{ "id": 798977, "name": "STATE OF NORTH CAROLINA v. RAYFORD LEWIS BURKE", "name_abbreviation": "State v. Burke", "decision_date": "1996-05-10", "docket_number": "No. 181A93", "first_page": "129", "last_page": "163", "citations": [ { "type": "official", "cite": "343 N.C. 129" } ], "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": "8 ALR5th 713", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "43 ALR3d 221", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "12 ALR3d 832", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "6 ALR4th 16", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "7 ALR5th 263", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "65 ALR4th 838", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 3, "opinion_index": -1 }, { "cite": "36 ALR4th 1046", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "15 ALR4th 983", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "81 ALR4th 872", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "14 ALR4th 828", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "10 ALR3d 258", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "80 ALR4th 1028", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "14 ALR4th 227", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "51 ALR4th 999", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "130 L. Ed. 2d 1083", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "446 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550101 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0066-01" ] }, { "cite": "98 L. Ed. 2d 406", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 970", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600992, 599913, 599204, 599758 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0970-03", "/us/484/0970-02", "/us/484/0970-01", "/us/484/0970-04" ] }, { "cite": "358 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "30" }, { "page": "33" } ], "opinion_index": 0 }, { "cite": "320 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730916 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0179-01" ] }, { "cite": "448 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552845 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0700-01" ] }, { "cite": "131 L. Ed. 2d 147", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "447 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551126 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0469-01" ] }, { "cite": "131 L. Ed. 2d 752", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "449 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "338 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519325 ], "year": 1994, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0129-01" ] }, { "cite": "305 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763650 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0026-01" ] }, { "cite": "309 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761257 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0674-01" ] }, { "cite": "319 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686205 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0465-01" ] }, { "cite": "325 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758195 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0669-01" ] }, { "cite": "364 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569559 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0570-01" ] }, { "cite": "341 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694780 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0203-01" ] }, { "cite": "352 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741422 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0001-01" ] }, { "cite": "372 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566216 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0318-01" ] }, { "cite": "129 L. Ed. 2d 895", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "433 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "162" }, { "page": "164" } ], "opinion_index": 0 }, { "cite": "334 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530367 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "240" }, { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0208-01" ] }, { "cite": "130 L. Ed. 2d 547", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "443 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "29", "parenthetical": "\"Attempting to commit a crime which inherently involves violence obviously constitutes, at least, a 'threat of violence.' \"" } ], "opinion_index": 0 }, { "cite": "336 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538239 ], "year": 1994, "pin_cites": [ { "page": "168", "parenthetical": "\"Attempting to commit a crime which inherently involves violence obviously constitutes, at least, a 'threat of violence.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0142-01" ] }, { "cite": "468 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "214" } ], "opinion_index": 0 }, { "cite": "343 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798864 ], "year": 1996, "pin_cites": [ { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0001-01" ] }, { "cite": "444 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "435", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "336 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534961 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "418-19" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0412-01" ] }, { "cite": "197 Neb. 544", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2641970 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/neb/197/0544-01" ] }, { "cite": "54 L. Ed. 2d 198", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "98 S. Ct. 313", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "434 U.S. 912", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6418602, 6418531 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/434/0912-02", "/us/434/0912-01" ] }, { "cite": "197 Neb. 528", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2641533 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/neb/197/0528-01" ] }, { "cite": "197 Neb. 497", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2636750 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/neb/197/0497-01" ] }, { "cite": "257 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "583-84", "parenthetical": "emphases added" } ], "opinion_index": 0 }, { "cite": "298 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568313 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "22-23" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0001-01" ] }, { "cite": "275 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "484" } ], "opinion_index": 0 }, { "cite": "302 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565360 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0223-01" ] }, { "cite": "407 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "813", "parenthetical": "\"[F]light from a crime shortly after its commission is admissible as evidence of guilt.\"" } ], "opinion_index": 0 }, { "cite": "329 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556521 ], "year": 1991, "pin_cites": [ { "page": "722", "parenthetical": "\"[F]light from a crime shortly after its commission is admissible as evidence of guilt.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0709-01" ] }, { "cite": "131 L. Ed. 2d 738", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "449 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "434", "parenthetical": "A trial court may properly instruct on flight \"[s]o long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.\"" } ], "opinion_index": 0 }, { "cite": "338 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519104 ], "year": 1994, "pin_cites": [ { "page": "36", "parenthetical": "A trial court may properly instruct on flight \"[s]o long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0001-01" ] }, { "cite": "326 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "878" } ], "opinion_index": 0 }, { "cite": "313 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4722198 ], "year": 1985, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0132-01" ] }, { "cite": "432 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "impeachment under Rule 609 is limited to the name of the crime, the time and place of the conviction, and the punishment imposed" } ], "opinion_index": 0 }, { "cite": "334 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532283 ], "year": 1993, "pin_cites": [ { "parenthetical": "impeachment under Rule 609 is limited to the name of the crime, the time and place of the conviction, and the punishment imposed" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0402-01" ] }, { "cite": "420 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "173" }, { "page": "168" } ], "opinion_index": 0 }, { "cite": "332 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506498 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0151-01" ] }, { "cite": "347 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300100 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/us/347/0227-01" ] }, { "cite": "446 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "78" } ], "opinion_index": 0 }, { "cite": "337 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550995 ], "year": 1994, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0298-01" ] }, { "cite": "308 S.E.2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "65 N.C. App. 408", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524453 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0408-01" ] }, { "cite": "140 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572769 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0730-01" ] }, { "cite": "406 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "329 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553215 ], "year": 1991, "pin_cites": [ { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0636-01" ] }, { "cite": "419 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "564" } ], "opinion_index": 0 }, { "cite": "331 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497445 ], "year": 1992, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0604-01" ] }, { "cite": "389 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "74", "parenthetical": "victim's statements about her husband's threats made three weeks before her disappearance admitted because the victim's state of mind was relevant to the issue of her relationship with her husband" } ], "opinion_index": 0 }, { "cite": "326 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306390 ], "year": 1990, "pin_cites": [ { "page": "313", "parenthetical": "victim's statements about her husband's threats made three weeks before her disappearance admitted because the victim's state of mind was relevant to the issue of her relationship with her husband" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0298-01" ] }, { "cite": "392 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "74", "parenthetical": "victim's statements regarding defendant's threats shortly before the murder admissible" } ], "opinion_index": 0 }, { "cite": "326 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308707 ], "year": 1990, "pin_cites": [ { "page": "683", "parenthetical": "victim's statements regarding defendant's threats shortly before the murder admissible" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0676-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "818", "parenthetical": "evidence of threats of defendant to victim shortly before the murder admissible to show victim's then-existing state of mind" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "222", "parenthetical": "evidence of threats of defendant to victim shortly before the murder admissible to show victim's then-existing state of mind" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "897", "parenthetical": "victim's recorded statements relevant because they tended to disprove the normal loving relationship that defendant contended existed between the two" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "page": "315", "parenthetical": "victim's recorded statements relevant because they tended to disprove the normal loving relationship that defendant contended existed between the two" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "406 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "817", "parenthetical": "testimony concerning victim's fear shortly after being in defendant's presence shows victim's existing state of mind" } ], "opinion_index": 0 }, { "cite": "329 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556019 ], "year": 1991, "pin_cites": [ { "page": "518", "parenthetical": "testimony concerning victim's fear shortly after being in defendant's presence shows victim's existing state of mind" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0507-01" ] }, { "cite": "128 L. Ed. 2d 220", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "435 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "302", "parenthetical": "victim's conversations with three witnesses related directly to the victim's fear of defendant and were admissible to show the victim's state of mind at the time the conversations took place" } ], "opinion_index": 0 }, { "cite": "334 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531078 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "637", "parenthetical": "victim's conversations with three witnesses related directly to the victim's fear of defendant and were admissible to show the victim's state of mind at the time the conversations took place" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0627-01" ] }, { "cite": "346 S.E.2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "317 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772331 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/317/0457-01" ] }, { "cite": "446 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "38" }, { "page": "39", "parenthetical": "trial court did not err in admitting testimony of victim's state of mind regarding the nature of her relationship with defendant notwithstanding that defendant may not have known the statements were made" } ], "opinion_index": 0 }, { "cite": "337 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549787 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "209" }, { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0198-01" ] }, { "cite": "367 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "906" } ], "opinion_index": 0 }, { "cite": "322 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517737 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "170" }, { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0152-01" ] }, { "cite": "367 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "597" } ], "opinion_index": 0 }, { "cite": "322 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519607 ], "year": 1988, "pin_cites": [ { "page": "131-32" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0117-01" ] } ], "analysis": { "cardinality": 1928, "char_count": 80839, "ocr_confidence": 0.743, "pagerank": { "raw": 1.356774482101005e-07, "percentile": 0.6346702066413911 }, "sha256": "47baa33bd4fc6c1a8c86981566b12b03f40c021b384c24f78569b9524cc709f1", "simhash": "1:276cf03f560309f2", "word_count": 13206 }, "last_updated": "2023-07-14T22:14:44.802104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. RAYFORD LEWIS BURKE" ], "opinions": [ { "text": "FRYE, Justice.\nIn a capital trial, defendant, Rayford Lewis Burke, was convicted by a jury of first-degree murder. In a capital sentencing proceeding conducted pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended and the trial court imposed a sentence of death. For the reasons discussed herein, we conclude that defendant\u2019s trial and capital sentencing proceeding were free of prejudicial error and that the death sentence is not disproportionate. Accordingly, we uphold defendant\u2019s conviction of first-degree murder and sentence of death.\nThe State\u2019s evidence presented at trial tended to show the following facts and circumstances: On 23 January 1992, Jesse Wilson was at his home in his kitchen with Freddie Teasley, Timothy Morrison (the victim), and Jimmy Knox. In the early afternoon, Wilson had consumed a pint of Wild Irish Rose wine, but no controlled substances. Morrison gave Teasley some money, and Teasley went to the liquor store and purchased a bottle of gin. When Teasley returned shortly thereafter with the bottle of gin, defendant and Robert Lee Griffin arrived at Wilson's house. Morrison, Knox, and Teasley were sitting at the table in the kitchen. Wilson went to the door and allowed defendant and Griffin to enter the house. Wilson had known defendant for several years, and defendant had been to Wilson\u2019s house on prior occasions. Neither defendant nor Griffin announced the purpose of their visit.\nAfter defendant entered the house, he proceeded to the kitchen, and when he asked for a drink of the gin, Morrison invited him to \u201cgo ahead and get you a drink.\u201d According to Wilson, defendant drank \u201cabout half\u201d of the bottle of gin. Defendant then told Morrison that he wanted to talk to him; and, at Wilson\u2019s suggestion, defendant and Morrison stepped into an adjoining bedroom. After defendant and Morrison left the kitchen area, Wilson \u201cheard a ruckus,\u201d which he described as \u201csome bumping around.\u201d Wilson hollered that he \u201cwasn\u2019t going to have it in [his] house.\u201d When defendant and Morrison came out of the bedroom, defendant said, \u201cI am going to tell all you son-of-a-bitches something.\u201d Defendant pointed at Morrison and said, \u201cThat man testified against me. He know [sic] I didn\u2019t kill that man at the Busy Bee.\u201d Defendant then left the house for \u201ca minute or so.\u201d Morrison sat down at the kitchen table and said, \u201c[E]verything is all right.\u201d Wilson asked Griffin to talk to defendant, and Griffin then exited the house through the front door.\nShortly thereafter, defendant reentered the house and walked \u201cstraight through\u201d to where Morrison was still seated at the kitchen table. According to Wilson, defendant said that if Morrison denied having testified against him in a previous trial, defendant would \u201cknock his head off.\u201d Morrison did not respond and did not say or do anything to provoke defendant. Defendant then hit Morrison, and Morrison got up from his seat. Defendant and Morrison started scuffling, and Wilson again admonished them that he \u201cwasn\u2019t going to have it in [his] house.\u201d Wilson got between defendant and Morrison and separated them in order to stop the scuffle.\nMorrison again sat down at the kitchen table. As Wilson was pushing against defendant with his shoulder, trying to get him to leave the house, defendant angrily told Morrison that \u201che wasn\u2019t no good\u201d and that Morrison should not have been a witness against him in the earlier murder case. Wilson saw defendant \u201cjiggling\u201d and reaching in his pocket \u201cto get something out,\u201d but Wilson could not determine whether the pocket was a pants pocket or a coat pocket. Wilson then heard three gunshots in rapid succession coming from \u201cright over [the] top of [his] head.\u201d Wilson testified that he did not see defendant or anyone else in the house with a handgun. According to Wilson, at the time of the gunshots, defendant was facing the kitchen, and Morrison was seated at the kitchen table.\nFollowing the gunshots, defendant exited through the front door. Wilson went to the front door and observed defendant leave in a \u201clittle blue car\u201d being driven by a black female. Wilson then turned around to see if anyone had been struck by the bullets. He heard something fall in the kitchen and ran to the kitchen where he saw that Morrison had been shot. Teasley was standing at the entrance to the kitchen, and Knox was still in the kitchen. Morrison was lying on the kitchen floor on his side and had a small bloodstain on his shirt. Wilson touched Morrison\u2019s arm to feel for a pulse, but detected none. Wilson could not determine whether Morrison was breathing. He saw what appeared to be blood flowing from Morrison\u2019s mouth. Since Wilson did not have a telephone at his house, he then went outside and directed his neighbors to call for an ambulance. The emergency medical personnel and police arrived, and Wilson informed the police that defendant had shot Morrison.\nThe State also presented evidence at trial tending to show that defendant had threatened Morrison on several occasions prior to the shooting and that defendant\u2019s brothers had made an intimidating visit to Morrison\u2019s home in Lexington, North Carolina. The State further presented evidence that, because of these threats, Morrison was afraid of defendant and wanted to avoid him.\nDefendant also presented evidence at trial. Defendant testified that he did not see Morrison in Wilson\u2019s house on the day of the shooting. However, defendant testified that he did see Jimmy Knox and Johnny Elwood Pless seated in the kitchen with \u201ccrack pipes going.\u201d According to defendant, he was at the front door when he heard gunshots. Defendant testified that he collided with Wilson as Wilson was trying to enter the front door while defendant was trying to exit. According to defendant, after he exited Wilson\u2019s house, he ran to Juanita Keaton\u2019s car and left with her. When Keaton asked him what had happened, he responded, \u201cSome crazy m--f--in there [was] shooting. Let\u2019s get the hell away from here.\u201d Defendant denied that he had threatened Morrison after his acquittal for the murder of Calvin Royal at the Busy Bee Lounge. Defendant also denied asking his brothers to threaten Morrison and insisted that his brothers \u201cwouldn\u2019t do anything like that.\u201d According to defendant, he had contacted some of the persons who testified against him in the trial for the murder of Calvin Royal and had asked them to testify in support of his civil rights lawsuit.\nAt trial, defendant also presented the testimony of three witnesses which tended to show that he was not the perpetrator of the crime charged. Dorothea Peggy Ramseur, a witness for the State in the previous trial for the murder of Calvin Royal, testified that, after defendant was acquitted, she encountered defendant at a liquor house. She further testified that defendant did not threaten her and that she even left the liquor house with him. Ramseur also testified that she went to Wilson\u2019s house after Morrison was shot, and Wilson told her that he did not know what had happened during the shooting, that he was outside, and that the shooting was over when he reentered the house. Ramseur was in prison at the time she testified in the instant case.\nJ.D. Sturgis, Jr., testified at trial that he routinely visited Wilson\u2019s house to sell or use drugs. After the Morrison shooting at Wilson\u2019s house, Sturgis asked Wilson what happened. Wilson told Sturgis that he did not know what happened because everyone ran when the shooting occurred.\nJohnny Elwood Pless testified that, on 23 January 1992, he was walking toward Wilson\u2019s house to look for his nephew, Keith Neils, when he heard three gunshots and saw several people run out of Wilson\u2019s house. According to Pless, defendant and Wilson were \u201cabout right at the door\u201d when the second and third shots were fired.\nDefendant\u2019s motions to dismiss, made at the close of the State\u2019s evidence and again at the close of all the evidence, were denied. The jury returned a verdict of guilty of first-degree murder. After a separate sentencing proceeding, the jury recommended and the trial court imposed a sentence of death. Defendant appeals to this Court, making eighteen arguments based on twenty-three assignments of error.\nIn his first argument, defendant contends that the trial court erred in overruling his objections to inadmissible hearsay testimony by prosecution witnesses Sandy Williams, Sergeant Michael Flory, and Investigator Michael Grant concerning statements made to them by the victim, Timothy Morrison. These statements concerned (1) threats against Morrison by defendant through Morrison\u2019s uncle, and (2) an intimidating visit by defendant\u2019s brothers to the victim\u2019s home while his girlfriend was present.\nDuring pretrial motions on 15 March 1993, defendant asked the trial court for an instruction to the jury, during the testimonies of Sandy Williams, Michael Flory, and Michael Grant, regarding certain hearsay statements made to these individuals by Morrison. Defendant argued that although these statements may be relevant to show Morrison\u2019s state of mind, they \u201cshould not be considered and do not have the indicia of reliability to be considered as to infer that the defendant actually made threats against Morrison.\u201d The court granted defendant\u2019s motion, saying, \u201c[W]hen it comes to that point, you need to request an instruction for the record.\u201d\nDuring the State\u2019s case-in-chief, the trial court conducted a voir dire of Sandy Williams, a victim witness coordinator for the district attorney\u2019s office, and Sergeant Michael Flory of the Statesville Police Department. Following the voir dire of Williams and -Sergeant Flory, the trial court made findings of fact and conclusions of law. The trial court found, inter alia, that Williams was a victim witness coordinator during the trial of defendant for the shooting death of Calvin Royal in November 1991 at the Busy Bee Lounge; that a jury found defendant not guilty of second-degree murder in that case; that during the trial, Williams had contacts with Timothy Morrison, who was a witness in that case; that subsequent thereto, Williams arranged the transportation for Morrison to move to Lexington, North Carolina; that on 21 December 1991, a call was received in her office from Morrison; that Williams returned the call on 2 January 1992; that Morrison told her that he had been threatened by defendant; that Morrison also related that defendant had gone by Morrison\u2019s uncle\u2019s house looking for him and had made the statement that if he caught him, he would shoot him; that Morrison was requesting the district attorney\u2019s help in dealing with this situation; that based upon her knowledge of Morrison, Williams formed the opinion that Morrison was upset and detected concern in his voice; and that Morrison also related that defendant\u2019s brothers had gone to his home in Lexington, North Carolina.\nThe trial court further found that, during December 1991 and January 1992, Sergeant Michael Flory was involved with the drug task force; that Morrison was paid as an informer for that task force; that Sergeant Flory had a conversation with Morrison earlier on the day Morrison died; that Morrison told Sergeant Flory that he had been threatened by defendant; that on several other occasions when Sergeant Flory had conversations with Morrison, Morrison expressed concern about threats made by defendant; that on the date in question, Morrison told Sergeant Flory that he was going to Harrison Street and that he would try to obtain information, if he did not run into defendant; that Morrison indicated to Sergeant Flory that he was trying to avoid defendant; that Morrison indicated that he was scared that defendant would find him; that Morrison had testified against defendant in a previous second-degree murder case involving an incident at the Busy Bee Lounge in which defendant was found not guilty; that Morrison was fearful of defendant; that Morrison\u2019s state of mind and defendant\u2019s state of mind were material for the case being tried before the jury; and that there was a factual basis for the alleged fear in that Morrison had testified against defendant in the earlier case.\nBased upon these findings of fact, the trial court concluded that there was a factual basis for the alleged fear in that Morrison was a material witness for the State in the case against defendant in regard to the shooting death of Calvin Royal at the Busy Bee Lounge, that evidence relating to the existence of Morrison\u2019s mental or emotional state of mind concerning his feelings about defendant was admissible, and that the probative value of that evidence outweighed any prejudicial aspects that the statements may have had in regard to defendant. However, the court ruled that it would allow the State to present the evidence subject to an instruction limiting the purposes for which the testimony could be used.\n\u201cHearsay testimony is not admissible except as provided by statute or by the North Carolina Rules of Evidence.\u201d State v. Wilson, 322 N.C. 117, 131-32, 367 S.E.2d 589, 597 (1988). In the instant case, the trial court found all of the statements admissible under Rule 803(3) of the North Carolina Rules of Evidence. Rule 803(3) provides that \u201c[a] statement of the declarant\u2019s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)\u201d is not excluded by the hearsay rule. N.C.G.S. \u00a7 8C-1, Rule 803(3) (1992). Thus, evidence tending to show a declarant\u2019s then-existing state of mind is an exception to the hearsay rule. N.C.G.S. \u00a7 8C-1, Rule 803(3); State v. Weeks, 322 N.C. 152, 170, 367 S.E.2d 895, 906 (1988). \u201c[E]vidence tending to show the state of mind of the victim is admissible as long as the declarant\u2019s state of mind is relevant to the case.\u201d State v. Jones, 337 N.C. 198, 209, 446 S.E.2d 32, 38 (1994). However, such relevant evidence is admissible only if its probative value is not substantially outweighed by the potential for unfair prejudice. N.C.G.S. \u00a7 8C-1, Rule 403 (1992); Weeks, 322 N.C. at 170, 367 S.E.2d at 906. The failure of a trial court to admit or exclude this evidence will not result in the granting of a new trial absent a showing by the defendant that a reasonable possibility exists that a different result would have been reached absent the error. State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1987).\nIn the instant case, Sandy Williams testified, over defendant\u2019s objection and after a limiting instruction by the trial court, .that she had a telephone conversation with Morrison on 2 January 1992. On direct examination at trial, the following exchange took place:\nQ What was the nature of your conversation with Timothy Morrison over the telephone on January second, 1992?\n[Defense Counsel]: Objection, Your Honor. Request an instruction.\nThe Court: Objection is overruled. Ladies and gentlemen of the jury, at this time let me instruct you that you are to consider this witness\u2019s testimony concerning any statement made to her by Timothy Morrison only to the extent that you find that it indicates ill will or fear on the part of the victim Timothy Morrison by the defendant or the defendant. You may consider it for no other reason in this case.\nQ Would you go ahead and relate what the telephone conversation was about?\nA He said that he had been threatened by Rayford Burke. And that Rayford had been by his uncle\u2019s house. And he said that he was looking for him. And if he caught him, he would shoot him. He also said that Rayford\u2019s brothers had been by his home in Lexington and that his girlfriend was there. And that he was afraid for his girlfriend and himself.\nQ And at some point as a result of that phone call from Timothy Morrison, did you report the nature of the things that were stated by Mr. Morrison in that call to any law enforcement official?\nA I contacted Investigator Mike Grant on January second of \u201992.\nFollowing the testimony of Williams, Sergeant Michael B. Flory testified that, on the morning of 23 January 1992 at about 9:00 a.m., he saw Morrison at Karen Neils\u2019 house. Morrison had called and stated that he wanted to meet with his law enforcement contacts. Sergeant Flory proceeded to Neils\u2019 house, met with Morrison, and paid him $100 for a drug deal that Morrison had arranged the previous day. On direct examination at trial, the following exchange took place:\nQ So you went out there and spoke with him?\nA Yes, ma\u2019am.\nQ And what was the substance of the conversation that you had with him that morning?\nA Our initial trip was to pay him one hundred dollars from a deal that he had done the previous day. During the time we were paying the money, he told me that he had again been threatened by Rayford Burke.\nQ When you say again, had he told you that he had been threatened by Mr. Burke previous to that?\nA Yes, ma\u2019am, he had.\nQ How many times would you say that he told you that he had been threatened by Mr. Burke?\nA Numerous occasions. Almost every time we had a meeting.\nQ And what would he say to you about it?\nA He said he was scared of him and \u2014\n[Defense Counsel]: Objection, ask for instruction.\nThe Court: Okay, objection is overruled. Ladies and gentlemen of the jury, at this time, let me instruct you that you are to consider this witness\u2019s testimony concerning any statements made by Timothy Morrison only to the extent that you find that it indicates ill will or fear on the part of the victim by the defendant or of the defendant. You may consider it for no other reason in this case.\nQ Okay. You indicated he said he was scared of Rayford Burke? A Yes, ma\u2019am.\nQ And that was on more than one occasion?\nA Yes, ma\u2019am.\nQ Did he say any \u2014 give you any reason of why he was afraid of Rayford Burke?\nA That he had been threatened by Rayford Burke.\nQ What exactly did he tell you on the morning of January twenty-third, 1992?\nA Told me that he had been threatened by Rayford Burke and that he wished not to go into any area that Rayford Burke might be, that he was trying to avoid him. He told us that he was going to Harrison Street to work on an investigation that we had previously worked on. . . . That I was to go through Harrison Street about five o\u2019clock that afternoon. And that he would take his hat off if he had any further information for me. And then he said, that is in case \u2014 unless I run into Rayford Burke.\nWe conclude that the trial court\u2019s decision to admit the testimony of Williams and Sergeant Flory, which tended to show the victim\u2019s state of mind, is in accord with the precedent of this Court. See State v. Jones, 337 N.C. at 209, 446 S.E.2d at 39 (trial court did not err in admitting testimony of victim\u2019s state of mind regarding the nature of her relationship with defendant notwithstanding that defendant may not have known the statements were made); State v. McHone, 334 N.C. 627, 637, 435 S.E.2d 296, 302 (1993) (victim\u2019s conversations with three witnesses related directly to the victim\u2019s fear of defendant and were admissible to show the victim\u2019s state of mind at the time the conversations took place), cert. denied, - U.S. -, 128 L. Ed. 2d 220 (1994); State v. Wynne, 329 N.C. 507, 518, 406 S.E.2d 812, 817 (1991) (testimony concerning victim\u2019s fear shortly after being in defendant\u2019s presence shows victim\u2019s existing state of mind); State v. Stager, 329 N.C. 278, 315, 406 S.E.2d 876, 897 (1991) (victim\u2019s recorded statements relevant because they tended to disprove the normal loving relationship that defendant contended existed between the two); State v. Lynch, 327 N.C. 210, 222, 393 S.E.2d 811, 818 (1990) (evidence of threats of defendant to victim shortly before the murder admissible to show victim\u2019s then-existing state of mind); State v. Faucette, 326 N.C. 676, 683, 392 S.E.2d 71, 74 (1990) (victim\u2019s statements regarding defendant\u2019s threats shortly before the murder admissible); State v. Cummings, 326 N.C. 298, 313, 389 S.E.2d 66, 74 (1990) (victim\u2019s statements about her husband\u2019s threats made three weeks before her disappearance admitted because the victim\u2019s state of mind was relevant to the issue of her relationship with her husband).\nIn the instant case, Morrison\u2019s statements to Williams were admissible under Rule 803(3) as a statement of his then-existing state of mind to show the relationship between Morrison and defendant. Since the evidence was competent for this purpose, it does not matter that it may prove some fact that is not relevant or for which the evidence is not competent. See State v. White, 331 N.C. 604, 615, 419 S.E.2d 557, 564 (1992). Thus, the trial court did not abuse its discretion in admitting this evidence for the purpose of showing Morrison\u2019s then-existing state of mind. We note that at trial defendant objected to the testimony of these witnesses and requested a limiting instruction. In each instance, the court overruled defendant\u2019s objection and gave a limiting instruction. The record shows that defense counsel did not object to the instructions.\n\u201cA criminal defendant will not be heard to complain of a jury instruction given in response to his own request.\u201d State v. McPhail, 329 N.C. 636, 643, 406 S.E.2d 591, 596 (1991); see also State v. Cook, 263 N.C. 730, 140 S.E.2d 305 (1965); State v. Plowden, 65 N.C. App. 408, 308 S.E.2d 918 (1983). Since defendant requested the instruction that he now contends was prejudicial, any error was invited error not entitling defendant to relief on appeal.\nDefendant further contends that the trial court erred in admitting testimony by Williams that Morrison told her that defendant\u2019s brothers had visited Morrison\u2019s house in Lexington, that Morrison\u2019s girlfriend was there, and that he was afraid for his girlfriend and himself. Defendant argues that Williams\u2019 testimony as to what the brothers said was not subject to any exception to the hearsay rule and that it was reversible error not to exclude it.\nAfter Sergeant Flory\u2019s testimony, the State called Investigator Michael Grant as a witness. After testifying about other matters, Investigator Grant offered testimony to corroborate Williams\u2019 testimony that Timothy Morrison told Williams, during the 2 January 1992 telephone call, that defendant\u2019s brothers had gone \u2022 to Morrison\u2019s house in Lexington when Morrison\u2019s girlfriend, Karen Neils, was there and that Morrison told Williams that he was afraid for his girlfriend and for himself.\nOn direct examination of Investigator Grant, the following exchange took place:\nQ Do you recall, Investigator Grant, earlier in January of 1992, speaking with Sandy Williams?\nA Yes, I did.\nQ Do you recall the nature of the conversation?\nA Yes. She had \u2014 I believe it to be January twenty-fourth, 1992, Sandy Williams, the assistant \u2014 victim assistant coordinator contacted me by the telephone. And she told me that she had\u2014\n[Defense Counsel]: Objection.\nThe Court: Sustained. Members of the jury, this is being offered for corroborating the testimony of an earlier witness. It will be for you to say and determine whether it does in fact corroborate that witness\u2019s testimony. It is not being offer [sic] for the truth or falsity of the statement or whether the statement was made on that occasion.\nQ Go ahead.\nA Okay. She related that she had talked to Mr. Morrison. And at this time, she stated that David Burke, the brother of Rayford Burke, had located him in Lexington and had told him if Rayford ever saw Timothy Morrison, he, Rayford Burke, would shoot or kill him, Timothy Morrison.\nDefendant argues that Investigator Grant\u2019s corroborative testimony concerning what the brothers said was inadmissible hearsay. Defendant contends that under Rule 403, if this evidence has any probative value at all, such value is substantially outweighed by the danger of unfair prejudice from the obvious but unwarranted speculation that defendant somehow encouraged his brothers to intimidate Neils.\nWe agree with defendant that the testimony of Williams and Investigator Grant concerning what the brothers said was inadmissible because the brothers\u2019 state of mind was not relevant and could not be used to show defendant\u2019s state of mind. Nevertheless, we conclude that this error was not prejudicial. First, we note that the trial court granted defendant\u2019s request for an instruction limiting the purposes for which the evidence could be used. Furthermore, with reference to Investigator Grant\u2019s testimony, the court instructed the jury that the testimony was to be used for no other purpose than to corroborate Williams\u2019 testimony. In addition, the jury was aware through Williams\u2019 testimony that Morrison had testified against defendant on a previous murder charge, which would provide a factual basis for Morrison\u2019s fear of defendant. Furthermore, Jesse Wilson had testified that when defendant entered the house, he got into an altercation about Morrison\u2019s testimony in the prior trial. Under these circumstances, we conclude that defendant has failed to demonstrate that a reasonable possibility exists that, had this evidence been excluded, a different result would have been reached at trial. N.C.G.S. \u00a7 15A-1443(a) (1988); State v. Bryant, 337 N.C. 298, 311, 446 S.E.2d 71, 78 (1994).\nIn his second argument, defendant contends that the trial court erred by not conducting an inquiry into the precise content and possible impact of an incorrect and prejudicial statement made by outsiders which may have been heard by a juror during the guilt-innocence phase of the trial. While the jury was out of the courtroom, the trial court announced that during a recess, juror Kennedy had possibly overheard unidentified people in the canteen say that defendant had been involved in two other murders or two other murder cases. In a conference at the bench, the following exchange took place:\nThe Court: Okay, let the record show that at the end of the recess period, the Court was approach [sic] by counsel for the State and by the defense. Counsel for the State indicating that during the recess period, that an attorney who was in the area of the canteen area overheard individuals, citizens engaged in conversation about that the defendant had been \u2014 what was the statement?\n[State]: I believe it was something to the effect that this guy has been involved in two other cases \u2014 two other murders.\nThe Court: Two other murders. That this statement was in made in the \u2014 may have been made in the presence of a juror in this case, Juror McKinney?\n[State]: Kennedy, Your Honor.\nThe Court: Kennedy. That the Court has made counsel for the State and for the defense aware that the Court is willing to bring that juror in and question him as to whether he in fact heard anything or overheard any conversation. That after consultation with the defense team with the defendant, that the defense team has indicated at the bench that they did not wish to question the juror about that matter, but would request that the Court take steps to assure that jurors had no further contact with individuals who might be in the canteen area. Is that the\u2014\n[Defense Counsel]: Yes, sir.\nThe Court: On behalf of the defense, you do not wish to question the juror?\n[Defense Counsel]: That\u2019s correct.\nFollowing this exchange, the court instructed (1) that a court officer be assigned to the jurors and that they be kept on the floor on which the trial was taking place, (2) that everyone remain in the courtroom until jurors exited or completely left the building at any recess or break periods throughout the remainder of the trial, (3) that a law enforcement official assigned to the jury service bring back from the canteen any items requested by jurors, and (4) that spectators and witnesses not have any contact with the jurors or make any statements in their presence.\nWe note that the record clearly shows that the court asked if defense counsel wanted the court to conduct an inquiry and that, after consultation between defendant and defense counsel, defense counsel declined. Defendant now argues that, although North Carolina law vests a trial judge with discretion to determine the procedure and scope of the inquiry, the law does not give the trial judge any discretion about whether to conduct an inquiry. Defendant contends that a trial judge must do so, at least where, as in this case, the statement, if heard by the juror, would obviously be prejudicial.\nWe agree that when a trial court learns of an alleged improper contact with a juror, or of a prejudicial statement inadvertently overheard by a juror, the trial court\u2019s inquiry into the substance and possible prejudicial impact of the contact is a vital measure for ensuring the impartiality of the juror. Remmer v. United States, 347 U.S. 227, 98 L. Ed. 2d 654 (1954). InState v. Willis, 332 N.C. 151, 420 S.E.2d 158 (1992), this Court stated that \u201c[i]n the event of some contact with a juror it is the duty of the trial judge to determine whether such contact resulted in substantial and irreparable prejudice to the defendant. It is within the discretion of the trial judge as to what inquiry to make.\u201d Id. at 173, 420 S.E.2d at 168.\nIn this case, we first note that there is no contention that a spectator actually talked to the juror, only that the juror may have inadvertently overheard prejudicial conversation. Defendant declined the judge\u2019s offer to make an inquiry of the juror in order to determine whether the juror had overheard the conversation. Furthermore, the judge instituted special measures to insulate the jury from exposure to any casual conversations between spectators. Under these circumstances, we conclude that the trial judge properly exercised his discretion in not making further inquiry into this matter.\nIn his third argument, defendant contends that the trial court erred in overruling his objection to cross-examination of defendant about the details of two crimes for which defendant had prior convictions: misdemeanor assault with a deadly weapon of Jerry Roseboro and misdemeanor assault with a deadly weapon of George Melvin Anthony. Defendant argues that when a party impeaches the credibility of a witness under Rule 609, counsel may not inquire into the details of the crime leading to the conviction. State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993) (impeachment under Rule 609 is limited to the name of the crime, the time and place of the conviction, and the punishment imposed). However, the instant case is distinguishable from Lynch.\nIn Lynch, the trial court overruled defendant\u2019s numerous objections to the State\u2019s cross-examination regarding details of defendant\u2019s prior convictions. In the instant case, however, the trial court did not overrule defense counsel\u2019s objection to his client\u2019s attempt to explain the circumstances surrounding the assault on Jerry Roseboro, but simply responded: \u201cHe may explain his answer if he wishes to do that.\u201d Our reading of the transcript suggests that defendant elected to offer a detailed explanation of the circumstances which led to his prior conviction for the assault of Roseboro in order to inform the jury that Roseboro had testified in the previous trial that Roseboro had stabbed defendant first. Because defendant elected to explain the circumstances surrounding the crime, he may not obtain a new trial based on his own election to testify about these matters.\nAs to the prosecutor\u2019s questioning about defendant\u2019s assault upon George Melvin Anthony, defendant concedes that he failed to object to this cross-examination, but argues that such an objection would have been futile in view of the trial court\u2019s \u201coverruling of the objection to identical cross-examination about the assault against Mr. Roseboro.\u201d However, as we noted earlier, the trial court did not overrule defendant\u2019s objection; it merely permitted defendant to explain his answer if he desired to do so. Here, the prosecutor simply asked defendant, with respect to the assault on Anthony, \u201cWas that self-defense too?\u201d Defendant responded, \u201cI was into it with Mr. Anthony and several other people. Whatever you may want to call it.\u201d We conclude that the trial court did not err in permitting defendant to respond to the prosecutor\u2019s question. Accordingly, we reject defendant\u2019s third argument.\nIn his fourth argument, defendant contends that the trial court erred in overruling his objection to the State\u2019s \u201cprejudicially improper\u201d question to a prosecution witness about the witness\u2019 request for relocation. On direct examination of Jimmy Knox during trial, the following exchange took place:\nQ Mr. Knox, you came and talked to [the prosecutor] about this case?\nA Yes, ma\u2019am.\nQ And when we talked with you about testifying, did you want to come here and testify?\nA No, ma\u2019am.\n[Defense Counsel]: Objection to leading.\nThe Court: Sustained.\nThe Witness: No, ma\u2019am.\nQ Do you want to testify \u2014 did you want to testify in this case, Mr. Knox?\nA After a while, I thought about it, I said Timmy was my friend. And if \u2014 if\u2014if he would have missed him, he could have killed me. That\u2019s \u2014 because he \u2014 I was sitting right there behind him.\nQ Did [the prosecutors] offer to help you in any way if you came and testified in this case?\nA No, ma\u2019am.\nQ Well, we talked about helping you relocate to another area outside of Statesville?\n[Defense Counsel]: Objection to leading.\nThe Court: Sustained.\nQ Do you remember anything that we told you that we would help you do?\nA I \u2014 I\u2014I asked you all, I said, I can\u2019t testify against that man. He done killed one man.\n[Defense Counsel]: Objection, excepts [sic] to the extent it corroborates.\nThe Court: Overruled. Go ahead and answer the question.\nThe Witness: I asked you all, where did I live at. Because I lived with my parents. And I didn\u2019t want nobody come to my parents\u2019 house and shooting up my family like that, you know. Could you all help me relocate.\nQ And did we tell you that we would try to do that?\nA Yes, ma\u2019am.\nDefendant contends that this testimony should have been excluded under Rule 404(a), which prohibits evidence that a defendant acted in conformity with a trait of his character. Defendant argues that the clear purpose of this testimony by Jimmy Knox was to show that defendant has such a violent character that he would kill anyone who testified against him. Defendant further contends that the unfair prejudice of this testimony substantially outweighed any probative value under Rule 403.\nThe State argues, however, that the evidence concerning Knox\u2019s inquiry about relocation was relevant not to show defendant\u2019s violent or criminal disposition, but to explain why Knox initially did not want to testify against defendant and why Knox could have made statements indicating that he could not remember what happened during the shooting at Wilson\u2019s house. We agree. Knox\u2019s testimony showed that he was fearful of testifying against defendant, having witnessed defendant shoot and kill Morrison in retaliation for Morrison\u2019s having testified against defendant in a previous trial. Thus, the testimony was not admitted to prove defendant\u2019s character or that defendant acted in conformity therewith so as to require exclusion under Rule 404(a). We further conclude that the probative value of Knox\u2019s testimony was not substantially outweighed by the danger of unfair prejudice to defendant so as to require exclusion under Rule 403. Accordingly, we reject defendant\u2019s fourth argument.\nIn his fifth argument, defendant contends that the trial court erred in overruling his objection to irrelevant lay opinion testimony by a prosecution witness about the victim\u2019s state of mind a few weeks before his death. Patty West, director of women\u2019s and children\u2019s services at the Fifth Street Shelter Ministries, testified that Morrison stayed at the shelter for several weeks before his death on 23 January 1992. West testified, over defendant\u2019s objection, that \u201c[t]here were times that I \u2014 when we would \u2014 during certain conversations that I felt like he [Timothy Morrison] was tense or, you know, scared of something.\u201d Defendant contends that the trial court erred in overruling his objection to this testimony because West\u2019s lay opinion about Morrison\u2019s state of mind was so vague that it was irrelevant and therefore inadmissible under Rule 402. Rule 402 provides in pertinent part that \u201c[e]vidence which is not relevant is not admissible.\u201d N.C.G.S. \u00a7 8C-1, Rule 402 (1992). Evidence is \u201crelevant\u201d if it has \u201cany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1992).\nWe have held that opinion testimony, including lay opinion testimony, is admissible concerning the state of a person\u2019s appearance or emotions on a given occasion. State v. Gallagher, 313 N.C. 132, 138, 326 S.E.2d 873, 878 (1985). Here, the testimony by West that Morrison appeared to be \u201ctense\u201d and \u201cscared of something\u201d during certain conversations with her described Morrison\u2019s emotional state during the time he was in her presence at the shelter. We conclude that such evidence was admissible as tending to shed light upon Morrison\u2019s state of mind at that particular time. See State v. McHone, 334 N.C. 627, 435 S.E.2d 296. We reject defendant\u2019s further contention that, even if relevant, the probative value of this evidence was substantially outweighed by its unfair prejudice to defendant and it thus should have been excluded under Rule 403.\nIn his sixth argument, defendant contends that the trial court erred in overruling his objection to the State\u2019s introduction of extrinsic evidence to impeach the credibility of a defense witness on a collateral matter. The impeachment in question concerned Juanita Keaton\u2019s employment. Keaton testified on direct examination that she was a licensed practical nurse. During cross-examination, in response to a question by the prosecutor, Keaton agreed that she had told the prosecutor during a pretrial telephone conversation that she would be assisting as a nurse in a brain surgery operation during the week of 15 March 1993. The prosecutor expressed skepticism as to Keaton\u2019s statement and cross-examined Keaton about it.\nAfter the defense rested its case, the State introduced rebuttal testimony through Dorra Mack, a registered nurse who had been Keaton\u2019s supervisor. During direct examination, Mack testified that Keaton had been hired as a certified nursing assistant and, to the best of her knowledge, was not a licensed practical nurse. Mack further testified, over defendant\u2019s objection as to relevancy, that the duties that a certified nursing assistant can legally perform in the State of North Carolina include \u201c[a]ssist[ing] with personal care, which is bathing, assisting with dressing, cooking, light housekeeping, grocery shopping, those types of duties.\u201d Mack further expressed doubt that a certified nursing assistant could assist in a brain surgery operation. Defendant contends that the State\u2019s introduction of this testimony was improperly calculated to ridicule and impeach the testimony' of Keaton, an important defense witness.\nThe general rule is that once a witness testifies about a collateral matter on cross-examination, the cross-examiner, who draws out such answers, is bound by the answers of the witness and will not be permitted to contradict them by the testimony of others. See Kenneth S. Broun, Brandis and Broun on North Carolina Evidence \u00a7 160 (4th ed. 1993) (\u201ccontradiction of collateral facts by other evidence is not permitted\u201d). Assuming arguendo that the trial court erred in allowing Mack to testify as to a collateral matter, we conclude that defendant has not met his burden of showing that there is a reasonable possibility that had the error not been committed, a different result would have been reached at trial. N.C.G.S. \u00a7 15A-1443(a). We first note that the State thoroughly cross-examined Keaton about her education, qualifications, and employment. We further note that while Keaton was an important defense witness, she was not present inside the house at the time of the shooting. Although she testified that she saw defendant standing in the doorway to Wilson\u2019s house, she also testified that she did not hear any gunshots. The import of Keaton\u2019s testimony to the defense was that she testified she did not see defendant in possession of a handgun on the day of the shooting. Accordingly, we reject defendant\u2019s sixth argument.\nIn his seventh argument, defendant contends that the trial court erred in refusing to allow his counsel to question prosecutors, members of the prosecutorial staff, and law enforcement officers about their decision not to seek to have Jesse Wilson, a key prosecution witness, arrested on outstanding warrants for his arrest prior to his testimony in this trial. Defendant contends that such examination was permissible for the purpose of impeaching Wilson on the ground of bias.\nBefore ruling upon defendant\u2019s request to examine these persons, the trial court held a lengthy voir dire. Both prosecutors testified during the voir dire and were cross-examined by defendant. The prosecutors testified that Wilson had been arrested on drug charges; that Wilson failed to appear in district court; that the State took dismissals with leave in regard to the charges; that the officer who served the subpoena for Wilson to appear and testify in the instant case was unaware of the outstanding warrants for Wilson\u2019s arrest; that the district attorney\u2019s office, once Wilson was located, decided not to process him unless he failed to appear in this case; and that the prosecutors in this case refused to discuss the pending charges with Wilson since he was a witness for the State in this case. Upon this evidence, the court denied defendant\u2019s request, concluding that \u201cthere were no promises, offers or reward or inducements to .. . the witness Jesse Wilson by any official of the prosecutorial staff or by any law enforcement official.\u201d\nDefendant contends that the voir dire testimony should have been heard by the jury because it would show Wilson\u2019s bias in that he had an inducement to appear as a prosecution witness in this trial. We find no error. First, there was no evidence presented at the voir dire to show that Wilson had received, or had been promised, favors from the State. Further, the evidence shows that, although the prosecutors withheld service of the warrants for arrest, they refused to discuss the pending charges with Wilson since he was a witness for the State in this case. Defendant\u2019s interest was in showing the bias of Wilson in that he was testifying for the State because they were withholding outstanding warrants for his arrest. The record shows that defendant cross-examined Wilson as to the nature of the charges pending against him and the reason he had not been arrested. Wilson testified that no one had offered him any concessions in exchange for his testimony. We note as well that during the testimony of law enforcement officers, defendant did not attempt to question them about their failure to serve the outstanding warrants for arrest upon Wilson. We hold that the trial court did not err in denying defendant\u2019s request to have the prosecutors and members of the prosecutorial staff testify before the jury about the reason for the unserved warrants for Wilson\u2019s arrest. Accordingly, we reject defendant\u2019s seventh argument.\nIn his eighth argument, defendant contends that the trial court committed plain error by not instructing the jury that a killing is not done with deliberation if a defendant forms the intent to kill during a quarrel or struggle. We reject this argument since no evidence presented at trial shows that defendant formed the intent to kill during a quarrel or struggle.\nThe only provocation shown by the evidence as to the victim, Morrison, was the fact that he had previously testified against defendant. Defendant\u2019s evidence was to the effect that he did not see Morrison at the house and did not shoot him. The State\u2019s evidence was to the effect that Morrison, rather than provoking defendant, not only acceded to defendant\u2019s wishes by sharing his bottle of gin with him but also by not responding violently to defendant\u2019s aggressive efforts to provoke him. The victim was seated at the table when he was shot. Under these circumstances, the trial court correctly denied defendant\u2019s request and charged the jury in accordance with North Carolina Pattern Instructions, N.C.P.I.\u2014Crim. 206.10 (1989), as follows:\n[T]he State must prove that the defendant acted with . . . deliberation, which means that he acted while he was in a cool state of mind. This does not mean that there had to be a total absence of passion or emotion. If the intent to kill was formed with a fixed purpose, not under the influence of some suddenly aroused violent passion, it is immaterial that the defendant was in a state of passion or excited when the intent was carried into effect.\nAccordingly, we reject defendant\u2019s eighth argument.\nIn his ninth argument, defendant contends that the trial court erred in instructing the jury that it could consider evidence that defendant fled the scene of the shooting as evidence of his guilt. Defendant acknowledges that this Court has decided against his position on this issue. See State v. Moseley, 338 N.C. 1, 36, 449 S.E.2d 412, 434 (1994) (A trial court may properly instruct on flight \u201c[s]o long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.\u201d), cert. denied, - U.S. -, 131 L. Ed. 2d 738 (1995); State v. Tucker, 329 N.C. 709, 722, 407 S.E.2d 805, 813 (1991) (\u201c[F]light from a crime shortly after its commission is admissible as evidence of guilt.\u201d). We hold that the record in this case includes such evidence and see no reason to abandon the precedent of this Court based on defendant\u2019s arguments. Accordingly, we reject defendant\u2019s ninth argument.\nWe conclude for the foregoing reasons that defendant\u2019s trial was free of prejudicial error. Thus, we now turn to defendant\u2019s assignments of error relating to the separate capital sentencing proceeding conducted in this case. In his first sentencing issue, defendant contends that the trial court erred in instructing the jury to consider defendant\u2019s conviction for a felonious assault with respect to the aggravating circumstance of prior conviction for a violent felony, where the conviction for that offense occurred after defendant\u2019s alleged commission of the capital murder.\nDefendant argues that in submitting the N.C.G.S. \u00a7 15A-2000(e)(3) aggravating circumstance, the trial court erred in instructing the jury that it could consider a conviction in June 1992 for assault with a deadly weapon inflicting serious injury, which occurred in December 1991. Defendant contends that the trial court\u2019s submission of the June 1992 assault conviction was erroneous because defendant was not convicted of the assault until after 23 January 1992, the date of the capital murder in this case. Defendant contends that the plain language of the N.C.G.S. \u00a7 15A-2000(e)(3) aggravating circumstance makes it clear that the two times relevant to that circumstance are the date of a defendant\u2019s conviction for the aggravating violent felony and the date of the commission of the capital murder.\nN.C.G.S. \u00a7 15A-2000(e)(3) lists the following as an aggravating circumstance: \u201cThe defendant had been previously convicted of a felony involving the use or threat of violence to the person.\u201d Defendant acknowledges that in State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), and State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979), this Court stated that the relevant event with respect to this aggravating circumstance is the date of the commission of the violent felony, rather than the date of the conviction. However, defendant argues that the Court\u2019s brief analysis of that issue in Silhan and Goodman was dictum with respect to this issue because the Court did not have to squarely address the precise timing issue raised here to reach its holding in either Silhan or Goodman.\nIn State v. Goodman, this Court said:\nG.S. 15A-2000(e)(3) states that one of the aggravating factors which may justify the imposition of the death penalty is the fact that the \u201cdefendant had been previously convicted of a felony involving the use or threat of violence to the person.\u201d This section requires that there be evidence that (1) defendant had been convicted of a felony, that (2) the felony for which he was convicted involved the \u201cuse or threat of violence to the person,\u201d and that (3) the conduct upon which this conviction was based was conduct which occurred prior to the events out of which the capital felony charge arose. If there is no such evidence, it would be improper for the court to instruct the jury on this subsection.\n. . . [W]e believe that the \u201cpreviously convicted\u201d language used by the legislature in subsection (e)(3) refers to \u201ccriminal activity conducted, prior to the events out of which the charge of murder arose.\u201d State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977); see also, State v. Rust, [197 Neb. 528, 250 N.W.2d 867, cert. denied, 434 U.S. 912, 98 S. Ct. 313, 54 L. Ed. 2d 198 (1977)]; State v. Holtan, 197 Neb. 544, 250 N.W.2d 876, cert. denied, 434 U.S. 912, 98 S. Ct. 313, 54 L. Ed. 2d 198 (1977). To decide otherwise would lead to unnecessary duplication within the statute, for G.S. 15A-2000(e)(5) enumerates those felonies which occur simultaneously with the capital felony which the legislature deems worthy of consideration by the jury. It would be improper, therefore, to instruct the jury that this subsection encompassed conduct which occurred contemporaneously with or after the capital felony with which the defendant is charged.\nGoodman, 298 N.C. at 22-23, 257 S.E.2d at 583-84 (emphases added).\nIn State v. Coffey, 336 N.C. 412, 444 S.E.2d 431 (1994), we stated:\nIn State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979), we held that [the aggravating circumstance found at N.C.G.S. \u00a7 15A-2000(e)(3)] does not include crimes committed after the murder. Recognizing the relationship between this circumstance and the mitigator pertaining to defendant\u2019s history of prior criminal activity, it has been stated: \u201cJust as prior conviction of a felony involving violence is designated an aggravating circumstance, the absence of any significant history of prior criminal activity calls for mitigation of sentence.\u201d II Model Penal Code \u00a7 210.6 commentary at 137 (1980). To the extent that the mitigating circumstance of \u201cno significant history of prior criminal activity\u201d is related to the aggravating circumstance that \u201cdefendant had been previously convicted of a felony involving the use or threat of violence,\u201d it seems clear that the legislature intended the same time frame to be used in both circumstances. Thus, the aggravating circumstance in N.C.G.S. \u00a7 15A-2000(e)(3) is some indication that the mitigating circumstance of no significant history of prior criminal activity does not include crimes committed after the murder.\nCoffey, 336 N.C. at 418-19, 444 S.E.2d at 435 (emphasis added).\nThe rationale for this aggravating circumstance seems to be that it is more egregious for a person to commit first-degree murder after having previously committed a violent felony against the person of another. While this aggravating circumstance could not be submitted to the jury prior to a conviction, there is no requirement that the conviction occur prior to the capital murder so long as the conduct giving rise to the conviction occurred prior to the events out of which the capital murder arose. The \u201cpreviously convicted\u201d language used by the legislature in N.C.G.S. \u00a7 15A-2000(e)(3) simply establishes a more reliable means of assuring that the defendant is guilty of the violent felony. Ordinarily, whether the defendant has been convicted is a matter of public record and is beyond dispute. However, if the crime for which the defendant has been convicted does not have as an element the use or threat of violence to the person or if the defendant denies that he was the defendant shown on the conviction record, that he was convicted, or that the crime involved the use or threat of violence, it may become necessary for the State to present the testimony of the victims themselves. See State v. Silhan, 302 N.C. at 272, 275 S.E.2d at 484. Therefore, it is not necessary that a defendant be convicted before the commission of the capital murder so long as defendant has been convicted of the violent felony prior to the capital trial. See State v. Lyons, 343 N.C. 1, 22, 468 S.E.2d 204, 214 (1996). Thus, we find no error in the trial court\u2019s jury instruction allowing the jury to consider defendant\u2019s June 1992 conviction for a violent felony which was committed prior to the events out of which the capital murder arose. Accordingly, we reject defendant\u2019s argument.\nDefendant next contends that the trial court erred in instructing the jury to consider defendant\u2019s conviction for felonious breaking or entering with respect to the aggravating circumstance of prior conviction of a violent felony, since the evidence was not sufficient to show that the offense was violent. Although defendant initially was charged with the sexual assault of a four-year-old child, he pleaded guilty only to felonious breaking or entering, and the sexual assault charge was dismissed with prejudice. Defendant now argues that there was no evidence that he broke into the apartment rather than merely entering an open or unlocked door and that there was no evidence that he ever assaulted, attempted to assault, threatened to assault, or even touched the child.\nIn State v. Green, we said:\nUnder N.C.G.S. \u00a7 15A-2000(e)(3), a prior felony can be either one which has as an element the use or threat of violence to the person, such as rape or armed robbery, or a felony which does not have the use or threat of violence to the person as an element, but as to which the use or threat of violence to the person was actually involved.\n336 N.C. 142, 168, 443 S.E.2d 14, 29 (1994) (\u201cAttempting to commit a crime which inherently involves violence obviously constitutes, at least, a \u2018threat of violence.\u2019 \u201d), cert. denied, -U.S. -, 130 L. Ed. 2d 547 (1994).\nIn the instant case, the State presented evidence that, on 15 December 1987, defendant pleaded guilty and was convicted of felonious breaking or entering with intent to commit a sexual assault against a four-year-old child. The child\u2019s mother testified that on 15 December 1987, she briefly left her apartment, leaving her two children inside. When she returned to her apartment, the four-year-old was \u201cscreaming and hollering\u201d at defendant. The four-year-old child was wearing only panties and a T-shirt, but had been fully dressed when her mother left the apartment. Defendant was in the bathroom, washing his penis in front of the one-year-old child. Defendant replied, \u201cHa,\u201d when the children\u2019s mother confronted him about what he had done. Defendant\u2019s hat was found on the four-year-old child\u2019s bed. Based upon this evidence, the jury reasonably could have found that defendant broke and entered the apartment with the intent to commit a sexual assault upon a four-year-old child and that the crime involved at least a \u201cthreat of violence.\u201d Thus, we are satisfied that there was sufficient evidence to support the jury\u2019s finding of the aggravating circumstance that defendant had previously been convicted of a crime involving the use or threat of violence. Accordingly, we reject defendant\u2019s argument.\nPreservation Issues\nDefendant raises six additional arguments which he concedes have been decided against him by this Court: (1) the trial court erred in granting the State\u2019s motion to prohibit defendant\u2019s closing argument about residual doubt and by denying defendant\u2019s request to submit residual doubt as a mitigating circumstance; (2) the trial court violated his due process right to an impartial jury by denying his motion to permit questioning of prospective jurors on parole eligibility; (3) the trial court\u2019s capital sentencing jury instructions that defined defendant\u2019s burden of persuasion to prove mitigating circumstances as evidence that \u201csatisfies\u201d each juror violated due process and the Eighth and Fourteenth Amendments because that definition did not adequately guide the jury\u2019s discretion about the requisite degree of proof; (4) the trial court violated the Eighth and Fourteenth Amendments by allowing the jury to refuse to give effect to mitigating evidence if the jury deemed the evidence not to have mitigating value; (5) the trial court erred in allowing jurors not to give effect to mitigating circumstances found by the jurors; and (6) the trial court erred in permitting defense counsel to accede to defendant\u2019s choice to present the defendant\u2019s penalty phase case without witnesses from defendant\u2019s family and without a psychiatric examination of defendant, thereby depriving defendant of his right to counsel under the Sixth and Fourteenth Amendments.\nDefendant raises these issues for the purpose of permitting this Court to reexamine its prior holdings and also for the purpose of preserving them for any possible further judicial review of this case. We have carefully considered defendant\u2019s arguments on these issues and find no compelling reason to depart from our prior holdings. Accordingly, we reject these arguments.\nProportionality Review\nHaving concluded that defendant\u2019s trial and separate capital sentencing proceeding were free of prejudicial error, we turn to the duties reserved by N.C.G.S. \u00a7 15A-2000(d)(2) exclusively- for this Court in capital cases. It is our duty in this regard to ascertain: (1) whether the record supports the jury\u2019s findings of the aggravating circumstances on which the sentence of death was based; (2) whether the death sentence was entered under the influence of passion, prejudice, or other arbitrary consideration; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and defendant. N.C.G.S. \u00a7 15A-2000(d)(2) (Supp. 1995).\nIn this case, the two aggravating circumstances submitted to and found by the jury were that defendant had been previously convicted of a felony involving the use or threat of violence to the person, N.C.G.S. \u00a7 15A-2000(e)(3), and that the murder was committed against a former witness against the defendant because of the exercise of his official duty, N.C.G.S. \u00a7 15A-2000(e)(8). After thoroughly examining the record, transcripts, and briefs in the present case, we conclude that the record fully supports the two aggravating circumstances found by the jury. Further, we find no indication that the sentence of death in this case was imposed under the influence of passion, prejudice, or any other arbitrary consideration. We must turn then to our final statutory duty of proportionality review.\nIn our proportionality review, it is proper to compare the present case with other cases in which this Court has concluded that the death penalty was disproportionate. State v. McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162 (1993), cert. denied, - U.S. -, 129 L. Ed. 2d 895 (1994). We have found the death penalty 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); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983). None of the cases in which this Court has determined the death penalty to be disproportionate has included the (e)(3) aggravating circumstance. State v. Harris, 338 N.C. 129, 161, 449 S.E.2d 371, 387 (1994), cert. denied, \u2014 U.S. -, 131 L. Ed. 2d 752 (1995); State v. Keel, 337 N.C. 469, 447 S.E.2d 748 (1994), cert. denied, - U.S. \u2014, 131 L. Ed. 2d 147 (1995); State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994); State v. Brown, 320 N.C. 179, 358 S.E.2d 1, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987).\nWe conclude that this case is not substantially similar to any case in which this Court has found the death penalty disproportionate. Defendant here was convicted of first-degree murder under the theory of premeditation and deliberation. The jury found that defendant had been previously convicted of a felony involving the use or threat of violence to the person and that the murder was committed against a former witness against the defendant because of the exercise of his official duty. Although the jury considered seventeen mitigating circumstances, it found only ten. Of these ten, only one was a statutory mitigating circumstance, that the capital felony was committed while the defendant was under the influence of mental or emotional disturbance, N.C.G.S. \u00a7 15A-2000(f)(2).\nIt is also proper to compare this case to those where the death sentence was found proportionate. McCollum, 334 N.C. at 244, 433 S.E.2d at 164. Although we have repeatedly stated that we review all of the cases in the pool when engaging in our statutory duty, it is worth noting again that \u201cwe will not undertake to discuss or cite all of those cases each time we carry out our duty.\u201d Id. It suffices to say here that we conclude the present case is similar to certain cases in which we have found the death sentence proportionate.\nThere are four statutory aggravating circumstances which, standing alone, this Court has held sufficient to sustain death sentences; the (e)(3) aggravator is among them. State v. Bacon, 337 N.C. 66, 110 n.8, 446 S.E.2d 542, 566 n.8 (1994), cert. denied, - U.S. -, 130 L. Ed. 2d 1083 (1995). This Court has also noted that the (e)(3) aggravating circumstance \u201creflects] upon the defendant\u2019s character as a recidivist.\u201d Brown, 320 N.C. at 224, 358 S.E.2d at 30. As we said earlier, there was sufficient evidence introduced at trial from which the jury could find that defendant had been previously convicted of a felony involving the use or threat of violence.\nFurther, the jury found that the murder was committed against a former witness against the defendant because of the exercise of his official duty. This Court has said that the (e)(8) aggravating circumstance reflects the General Assembly\u2019s recognition of the \u201ccommon concern\u201d that \u201cthe collective conscience requires the most severe penalty for those who flout our system of law enforcement.\u201d Id. at 230, 358 S.E.2d at 33. Defendant here does not contest the (e)(8) aggravating circumstance. The evidence of defendant\u2019s guilt was clear. Defendant shot the victim in cold blood before three eyewitnesses because the victim had testified against him in a previous murder trial. Our system of justice demands that the law protect a former witness against the defendant who testified in the exercise of his official duty.\nAfter comparing this case to other roughly similar cases as to the crime and the defendant, we conclude that this case has the characteristics of first-degree murders for which we have previously upheld the death penalty as proportionate. Accordingly, we cannot conclude as a matter of law that the death sentence was excessive or disproportionate. Therefore, the judgment of the trial court must be and is left undisturbed.\nNO ERROR.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Barry S. McNeill, , Special Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Benjamin Sendor, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RAYFORD LEWIS BURKE\nNo. 181A93\n(Filed 10 May 1996)\n1. Evidence and Witnesses \u00a7 876 (NCI4th)\u2014 capital murder\u2014 victim\u2019s fear of defendant \u2014 statements of defendant to others\nThe trial court in a prosecution for first-degree murder did not err by overruling defendant\u2019s objections to testimony by a victim witness coordinator and an officer concerning statements made to them by the victim concerning threats made by defendant through the victim\u2019s uncle and an intimidating visit made by defendant\u2019s brothers to the victim\u2019s home. The trial court concluded after a voir dire that there was a factual basis for the alleged fear in that the victim was a material witness against defendant in another case involving a shooting death, evidence relating to the victim\u2019s mental or emotional state of mind concerning his feelings about defendant was admissible, and the probative value of that evidence outweighed any prejudicial aspects that the statements may have had in regard to defendant, then allowed the State to present the evidence subject to an instruction limiting the purposes for which the testimony could be used. The decision to admit the testimony of these two witnesses is in accord with the precedent of the North Carolina Supreme Court. Since the evidence was competent as a statement of the victim\u2019s existing state of mind, it does not matter that it may prove some fact that is irrelevant or for which the evidence is incompetent. In each instance, the court gave a limiting instruction to which defendant did not object. N.C.G.S. \u00a7 8C-1, Rule 803(3).\nAm Jur 2d, Witnesses \u00a7 1026.\nUniform evidence Rule 803(24): the residual hearsay exception. 51 ALR4th 999.\n2. Evidence and Witnesses \u00a7 875 (NCI4th)\u2014 capital murder\u2014 visit to victim\u2019s house by defendant\u2019s brothers \u2014 statements by defendant to others \u2014 not prejudicial\nThere was no prejudicial error in a prosecution for first-degree murder in the admission of testimony from a victim assistance coordinator, and corroborating testimony from an officer, that the victim had told her that defendant\u2019s brothers had visited the victim\u2019s house, that his girlfriend was there, and that he was afraid for his girlfriend and himself. Although the testimony was inadmissible because the brothers\u2019 state of mind was not relevant and could not be used to show defendant\u2019s state of mind, the trial court granted defendant\u2019s request for an instruction limiting the purposes for which the evidence could be used, the jury was aware that the victim had testified against defendant on a previous murder charge, and there had been testimony that defendant had gotten into an altercation about the victim\u2019s testimony in the prior trial when defendant entered the house.\nAm Jur 2d, Witnesses \u00a7 1026.\nUniform evidence Rule 803(24): the residual hearsay exception. 51 ALR4th 999.\n3. Criminal Law \u00a7 480 (NCI4th)\u2014 capital murder \u2014 conversation overheard by juror \u2014 no error\nThe trial court did not abuse its discretion in a first-degree murder prosecution by not conducting an inquiry into the precise content and possible impact of an incorrect and prejudicial statement made by outsiders which may have been heard by a juror during the guilt-innocence phase of the trial where the trial court announced that a juror had overheard in the canteen during recess unidentified people say that defendant had been involved in two other murders or two other murder cases. There is no contention that a spectator actually talked to the juror, only that the juror may have inadvertently overheard prejudicial conversation, defendant declined the judge\u2019s offer to make an inquiry of the juror in order to determine whether the juror had overheard the conversation, and the judge instituted special measures to insulate the jury from exposure to any casual conversations between spectators.\nAm Jur 2d, Trial \u00a7\u00a7 1526, 1562, 1564, 1566.\nCommunication between court officials or attendants and jurors in criminal trial as ground for mistrial or reversal \u2014 post -Parker cases. 34 ALR4TH 890.\n4. Evidence and Witnesses \u00a7 2898.5 (NCI4th)\u2014 capital murder \u2014 cross-examination of defendant \u2014 details of prior crimes\nThere was no error in a first-degree murder prosecution where defendant contended that the court erred in overruling his objection to cross-examination of defendant about the details of two crimes for which defendant had prior convictions. The trial court did not overrule defendant\u2019s objection to his client\u2019s attempt to explain the circumstances surrounding the first assault, but simply responded, \u201cHe may explain his answer if he wishes to do that.\u201d Defendant may not obtain a new trial based on his own election to testify about these matters. As to the second assault, defendant failed to object to the cross-examination and, although he argues that an objection would have been futile in view of the trial court\u2019s overruling the prior objection, the trial court did not overrule that objection. The prosecutor asked, \u201cWas that self-defense too?\u201d and defendant responded, \u201cI was into it with Mr. Anthony and several other people. Whatever you may want to call it.\u201d The trial court did not err in permitting defendant to respond to the prosecutor\u2019s question.\nAm Jur 2d, Trial \u00a7\u00a7 501, 844, 924.\nAdequacy of defense counsel\u2019s representation of criminal client regarding prior convictions. 14 ALR4th 227.\nRequirement that defendant in state court testify in order to preserve alleged trial error in rulings on admissibility of prior conviction impeachment evidence under Uniform Rule of Evidence 609, or similar provision or holding \u2014 post-jLwce cases. 80 ALR4th 1028.\n5. Evidence and Witnesses \u00a7 263 (NCI4th)\u2014 capital murder\u2014 witness\u2019s request for relocation \u2014 not admitted to show defendant\u2019s violent character\nThe trial court did not err in a first-degree murder prosecution by overruling defendant\u2019s objection to the State\u2019s question to its witness about the witness\u2019s request for relocation where the testimony was not admitted to show that defendant has such a violent character that he would kill anyone who testified against him, but to explain why the witness initially did not want to testify against defendant and why the witness could have made statements indicating that he could not remember what happened during the shooting. Furthermore, the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice. N.C.G.S. \u00a7 8C-1, Rule 404.\nAm Jur 2d, Witnesses \u00a7\u00a7 739, 935, 986, 991.\n6. Evidence and Witnesses \u00a7 2090 (NCI4th)\u2014 capital murder \u2014 victim afraid \u2014 lay opinion testimony\nThe trial court did not err in a prosecution for first-degree murder by admitting testimony from the director at a shelter where the victim had been staying that he had appeared tense or scared at times. Opinion testimony, including lay testimony, is admissible concerning the state of a person\u2019s appearance or emotions on a given occasion; here, the testimony described the victim\u2019s emotional state during his time in the shelter and was admissible as tending to shed light upon his state of mind at that time. The probative value of the evidence was not substantially outweighed by its unfair prejudice to defendant.\nAm Jur 2d, Wills \u00a7 159; Witnesses \u00a7 197.\nComment note. \u2014 Ability to see, hear, smell, or otherwise sense, as proper subject of opinion by lay witness. 10 ALR3d 258.\n7. Evidence and Witnesses \u00a7 3091 (NCI4th)\u2014 capital murder \u2014 impeachment of defense witness \u2014 extrinsic evidence\nThere was no prejudicial error in a first-degree murder prosecution in overruling defendant\u2019s objection to the State\u2019s introduction of extrinsic evidence to impeach the credibility of a defense witness on a collateral matter. Assuming error, there was not a reasonable possibility that a different result would have been reached had the error not been committed because the State thoroughly cross-examined the witness on this general topic. Also, although she was an important witness, she was not inside the house where the shooting occurred at the time of the shooting.\nAm Jur 2d, Witnesses \u00a7\u00a7 814, 815, 865, 995.\nAdmissibility of affidavit to impeach witness. 14 ALR4th 828.\n8. Evidence and Witnesses \u00a7 2470 (NCI4th)\u2014 capital murder \u2014 state witness not arrested \u2014 defendant not allowed to question law enforcement officials\nThe trial court did not err in a first-degree murder prosecution by refusing to allow defendant to question prosecutors, members of the prosecutorial staff, and law enforcement officers about their decision not to seek to have a key prosecution witness arrested on outstanding warrants prior to his testimony. There was no evidence presented at the voir dire to show that the witness had received or been promised favors from the State, the evidence shows that the prosecutors refused to discuss the pending charges with the witness, defendant cross-examined the witness as to the nature of the charges pending against him and the reason he had not been arrested, the witness testified that no one had offered him any concessions, and defendant did not attempt to question law enforcement officers during their testimony about their failure to serve the outstanding warrants.\nAm Jur 2d, Witnesses \u00a7\u00a7 717, 815.\nAdverse presumption or inference based on state\u2019s failure to produce or examine law enforcement personnel\u2014 modern cases. 81 ALR4th 872.\n9. Homicide \u00a7 485 (NCI4th)\u2014 capital murder \u2014 deliberation\u2014 intent to kill formed during quarrel \u2014 instruction not given\nThere was no plain error in a first-degree murder prosecution where the trial court did not instruct the jury that a killing is not done with deliberation if a defendant forms the intent to kill during a quarrel or struggle where no evidence presented at trial showed that defendant formed the intent to kill during a quarrel or struggle.\nAm Jur 2d, Trial \u00a7\u00a7 1078, 1124, 1176, 1186, 1483.\nAccused\u2019s right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense. 15 ALR4th 983.\n10.Evidence and Witnesses \u00a7 1070 (NCI4th)\u2014 capital murder \u2014 flight as evidence of guilt\nThe trial court did not err in a first-degree murder prosecution by instructing the jury that it could consider evidence that defendant had fled the scene of the shooting as evidence of his guilt.\nAm Jur 2d, Trial \u00a7\u00a7 1333, 1334.\nModern status of rule regarding necessity of instruction on circumstantial evidence in criminal trial \u2014 state cases. 36 ALR4th 1046.\n11. Criminal Law \u00a7 1337 (NCI4th)\u2014 capital sentencing \u2014 aggravating circumstances \u2014 prior conviction involving violence \u2014 timing of conviction\nThe trial court did not err in a capital sentencing hearing in submitting the aggravating circumstance of prior conviction for a violent felony by instructing the jury to consider defendant\u2019s conviction for a felonious assault where the conviction occurred after the capital murder. It is not necessary that a defendant be convicted before the commission of a capital murder so long as defendant has been convicted of the violent felony prior to the capital trial.\nAm Jur 2d, Trial \u00a7 1760.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society, and the like \u2014 post-Gregg cases. 65 ALR4th 838.\n12. Criminal Law \u00a7 1337 (NCI4th)\u2014 capital sentencing \u2014 prior conviction involving violence \u2014 sufficiency of evidence\nThere was sufficient evidence in a capital sentencing proceeding to support the jury\u2019s finding of the aggravating circumstance that defendant had previously been convicted of a crime involving the use or threat of violence, and the trial court did not err in instructing the jury to consider defendant\u2019s conviction for breaking or entering with respect to this circumstance, where the State presented evidence that defendant had pled guilty and was convicted of felonious breaking or entering with intent to commit a sexual assault against a four-year-old child; the child\u2019s mother testified that she briefly left her apartment with her two children inside; the four-year old was \u201cscreaming and hollering\u201d at defendant when she returned; the child had been fully dressed when her mother left but was wearing only panties and a t-shirt when she returned; defendant was in the bathroom, washing his penis in front of the one-year old; defendant replied, \u201cHa,\u201d when the mother confronted him; and defendant\u2019s hat was found on the four-year old\u2019s bed.\nAm Jur 2d, Trial \u00a7 1760.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society, and the like \u2014 post-Gregg cases. 65 ALR4th 838.\nChronological or procedural sequence of former convictions as affecting enhancement of penalty under habitual offender statutes. 7 ALR5th 263.\n13. Criminal Law \u00a7\u00a7 1363, 468 (NCI4th)\u2014 first-degree murder \u2014 residual doubt \u2014 not allowed as closing argument\u2014 not submitted as mitigating circumstance\nThe trial court did not err in a first-degree murder prosecution by granting the State\u2019s motion to prohibit defendant\u2019s closing argument about residual doubt and by denying defendant\u2019s request to submit residual doubt as a mitigating circumstance.\nAm Jur 2d, Trial \u00a7 645.\nAdequacy of defense counsel\u2019s representation of criminal client regarding argument. 6 ALR4th 16.\n14. Jury \u00a7 141 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 questions on parole eligibility\nThe trial court did not err in a first-degree murder prosecution by denying defendant\u2019s motion to permit questioning of prospective jurors on parole eligibility.\nAm Jur 2d, Jury \u00a7 196.\nPrejudicial effect of statement or instruction of court as to possibility of parole or pardon. 12 ALR3d 832.\n15. Criminal Law \u00a7 1351 (NCX4th)\u2014 capital sentencing \u2014 mitigating circumstances \u2014 instructions\u2014burden of persuasion\nThe was no error in a capital sentencing proceeding in jury instructions that defined defendant\u2019s burden of persuasion to prove mitigating circumstances as evidence that \u201csatisfies\u201d each juror.\nAm Jur 2d, Trial \u00a7 1291.\nHomicide: modem status of rules as to burden and quantum of proof to show self-defense. 43 ALR3d 221.\n16. Criminal Law \u00a7 1323 (NCI4th)\u2014 capital sentencing \u2014 mitigating circumstances \u2014 instructions\u2014value of circumstances\nThe trial court in a capital sentencing hearing did not violate the Eighth and Fourteenth Amendments by allowing the jury to refuse to give effect to mitigating evidence if the jury deemed it not to have mitigating value or by allowing jurors not to give effect to mitigating circumstances found by the jurors.\nAm Jur 2d, Trial \u00a7 1760.\n17. Constitutional Law \u00a7 314 (NCI4th)\u2014 capital sentencing\u2014 effective assistance of counsel \u2014 certain witnesses not presented \u2014 no psychiatric examination \u2014 counsel acceding to defendant\u2019s choice\nThe trial court did not err in a capital sentencing hearing by permitting defense counsel to accede to defendant\u2019s choice to present defendant\u2019s penalty phase case without witnesses from defendant\u2019s family and without a psychiatric examination of defendant.\nAm Jur 2d, New Trial \u00a7 197.\nIneffective assistance of counsel: compulsion, duress, necessity, or \u201chostage syndrome\u201d defense. 8 ALR5th 713.\n18. Criminal Law \u00a7 1373 (NCI4th)\u2014 capital murder \u2014 death sentence not disproportionate\nA sentence of death for first-degree murder was not disproportionate where the record fully supports the two aggravating circumstances found by the jury, there is no indication that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary consideration, this case is not substantially similar to any case in which the Court has found the death penalty disproportionate, and the case is similar to certain cases in which the death penalty was found proportionate. There are four statutory aggravating circumstances which have been held sufficient, standing alone, to sustain death sentences and the circumstance found here, a previous conviction of a felony involving the use or threat of violence to the person, N.C.G.S. \u00a7 15A-2000(e)(3), is among them. Furthermore, the evidence of defendant\u2019s guilt was clear; he shot the victim in cold blood before three eyewitnesses because the victim had testified against him in a previous murder trial. N.C.G.S. \u00a7 15A-2000(e)(8).\nAm Jur 2d, Trial \u00a7\u00a7 841, 1760.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society, and the like \u2014 post-Gregg cases. 65 ALR4th 838.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Cornelius, J., at the 15 March 1993 Criminal Session of Superior Court, Iredell County, upon a jury verdict of guilty of first-degree murder. Heard in the Supreme Court 11 September 1995.\nMichael F. Easley, Attorney General, by Barry S. McNeill, , Special Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Benjamin Sendor, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0129-01", "first_page_order": 177, "last_page_order": 211 }