerns the admissibility of evidence regarding prior instances of sexual behavior of Natalie. Defendant filed a written motion pursuant to N.C.G.S. \u00a7 8C-1, Rule 412(b)(2) offering proof that Natalie had testified in a juvenile hearing on 30 January 1992 that her father had \u201ckissed her pee-pee.\u201d After an in camera hearing, the trial court denied defendant\u2019s motion. Defendant contends that he should have been allowed to present this evidence because it supported his argument that Natalie had been involved in prior sexual behavior and that defendant, having run over Natalie with his truck, only aggravated preexisting injuries to her vagina. We conclude that defendant\u2019s proffered evidence was too temporally remote to be relevant to this offense and that the trial court properly denied defendant\u2019s motion.\nAll of the evidence indicates that the injuries to Natalie\u2019s vagina were recent in relation to the time of her death. Dr. Clark testified that he performed an internal examination of Natalie and found serious injuries to the pelvic region. Natalie\u2019s vagina was full of blood, and there was a laceration on the back wall of the vagina. The laceration was a blunt-force injury and was indicative of forced intercourse. Clark opined that the injuries occurred at or about the time of death based on the amount of blood that was in the vagina and the lack of healing. Clark also testified that the opening of the vagina was patulous, which means it was gaping open. This is a condition not normally seen in the body of a young child, even in a state of decomposition. Finally, Clark stated that the vaginal injuries were so significant that they would have caused bleeding visible to an average person. Yet, Craven, Natalie\u2019s mother, had never noticed any bleeding or vaginal problems prior to the date of this offense.\nIn view of the uncontroverted evidence indicating that Natalie\u2019s vaginal injuries occurred near the time of her death, we find defendant\u2019s argument to be without merit. This assignment of error is accordingly overruled.\nDefendant next argues that the trial court erred by admitting into evidence a number of crime-scene and autopsy photographs as well as a videotape of the crime scene. Specifically, defendant objects to crime-scene photographs of the black plastic bag and of the position of the body and clothes after the bag was opened; pictures of various bloodstains around the house; autopsy photographs illustrating Natalie\u2019s injuries; and a videotape that contained a ninety-second close-up of the body after recovery. The trial court admitted all of these exhibits for illustrative puiposes.\nDefendant contends that these exhibits should have been excluded because they were repetitious and their probative value was outweighed by the danger of unfair prejudice. See N.C.G.S. \u00a7 8C-1, Rule 403 (1992). What represents \u201can excessive number of photographs\u201d and whether the \u201cphotographic evidence is more probative than prejudicial\u201d are matters within the trial court\u2019s sound discretion. State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). Photographs \u201cshowing the condition of the body when found, its location when found, and the surrounding scene at the time . . . are not rendered incompetent by the portrayal of the gruesome events which the witness testifies they accurately portray.\u201d State v. Elkerson, 304 N.C. 658, 665, 285 S.E.2d 784, 789 (1982). Repetitive photographs may be introduced, even if they are revolting, as long as they are used for illustrative purposes and are not offered solely to arouse prejudice or passion in the jury. Hennis, 323 N.C. at 284, 372 S.E.2d at 526. Factors a court may consider include what the photographs depict, the level of detail, the manner of presentation, and the scope of accompanying testimony. Id. at 285, 372 S.E.2d at 527.\nThe photographs about which defendant complains were neither repetitious nor prejudicial. All were used to illustrate the testimony of witnesses. The photographs of the crime scene were introduced during the testimony of Sergeant Wilson and illustrated his testimony \u201cwith respect to the crime scene in general\u201d and \u201cthe location and position of the body when found.\u201d State v. Smith, 320 N.C. 404, 416, 358 S.E.2d 329, 336 (1987). The autopsy photographs used by Dr. Clark showed various angles of the lacerations to the head as well as the injuries to the vaginal area and properly illustrated the nature of the wounds and the manner of killing. The number of photographs was not excessive, and in fact, the trial court excluded several pictures because they were repetitive. Defendant has failed to show an abuse of discretion in the admission of the crime-scene and autopsy photographs.\nDefendant also contests the admission of a twenty-minute videotape which portrayed the discovery of the body and contained ninety seconds of footage that focused on the bloodied head and body of Natalie. The basic principles which govern the admissibility of photographs apply to videotapes, State v. Strickland, 276 N.C. 253, 258, 173 S.E.2d 129, 132 (1970), and relevant videotapes of crime scenes are admissible when they are not inflammatory or so unduly prejudicial as to outweigh any probative value, cf State v. Leazer, 337 N.C. 454, 456-57, 446 S.E.2d 54, 55-56 (1994) (admission of videotape of crime scene, including removal of victim, upheld).\nHere the videotape was introduced during the testimony of Sergeant Wilson and was a fair and accurate representation of the gruesome scene officers encountered at defendant\u2019s home. The tape was tendered with a limiting instruction that it was being admitted for the purpose of illustrating the testimony of the witness and was not to be considered for any other purpose. Such a cautionary instruction limits the likelihood of unfair prejudice. State v. Thompson, 328 N.C. 477, 492, 402 S.E.2d 386, 394 (1991). Further, photographic evidence, including videotapes, may \u201cbe introduced in a murder trial to illustrate testimony regarding the manner of killing so as to prove circumstantially the elements of murder in the first degree.\u201d Hennis, 323 N.C. at 284, 372 S.E.2d at 526. This videotape was more than twenty minutes long, not including an eighteen-minute gap, the majority of which portrayed the discovery and removal of Natalie\u2019s body from the bedroom closet. The fact that it took so long to uncover the body is strong circumstantial evidence of premeditation and deliberation, malice, and intent to kill. We find no abuse of discretion in admitting the videotape. This assignment of error is overruled.\nBy his next assignment of error, defendant argues that the trial court erred by allowing the State on two occasions to introduce improper opinion evidence in violation of Rules 701 and 702 of the North Carolina Rules of Evidence. We disagree.\nIn the first instance, Sergeant Wilson testified that he examined the inside of defendant\u2019s track and found some red dots in the cab to be red oxide primer (as opposed to blood). Defendant contends that Sergeant Wilson was not qualified to give this testimony because he was not a chemical expert. Rule 701 permits a lay witness to testify to opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue. N.C.G.S. \u00a7 8C-1, Rule 701 (1992). Sergeant Wilson testified that the spots in defendant\u2019s truck looked peculiar, so he sanded a spot with a knife and discovered it to be red oxide primer. He also testified that he held a part-time job doing car repair and body shop work. Based on his experience, it is likely that Sergeant Wilson could perceive the difference between blood and red oxide primer. Further, Sergeant Wilson\u2019s discovery of paint rather than blood contradicted defendant\u2019s statement that he hit Natalie with his truck and that she was bleeding when he put her in the truck. Thus, the testimony was helpful to a determination of a fact in issue. We therefore conclude that the trial court properly allowed this testimony.\nDefendant also contests admission of the opinion testimony of Agent Lucy Milks. Milks testified as an expert in forensic serology and opined that blood found in the laundry room of defendant\u2019s house was consistent with Natalie\u2019s. However, when describing the two blood types, Milks stated that Natalie\u2019s blood was Hemoglobin Type 1, while the blood found in the laundry room was Hemoglobin Type A. Defendant argues that this difference in blood type means that Milks\u2019 opinion with respect to consistency between blood types was contrary to the facts and should have been stricken.\nThe portion of Milks\u2019 testimony about which defendant complains was not objected to at trial, nor did defendant make a motion to strike. Defendant also failed specifically and distinctly to contend that the error amounts to plain error, thereby waiving appellate review under Rule 10(c)(4). See State v. Hamilton, 338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994). Even if this assignment of error had been properly preserved, defendant still is not entitled to relief. First, there is no such thing as Hemoglobin Type 1 blood. Second, Milks testified that the blood from the laundry room was consistent with hemoglobin from both defendant and Natalie. She then correctly testified that defendant\u2019s hemoglobin was Type A. We therefore conclude that the inaccurate statement was no more than a lapsus linguae on the part of the witness. This assignment of error is overruled.\nBy another assignment of error, defendant contends that the trial court erred in permitting FBI Agent Robert Durdack to testify regarding a scenario he presented to defendant while interviewing him regarding Natalie\u2019s death. The State wished to call Durdack for the purpose of showing that defendant\u2019s explanation about accidentally hitting Natalie with his truck originated from an interviewing technique the agent employed in which he suggested this version of events to defendant in order to elicit a response from him. However, before the State called Durdack as a witness, the trial court conducted a hearing to determine the permissible scope of Durdack\u2019s testimony. At the hearing defense counsel argued that the scenario was derived from oral statements defendant made to Durdack and that by failing to disclose the substance of these statements to defendant, the State violated the trial court\u2019s discovery order. Defendant contended that evidence regarding the scenario thus should be suppressed as a discovery sanction.\nDurdack testified at the hearing. On cross-examination by defense counsel, he stated he was aware that defendant had a truck and that he thought he may have acquired that information from defendant. As a result, the trial court initially held that evidence concerning the proposed scenario must be excluded because it was derived from information defendant provided to Durdack. The State was then allowed to recall Durdack, whereupon he testified that the information he included in the scenario was obtained from Asheboro police officers, not from defendant. Upon further consideration, the trial court ruled that the information upon which Durdack based his scenario was gleaned from other officers, and therefore the State\u2019s failure to provide the substance of the scenario to defendant did not constitute a violation of the discovery order. Accordingly, the trial court concluded that Durdack\u2019s testimony was admissible.\nDefendant now contends that the trial court abused its discretion in reversing its original ruling and allowing Durdack to testify about the proposed scenario. For the trial court to be reversed for an abuse of discretion, there must be a \u201cshowing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985). As we read the transcript, the only colorable discrepancy in Durdack\u2019s testimony is that he initially said he thought the information that defendant had a truck came from defendant. However, he subsequently testified that he had b\u00e9en fully briefed on the case by the Asheboro police officers prior to interviewing defendant. Further, in response to the trial court\u2019s specific question, the agent firmly stated that the elements that he included in the scenario were obtained from the officers, not from defendant. He also testified that his interview with defendant revealed no new facts or information. Because there is competent evidence in the record to support the trial court\u2019s finding that Durdack knew defendant drove a truck prior to talking with defendant, we cannot conclude that the trial court abused its discretion in this matter. This assignment of error is overruled.\nDefendant next contends that the trial court erred in permitting the prosecutor to make several prejudicial statements during closing arguments. Defendant asserts that the prosecutor\u2019s arguments contained improper statements of his own personal beliefs and opinions as well as statements not based upon any reasonable interpretation of the evidence.\nWe note that:\n\u201c[Cjounsel [generally] will be allowed wide latitude in the argument of hotly contested cases. Counsel for each side may argue to the jury the facts in evidence and all reasonable inferences to be drawn therefrom together with the relevant law so as to present his or her side of the case. Decisions as to whether an advocate has abused this privilege must be left largely to the sound discretion of the trial court.\u201d\nState v. Brown, 320 N.C. 179, 194, 358 S.E.2d 1, 12-13 (quoting State v. Huffstetler, 312 N.C. 92, 112, 322 S.E.2d 110, 123 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985)) (citations omitted), cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987).\nDefendant first complains specifically about the following remarks:\nBut [Natalie] lives here, the hospital\u2019s here, and he takes her to Randleman. Where is the child in Randleman, but-[Ms. Craven] says he says in the house. And she calls the police and goes out in the yard and is upset, as any mother would be, because he says she\u2019s dead. I took her there to clean here [sic] up. She\u2019s dead in Randleman. I ran over her with my truck. But instead of going to the hospital, she says why didn\u2019t you go to the hospital\u2014\nBut instead of going to the hospital he goes to Randleman, the residence down there.\nDefendant contends that there was no evidence that Craven asked defendant why he did not take Natalie to the hospital. While there is no explicit testimony to this effect, there was testimony as to the proximity of the Randolph County hospital to Craven\u2019s apartment and of defendant\u2019s claim that he took Natalie to the Randleman house, not the hospital, in order to clean her and to see how badly she was hurt. In this context the prosecutor\u2019s remarks were not an expression of his personal opinion, but rather a factually based argument emphasizing the fallacy of defendant\u2019s explanation.\nDefendant also excepts to a portion of the prosecutor\u2019s closing argument in which he stated:\nThe story just didn\u2019t fit the light of day. Look at her injuries. The back injuries of Natalie Osborne. You will recall the doctor saying that the curve, the little bruises fit, the curves, a person\u2019s hand, an adult hand as he holds down a little four-year-old\u2014\n. . . and forcibly has intercourse with her, and forcibly tears her vagina, bruising her labia and causing bleeding in her vagina, and I submit crying and moaning, as he said.\nDefendant contends the prosecutor\u2019s argument amounted to impermissible speculation as to facts not in evidence because there was no testimony indicating that defendant held Natalie down and forcibly raped her while she cried and moaned. We disagree.\nThe prosecutor\u2019s argument did not misstate or manipulate the evidence. Rather, it was an accurate synthesis of the evidence presented against defendant. Dr. Clark testified that Natalie\u2019s injuries were indicative of forced sexual intercourse which occurred at or near the time of death. He also testified that Natalie\u2019s body was covered in bruises which were small and rounded and had the distribution and shape of an adult hand. Defendant himself told Lieutenant Mclver that Natalie had made gurgling and gagging noises and that she was alive when he took her clothes off in the bathroom at the Randleman residence. It would be reasonable, if not likely, for the jury to infer from this evidence that defendant physically restrained Natalie while he forced himself upon her and that Natalie cried out in fear and pain during the ordeal.\nDefendant next contends that the trial court erred when it allowed the prosecutor to argue that he \u201cspoke for Natalie . . . who died needlessly, mercilessly ... to fulfill the sick desires of the Defendant Jeffrey Kandies.\u201d The evidence is sufficiently clear that defendant sexually assaulted Natalie and that the killing followed as a part of the same violent transaction. It was not too speculative for the jury to infer that defendant committed these acts against a four-year-old girl with an intent to satisfy his perverse desires. Cf. State v. Zuniga, 320 N.C. 233, 256, 357 S.E.2d 898, 913 (not too speculative for jury to infer that defendant committed rape and murder of seven-year-old child with intent to satisfy his desire), cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987).\nFinally, within this same assignment of error, defendant excepts to the prosecutor\u2019s statement that Dr. Clark testified that Natalie was raped. Defendant contends that the State\u2019s evidence of rape was weak and inconsistent and that this argument was a misstatement of law which enabled the prosecutor to improperly characterize the expert\u2019s testimony as a conclusion of law.\nClark testified that Natalie\u2019s injuries were \u201cmost indicative of forced intercourse.\u201d The statutory definition of rape includes vaginal intercourse (1) with a victim who is a child under the age of thirteen and where the defendant is at least twelve years old and is at least four years older than the victim; or (2) with another person by force and against the will of the other person, inflicting serious personal injury. N.C.G.S. \u00a7 14-27.2(a) (1993). Under either definition, the prosecutor\u2019s characterization of Clark\u2019s testimony and what Clark actually said are entirely consistent. Further, the trial court repeatedly cautioned the jurors that final arguments are not evidence and instructed that they were to be guided by their own recollection of the evidence. It is presumed that the jury followed the trial court\u2019s instructions. State v. Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208, cert. denied, - U.S. -, 126 L. Ed. 2d 602 (1993).\nFor the foregoing reasons, we conclude that the jury arguments of the prosecutor during the guilt phase did not amount to prejudicial error. Accordingly, this assignment of error is overruled.\nSentencing Phase\nThe trial court submitted to the jury two aggravating circumstances: that the murder was committed by defendant while he was engaged in the commission of first-degree rape, N.C.G.S. \u00a7 15A-2000(e)(5) (Supp. 1995), and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9). The jury found both aggravating circumstances to exist.\nDefendant argues, for a variety of reasons, that the trial court erred in submitting the especially heinous, atrocious, or cruel aggravating circumstance. Defendant first contends that this circumstance is unconstitutionally vague. He concedes, however, that we have consistently rejected this claim. Syriani, 333 N.C. at 388-92, 428 S.E.2d at 139-41. We find no compelling reason to revisit the matter here.\nDefendant additionally argues that the facts separate from the rape were insufficient to support the trial court\u2019s submission of the especially heinous, atrocious, or cruel aggravating circumstance. Because the evidence of rape also supported submission of the aggravating circumstance that the murder was committed during the commission of first-degree rape, defendant contends that submission of both circumstances amounted to double counting.\nWe have stated that the especially heinous, atrocious, or cruel aggravating circumstance is appropriate when the level of brutality involved exceeds that normally found in first-degree murders or when the murder in question is conscienceless, pitiless, or unnecessarily torturous to the victim. State v. Hamlet, 312 N.C. 162, 174-75, 321 S.E.2d 837, 845-46 (1984); State v. Goodman, 298 N.C. 1, 24-25, 257 S.E.2d 569, 585 (1979). It also arises when the killing demonstrates an unusual depravity of mind on the part of the defendant. State v. Stanley, 310 N.C. 332, 345, 312 S.E.2d 393, 401 (1984). Among the types of murders that meet the above criteria are those that are physically agonizing or otherwise dehumanizing to the victim and those that are less violent but involve the infliction of psychological torture. State v. Oliver, 309 N.C. 326, 346, 307 S.E.2d 304, 318 (1983).\nDouble counting arises when two aggravating circumstances are supported by the same evidence. Quesinberry, 319 N.C. at 240 n.1, 354 S.E.2d at 453 n.1. In Goodman, 298 N.C. at 29, 257 S.E.2d at 587, this Court held it improper to submit two aggravating circumstances supported by the same evidence. \u201cWhere, however, there is separate evidence supporting each aggravating circumstance, the trial court may submit both \u2018even though the evidence supporting each may overlap.\u2019 \u201d State v. Rouse, 339 N.C. 59, 97, 451 S.E.2d 543, 564 (1994) (quoting State v. Gay, 334 N.C. 467, 495, 434 S.E.2d 840, 856 (1993), cert. denied, - U.S. -, 133 L. Ed. 2d 60 (1995)).\nIn determining whether there is sufficient evidence to submit a particular aggravating circumstance, the trial court must consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. Syriani, 333 N.C. at 392, 428 S.E.2d at 141. Here, the State\u2019s evidence tended to show that Natalie was savagely beaten, strangled, and sexually assaulted by a man whom she knew and trusted. When discovered, she was in a trash bag buried in the recesses of a closet, bloodied and naked, with her soiled clothes piled on top of her. An autopsy showed that Natalie had suffered two blunt-force lacerations to the top of her head. The right side of her head was fractured, and there were seven separate bone fragments in the area, one of which had penetrated the brain and caused a hemorrhage. There were multiple bruises on her face, back, neck, sides, and chest. An abrasion on the front of the neck measuring one-inch wide and approximately two and one-half inches long indicated manual strangulation. There was some discoloration around the rectum, bruises on both sides of the vagina, and blood deep within the vaginal canal.\nThe pathologist opined that Natalie died as a result of blunt-force injury to the head. While she probably lost consciousness soon after the painful blows, none of the injuries would have caused her heart to stop beating immediately. Therefore, it was several excruciating moments before she actually died.\nThis evidence, viewed in the light most favorable to the State, was sufficient to support a reasonable inference that Natalie suffered great physical pain as a result of being brutally beaten, raped with sufficient violence to cause bleeding in her vagina, and strangled so forcefully that her neck was scratched. It also supports an inference that the murder was dehumanizing and psychologically torturous. The pathologist testified that Natalie\u2019s pelvic injuries occurred at or near the time of death. When a murder occurs during the perpetration of a violent sexual assault, it is unusually dehumanizing and debasing. State v. Artis, 325 N.C. 278, 318, 384 S.E.2d 470, 492-93 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). Further, defendant abused the trust of a four-year-old girl and violated her in multiple ways. A reasonable jury could infer that Natalie experienced terror, confusion, and anguish from the moment defendant drove off with her in the truck until her last breath.\nTaken as a whole, the evidence of Natalie\u2019s physical and psychological suffering and of the brutal, dehumanizing nature of the killing was sufficient to support the submission of this aggravating circumstance. While the evidence of rape contributed to this unique combination of factors, ample independent evidence existed to justify submission. We conclude that under the facts of this case, the jury was properly permitted to find both that the murder was committed while defendant was engaged in the commission of first-degree rape and that the murder was especially heinous, atrocious, or cruel.\nUnder this same assignment of error, defendant alternatively argues that the trial court erred in not instructing the jury that it could not consider the same evidence to find more than one aggravating circumstance. Defendant neither objected to the instructions given nor requested limiting instructions. Therefore, this claim must be reviewed under the plain error standard, which requires defendant to show that the error was so fundamental that the result would probably have been different absent the error. Rouse, 339 N.C. at 99, 451 S.E.2d at 565. In light of our holding that there was independent evidence supporting each aggravating circumstance, defendant has not shown that any error in the instructions likely affected the outcome. This assignment of error is overruled.\nBy another assignment of error, defendant contends that the prosecutor argued matters not supported by the evidence and improperly expressed his personal beliefs and opinions during closing arguments in the sentencing proceeding. First, defendant contests the prosecutor\u2019s arguments regarding what Natalie was thinking, feeling, and saying during the commission of the rape and' murder. Second, defendant objects to what he characterizes as an improper argument by the prosecutor that the victim\u2019s age was an aggravating circumstance.\nCounsel is allowed wide latitude in the jury argument in both the guilt and sentencing phases. Artis, 325 N.C. at 324, 384 S.E.2d at 496. However, the objectives of the arguments in the two phases are different, and rhetoric that may be prejudicially improper in the guilt phase is acceptable in the sentencing phase. Id. Further, the prosecutor\u2019s closing remarks must be taken in the context of his role as a zealous advocate for criminal convictions. State v. McCollum, 334 N.C. 208, 227, 433 S.E.2d 144, 154 (1993), cert. denied - U.S. -, 129 L. Ed. 2d 895 (1994).\nIn State v. King, 299 N.C. 707, 711-13, 264 S.E.2d 40, 43-44 (1980), this Court found that the prosecutor\u2019s closing remarks concerning what the victim must have been thinking as he was dying were not so grossly improper as to require the trial court to intervene ex mero mo tu. Likewise, we conclude here that given the overwhelming evidence against defendant, the prosecutor\u2019s argument regarding what Natalie was thinking and feeling while defendant beat and raped her, if error, was not prejudicial.\nDefendant further contends that the prosecutor used the victim\u2019s age to persuade the jury to recommend the death penalty.\nThe prosecutor may not argue an aggravating factor not supported by the evidence or not included in the statutory list of aggravating factors found in N.C.G.S. \u00a7 15A-2000(e). Likewise, a jury may not base its sentencing recommendation on an improper aggravating factor. Where there is evidence to support the aggravating factors relied upon by the State, however, the jury\u2019s balancing of aggravation and mitigation will not be disturbed unless it appears that the jury acted out of passion or prejudice or made its sentence arbitrarily.\nZuniga, 320 N.C. at 273, 357 S.E.2d at 923 (footnote omitted) (citations omitted). There was ample evidence to support the jury\u2019s finding of the aggravating circumstances that the killing was accomplished during the first-degree rape and that the murder was especially heinous, atrocious, or cruel. Nothing in the record suggests that the jury made its recommendation based upon passion or prejudice or that it acted arbitrarily. The prosecutor\u2019s references to Natalie\u2019s age merely emphasized the brutality of the crime as well as the depravity of defendant\u2019s acts. We therefore overrule this assignment of error.\nPreservation Issues\nDefendant raises three additional issues which he concedes this Court has decided against his position: (1) the trial court erred in making found mitigating circumstances discretionary when the jury considered Issues Three and Four, (2) the trial court erred in denying defendant\u2019s request to instruct the jury that defendant would be sentenced to life in prison for his conviction of first-degree rape, and (3) the trial court erred in denying defendant\u2019s request to question jurors regarding their beliefs about parole eligibility.\nWe have considered defendant\u2019s arguments on these issues, and we find no compelling reason to depart from our prior holdings. These assignments of error are overruled.\nProportionality Review\nHaving found no error in the guilt-innocence and 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 the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. N.C.G.S. \u00a7 15A-2000(d)(2).\nThe trial court submitted two aggravating circumstances to the jury: that this murder was committed while defendant was engaged in the commission of first-degree rape, N.C.G.S. \u00a7 15A-2000(e)(5), and that this murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9). The jury found both aggravating circumstances to exist. We conclude that the evidence supported the jury\u2019s finding of each aggravating circumstance. We further conclude that the jury did not sentence defendant to death under the influence of passion, prejudice, or any other arbitrary factor. We now turn to our final statutory duty and determine whether the sentence of death in this case is excessive or disproportionate.\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 (1980). We compare this case to others in the pool, which we defined 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 (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), 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).\nThis case has several distinguishing characteristics: defendant was found guilty of first-degree murder based on both the felony murder rule and on premeditation and deliberation; the jury found the murder to be especially heinous, atrocious, or cruel; the victim was a four-year-old girl who knew and trusted defendant; the murder occurred during the commission of a sexual assault; the victim suffered great physical pain in that she was brutally beaten, strangled, and raped; and defendant concealed the body and then purposefully misled police for several days regarding its location.\nThis Court has determined that the sentence of death was disproportionate in seven cases: State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); and State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983). We find the instant case distinguishable from each of these. None involved the murder of a child. State v. Walls, 342 N.C. 1, 71, 463 S.E.2d 738, 776-77 (1995). Further, we have never found a death sentence disproportionate in a case involving a victim of first-degree murder who also was sexually assaulted. State v. Payne, 337 N.C. 505, 537, 448 S.E.2d 93, 112 (1994), cert. denied, - U.S. -, 131 L. Ed. 2d 292 (1995).\nDefendant attempts to liken this case to six cases involving sexual assault in which the jury recommended life sentences. Our review of these cases reveals that the case before us is distinguishable.\nIn three \u2014 State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983); State v. Franklin, 308 N.C. 682, 304 S.E.2d 579 (1983), overruled on other grounds by State v. Parker, 315 N.C. 222, 337 S.E.2d 487 (1985); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980) \u2014 the sole basis for the conviction was felony murder. Here, defendant was convicted of murder by premeditation and deliberation and under the felony murder rule. We have stated that \u201c[t]he finding of premeditation and deliberation indicates a more cold-blooded and calculated crime.\u201d Artis, 325 N.C. at 341, 384 S.E.2d at 506.\nIn another \u2014 State v. Prevette, 317 N.C. 148, 345 S.E.2d 159 (1986) \u2014 the jury rejected the submitted aggravating circumstance that the murder was especially heinous, atrocious, or cruel; the jury here found that circumstance upon ample evidence. We have upheld the death penalty as proportionate in many cases in which the especially heinous, atrocious, or cruel aggravating circumstance has been found to exist. Artis, 325 N.C. at 341, 384 S.E.2d at 506.\nIn the remaining two cases \u2014 State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981); State v. Clark, 301 N.C. 176, 270 S.E.2d 425 (1980) \u2014 there was no evidence of sexual intercourse, and there was no apparent relationship between the defendants and their victims. Here, by contrast, there is substantial evidence of rape and sexual assault, and the victim was a four-year-old girl who knew and trusted defendant. As we have stated before, the murder of a young child particularly shocks the conscience. Artis, 325 N.C. at 344, 384 S.E.2d at 508.\nFor the foregoing reasons, we conclude that each of these cases in which the jury recommended life imprisonment is distinguishable from the present case. Further, defendant\u2019s case is more comparable to those cases in which the death sentence was affirmed. E.g., McCollum, 334 N.C. 208, 433 S.E.2d 144 (first-degree felony murder conviction and death sentence upheld where defendant and three other males \u201cgang\u201d raped and asphyxiated eleven-year-old girl); Zuniga, 320 N.C. 233, 357 S.E.2d 898 (death sentence upheld where defendant stabbed and killed a seven-year-old girl during the commission of first-degree rape).\nThe evidence here indicates that defendant snatched four-year-old Natalie Osborne from her front yard and took her to his house in Randleman, where he raped her, strangled her, and brutally beat her to death. After comparing this case to other \u201csimilar cases\u201d used for proportionality review, we conclude that it falls within the category of first-degree murders for which we have previously upheld the death penalty as proportionate. Thus, based upon the characteristics of this defendant and the crime he committed, we are convinced the sentence of death was neither excessive nor disproportionate.\nHaving considered and rejected all of defendant\u2019s assigned errors, we hold that defendant received a fair trial and sentencing proceeding, free of prejudicial error.\nNO ERROR.\n. We base this on the record in Prevette, which remains a part of this Court\u2019s records.\n. While Artis is presently no longer in the proportionality pool, the principle remains the same.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by William B. Crumpler, Assistant Attorney General, for the State.", "J. Kirk Osborn for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JEFFREY CLAYTON KANDIES\nNo. 197A94\n(Filed 9 February 1996)\n1. Jury \u00a7 248 (NCI4th)\u2014 jury selection \u2014 peremptory challenges \u2014 racial discrimination\nBoth the federal and state constitutions prohibit peremptorily challenging prospective jurors solely on the basis of their race. In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986) the United State Supreme Court set out a three-pronged test; first, a criminal defendant must make out a prima facie case of discrimination by demonstrating that the prosecutor exercised peremptory challenges on the basis of race and that this fact and other relevant circumstances raise an inference of discrimination, but here that question need not be addressed because the prosecutor voluntarily gave reasons for the dismissal of each juror in question; the State must articulate legitimate reasons which are clear and reasonably specific and related to the particular case to be tried which give a neutral explanation for challenging jurors of the cognizable group, but these reasons need not rise to the level justifying exercise of a challenge for cause; and finally, the trial court must \u201cdetermine whether the defendant has carried his burden of proving purposeful discrimination.\u201d The findings of the trial court, which largely turn on credibility, are to be given great deference and are not to be overturned unless the appellate court is convinced that the determination was clearly erroneous. Factors include the susceptibility of the case to racial discrimination; whether the State used all of its peremptory challenges; the race of the witnesses; questions and statements by the prosecutor during jury selection; whether the State accepted any black jurors; and whether similarly situated whites were accepted. An examination of the actual explanations given by the district attorney is a crucial part of the test.\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 -Bast\u00f3n state cases. 20 ALR5th 398.\n2. Jury \u00a7 260 (NCI4th)\u2014 capital murder and rape \u2014 jury selection \u2014 peremptory challenges \u2014 racial discrimination\nIn a first-degree murder prosecution where the defendant is white, the victim was white, several witnesses are white and the prosecutor accepted three black jurors when he had peremptory challenges remaining, the trial court did not err in overruling defendant\u2019s objection to the State\u2019s excusal of black potential jurors Randleman, Jinwright, and Massey where the prosecutor stated that Randleman was hesitant on the death penalty and her juror questionnaire indicated no convictions but her record indicates a conviction for worthless checks and two speeding violations; Jinwright worked with three- and four-year-old children and was hesitant on the death penalty question; Massey was hard of hearing and had difficulty understanding questions; and defendant made no further showing at trial regarding these jurors. Defendant\u2019s approach of finding a single factor among the several articulated by the prosecutor and matching it to a passed juror is rejected.\nAm Jur 2d, Jury \u00a7\u00a7 234, 244, 264, 279.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post -Witherspoon cases. 39 ALR3d 550.\nUse of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.\n3. Jury \u00a7 260 (NCI4th)\u2014 capital murder and rape \u2014 jury selection \u2014 peremptory challenges \u2014 racial discrimination\nIn a first-degree murder prosecution where the defendant is white, the victim was white, and several witnesses are white and the prosecutor accepted three black jurors when he had peremptory challenges remaining, the trial court did not err in overruling defendant\u2019s objection to the State\u2019s excusal of black potential jurors Rawlinson and McClure where the prosecutor stated that a source within the High Point Police Department indicated that they would not be good jurors for this case because they were weak on the death penalty, a court officer noticed McClure nodding off at least twice during voir dire, and the trial court noted that the prosecutor passed a minority juror called as a replacement.\nAm Jur 2d, Jury \u00a7\u00a7 234, 244, 264, 279.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post -Witherspoon cases. 39 ALR3d 550.\nUse of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.\n4. Jury \u00a7 260 (NCI4th)\u2014 capital murder and rape \u2014 jury selection \u2014 peremptory challenges \u2014 racial discrimination\nIn a first-degree murder prosecution where the defendant is white, the victim was white, several witnesses are white and the prosecutor accepted three black jurors when he had peremptory challenges remaining, the trial court did not err in overruling defendant\u2019s objection to the State\u2019s excusal of black potential jurors Campbell, Hines, and Wilson where the prosecutor stated that he excused Campbell because Campbell stated that he did not believe in the death penalty and a record check indicated that a person named Fred Campbell had a prior common law robbery conviction; Hines was dismissed because he was worried about his employment and loss of income, he had never thought about the death penalty, and the State\u2019s records indicated that he had prior convictions for driving while impaired and driving while license revoked even though he denied it; and the prosecutor excused Wilson because it appeared that he had a record of reckless driving, driving while impaired, four worthless checks, two injury to personal property convictions, a simple assault, and assault by pointing a gun. A juror\u2019s criminal history is a sufficiently neutral reason to challenge that juror.\nAm Jur 2d, Jury \u00a7\u00a7 234, 244, 264, 279.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post-Witherspoon cases. 39 ALR3d 550.\nUse of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.\n5. Jury \u00a7 260 (NCI4th)\u2014 capital murder and rape \u2014 jury selection \u2014 peremptory challenges \u2014 no racial discrimination\nIn a first-degree murder prosecution where the defendant is white, the victim was white, several witnesses are white and the prosecutor accepted three black jurors when he had peremptory challenges remaining, the trial court did not err in overruling defendant\u2019s objection to the State\u2019s excusa! of black potential juror Oliver where the prosecutor explained that Oliver appeared to have trouble hearing, as evidenced by her failure to heed the court\u2019s instruction about not watching television and not listening to any radio broadcasts concerning this case; the prosecutor was concerned that she would have difficulty hearing and understanding as the trial proceeded; and the trial court noted Oliver\u2019s inability to hear the prosecutor\u2019s questions without requesting clarification on numerous occasions during voir dire.\nAm Jur 2d Jury \u00a7\u00a7 234, 244, 264, 289.\nUse of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.\n6. Criminal Law \u00a7 107 (NCI4th)\u2014 jury selection \u2014 potential jurors \u2014 criminal records \u2014 not subject to disclosure by state\nThe trial court did not abuse its discretion in a first-degree murder prosecution in which the State asserted that it challenged prospective black jurors because they failed to disclose a criminal record by denying defendant\u2019s motion to require the State to produce copies of criminal records of prospective jurors. There is no statutory requirement that a prosecutor reveal juror information in his possession; absent evidence to the contrary, it is not unreasonable for the trial court to assume that the prosecutor is telling the truth with regard to the criminal records of prospective jurors; and defendant could have obtained a record check himself or secured a court order requiring production of these documents. There were resources available to defendant to rebut the State\u2019s explanations, and he chose not to utilize them.\nAm Jur 2d, Jury \u00a7\u00a7 234, 238, 264.\n7. Jury \u00a7 215 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 consideration of life imprisonment\nThe trial court did not err during jury selection in a first-degree murder prosecution by failing to excuse a juror for cause where the juror initially responded that life imprisonment for first-degree murder was not fair to the public, but after subsequent questioning said that he could put aside his prejudice and follow the law as instructed.\nAm Jur 2d, Jury \u00a7 279.\n8. Jury \u00a7 148 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 defense questions regarding capital punishment \u2014 improper staking out\nThe trial court did not err during jury selection for a first-degree murder prosecution by sustaining objections to certain defense questions pertaining to jurors\u2019 views on capital punishment because the questions were an improper attempt to \u201cstake out\u201d the jurors and determine what kind of verdict the jurors would render under a given set of circumstances.\nAm Jur 2d, Jury \u00a7\u00a7 205, 279.\n9. Jury \u00a7 115 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 objections to defense questions sustained \u2014 no abuse of discretion\nThere was no abuse of discretion in a first-degree murder prosecution involving the death of a four-year-old girl where the trial court repeatedly sustained the prosecutor\u2019s objections to defense questions regarding prospective jurors\u2019 exposure or relationship to children where the prospective juror in each instance either answered the question before the objection was made or had answered a similar question previously, or an objection was to form and defense counsel was allowed to restate the question.\nAm Jur 2d, Jury \u00a7\u00a7 205, 206.\n10. Evidence and Witnesses \u00a7 125 (NCI4th)\u2014 rape and murder of child \u2014 prior third-party sexual behavior with child \u2014 not admissible\nThe trial court did not err in a prosecution for the first-degree rape and first-degree murder of a four-year-old child by her mother\u2019s fiancee by not admitting evidence of prior sexual activity with her father where all of the evidence indicated that the injuries to the child\u2019s vagina were recent in relation to the time of her death.\nAm Jur 2d, Homicide \u00a7\u00a7 245, 270; Rape \u00a7 55.\n11. Evidence and Witnesses \u00a7 1694 (NCI4th)\u2014 capital murder \u2014 victim\u2019s body \u2014 photographs\nThe trial court did not err in a prosecution for the first-degree murder and first-degree rape of a four-year-old girl by admitting a number of crime scene and autopsy photographs of the black plastic bag in which the body was found, the position of the body and clothes after the bag was opened, pictures of various bloodstains around the house, and autopsy photographs illustrating the injuries. The photographs were neither repetitious nor prejudicial, all were used to illustrate testimony, and the number was not excessive.\nAm Jur 2d, Homicide \u00a7 416.\n12. Evidence and Witnesses \u00a7 1731 (NCI4th)\u2014 capital murder and rape \u2014 videotape of body\nThe trial court did not abuse its discretion in a prosecution for the first-degree rape and murder of a four-year-old girl by admitting a twenty-minute videotape which portrayed the discovery of the body, including ninety seconds that focused on the bloodied head and body. The videotape was a fair and accurate representation of the gruesome scene officers encountered at defendant\u2019s home, the tape was tendered with a limiting instruction, and the fact that it took so long to uncover the body is strong circumstantial evidence of premeditation and deliberation, malice, and intent to kill.\nAm Jur 2d, Evidence \u00a7 979; Trial \u00a7 508.\nAdmissibility of videotape film in evidence in criminal trial. 60 ALR3d 333.\n13. Evidence and Witnesses \u00a7 2054 (NCI4th)\u2014 capital murder \u2014 testimony of officer \u2014 red dots paint rather than blood\nThe trial court in a prosecution for first-degree murder and first-degree rape properly allowed an officer to testify that red spots in defendant\u2019s truck were red oxide primer rather than blood, which contradicted defendant\u2019s statement. Based on the officer\u2019s experience with a part-time job doing car repair and body shop work, it is likely that he could perceive the difference between blood and red oxide primer.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 300.\n14. Evidence and Witnesses \u00a7 2209 (NCI4th)\u2014 capital murder \u2014 bloodstains\u2014expert testimony\nThere was no error in a first-degree murder prosecution where the trial court admitted the testimony of a forensic serology expert that blood found in defendant\u2019s laundry room was consistent with the victim\u2019s where the witness identified the blood type as Hemoglobin Type 1 and the blood in the laundry room as Hemoglobin Type A. Although defendant argues that this difference in blood types means that the opinion with respect to consistency between blood types was contrary to the facts, the reference to Hemoglobin Type 1 was no more than a lapsus linguae. There is no such thing as Hemoglobin Type 1 blood, the witness testified that the blood from the laundry room was consistent with hemoglobin from defendant and the victim, and then correctly testified that defendant\u2019s hemoglobin was Type A.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 300.\n15. Evidence and Witnesses \u00a7 1339 (NCI4th)\u2014 capital murder \u2014 interrogation of defendant \u2014 scenario suggested by officer\nThe trial court did not abuse its discretion in a prosecution for first-degree murder and first-degree rape where the State wished to call an FBI agent to testify regarding a scenario he had presented to defendant as an interviewing technique in order to elicit a response from defendant and which the State wished to use to show that defendant\u2019s explanation about accidentally hitting the victim with his truck originated with the agent; defense counsel argued that the scenario was derived from oral statements made by defendant to the agent which had been disclosed pursuant to the court\u2019s discovery order; the agent first testified at a hearing that he thought he may have acquired the information from defendant; the court held that the evidence must be excluded; the State was allowed to recall the agent, who testified that the information was obtained from police officers, not from defendant; and the trial court ruled that the discovery order had not been violated and that the testimony was admissible. Because there is competent evidence in the record to support the trial court\u2019s finding that the agent knew defendant drove a truck prior to talking with defendant, it cannot be concluded that the trial court abused its discretion.\nAm Jur 2d, Evidence \u00a7 714.\n16. Criminal Law \u00a7 445 (NCI4th)\u2014 capital murder and first-degree rape \u2014 prosecutor\u2019s argument \u2014 factually based \u2014 not an expression of personal opinion\nThere was no error in a prosecution for the first-degree murder and first-degree rape of a four-year-old girl in the prosecutor\u2019s argument regarding what the mother of the victim said where there was no explicit testimony that the mother asked that question, but the argument in context was factually based, emphasized the fallacy of defendant\u2019s explanation, and was not an expression of personal opinion.\nAm Jur 2d, Trial \u00a7\u00a7 554, 632.\n17. Criminal Law \u00a7 461 (NCI4th)\u2014 capital murder and rape\u2014 prosecutor\u2019s argument \u2014 matters inferred from evidence\nThere was no error in the prosecution of defendant for the first-degree murder and first-degree rape of a four-year-old child in the prosecutor\u2019s argument that defendant held the victim down and forcibly raped her while she cried and moaned. Although defendant contended that the prosecutor\u2019s argument amounted to impermissible speculation as to facts not in evidence, it would be reasonable, if not likely, for the jury to infer from the evidence that defendant physically restrained the victim while he forced himself upon her and that the victim cried out in fear and pain during the ordeal.\nAm Jur 2d, Trial \u00a7\u00a7 609, 632.\n18. Criminal Law \u00a7 461 (NCI4th)\u2014 capital murder and rape\u2014 prosecutor\u2019s argument \u2014 matters inferred from evidence\nThere was no error in the prosecution of defendant for the first-degree murder and first-degree rape of a four-year-old child in the prosecutor\u2019s argument that he spoke for the victim, who died to fulfill the sick desires of the defendant. The evidence is sufficiently clear that defendant sexually assaulted the victim and that the killing followed as a part of the same violent transaction; it was not too speculative for the jury to infer that defendant committed these acts against a four-year-old girl with an intent to satisfy his perverse desires.\nAm Jur 2d, Trial \u00a7\u00a7 632, 664.\n19. Criminal Law \u00a7 461 (NCI4th)\u2014 capital murder and rape\u2014 prosecutor\u2019s argument \u2014 matters inferred from evidence\nThere was no error in the prosecution of defendant for the first-degree murder and first-degree rape of a four-year-old child in the prosecutor\u2019s argument that a doctor had testified that the victim was raped. The statutory definition of rape includes vaginal intercourse with a victim who is a child under the age of thirteen and where the defendant is at least twelve years old and is at least four years older than the victim; or with another person by force and against the will of the other person, inflicting serious personal injury. The doctor testified that the victim\u2019s injuries were \u201cmost indicative of forced intercourse\u201d; under either definition, the prosecutor\u2019s characterization of the testimony and the actual testimony are entirely consistent. Further, the trial court repeatedly cautioned the jurors that final arguments are not evidence and instructed that they were to be guided by their own recollection of the evidence.\nAm Jur 2d, Trial \u00a7\u00a7 632, 640.\n20. Constitutional Law \u00a7 370 (NCI4th); Criminal Law \u00a7 1343 (NCI4th)\u2014 capital murder \u2014 aggravating circumstance\u2014 especially heinous, atrocious, or cruel \u2014 not unconstitutionally vague\nThe especially heinous, atrocious, or cruel aggravating circumstance in capital cases is not unconstitutionally vague.\nAm Jur 2d, Trial \u00a7 841.\nValidity of death penalty, under Federal Constitution, as affected by consideration of aggravating or mitigating circumstances \u2014 Supreme Court cases. Ill L. Ed. 2d 947.\n21. Criminal Law \u00a7 1345 (NCI4th)\u2014 capital murder \u2014 aggravating circumstances \u2014 especially heinous, atrocious, or cruel \u2014 evidence independent of rape sufficient\nThe jury was properly permitted to find in a first-degree murder sentencing hearing both that the murder of the four-year-old victim was committed while defendant engaged in the commission of first-degree rape and that the murder was especially heinous, atrocious, or cruel where, taken as a whole, the evidence of the victim\u2019s physical and psychological suffering and of the brutal, dehumanizing nature of the killing was sufficient to support the submission of this aggravating circumstance; while the evidence of rape contributed to this unique combination of factors, ample independent evidence existed to justify submission.\nAm Jur 2d, Trial \u00a7\u00a7 841, 1760.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like \u2014 ipost-Gregg cases. 63 ALR4th 478.\n22. Criminal Law \u00a7 1320 (NCI4th)\u2014 capital murder \u2014 sentencing \u2014 instructions\u2014consideration of same evidence for more than one circumstance\nThere was no plain error in a first-degree murder prosecution where defendant contended that the court erred by not instructing the jury that it could not consider the same evidence to find more than one aggravating circumstance, but, in light of the holding elsewhere that there was independent evidence supporting each aggravating circumstance, defendant did not show that any error in the instructions likely affected the outcome.\nAm Jur 2d, Trial \u00a7 1760.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like \u2014 post-Gregg cases. 63 ALR4th 478.\n23. Criminal Law \u00a7\u00a7 448, 451 (NCI4th)\u2014 capital murder \u2014 sentencing hearing \u2014 prosecutor\u2019s argument \u2014 victim\u2019s age\u2014 victim\u2019s thoughts\nThere was no prejudicial error in the prosecutor\u2019s argument in the sentencing hearing for the first-degree murder of a four-year-old girl where defendant contended that the prosecutor argued matters not supported by the evidence and improperly expressed his personal beliefs. The objectives of the arguments in the guilt and sentencing phases are different and rhetoric that may be prejudicially improper in the guilt phase is acceptable in the sentencing phase. Given the overwhelming evidence against defendant, the prosecutor\u2019s argument regarding what the victim was thinking and feeling while defendant beat and raped her was not prejudicial error, if error at all, and the prosecutor\u2019s references to the victim\u2019s age merely emphasized the brutality of the crime as well as the depravity of defendant\u2019s acts. Nothing in the record suggests that the jury made its recommendations based upon passion or prejudice or that it acted arbitrarily.\nAm Jur 2d, Trial \u00a7\u00a7 648, 664, 666, 1759.\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 1329 (NCI4th) \u2014 capital murder \u2014 sentencing \u2014 Issues Three and Four\nThe trial court did not err in a first-degree murder sentencing hearing by making found mitigating circumstances discretionary when the jury considered issues Three and Four.\nAm Jur 2d, Trial \u00a7 1760.\n25. Criminal Law \u00a7 856 (NCI4th)\u2014 capital murder and first-degree rape \u2014 instruction that sentence of life would be give for rape \u2014 denied\nThe trial court did not err in a prosecution for first-degree murder and first-degree rape by denying defendant\u2019s request to instruct the jury that defendant would be sentenced to life in prison for his conviction of first-degree rape.\nAm Jur 2d, Trial \u00a7\u00a7 1441, 1443.\n26. Jury \u00a7 141 (NCI4th)\u2014 capital murder and rape \u2014 questioning of jurors \u2014 parole eligibility\nThe trial court did not err in a prosecution for first-degree rape and first-degree murder by denying defendant\u2019s request to question jurors regarding their beliefs about parole eligibility.\nAm Jur 2d, Jury \u00a7\u00a7 264, 269.\n27. Criminal Law \u00a7 1373 (NCI4th)\u2014 capital murder \u2014 death sentence \u2014 not disproportionate\nA sentence of death for first-degree murder was not disproportionate in a case which has several distinguishing characteristics: defendant was found guilty of first-degree murder based on both the felony murder rule and on premeditation and deliberation; the jury found the murder to be especially heinous, atrocious, or cruel; the victim was a four-year-old girl who knew and trusted defendant; the murder occurred during the commission of a sexual assault; the victim suffered great physical pain in that she was brutally beaten, strangled, and raped; and defendant concealed the body and then purposefully misled police for several days regarding its location.\nAm Jur 2d, Criminal Law \u00a7 628.\nSupreme Court\u2019s views on constitutionality of death penalty and procedures under which it is imposed or carried ont. 90 L. Ed. 2d 1001.\nAppeal of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by McHugh, J., at the 4 April 1994 Criminal Session of Superior Court, Randolph County, on a jury verdict finding defendant guilty of first-degree murder. Defendant\u2019s motion to bypass the Court of Appeals as to an additional judgment for first-degree rape was allowed 12 May 1995. Heard in the Supreme Court 13 November 1995.\nMichael F. Easley, Attorney General, by William B. Crumpler, Assistant Attorney General, for the State.\nJ. Kirk Osborn for defendant-appellant." }, "file_name": "0419-01", "first_page_order": 451, "last_page_order": 488 }