{ "id": 798967, "name": "STATE OF NORTH CAROLINA v. JOSEPH EARL BATES", "name_abbreviation": "State v. Bates", "decision_date": "1996-07-31", "docket_number": "No. 145A91-2", "first_page": "564", "last_page": "603", "citations": [ { "type": "official", "cite": "343 N.C. 564" } ], "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": "39 ALR3d 550", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "128 L. Ed. 2d 919", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "9 ALR2d 661", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "73 ALR2d 769", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "99 ALR2d 7", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "31 ALR3d 565", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "114 L. Ed. 2d 763", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "40 L. Ed. 2d 886", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "opinion_index": -1 }, { "cite": "32 ALR4th 774", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "24 ALR3d 1093", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "67 ALR4th 887", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "63 ALR4th 478", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "73 ALR3d 98", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "8 ALR3d 1236", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "9 ALR4th 526", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "22 ALR3d 1228", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "opinion_index": -1 }, { "cite": "101 ALR Fed. 615", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "100 ALR Fed. 481", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "50 ALR4th 1081", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "510 U.S. 984", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 235683, 234148, 230694, 232045, 231533, 235597, 235534, 231643, 233427, 232858, 230587, 231517 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/us/510/0984-03", "/us/510/0984-12", "/us/510/0984-05", "/us/510/0984-07", "/us/510/0984-11", "/us/510/0984-01", "/us/510/0984-06", "/us/510/0984-04", "/us/510/0984-10", "/us/510/0984-09", "/us/510/0984-02", "/us/510/0984-08" ] }, { "cite": "130 L. Ed. 2d 1083", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "446 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "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": "134 L. Ed. 2d 194", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "462 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "the trial court submitted and the jury found two aggravating circumstances: that the murder was committed while defendant was engaged in the commission of a robbery, N.C.G.S. \u00a7 15A-2000(e)(5), and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9)" } ], "opinion_index": 0 }, { "cite": "341 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793117 ], "year": 1995, "pin_cites": [ { "parenthetical": "the trial court submitted and the jury found two aggravating circumstances: that the murder was committed while defendant was engaged in the commission of a robbery, N.C.G.S. \u00a7 15A-2000(e)(5" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0316-01" ] }, { "cite": "134 L. Ed. 2d 526", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "461 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "the trial court submitted and the jury found two aggravating circumstances: that the murder was committed while defendant was engaged in a robbery with a dangerous weapon, N.C.G.S. \u00a7 15A-2000(e)(5), and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9)" } ], "opinion_index": 0 }, { "cite": "341 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793157 ], "year": 1995, "pin_cites": [ { "parenthetical": "the trial court submitted and the jury found two aggravating circumstances: that the murder was committed while defendant was engaged in a robbery with a dangerous weapon, N.C.G.S. \u00a7 15A-2000(e)(5" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0470-01" ] }, { "cite": "64 U.S.L.W. 3763", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 1996, "opinion_index": 0 }, { "cite": "463 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "the trial court submitted and the jury found two aggravating circumstances: that the murder was committed while defendant was engaged in the commission of or attempting to commit robbery with a firearm and first-degree kidnapping, N.C.G.S. \u00a7 15A-2000(e)(5" } ], "opinion_index": 0 }, { "cite": "367 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "322 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517737 ], "year": 1988, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0152-01" ] }, { "cite": "321 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "869" } ], "opinion_index": 0 }, { "cite": "312 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750769 ], "year": 1984, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0198-01" ] }, { "cite": "429 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547448 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0744-01" ] }, { "cite": "417 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496946 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0636-01" ] }, { "cite": "212 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568917 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0472-01" ] }, { "cite": "212 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0509-01" ] }, { "cite": "108 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4836, 5158, 4882, 5207, 5176 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1023-04", "/us/494/1023-03", "/us/494/1023-05", "/us/494/1023-02", "/us/494/1023-01" ] }, { "cite": "259 S,E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "298 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572408 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "369" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0355-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "496", "parenthetical": "quoting State v. Johnson, 298 N.C. 355, 369, 259 S,E.2d 752, 761 (1979), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990)" } ], "opinion_index": 0 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "year": 1989, "pin_cites": [ { "page": "323", "parenthetical": "quoting State v. Johnson, 298 N.C. 355, 369, 259 S,E.2d 752, 761 (1979), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "85 L. Ed. 2d 169", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "471 U.S. 1009", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6232119 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/1009-01" ] }, { "cite": "322 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "123" }, { "page": "123" } ], "opinion_index": 0 }, { "cite": "312 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759870 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "112" }, { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0092-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "307 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "318" } ], "opinion_index": 0 }, { "cite": "309 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760257 ], "year": 1983, "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0326-01" ] }, { "cite": "312 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "401" } ], "opinion_index": 0 }, { "cite": "310 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2398008 ], "year": 1984, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0332-01" ] }, { "cite": "257 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "585" } ], "opinion_index": 0 }, { "cite": "298 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568313 ], "year": 1979, "pin_cites": [ { "page": "24-25" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0001-01" ] }, { "cite": "354 S.E.2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "453" } ], "opinion_index": 0 }, { "cite": "319 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4742893 ], "year": 1987, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0228-01" ] }, { "cite": "434 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 1236647 ], "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "trial court required to give peremptory instruction, if defendant so requests, when evidence showing that mitigating circumstance exists is uncontroverted" }, { "page": "856" } ], "opinion_index": 0, "case_paths": [ "/ga/263/0379-02" ] }, { "cite": "334 N.C. 840", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "trial court required to give peremptory instruction, if defendant so requests, when evidence showing that mitigating circumstance exists is uncontroverted" }, { "page": "495" } ], "opinion_index": 0 }, { "cite": "372 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "521", "parenthetical": "footnote omitted" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "323 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566216 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0318-01" ] }, { "cite": "321 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "842-43" }, { "page": "845-46" }, { "page": "844" } ], "opinion_index": 0 }, { "cite": "312 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759556 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "170" }, { "page": "174-75" }, { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0162-01" ] }, { "cite": "263 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "772" }, { "page": "774" } ], "opinion_index": 0 }, { "cite": "299 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575737 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "677" }, { "page": "679-80" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0671-01" ] }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "230 S.E.2d 152", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "153" } ], "opinion_index": 0 }, { "cite": "291 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558004 ], "year": 1976, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0319-01" ] }, { "cite": "440 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "835", "parenthetical": "quoting State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 [(1993)]" }, { "page": "836" }, { "page": "836" }, { "page": "834" } ], "opinion_index": 0 }, { "cite": "335 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529753 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "635", "parenthetical": "quoting State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 [(1993)]" }, { "page": "635" }, { "page": "635" }, { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0618-01" ] }, { "cite": "344 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774343 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0193-01" ] }, { "cite": "298 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "653" }, { "page": "658" } ], "opinion_index": 0 }, { "cite": "307 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562214 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "285" }, { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0274-01" ] }, { "cite": "133 L. Ed. 2d 153", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "453 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "339 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557546 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0487-01" ] }, { "cite": "126 L. Ed. 2d 438", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "428 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544591 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0523-01" ] }, { "cite": "342 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795909 ], "year": 1995, "pin_cites": [ { "parenthetical": "the trial court submitted and the jury found two aggravating circumstances: that the murder was committed while defendant was engaged in the commission of or attempting to commit robbery with a firearm and first-degree kidnapping, N.C.G.S. \u00a7 15A-2000(e)(5" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0074-01" ] }, { "cite": "129 L. Ed. 2d 881", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "436 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "362-63" } ], "opinion_index": 0 }, { "cite": "335 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531885 ], "year": 1993, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0001-01" ] }, { "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", "weight": 3, "year": 1983, "pin_cites": [ { "page": "182-83" } ], "opinion_index": 0 }, { "cite": "309 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761257 ], "weight": 2, "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", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758195 ], "weight": 2, "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": "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": "395 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "121-22" } ], "opinion_index": 0 }, { "cite": "327 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493012 ], "year": 1990, "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0364-01" ] }, { "cite": "276 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "302 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567969 ], "year": 1981, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0581-01" ] }, { "cite": "329 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724129 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0404-01" ] }, { "cite": "432 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532283 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0402-01" ] }, { "cite": "131 L. Ed. 2d 860", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "448 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "815" } ], "opinion_index": 0 }, { "cite": "337 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552845 ], "year": 1994, "pin_cites": [ { "page": "729-30" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0700-01" ] }, { "cite": "881 F.2d 733", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11290663 ], "year": 1989, "pin_cites": [ { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/f2d/881/0733-01" ] }, { "cite": "409 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "330 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511523 ], "year": 1991, "pin_cites": [ { "page": "16" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0001-01" ] }, { "cite": "511 U.S. 127", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147675 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "98" }, { "page": "107" }, { "page": "106-07" } ], "opinion_index": 0, "case_paths": [ "/us/511/0127-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 11, "year": 1986, "pin_cites": [ { "page": "89" }, { "page": "82" }, { "page": "97" }, { "page": "88" }, { "page": "96" }, { "page": "87" }, { "page": "98" }, { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "130 L. Ed. 2d 162", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "439 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "335 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530932 ], "year": 1994, "pin_cites": [ { "page": "278-79" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0244-01" ] }, { "cite": "365 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "617" } ], "opinion_index": 0 }, { "cite": "321 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567021 ], "year": 1988, "pin_cites": [ { "page": "741" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0738-01" ] }, { "cite": "402 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "394", "parenthetical": "quoting State v. Murphy, 321 N.C. 738, 741, 365 S.E.2d 615, 617 (1988)" } ], "opinion_index": 0 }, { "cite": "328 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539039 ], "year": 1991, "pin_cites": [ { "page": "491", "parenthetical": "quoting State v. Murphy, 321 N.C. 738, 741, 365 S.E.2d 615, 617 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0477-01" ] }, { "cite": "451 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "835-36" } ], "opinion_index": 0 }, { "cite": "339 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558011 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/339/0114-01" ] }, { "cite": "346 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "609-10", "parenthetical": "no seizure where defendant agreed to accompany officers to the police station, was not frisked, was given cigarettes and coffee, and was allowed to go unescorted to the bathroom and to make telephone calls" } ], "opinion_index": 0 }, { "cite": "317 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772976 ], "year": 1986, "pin_cites": [ { "page": "369", "parenthetical": "no seizure where defendant agreed to accompany officers to the police station, was not frisked, was given cigarettes and coffee, and was allowed to go unescorted to the bathroom and to make telephone calls" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0343-01" ] }, { "cite": "418 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "498" } ], "opinion_index": 0 }, { "cite": "332 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505339 ], "year": 1992, "pin_cites": [ { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0024-01" ] }, { "cite": "242 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "defendant not in custody when he voluntarily went to the police station and made a statement, and police officers returned him to his home afterwards" } ], "opinion_index": 0 }, { "cite": "294 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574309 ], "year": 1978, "pin_cites": [ { "parenthetical": "defendant not in custody when he voluntarily went to the police station and made a statement, and police officers returned him to his home afterwards" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0702-01" ] }, { "cite": "418 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "defendant not in custody when he went to police station on his own, was permitted to return home, and later agreed to take a polygraph test" } ], "opinion_index": 0 }, { "cite": "331 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501824 ], "year": 1992, "pin_cites": [ { "parenthetical": "defendant not in custody when he went to police station on his own, was permitted to return home, and later agreed to take a polygraph test" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0427-01" ] }, { "cite": "129 L. Ed. 2d 883", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "439 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "536" }, { "page": "528" } ], "opinion_index": 0 }, { "cite": "335 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527119 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "333" }, { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0301-01" ] }, { "cite": "412 S.E.2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509197 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0517-01" ] }, { "cite": "259 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "499" } ], "opinion_index": 0 }, { "cite": "298 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572844 ], "year": 1979, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0502-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "444" }, { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "346 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "317 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778236 ], "year": 1986, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0474-01" ] }, { "cite": "259 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "268 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "171" } ], "opinion_index": 0 }, { "cite": "300 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562817 ], "year": 1980, "pin_cites": [ { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0534-01" ] } ], "analysis": { "cardinality": 2220, "char_count": 92905, "ocr_confidence": 0.74, "pagerank": { "raw": 9.884480869566258e-08, "percentile": 0.5350290692623393 }, "sha256": "d7cbe31b30e70e9d38d121c2c5ed4219887eb475aaa4ba2cdf2e43ab91d7505c", "simhash": "1:4fcdd832374e8dda", "word_count": 15083 }, "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. JOSEPH EARL BATES" ], "opinions": [ { "text": "FRYE, Justice.\nDefendant, Joseph Earl Bates, was indicted on 29 October 1990 for the murder and the first-degree kidnapping of Charles Edwin Jenkins. He was tried capitally in February 1991, found guilty of one count of first-degree murder and one count of first-degree kidnapping, and sentenced to death for the first-degree murder conviction. On appeal, we awarded defendant a new trial. State v. Bates, 333 N.C. 523, 428 S.E.2d 693, cert. denied, 510 U.S. 984, 126 L. Ed. 2d 438 (1993). During defendant\u2019s second capital trial, the jury returned verdicts of guilty of one count of first-degree kidnapping and guilty of one count of first-degree murder on the basis of premeditation and deliberation and under the felony murder rule. During a capital sentencing proceeding conducted pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended a sentence of death for the first-degree murder conviction. The jury found as aggravating circumstances that the murder was committed while defendant was engaged in the commission of a kidnapping, N.C.G.S. \u00a7 15A-2000(e)(5) (1988); and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9) (1988). The jury also found seven of the seventeen statutory and nonstatutory mitigating circumstances submitted to it. On 9 November 1994, Judge Rousseau sentenced defendant to forty years in prison for his first-degree kidnapping conviction, and upon the jury\u2019s recommendation, he imposed a sentence of death for defendant\u2019s first-degree murder conviction.\nDefendant appeals to this Court as of right from the first-degree murder conviction; he does not appeal the kidnapping conviction. Defendant makes twenty-four arguments on appeal, supported by thirty-one assignments of error. We reject each of these arguments and 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 his sentence of death.\nThe State\u2019s evidence presented at trial tended to show the following facts and circumstances: At approximately 9:30 p.m. on 10 August 1990, defendant spoke with Hal Eddleman, his employer, inside defendant\u2019s tent, which was located on Eddleman\u2019s land. Eddleman allowed defendant to set up a campsite on his property after someone had broken into and fired gunshots into defendant\u2019s house. Defendant told Eddleman, \u201cThere\u2019s something going down at [the] Donnaha [bridge]. This guy got in touch with me, and told me to meet him over at Donnaha, we\u2019d get it over with.\u201d As a result of this conversation, at approximately 11:30 p.m. on 10 August 1990, Eddleman and his wife went to the Donnaha bridge, which extends across the Yadkin River. They remained there for approximately two to two and one-half hours. After seeing no one, they returned home and went to bed.\nAt around 9:00 or 9:30 p.m. on \u00cd1 August 1990, defendant and Gary Shaver went to LaDan\u2019s Night Club. Janette Turner, a part-time waitress at LaDan\u2019s, and Billy Grimes, Turner\u2019s boyfriend and defendant\u2019s friend, were also at LaDan\u2019s that night. Grimes left LaDan\u2019s at around 12:30 or 1:00 a.m. on 12 August 1990. Grimes and Turner planned to meet at Bran\u2019s Game Room at the end of Turner\u2019s shift. At about 1:45 a.m., defendant asked Turner to ask Grimes to telephone Eddleman and said that Grimes and Eddleman would know what was going on. When Turner left LaDan\u2019s at around 2:00 or 2:30 a.m., she went to Bran\u2019s to meet Grimes. When she arrived at Bran\u2019s, Turner relayed defendant\u2019s message to Grimes.\nGrimes testified at trial that when Turner relayed defendant\u2019s message to telephone Eddleman and tell him that something was \u201cgoing down\u201d and that they knew what it was all about, he did not know what it was all about. Nonetheless, Grimes and Turner left Bran\u2019s and went to the Pineview Restaurant, where Grimes telephoned Eddleman from an outside pay telephone. Grimes apologized for waking Eddleman and relayed defendant\u2019s message to him. Grimes said, \u201c[Defendant] wanted me to call you and tell you there\u2019s something going down and he wants to know if you want anything to do with it.\u201d Eddleman said, \u201cWell, I went to the river last night and spent about two and a half, maybe three hours. Nothing didn\u2019t happen then. Hell, no, I don\u2019t want nothing to do with it.\u201d Eddleman then went back to sleep. Grimes and .Turner returned to Bran\u2019s and departed in their separate vehicles.\nMeanwhile, at approximately 2:00 a.m., the victim, Charles Edwin Jenkins, asked defendant for a ride home. The victim left LaDan\u2019s with defendant and Shaver. During the ride, defendant asked the victim whether he knew defendant\u2019s ex-wife, Lisa Bates, or her boyfriend, Jeff Goins. The victim responded, \u201cYeah, isn\u2019t Lisa the one that has big breasts\u201d and \u201clong blond hair.\u201d According to Shaver\u2019s testimony at trial, although defendant\u2019s ex-wife had long blond hair at that time, she did not have \u201cbig breasts.\u201d\nDuring the ride, defendant stopped twice. The first time, he stopped for fifteen or twenty minutes along the side of the road in Iredell County so that defendant and Shaver could \u201cuse the bathroom.\u201d The victim did not exit the vehicle at this time. After driving for about fifteen or twenty minutes more, defendant stopped the vehicle a second time. This time, the victim and Shaver got out of defendant\u2019s vehicle to \u201cuse the bathroom.\u201d Shaver was standing on the passenger side of the vehicle, and the victim was standing at the rear of the vehicle. Defendant exited the vehicle, went around to the rear of the vehicle, and struck the victim at least three times on the back of the head with a shovel handle that had been in the vehicle. The victim fell to the ground. Defendant then gave the handle to Shaver, took some rope from the vehicle, and tied the victim\u2019s hands. The victim appeared to be unconscious at this point. However, the victim started moaning, and defendant told Shaver to hit the victim with the shovel handle. Shaver refused so defendant took the handle from Shaver and struck the victim on the back of the head again. The victim stopped moaning and again appeared to be unconscious. Defendant then bound the victim\u2019s arms and legs behind his back, or hog-tied him.\nDefendant asked Shaver to help him place the victim into defendant\u2019s vehicle, and Shaver did so. Defendant then told Shaver that he believed that the victim was one of the persons who had been \u201cmessing around his house and stuff.\u201d Defendant said that he was \u201cgoing to find out some answers.\u201d Defendant believed that the persons who had shot into his house were friends of his ex-wife and her boyfriend, and he thought the victim was setting him up and leading him into a trap.\nDefendant and Shaver got into the truck and headed towards defendant\u2019s campsite. Defendant was driving, Shaver was in the passenger seat, and the victim was hog-tied and lying on the floor of the rear of the vehicle. At some point, the victim propped his head up, and defendant asked him for directions. The victim responded that he could not see because his glasses had been lost. The victim then asked defendant what he had done and what was going on. Defendant told the victim to shut up. About fifteen or twenty minutes later, defendant noticed a sign indicating that they were entering Yadkin County. Defendant proceeded towards his campsite.\nOn the way back to his campsite, defendant stopped at Eddleman\u2019s house. Defendant and Shaver exited the vehicle. Defendant knocked on the front door and entered Eddleman\u2019s house; Shaver waited outside in front of defendant\u2019s vehicle. Defendant remained inside the house for fifteen or twenty minutes. While inside Eddleman\u2019s house, defendant told Eddleman, \u201cWe got one of the MF\u2019s.\u201d Eddleman asked, \u201cWho is he?\u201d Defendant said, \u201cHis name is Chuck.\u201d Eddleman asked, \u201cHow do you know he\u2019s one of them?\u201d Defendant said, \u201cHe\u2019s told us.\u201d Eddleman asked, \u201cWhere\u2019s he at?\u201d Defendant responded, \u201cHe\u2019s hogtied in the jeep. You want to see him?\u201d Eddleman said, \u201cNo, the best thing you can do is take him back where you got him, apologize to him and do anything he wants you to do, and hope that he don\u2019t prosecute you for kidnapping him.\u201d Defendant and Eddleman then stepped out onto the porch.\nWhile defendant and Eddleman were outside on the porch talking, Billy Grimes drove up in his white Mitsubishi pickup truck and parked behind defendant\u2019s vehicle. Defendant walked up to Grimes\u2019 pickup truck and spoke with Grimes. According to Grimes, defendant said, \u201cI\u2019ve got one of the guys that\u2019s been messing with me. Do you want to watch or help?\u201d Grimes declined, left, and went home.\nMeanwhile, Eddleman had stepped off the porch to talk with Shaver. Eddleman said to Shaver, \u201cGary, you don\u2019t want nothing to do with this either.\u201d Eddleman also told Shaver, \u201cGary, you better talk to [defendant].\u201d Eddleman then said to defendant, \u201cJoe, you better listen.\u201d Defendant then walked over to Shaver and told him that he could get out of the situation if he wished. Shaver stated that he wanted out because he had sole custody of his daughter and did not want to jeopardize his custody. Defendant told Shaver that he would take Shaver back to his vehicle, which was parked at defendant\u2019s campsite. Defendant and Shaver then got back into defendant\u2019s vehicle and left. When they arrived at defendant\u2019s campsite, Shaver got into his vehicle and left. The victim was alive at this time. Shaver went home, set his alarm clock, and went to bed. It was approximately 4:00 a.m. at this time.\nDefendant returned to Eddleman\u2019s house later that morning and again awoke Eddleman. It was still dark outside. Defendant returned Eddleman\u2019s gun, which he had borrowed at some time earlier. Eddleman took the gun and placed it in one of his bedrooms in his house. Defendant asked Eddleman, \u201cWhat do you think I should do with the body?\u201d Eddleman said, \u201cWhat?\u201d Defendant repeated the question. Eddleman said, \u201cMan, if you\u2019ve got a body, you\u2019ve only got about three choices. You either take him to the sheriff\u2019s office, bury him or throw him in the river.\u201d After some further conversation, defendant asked, \u201cDo you reckon I should tie cement blocks to him?\u201d Eddleman answered, \u201cIf you do, or not, he will come up in from nine to eleven days.\u201d Defendant then said, \u201cI guess I can load him by myself,\u201d and he left.\nEddleman went back to bed and awoke at 9:30 or 9:45 a.m. that morning. Eddleman went to look at the gun to determine whether there was blood on it. He discovered what appeared to be flesh and blood on the gun. He then cleaned the gun.\nLater that day, Eddleman spoke with defendant. During the conversation, defendant said, \u201cI was just thinking about what happened last night.\u201d Eddleman said, \u201cMan, you better quit thinking. You\u2019re going to have a hard enough day as it is.\u201d Defendant said, \u201cWell, it don\u2019t bother me all that bad.\u201d Eddleman responded, \u201cIt will.\u201d When defendant left Eddleman\u2019s house, he packed up his tent and left the campsite.\nGrimes saw defendant at about noon that day. Defendant was at defendant\u2019s home unloading his vehicle. Defendant was placing his tent and the other items from his campsite into his residence. Grimes noticed that there was blood all over the contents of defendant\u2019s vehicle. Defendant took some items inside his house and washed the blood off in the sink. Grimes remained at defendant\u2019s house for about thirty minutes.\nGrimes again saw defendant later that day at Bran\u2019s Game Room. Defendant told Grimes that he shot the victim through the neck and threw his body into the river. Grimes asked defendant why he killed the victim, and defendant said that he could not let him live after what defendant had done to the victim and that he would get just as much time for murder as he would for kidnapping.\nA couple of days later, Shaver saw defendant at Eddleman\u2019s house. Shaver asked defendant what happened, and defendant said that it was best if Shaver did not know. A few days before, defendant had told Shaver that he thought he could kill someone.\nOn 25 August 1990, two fishermen discovered the victim\u2019s body floating in the Yadkin River and contacted the police. The victim\u2019s ankles and wrists were bound by rope, his legs and arms were pulled backwards behind his back and tied together, and a rope was tied around his neck. The victim\u2019s body was in an early stage of decomposition. His belt buckle was undone, and his pants were unzipped.\nOn 26 August 1990, an autopsy was performed on the victim\u2019s body. The medical examiner noted that the victim\u2019s wrists and ankles had been bound together with rope and that his arms and legs had been fastened behind his back in a \u201chogtie\u201d configuration. There was also a loop of rope around the victim\u2019s neck and a separate rope around his knee area. The medical examiner further noted that there was considerable decomposition of the body. He discovered a gunshot wound to the back of the victim\u2019s neck. The medical examiner was unable to testify with any degree of medical certainty whether the victim experienced any pain as a result of the gunshot wound but testified that the victim could have died instantaneously.\nPrior to the autopsy, police officers took fingerprints from the victim to establish his identity. Because the State Bureau of Investigation (SBI) was unable to determine his identity from these prints, the victim\u2019s hands were surgically removed and turned over to an agent of the SBI so that they could be processed and better fingerprints obtained. The SBI processed the fingerprints they obtained from the hands and determined that the victim was Charles Edwin Jenkins.\nOn 30 August 1990, while investigating the victim\u2019s murder, two law enforcement officers went to defendant\u2019s house and spoke with him. Before leaving the residence, they asked defendant\u2019s permission to search his vehicle. Defendant gave them permission and assisted them into the vehicle. One of the officers found a newspaper on the floor of defendant\u2019s vehicle. The newspaper had a front-page story about the officer\u2019s uncle, so he asked defendant if he could have the newspaper. Defendant agreed to let him have it. Inside the newspaper, the officer found a receipt that had what appeared to be bloodstains on it. The officers also asked defendant\u2019s permission to have a small piece of rope that was in a bucket on defendant\u2019s front porch. Defendant allowed the officers to take the rope. Also, a piece of molding containing what appeared to be blood was taken from defendant\u2019s vehicle. The receipt and the molding were examined by the SBI, and the substance on them was determined to be blood. However, no useable fingerprints were taken from the molding, and no determination could be made as to whether the blood matched the victim\u2019s blood since the victim\u2019s body contained no blood when it was found.\nOn 31 August 1990, defendant gave a thirteen-page confession to the police in which he admitted beating the victim, binding him with ropes, kidnapping him, tying him to a tree, and questioning him at gunpoint. Defendant also admitted shooting the victim in the neck after the victim would not tell him who had shot into his house and after the victim had spat on him. Defendant further admitted tying a cement block around the victim\u2019s neck, removing the cement block when he discovered it made the body too heavy to throw off the bridge, and throwing the victim\u2019s hog-tied body into the Yadkin River.\nDefendant did not testify at trial. However, defendant presented the testimony of two witnesses, Eddleman\u2019s wife and Eddleman\u2019s daughter-in-law, which tended to show that Shaver\u2019s vehicle was parked at defendant\u2019s campsite until 6:00 or 7:00 a.m. on the morning of the victim\u2019s death.\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.\nIn his first argument, defendant contends that the trial court committed reversible error in denying his request for an instruction on second-degree murder since this is a case of conflicting evidence. We disagree.\nIn State v. Conaway, 339 N.C. 487, 453 S.E.2d 824, cert. denied, - U.S. -, 133 L. Ed. 2d 153 (1995), we said:\nThe test for determining whether the jury must be instructed on second-degree murder is whether there is any evidence in the record which would support a verdict of second-degree murder. State v. Strickland, 307 N.C. 274, 285, 298 S.E.2d 645, 653 (1983), overruled in part on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986). \u201c \u2018It is unquestioned that the trial judge must instruct the jury as to a lesser-included offense of the crime charged, when there is evidence from which the jury could find that the defendant committed the lesser offense.\u2019 \u201d State v. Conner, 335 N.C. 618, 635, 440 S.E.2d 826, 835 (1994) (quoting State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 [(1993)]). However, if the State\u2019s evidence is sufficient to satisfy its burden of proving each element of first-degree murder, including premeditation and deliberation, and there is no evidence other than defendant\u2019s denial that he committed the crime to negate these elements, the trial court should not instruct the jury on second-degree murder. Id. at 634-35, 440 S.E.2d .at 835 (citing State v. Strickland, 307 N.C. at 293, 298 S.E.2d at 658).\nConaway, 339 N.C. at 514, 453 S.E.2d at 841.\nThe evidence in this case supports all the elements of first-degree murder, including premeditation and deliberation. Premeditation requires the act to have been thought out beforehand for some period of time, no matter how brief. Conner, 335 N.C. at 635, 440 S.E.2d at 836; State v. Myers, 299 N.C. 671, 677, 263 S.E.2d 768, 772 (1980). Deliberation requires that the defendant have the intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose, and not under the influence of a violent passion, suddenly aroused by a lawful or just cause or legal provocation. Conner, 335 N.C. at 635, 440 S.E.2d at 836; State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d 837, 842-43 (1984).\nIn the instant case, defendant argues that there was conflicting evidence about premeditation and deliberation. In his confession, defendant said, \u201cThe exact reason I shot [the victim] was because he acted like he knew who shot into my house. He spit on me and told me to go to hell. And this made me mad and I shot him.\u201d (Emphasis added). At trial, Billy Grimes testified that defendant told him that defendant shot the victim because defendant could not let the victim live after what defendant had done to the victim. Defendant argues that this evidence is conflicting as to the element of premeditation and deliberation in that defendant\u2019s confession permits an inference that defendant acted under a suddenly aroused violent passion.\nWe conclude, however, that there was no evidence presented at trial to support an instruction on second-degree murder. We note that the evidence presented at trial showed that defendant asked Janette Turner to tell Billy Grimes to call Hal Eddleman and to tell Eddleman that something was \u201cgoing down\u201d the night of the murder; that when Grimes was on his way home that night, he went by Eddleman\u2019s house and saw defendant\u2019s vehicle in Eddleman\u2019s front yard; that defendant told Grimes that defendant \u201chad one of the guys that was watching [defendant] or doing something]] in the truck\u201d; that defendant asked Grimes if he wanted to \u201chelp or watch\u201d; that Grimes said, \u201cNo,\u201d and then left; that defendant beat the victim with a shovel handle, bound him with ropes, transported him to defendant\u2019s campsite, and tied him to a tree; that defendant questioned the victim at gunpoint; that the victim was asking defendant what he had done and what was going on; and that the victim was purposely not allowed to escape the danger. We note further that after shooting the victim in the neck, defendant tied cement blocks to the victim\u2019s body and later threw the body over the bridge into the Yadkin River. Afterwards, defendant stated that what he had done did not bother him and that he could not let the victim go after what he had done to him. Additionally, defendant stated in his statement to the police: \u201cI was not drunk or doing drugs at the time. I knew what was going on.\u201d We conclude that this evidence was sufficient to satisfy the State\u2019s burden of proof on the element of premeditation and deliberation. Since there was no evidence presented at trial to sustain a verdict of defendant\u2019s guilt of second-degree murder, we reject defendant\u2019s first argument.\nIn his second argument, defendant contends that the trial court erred in refusing to submit four nonstatutory mitigating circumstances to the jury. The four nonstatutory mitigating circumstances requested in writing by defendant but not submitted to the jury by the trial court were (1) that the defendant\u2019s criminal conduct was the result of circumstances unlikely to recur, (2) that the defendant was under the influence of alcohol, (3) that the defendant was functioning under the belief that his life was in danger at the time of the commission of the crime, and (4) that the influence of alcohol on defendant\u2019s life had been significant.\nDefendant\u2019s expert witness, Dr. John Warren, a psychologist, testified that defendant believed he was being plotted against and that defendant booby-trapped his trailer and then moved out of the trailer into a campsite. Dr. Warren also testified that defendant had started drinking at an early age and that this had stunted defendant\u2019s personality growth. Defendant contends that the proposed mitigating circumstances would have focused the jury\u2019s attention on defendant\u2019s mental problems in a way that was more mitigating than the statutory mitigating circumstance that defendant was under the influence of a mental or emotional disturbance. Defendant\u2019s argument appears to be rooted in the notion that the jury would have been more impressed with the mitigating value of the proffered evidence if it had been categorized into four separate mitigating circumstances rather than consolidated into a statutory mitigating circumstance and the \u201ccatchall\u201d circumstance. Defendant contends that the failure to submit the four nonstatutory mitigating circumstances separately on the Issues and Recommendation as to Punishment form given to the jury during the capital sentencing proceeding was prejudicial error. We disagree.\nIn State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988), we said:\nIn order for defendant to succeed on this assignment, he must establish that (1) the nonstatutory mitigating circumstance is one which the jury could reasonably find had mitigating value, and (2) there is sufficient evidence of the existence of the circumstance to require it to be submitted to the jury. Upon such showing by the defendant, the failure by the trial judge to submit such nonstatutory mitigating circumstance to the jury for its determination raises federal constitutional issues.\nId. at 325, 372 S.E.2d at 521 (footnote omitted). Further, we said that where the proposed mitigating circumstance is subsumed in the other mitigating circumstances submitted to the jury, the refusal of the trial court to submit the proposed circumstance is not error. Id. at 327, 372 S.E.2d at 522.\nBearing these principles in mind, we turn to consider the trial court\u2019s failure to submit to the jury the four nonstatutory mitigating circumstances at issue in this case. The record shows that defendant failed to produce sufficient evidence to support the proposed mitigating circumstances that defendant\u2019s criminal conduct was the result of circumstances unlikely to recur and that, at the time of the offense, defendant was suffering emotional fear because he believed his life was in danger. As to whether defendant\u2019s criminal conduct was the result of circumstances unlikely to recur, there is no evidence in the record that suggests defendant\u2019s depression, personality disorder, or alcohol abuse were unlikely to recur. As to whether defendant was suffering emotional fear, we find unpersuasive defendant\u2019s argument that this fear need not be grounded in fact. Since the victim was. hog-tied and strapped to a tree at the time that defendant shot and killed him, we are not convinced that there is sufficient evidence of the existence of the circumstance to require it to be submitted to the jury. Therefore, we conclude that the trial court did not err in refusing to submit these proposed mitigating circumstances to the jury.\nWith respect to the trial court\u2019s refusal to submit to the jury defendant\u2019s proposed mitigating circumstances that defendant was under the influence of alcohol at the time of the crimes and that the influence of alcohol on defendant\u2019s life was significant, we conclude that the trial court did not err. The trial judge submitted as mitigating circumstances that the murder was committed while defendant was mentally or emotionally disturbed, N.C.G.S. \u00a7 15A-2000(f)(2); and that defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired, N.C.G.S. \u00a7 15A-2000(f)(6). We note that the trial judge instructed the jury that it could find the (f)(2) mitigating circumstance if \u201cthe defendant suffered from major depression or alcoholism abuse or personal disorder [a]nd, that as a result, the defendant was under the influence of a mental or emotional disturbance when he killed [the victim].\u201d We further note that the trial court also submitted the (f)(9) catchall mitigating circumstance. Since the proposed mitigating circumstances were subsumed in these statutory mitigating circumstances which were submitted to the jury, we reject defendant\u2019s second argument.\nIn his third argument, defendant contends that the trial court erred by not peremptorily instructing the jury on the mitigating circumstances which he claims were uncontroverted. Defendant submitted a general request for a peremptory instruction as to all mitigating circumstances. There was no separate request as to each. The mitigating circumstances submitted to the jury were composed of four statutory circumstances, twelve nonstatutory circumstances, and the catchall circumstance. The trial court did not give peremptory instructions on five of the nonstatutory mitigating circumstances.\nDefendant argues that the trial court erred in not giving peremptory instructions on the mitigating circumstances that defendant has below average mental ability; that defendant was a loving and caring son; that defendant was a loving and caring brother; that defendant was one of seven children reared by poor, hardworking parents, and he worked to help out the family while at home; and that before his marital problems, defendant was kind, friendly, and compassionate.\nAs to the mitigating circumstances that defendant was a loving and caring son and brother, defendant acknowledged with commendable candor during oral arguments that, although Judge Rousseau denied his request to give a peremptory instruction, he did instruct the jury peremptorily during the jury charge. With respect to the other nonstatutory mitigating circumstances submitted to the jury, after reviewing the transcripts, record, and briefs, we conclude that it was not error for the trial court to refuse to peremptorily instruct the jury since the evidence relating to these circumstances was not uncontroverted. See State v. Gay, 334 N.C. 840, 434 S.E.2d 467 (1993) (trial court required to give peremptory instruction, if defendant so requests, when evidence showing that mitigating circumstance exists is uncontroverted). Accordingly, we reject defendant\u2019s third argument.\nIn his fourth argument, defendant contends that the trial court erred in submitting to the jury two aggravating circumstances which he claims constituted impermissible and unconstitutional duplication in the evidence of aggravation. Defendant was convicted of first-degree murder based on premeditation and deliberation and under the felony murder rule. During the capital sentencing proceeding, the trial court submitted to the jury the following aggravating circumstances:\n(1) Was this murder committed by the defendant while the defendant was engaged in the commission of kidnapping?\nAnswer:_\n(2) Was this murder especially heinous, atrocious or cruel?\nAnswer:_\nThe jury answered both of these questions \u201cYes.\u201d\nThe crux of defendant\u2019s argument is that all the evidence supporting the N.C.G.S. \u00a7 15A-2000(e)(5) aggravating circumstance that the murder was committed while defendant was engaged in the commission of a felony (kidnapping) was subsumed by the evidence supporting the N.C.G.S. \u00a7 15A-2000(e)(9) aggravating circumstance that the murder was especially heinous, atrocious, or cruel. Defendant notes that the trial court instructed the jurors that in order to find the (e)(5) aggravating circumstance, they must find defendant guilty of kidnapping the victim for the purpose of terrorizing him. Thus, defendant argues that, by necessity, the jury must have used the same evidence to determine the (e)(5) and (e)(9) aggravating circumstances. We disagree.\nIn a capital case, it is error to submit multiple aggravating circumstances supported by precisely the same evidence. State v. Quesinberry, 319 N.C. 228, 239, 354 S.E.2d 446, 453 (1987). Where, however, there is separate evidence supporting each aggravating circumstance, the trial court may submit both \u201ceven though the evidence supporting each may overlap.\u201d Gay, 334 N.C. at 495, 434 S.E.2d at 856.\nAs to the aggravating circumstance that the murder was especially heinous, atrocious, or cruel, we have stated that it is appropriate when the level of brutality involved exceeds that normally found in first-degree murders or when the murder in question is conscienceless, pitiless, or unnecessarily torturous to the victim. State v. Hamlet, 312 N.C. 162, 174-75, 321 S.E.2d 837, 845-46; State v. Goodman, 298 N.C. 1, 24-25, 257 S.E.2d 569, 585 (1979). It also arises when the killing demonstrates an unusual depravity of mind on the part of the defendant. State v. Stanley, 310 N.C. 332, 345, 312 S.E.2d 393, 401 (1984). Among the types of murders that meet the above criteria are those that are physically agonizing or otherwise dehumanizing to the victim and those that are less violent but involve the infliction of psychological torture. State v. Oliver, 309 N.C. 326, 346, 307 S.E.2d 304, 318 (1983).\nIn the instant case, evidence establishing the circumstance that the crime was especially heinous, atrocious, or cruel concerned the brutality of the murder: Defendant hit the victim over the head several times with a shovel handle. The victim suffered for hours before being killed. Defendant hog-tied the victim, laid the victim out on the ground, tied the victim to a tree, and placed a gun to his throat while interrogating him. After beating and interrogating the victim at gunpoint for several hours, defendant shot the victim in the neck. This is clearly enough evidence to establish that the murder was especially heinous, atrocious, or cruel.\nNone of this evidence, however, was necessary to establish the kidnapping used for the aggravating circumstance that the murder was committed during the course of a felony, and there was substantial other evidence supporting that circumstance. We first note that the crime of kidnapping requires that the defendant \u201cunlawfully confine, restrain, or remove from one place to another\u201d the victim. N.C.G.S. \u00a7 14-39(a) (1993) (emphasis added). Thus, in the instant case, the evidence supporting the kidnapping was that defendant loaded the victim onto his truck and took him to Eddleman\u2019s house. The purpose of the kidnapping \u2014 to terrorize the victim \u2014 is shown by the evidence that defendant invited Eddleman and Grimes to participate or watch him as he got answers from the victim. Additionally, defendant had earlier expressed to Shaver his intent to get answers, and he carried out this intent by interrogating the victim at gunpoint. Thus, we conclude that there was independent evidence supporting each of these aggravating circumstances. Accordingly, we reject defendant\u2019s fourth argument.\nIn his fifth argument, defendant contends that the trial court erred in not instructing the jury that it could not consider the same evidence in support of the (e)(5) and (e)(9) aggravating circumstances. Defendant concedes, however, that he did not request such an instruction and that our review is therefore limited to review for plain error, which requires defendant to show that the error was so fundamental that another result would probably have obtained absent the error. See State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983). In light of the strong evidence in this case, including evidence of psychological torture, and the fact that there was independent evidence supporting each aggravating circumstance, defendant has not shown that any error likely affected the outcome of his capital sentencing proceeding. Accordingly, we reject defendant\u2019s fifth argument.\nIn his sixth argument, defendant contends that the trial court erred during the prosecutor\u2019s closing argument by its failure to intervene ex mero mo tu and rectify improprieties to which defendant failed to object. Defendant argues that the prosecutor\u2019s closing argument to the jury violated his rights to silence and to due process by drawing attention to his decision not to testify.\nDuring the sentencing phase arguments, the prosecutor argued:\nHave you heard any evidence at all the defendant is sorry for what he did? Think about that for a moment. Any evidence at all that he\u2019s sorry?\nYou saw three women get on the stand and cry. You saw [the victim\u2019s mother], and briefly, she, she lost her composure, and she cried. Did the Defendant shed any tears as she cried? Anybody look? Did you see any show of emotion of him as she cried for the loss of her son.\n[Defendant\u2019s] mother, his own mother got on the stand and cried. Any tears over there? Did you see any? [Defendant\u2019s] sister, who\u2019s done so well. She cried for her brother. Did he? Did he cry for what he\u2019d done to her? For what he\u2019d done to [the victim]?\nDefendant contends that he was placed in a position of having no way to rebut his absence of emotion except by taking the stand and testifying and, thus, that the judge should have intervened ex mero motu in order to stop the improper argument.\nAs we have stated numerous times, counsel will be allowed wide latitude in the argument of hotly contested cases, and the scope of that argument will largely be left to the discretion of the trial court. State v. Huffstetler, 312 N.C. 92, 112, 322 S.E.2d 110, 123 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985). Although the appellate court may review an alleged error or impropriety in the State\u2019s argument notwithstanding the defendant\u2019s failure to flag the error for the trial court, \u201c \u2018the impropriety . . . must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it.\u2019 \u201d State v. Artis, 325 N.C. 278, 323, 384 S.E.2d 470, 496 (1989) (quoting State v. Johnson, 298 N.C. 355, 369, 259 S,E.2d 752, 761 (1979), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990)).\nIn the instant case, the prosecutor never commented directly or indirectly on defendant\u2019s failure to testify, nor did she suggest or infer that defendant should have taken the witness stand. Rather, the prosecutor commented on the demeanor of the defendant, which was before the jury at all times. See, e.g., State v. Myers, 299 N.C. 671, 679-80, 263 S.E.2d 768, 774 (1980). Such statements are not comparable to those which this Court has previously held to be improper comments on a defendant\u2019s failure to testify. See, e.g., State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975); State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975). Clearly, the trial court did not abuse its discretion by failing to intervene ex mero motu to stop the prosecutor\u2019s argument.\nIn his seventh argument, defendant contends that the trial court erred by unduly restricting his voir dire of prospective jurors by sustaining an objection to one question regarding whether the prospective jurors would hold defendant\u2019s election not to testify against him. Relying upon this Court\u2019s decisions in State v. Hightower, 331 N.C. 636, 417 S.E.2d 237 (1992), and State v. Cunningham, 333 N.C. 744, 429 S.E.2d 718 (1993), defendant contends that he is entitled to a new trial because the trial court erred by sustaining the State\u2019s objection to the question propounded by the defense attorney.\nIn both Hightower and Cunningham, each defendant contended that the trial court erred in denying a challenge for cause to a juror. This Court agreed with the defendants\u2019 contentions that the prospective jurors were unable to render verdicts in accordance with North Carolina law. These prospective jurors gave ambiguous responses to questions concerning their understanding of the State\u2019s burden of proof and the defendants\u2019 presumption of innocence as well as concerning their ability to follow the law and not to hold the defendants\u2019 election not to testify against them. In both cases, each defendant exh\u00e1usted his peremptory challenges, the trial court denied his renewed challenge for cause, and the defendant informed the trial court that, if his challenge for cause was allowed, he would have an additional peremptory challenge to exercise against a particular prospective juror who did in fact serve on the jury which convicted each defendant. Under these circumstances, we granted the defendants new trials.\nHightower and Cunningham make it clear that a criminal defendant is entitled to be tried by an impartial and unbiased jury. In order to insure a fair trial before an impartial and unbiased jury, it is entirely proper in a criminal case for the defendant to make appropriate inquiry concerning a prospective juror\u2019s ability to follow the law. It is well established that a criminal defendant cannot be compelled to testify. N.C. Const, art. 1, \u00a7 23; N.C.G.S. \u00a7 8-54 (1986); see State v. Randolph, 312 N.C. 198, 205, 321 S.E.2d 864, 869 (1984). It is also settled that failure of the defendant to testify creates no presumption against him. Id. at 206, 321 S.E.2d at 869. Therefore, the defendant may question prospective jurors as to their views concerning the defendant\u2019s election not to testify and whether the jurors could be impartial in light of the defendant\u2019s election. However, while counsel may inquire into the potential jurors\u2019 fitness to serve, this is not an unbridled inquiry. The manner and extent of the inquiry is left in the sound discretion of the trial court, and the trial court\u2019s ruling will not be disturbed absent a showing of abuse of discretion. State v. Weeks, 322 N.C. 152, 162, 367 S.E.2d 895, 901 (1988).\nDuring voir dire in the instant case, the exchange occurred as follows:\n[Defense Counsel]: Now, the Judge previously stated that as [defendant] sits here, he\u2019s presumed innocent. Does anybody disagree with the proposition of law that [defendant is] presumed innocent at this time?\n(Some shake heads negatively; others do not respond)\n[Defense Counsel]: Do you also agree that it\u2019s the State\u2019s burden to prove guilt beyond a reasonable doubt? Does anybody have any problems with [that], whatsoever?\n(Some shake heads negatively; others do not respond)\n[Defense Counsel]: Also, it\u2019s not our job to prove anything. It\u2019s the State\u2019s burden. The burden of proof is upon the State. If [defendant] elects not to testify, and we\u2019re not saying he will not, but if he did not testify, would any of you all hold that against him in any way?\n[Prosecutor]: Well, OBJECTION.\nThe Court: SUSTAINED.\n[Defense Counsel]: Do you all disagree with the proposition that [defendant] has the right not to testify?\n(Some shake heads negatively; others do not respond)\n[Defense Counsel]: Do you all disagree with that in any way?\n(Some shake heads negatively; others do not respond)\nFollowing this exchange, defense counsel did not pursue this line of questions, but proceeded to other issues.\nThe instant case is not controlled by Hightower and Cunningham, two cases involving the trial court\u2019s denial of the defendants\u2019 challenges for cause. Here, defendant made no challenge for cause based on the question involved. Instead, defendant sought to inquire as to whether the prospective jurors would hold his election not to testify against him. This same question arose in State v. Conner, 335 N.C. 618, 440 S.E.2d 826. There, we said:\nAs to defendant\u2019s argument concerning questions relating to defendant\u2019s right not to testify, defense counsel repeatedly attempted to ask a potential juror whether or not she would \u201chold it against\u201d defendant if defendant elected not to testify. The person being examined was peremptorily challenged by defendant; therefore, defendant, not having exhausted his peremptory challenges, the error, if any, could not have been prejudicial to defendant. This assignment of error is without merit and is overruled.\nConner, 335 N.C. at 633, 440 S.E.2d at 834.\nLike the defendant in Conner, defendant here did not exhaust his peremptory challenges. Therefore, prejudice does not appear. We note that in Conner, this question was asked of one prospective juror, and there is no indication as to whether this or a similar question was asked of other prospective jurors. In the instant case, however, the judge sustained the objection when the question was asked to an entire panel. However, after the judge sustained the objection to the question, defendant was allowed to ask other questions related to his election not to testify. Additionally, we note that the trial court correctly instructed the jury that defendant\u2019s decision not to testify could not be used against him. For the foregoing reasons, we conclude that the trial court did not unduly restrict defendant\u2019s voir dire and hence did not abuse its discretion. Accordingly, we reject defendant\u2019s seventh argument.\nIn his eighth argument, defendant contends that the trial court violated his due process right to a full and fair hearing in mitigation by allowing the prosecutor to argue several lines of improper argument in the penalty phase. We disagree.\nIt is well settled that the arguments of counsel are left largely to the control and discretion of the trial judge and that counsel will be granted wide latitude in the argument of hotly contested cases. Huffstetler, 312 N.C. at 112, 322 S.E.2d at 123. Counsel is permitted to argue the facts which have been presented, as well as reasonable inferences which can be drawn therefrom. State v. Hamlet, 312 N.C. 162, 172, 321 S.E.2d 837, 844. Conversely, counsel is prohibited from arguing facts which are not supported by the evidence. State v. Lynch, 300 N.C. 534, 551, 268 S.E.2d 161, 171 (1980). These principles apply not only to ordinary jury arguments, but also to arguments made at the close of the sentencing phase in capital cases. State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761.\nIn the instant case, during the sentencing phase- closing arguments, the prosecutor argued that one of defendant\u2019s motives in killing the victim was to prevent the victim from testifying against him. Defendant contends that this argument placed before the jury an additional aggravating circumstance. Next, the prosecutor, after showing the jury a picture of the victim dressed in a tuxedo, argued, \u201cAnd, another thing about this picture, look at his hands. He had the most beautiful hands. And, we had to cut them off to find out who he was.\u201d Next, the prosecutor argued to the jury that defendant had been given the benefit of two lawyers to ask the jury not to return the death penalty, while the victim did not have the benefit of a trial or of anyone begging defendant to spare the victim\u2019s life. Finally, the prosecutor asked the jury, \u201cCan you imagine the devastation of that knock on the door that [the victim\u2019s mother] told you about with a law enforcement officer standing there? Can you imagine that?\u201d\nDefendant failed to object to any of the comments made by the prosecutor which are now assigned as error, and the trial court did not intervene ex mero motu. However, as we have said before: \u201c[0]ur appellate courts may, in the absence of an objection by the defendant, review a prosecutor\u2019s argument to determine whether the argument was so grossly improper that the trial court committed reversible error in failing to intervene ex mero motu to correct the error.\u201d State v. Williams, 317 N.C. 474, 482, 346 S.E.2d 405, 410 (1986). After carefully reviewing the prosecutor\u2019s argument in its entirety, we conclude that it was not so grossly improper as to have necessitated intervention ex mero motu by the trial court. Accordingly, we reject defendant\u2019s eighth argument.\nIn his ninth argument, defendant contends that the trial court erred in denying his motion to suppress his statement to police, which defendant alleges was made in violation of his state and federal constitutional rights.\nBefore defendant was Mirandized, he gave police officers three conflicting statements concerning the night in question. Thereafter, officers told defendant that they wanted to hear the complete truth. At that point, defendant signed a written waiver of his Miranda rights and dictated a thirteen-page statement which was introduced against him at trial. Defendant contends that, after having given his three statements to the police confessing to murder, any reasonable man would be aware that he had confessed to murder and would know that the logical and inevitable consequence of his confession is that he would be immediately arrested. Defendant contends that officers obtained the final Mirandized statement by building on the earlier tainted ones.\nMiranda warnings are required prior to questioning only if one is in custody or has been deprived of one\u2019s freedom of action in a significant way. Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706 (1966); State v. Perry, 298 N.C. 502, 506, 259 S.E.2d 496, 499 (1979). The test for whether a person is in custody for Miranda purposes is whether a reasonable person in the suspect\u2019s position would feel free to leave or compelled to stay. State v. Torres, 330 N.C. 517, 412 S.E.2d 20 (1992).\nIn the instant case, defendant filed a motion during his first trial to suppress his statement made to police on 31 August 1990. Defendant\u2019s motion was heard by Judge Rousseau, who conducted an extensive suppression hearing. Judge Rousseau made detailed findings of fact concerning the several interviews defendant had with various law enforcement and investigative officers. Based on these findings, Judge Rousseau concluded that, with regard to \u201cany statement the Defendant made prior to [his Mirandized statement], he was not in custody; that he was free to leave, and [that the statement] is admissible into evidence if the State so desires.\u201d The court also concluded that defendant\u2019s statement of 31 August 1990 \u201cwas freely, voluntarily, and knowingly given without any promise of reward, and that. . . after being advised of his rights, and stating that he did not want an attorney, that that statement is admissible in the trial of this case.\u201d Accordingly, Judge Rousseau denied defendant\u2019s motion to suppress defendant\u2019s statement.\nAfter this Court granted defendant a new trial, defendant again filed a motion to suppress the same statement. On 14 June 1994, Judge W. Douglas Albright denied the motion, relying on Judge Rousseau\u2019s denial of defendant\u2019s motion to suppress entered at defendant\u2019s first trial. However, on 15 June 1994, Judge Albright entered an order denying defendant\u2019s motion to suppress on the ground that defendant\nmade an insufficient showing to satisfy the Court that such additional pertinent facts ha[d] been discovered by the Defendant which he could not have discovered with reasonable diligence before the determination of the motion by Judge Rousseau, which would warrant the Court permitting the- Defendant to renew the Motion to Suppress, which was the subject of an extensive voir dire ... and full inquiry by Judge Rousseau, who made findings of fact and conclusions of law.\n\u201cA trial court\u2019s findings of fact are binding on appeal when supported by competent evidence.\u201d State v. Rose, 335 N.C. 301, 333, 439 S.E.2d 518, 536, cert. denied, - U.S. -, 129 L. Ed. 2d 883 (1994). In the instant case, Judge Rousseau found as fact that the defendant agreed to talk with law enforcement officers and agreed to go to the Sheriff\u2019s Department; that defendant drove to the Sheriff\u2019s Department, accompanied by his friend, Eddie Atkins; that when defendant arrived, he spoke with three law enforcement officers; that the officers thanked defendant for coming to the Sheriff\u2019s Department and told defendant that he was not under arrest and was free to leave at any time; that the officers spoke to defendant for approximately forty minutes, during which time defendant told three different stories about what happened on the night in question; that, thereafter, defendant went to the bathroom alone; that, after defendant returned from the bathroom, the officers asked defendant if he would tell the truth, and defendant said that he would; that defendant was then advised of his Miranda rights, and defendant signed a written waiver of those rights; and that defendant was given a drink and cigarettes throughout the interview. Because these findings of fact are supported by the evidence and the findings support the trial court\u2019s conclusion of law, we cannot disturb the trial court\u2019s ruling. Therefore, we conclude that defendant was not in custody at the time of his prearrest statements to law enforcement officers and that Miranda warnings were not required. See State v. Phipps, 331 N.C. 427, 418 S.E.2d 178 (1992) (defendant not in custody when he went to police station on his own, was permitted to return home, and later agreed to take a polygraph test); State v. Martin, 294 N.C. 702, 242 S.E.2d 762 (1978) (defendant not in custody when he voluntarily went to the police station and made a statement, and police officers returned him to his home afterwards); see also State v. Bromfield, 332 N.C. 24, 37, 418 S.E.2d 491, 498 (1992) (no seizure where defendant agreed to accompany officers to the police station, was not handcuffed, was told there were no charges against him and that he was free to go, went unescorted to the snack bar and rest rooms, and acknowledged that based upon prior experiences, he could not be coerced into talking with officers); State v. Johnson, 317 N.C. 343, 369, 346 S.E.2d 596, 609-10 (1986) (no seizure where defendant agreed to accompany officers to the police station, was not frisked, was given cigarettes and coffee, and was allowed to go unescorted to the bathroom and to make telephone calls). Accordingly, we hold that defendant was not seized for Fourth Amendment purposes and that the trial court did not err in denying defendant\u2019s motion to suppress.\nIn his tenth argument, defendant contends that the trial court erred by unduly restricting his voir dire of prospective jurors, thereby preventing him from making effective use of his peremptory challenges and violating his constitutional rights. Defendant argues that he should have been allowed to inquire of potential jurors whether they would vote their conscience even if the vote was eleven to one against them.\nDuring voir dire, defendant attempted to ask jurors whether, if they, thought all the evidence and all the factors supported voting for life imprisonment, they would vote for life imprisonment even if eleven other jurors felt that death was appropriate. The trial court sustained the State\u2019s objection. Defendant contends that his question mirrors the law of North Carolina that \u201c[n]o juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.\u201d N.C.G.S. \u00a7 15A-1235(b)(4) (1988).\nIn State v. Jones, 339 N.C. 114, 451 S.E.2d 826 (1994), we addressed a similar question. The trial court did not allow the defendant to ask jurors how they would react if, during deliberations, they were the only juror on a particular side of an issue. In concluding that the trial court\u2019s ruling was proper, we said that the question was \u201cintended to elicit from the jurors how they would vote under a particular set of given facts. Such questions tend to' cause jurors to pledge themselves to a decision in advance of the evidence to be presented and are therefore improper.\u201d Id. at 135, 451 S.E.2d at 835-36.\nIn the instant case, the question was improper because it attempted to place the jurors in a hypothetical situation of being deadlocked eleven to one. The trial court did not abuse its discretion by sustaining the State\u2019s objection to defendant\u2019s hypothetical question which tended to stake out jurors to a certain position. Accordingly, we reject defendant\u2019s tenth argument.\nIn his eleventh argument, defendant contends that the trial court violated his due process rights to a fair trial and a reliable sentencing proceeding by allowing the State to introduce a number of gruesome photographs of the victim\u2019s body in a state of advanced decomposition. The photographs included those taken at the scene after the victim\u2019s body was retrieved from the river as well as photographs taken at the victim\u2019s autopsy. Defendant contends these photographs were inflammatory due to the advanced state of decomposition brought on by the ravages of decomposition in water with attendant damages by fish and other river scavengers. We disagree that the showing of the photographs violated defendant\u2019s right to a fair trial and reliable capital sentencing proceeding.\nThe photographs in question depicted the location of the body when it was discovered and the condition of the body when found, including the ropes still tied to the body. The State argues that the photographs were admissible as illustrative of the pathologist\u2019s testimony with regard to the condition of the victim\u2019s body when found and the wounds it had sustained. We agree with the State.\nThis Court has stated that \u201c[p]hotographs of homicide victims are admissible at trial even if they are \u2018gory, gruesome, horrible, or revolting, so long as they are used by a witness to illustrate his testimony and so long as an excessive number of photographs are not used solely to arouse the passions of the jury.\u2019 \u201d State v. Thompson, 328 N.C. 477, 491, 402 S.E.2d 386, 394 (1991) (quoting State v. Murphy, 321 N.C. 738, 741, 365 S.E.2d 615, 617 (1988)).\nState v. Rose, 335 N.C. 301, 319, 439 S.E.2d 518, 528.\nIn State v. Lee, 335 N.C. 244, 278-79, 439 S.E.2d 547, 565, cert. denied, - U.S. \u2014, 130 L. Ed. 2d 162 (1994), we said, \u201cWhere the victim\u2019s identity and the cause of his or her death are uncontroverted, a trial court may nevertheless allow in evidence photographs showing the condition of the body and its location when found.\u201d\nThe photographs at issue depicted the victim\u2019s hog-tied body in an advanced state of decomposition. The photographs also purported to depict the location where the body was found. Although the victim\u2019s identity and the cause of his death were not in dispute, these photographs showed the circumstances of his death which were relevant to the issues to be determined in defendant\u2019s trial and capital sentencing proceeding. We find no error in admitting these photographs into evidence. Accordingly, we reject defendant\u2019s eleventh argument.\nIn his twelfth argument, defendant contends that his constitutional rights were violated by the prosecutor\u2019s gender-biased exercise of peremptory challenges. Defendant argues, essentially, that the prosecution\u2019s exercise of eight of twelve peremptory challenges against women makes a prima facie case of gender discrimination. In this instance, we conclude that defendant has not made aprima facie case demonstrating that the State exercised its peremptory challenges on the basis of gender.\nThe United States Supreme Court has held that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 82 (1986). The Supreme Court has stated that \u201c[i]ntentional discrimination on the basis of gender by state actors violates the Equal Protection Clause' particularly where . . . the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.\u201d J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, \u2014, 128 L. Ed. 2d 89, 98 (1994). Thus, the Supreme Court said, \u201cthe Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in the particular case for no reason other than the fact that the person happens to be a woman or happens to be a man.\u201d Id. at \u2014, 128 L. Ed. 2d at 107.\nAs with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional or purposeful discrimination before the party exercising the peremptory challenge is required to explain the basis for the strike. Id. at \u2014, 128 L. Ed. 2d at 106-07. Once the defendant makes his prima facie showing, the burden shifts to the State to come forward with a neutral explanation for having peremptorily challenged those jurors. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88. This Court has applied these principles and has permitted a third step in the analysis, specifically, that of allowing a defendant to introduce evidence that the State\u2019s explanations are merely a pretext. State v. Robinson, 330 N.C. 1, 16, 409 S.E.2d 288, 296 (1991).\nA party objecting on constitutional grounds to the challenge to a venireperson on the basis of gender establishes a prima facie case of purposeful discrimination first by showing that the peremptory challenge was exercised against a member of a constitutionally cognizable group. See Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87. Second, the party must demonstrate that this fact \u201cand any other relevant circumstances raise an inference\u201d that the offending party challenged the venireperson because of his or her group membership. Id. The burden then shifts to the offending party to articulate a nondiscriminatory reason related to the particular case to be tried for challenging the juror. Id. at 98, 90 L. Ed. 2d at 88. The trial court\u2019s findings regarding purposeful discrimination in the jury selection process are findings which we will not set aside unless clearly erroneous. Id. at 98 n.21, 90 L. Ed. 2d at 89 n.21; United States v. Power, 881 F.2d 733, 739 (9th Cir. 1989).\nIn the instant case, this issue arose at the point in the jury selection process when ten women and no men had been seated on the jury, and defendant had peremptorily challenged four women. The State had peremptorily challenged eight women. Defendant does not argue, and we cannot find, any factor other than the proportion of women challenged by the prosecutor to support his contention that the peremptory challenges were exercised solely on the basis of gender. The proportion of women challenged by the prosecutor in this case, standing alone, is insufficient to establish a prima facie case of gender discrimination. Under these circumstances, we conclude that defendant failed to carry his burden of establishing a prima facie case of gender discrimination in the prosecutor\u2019s exercise of her peremptory challenges. Accordingly, we reject defendant\u2019s twelfth argument.\nIn his thirteenth argument, defendant contends that his due process rights were violated when the court allowed the district attorney to secure a pledge from jurors that they could return the death penalty in this case \u201cwithout hesitation.\u201d\nDuring the jury selection process, the prosecutor asked virtually every prospective juror whether she or he could, if she or he determined the death penalty to be appropriate, return a recommendation of a sentence of death \u201cwithout hesitation.\u201d Defendant did not object to these questions by the prosecutor. Nevertheless, defendant now contends that the prosecutor staked out virtually every juror as to the ultimate issue in this case by asking for no less than a pledge from each juror that he or she could and would deliver the death penalty without hesitation. Any doubt about the prosecutor\u2019s intention, defendant contends, was dispelled in her closing argument in the penalty phase:\nAnd, I think without exception, during our jury selection process, I asked each and every one of you, if you go back there and you deliberate, and determine together with the rest of the jury whether that [sic] the death penalty is appropriate, can you come back into this courtroom and announce that without hesitation. Each of you assured me you could.\nDefendant argues that to allow the State to secure and play off such a pledge is a fundamental denial of his right to secure a fair trial and impartial jury.\nBecause defendant did not object to the questions or the prosecutor\u2019s argument to which he now assigns error, we shall consider defendant\u2019s argument under the plain error rule. See State v. Reeves, 337 N.C. 700, 729-30, 448 S.E.2d 802, 815 (1994), cert. denied, - U.S. -, 131 L. Ed. 2d 860 (1995). We believe that a reasonable interpretation of the prosecutor\u2019s question is whether the juror could recommend the death penalty if she or he found that the aggravating circumstances outweighed the mitigating circumstances and that the prosecutor\u2019s argument was intended only to remind jurors of their duty during the capital sentencing proceeding to recommend a sentence of death if the evidence supported this recommendation. Clearly, the jurors\u2019 understanding of their responsibilities was not diminished by the prosecutor\u2019s questions and argument, and no fundamental right to a fair trial was denied. We conclude that neither the prosecutor\u2019s questions nor jury argument were so grossly improper or egregious as to require the trial court to intervene in the absence of an objection by defense counsel. Accordingly, we reject defendant\u2019s thirteenth argument.\nIn his fourteenth argument, defendant contends that the trial court erred in allowing the prosecutor to ask defendant\u2019s witnesses questions designed to imply that defendant was a person of bad and violent character when no issue existed as to his character for violence prior to the time the question was asked.\nDuring cross-examination of defendant\u2019s mother in the penalty phase of defendant\u2019s trial, the prosecutor asked defendant\u2019s mother if she was aware that defendant had broken his wife\u2019s arm. Defendant\u2019s objection was overruled.\nCross-examination as to defendant\u2019s specific violent acts of conduct is not admissible unless it is introduced to rebut a pertinent trait of character when offered first by defendant. State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993). In the instant case, defendant contends that he never offered any evidence that he loved his wife or that he was a nonviolent person toward his wife or anyone else. Therefore, defendant argues that the prosecutor was not entitled to cross-examine defendant\u2019s mother on this issue since there was no evidence to rebut.\nIn State v. Warren, we said:\nGenerally, much latitude is given counsel on cross-examination to test matters related by a witness on direct examination. State v. Burgin, 313 N.C. 404, 329 S.E.2d 653 (1985). The scope of cross-examination is subject to two limitations: (1) the discretion of the trial court; and (2) the questions offered must be asked in good faith. State v. Dawson, 302 N.C. 581, 585, 276 S.E.2d 348, 351 (1981).\nWarren, 327 N.C. 364, 373, 395 S.E.2d 116, 121-22 (1990). In the instant case, defendant does not argue that the question asked of his mother was asked in bad faith. We conclude that the trial court did not abuse its discretion in permitting defendant\u2019s mother to answer the question, over defendant\u2019s objection, on cross-examination. Accordingly, we reject defendant\u2019s fourteenth argument.\nPRESERVATION ISSUES\nDefendant raises ten additional arguments which he concedes have been decided against him by this Court: (1) the trial court violated defendant\u2019s due process rights by denying his motion to inform jurors of parole eligibility; (2) the trial court\u2019s instructions defining the burden of proof applicable to mitigating circumstances violated defendant\u2019s rights because they used the inherently ambiguous and vague terms \u201csatisfaction\u201d and \u201csatisfy\u201d to define the burden of proof, thus permitting jurors to establish for themselves the legal standard to be applied to the evidence; (3) the trial court\u2019s instructions that permitted jurors to reject submitted mitigation on the basis that it had no mitigating value violated defendant\u2019s constitutional rights; (4) the trial court violated defendant\u2019s constitutional rights by denying him the right to further question potential jurors after they indicated they were opposed to the death penalty; (5) the trial court committed reversible constitutional error by submitting to the jury the \u201cespecially heinous, atrocious, or cruel\u201d aggravating circumstance based upon instructions that failed adequately to limit the application of this inherently vague and overbroad circumstance; (6) the trial court\u2019s use of the term \u201cmay\u201d in instructing on sentencing issues three and four violated defendant\u2019s rights in that it made consideration of proven mitigation discretionary with jurors; (7) the trial court\u2019s instruction to the jury that it must find both instances of conduct, that defendant shot an animal and fought in school, in order to find the statutory mitigating circumstance of no significant criminal activity violated defendant\u2019s rights; (8) the trial court erred in instructing the jury that the first four submitted mitigating circumstances were statutory and the rest nonstatutory, implying that the statutory circumstances were more important or carried more weight; (9) the trial court violated defendant\u2019s due process rights by denying his motion to inform jurors of parole eligibility; and (10) defendant\u2019s due process rights and right to a reliable capital sentencing proceeding were violated because the State\u2019s death penalty scheme is unconstitutional.\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 assignments of error.\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).\nIn the instant case, the jury found defendant guilty of first-degree murder under the theory of malice, premeditation, and deliberation, as well as under the felony murder rule. It also convicted defendant of first-degree kidnapping. The trial court submitted two aggravating circumstances to the jury: that the murder was committed while defendant was engaged in the commission of a kidnapping, N.C.G.S. \u00a7 15A-2000(e)(5), and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9). The jury found both aggravating circumstances to exist. 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; 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). We conclude that this case is not substantially similar to any case in which this Court has found the death penalty disproportionate.\nIn State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170, the trial court submitted and the jury found two aggravating circumstances: that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9), and that the murder was part of a course of conduct in which the defendant was engaged which included the commission by the defendant of other crimes of violence against another person or other persons, N.C.G.S. \u00a7 15A-2000(e)(11). The defendant had pointed a gun at the victim and taunted him for some two to three minutes before finally shooting him. Of importance to the Court in finding the death sentence disproportionate was that defendant immediately secured medical attention for the victim, directing the driver of the car to the hospital. 309 N.C. at 694, 309 S.E.2d at 182-83. By contrast, in the present case, the defendant tortured the victim for several hours before finally shooting him in the neck. Furthermore, defendant here did not seek medical attention for the victim. Instead, defendant threw the victim\u2019s hog-tied body into the Yadkin River after removing the two cinder blocks he had tied around the victim\u2019s neck since he could not lift the body with the cinder blocks tied to it.\nIn only one case where we have found the death penalty disproportionate, State v. Young, 312 N.C. 669, 325 S.E.2d 181, were multiple aggravating circumstances found to exist. State v. Gibbs, 335 N.C. 1, 73, 436 S.E.2d 321, 362-63 (1993), cert. denied, - U.S. -, 129 L. Ed. 2d 881 (1994). In Young, this Court focused on the jury\u2019s failure to find either the especially heinous, atrocious, or cruel aggravating circumstance, N.C.G.S. \u00a7 15A-2000(e)(9), or the course of conduct aggravating circumstance, N.C.G.S. \u00a7 15A-2000(e)(11). Id. In the instant case, however, the especially heinous, atrocious, or cruel circumstance was one of the two aggravating circumstances found by the jury.\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.\nThe aggravating circumstances found in this case have been present in other cases where this Court has found the sentence of death proportionate. See State v. Robinson, 342 N.C. 74, 463 S.E.2d 218 (1995) (the trial court submitted and the jury found two aggravating circumstances: that the murder was committed while defendant was engaged in the commission of or attempting to commit robbery with a firearm and first-degree kidnapping, N.C.G.S. \u00a7 15A-2000(e)(5), and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9)), cert. denied, - U.S. -, - L. Ed. 2d -, 64 U.S.L.W. 3763 (1996); State v. Frye, 341 N.C. 470, 461 S.E.2d 664 (1995) (the trial court submitted and the jury found two aggravating circumstances: that the murder was committed while defendant was engaged in a robbery with a dangerous weapon, N.C.G.S. \u00a7 15A-2000(e)(5), and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9)), cert. denied, - U.S. -, 134 L. Ed. 2d 526 (1996); State v. Simpson, 341 N.C. 316, 462 S.E.2d 191 (1995) (the trial court submitted and the jury found two aggravating circumstances: that the murder was committed while defendant was engaged in the commission of a robbery, N.C.G.S. \u00a7 15A-2000(e)(5), and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9)), cert. denied, - U.S. -, 134 L. Ed. 2d 194 (1996). In fact, in State v. Bacon, 337 N.C. 66, 446 S.E.2d 542 (1994), cert. denied, - U.S. -, 130 L. Ed. 2d 1083 (1996), this Court noted that it has affirmed death sentences based on four of the eleven aggravating circumstances when only one aggravating circumstance was submitted to and found by the jury. The (e)(5) and (e)(9) aggravating circumstances found by the jury in the instant case are among these four aggravating circumstances. Id. at 110 n.8, 446 S.E.2d at 566 n.8.\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 that defendant\u2019s death sentence is excessive or disproportionate. We hold that defendant received a fair trial and capital sentencing proceeding, free of prejudicial error.\nNO ERROR.\n. Of the four statutory mitigating circumstances, two were found to exist by one or more members of the jury. Of the twelve nonstatutory mitigating circumstances, five were found to exist by one or more members of the jury. The catchall mitigating circumstance was not found to exist by any member of the jury.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by David F. Hoke, Assistant Attorney General, for the State.", "W. David Lloyd for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOSEPH EARL BATES\nNo. 145A91-2\n(Filed 31 July 1996)\n1. Homicide \u00a7 555 (NCI4th)\u2014 first-degree murder \u2014 proof of premeditation and deliberation \u2014 instruction on second-degree murder not required\nThe State\u2019s evidence satisfied its burden of proof on the elements of premeditation and deliberation in a prosecution for first-degree murder, and the trial court did not err in refusing to instruct the jury on second-degree murder, where the evidence tended to show that defendant beat the victim with a shovel handle, bound him with ropes, and placed him in defendant\u2019s vehicle; when defendant stopped at his employer\u2019s house, he told a friend that he had in his truck a person who might know something about who shot into defendant\u2019s house and asked if he wanted to \u201chelp or watch\u201d; defendant then transported the victim to defendant\u2019s campsite, tied him to a tree, and questioned him at gunpoint; the victim was asking defendant what he had done and what was going on; after shooting the victim in the neck, defendant tied cement blocks to the victim\u2019s body and later threw the body over a bridge into a river; afterwards, defendant stated that what he had done did not bother him and that he could not let the victim go after what he had done to him; and defendant stated in his confession that he was not drunk or doing drugs at the time he shot the victim. Defendant\u2019s statements in his confession that the reason he shot the victim was because the victim acted like he knew who shot into his house, the victim spit on him and swore at him, and \u201cthis made me mad and I shot him\u201d did not show a lack of premeditation and deliberation which required the trial court to instruct on second-degree murder.\nAm Jur 2d, Homicide \u00a7\u00a7 496, 511.\nLesser-related state offense instructions: modern status. 50 ALR4th 1081.\nPropriety of lesser-included-offense charge to jury in federal criminal case \u2014 general principles. 100 ALR Fed. 481.\nPropriety of lesser-included-offense charge to jury in federal homicide prosecution. 101 ALR Fed. 615.\n2. Criminal Law \u00a7 1363 (NCI4th)\u2014 capital sentencing \u2014 non-statutory mitigating circumstances \u2014 circumstances unlikely to recur \u2014 emotional fear \u2014 insufficient evidence\nThe trial court did not err by refusing to submit to the jury in a capital sentencing proceeding defendant\u2019s proposed mitigating circumstances that his criminal conduct was the result of circumstances unlikely to recur and that he was suffering emotional fear at the time of the offense because he believed his life was in danger where no evidence in the record suggested that defendant\u2019s depression, personality disorder, or alcohol abuse were unlikely to recur, and there was insufficient evidence of the emotional fear circumstance where the victim was hog-tied and strapped to a tree at the time defendant shot and killed him.\nAm Jur 2d, Criminal Law \u00a7 628.\nComment Note. \u2014 Mental or emotional condition as diminishing responsibility for crime. 22 ALR3d 1228.\nModern status of test of criminal responsibility \u2014 state cases. 9 ALR4th 526.\nValidity of death penalty, under Federal Constitution, as affected by consideration of aggravating or mitigating circumstances \u2014 Supreme Court cases. Ill L. Ed. 2d 947.\n3. Criminal Law \u00a7 1363 (NCI4th)\u2014 capital sentencing \u2014 non-statutory mitigating circumstances \u2014 influence of alcohol\u2014 subsumption by statutory circumstances submitted\nThe trial court did not err by refusing to submit to the jury in a capital sentencing proceeding defendant\u2019s proposed mitigating circumstances that he was under the influence of alcohol at the time of the offense and that the influence of alcohol on defendant\u2019s life was significant where the proposed circumstances were subsumed by the statutory mental or emotional disturbance and impaired capacity mitigating circumstances submitted to the jury. N.C.G.S. \u00a7\u00a7 15A-2000(f)(2), 15A-2000(f)(6).\nAm Jur 2d, Criminal Law \u00a7 628.\nModern status of the rules as to voluntary intoxication as defense to criminal charge. 8 ALR3d 1236.\nComment Note. \u2014 Mental or emotional condition as diminishing responsibility for crime. 22 ALR3d 1228.\nEffect of voluntary drug intoxication upon criminal responsibility. 73 ALR3d 98.\n4. Criminal Law \u00a7 680 (NCI4th)\u2014 capital sentencing \u2014 non-statutory mitigating circumstances \u2014 peremptory instructions not required\nThe trial court did not err by refusing to give peremptory instructions on mitigating circumstances that defendant was one of seven children reared by poor, hardworking parents and he worked to help out the family while at home, and that before his marital problems, defendant was kind, friendly, and compassionate since the evidence relating to those circumstances was not uncontroverted.\nAm Jur 2d, Criminal Law \u00a7 628.\nValidity of death penalty, under Federal Constitution, as affected by consideration of aggravating or mitigating circumstances \u2014 Supreme Court cases. Ill L. Ed. 2d 947.\n5. Criminal Law \u00a7 1339 (NCI4th)\u2014 capital sentencing \u2014 aggravating circumstances \u2014 heinous, atrocious, or cruel murder \u2014 murder while committing kidnapping \u2014 different evidence\nThe same evidence was not used in a capital sentencing proceeding to support the N.C.G.S. \u00a7 15A-2000(e)(5.) aggravating circumstance that the murder was committed while defendant was engaged in the commission of a felony (kidnapping) and the N.C.G.S. \u00a7 15A-2000(e)(9) aggravating circumstance that the murder was especially heinous, atrocious, or cruel, even though the trial court instructed the jury that it must find defendant guilty of kidnapping the victim for the purpose of terrorizing him in order to find the (e)(5) circumstance, where (1) the evidence establishing the especially heinous, atrocious, or cruel circumstance concerned the brutality of the murder in that it tended to show that defendant hit the victim over the head several times with a shovel handle; the victim suffered for hours before being killed; defendant hog-tied the victim, laid the victim out on the ground, tied the victim to a tree, and placed a gun to his throat while interrogating him; and after beating and interrogating the victim at gunpoint for several hours, defendant shot the victim in the neck, and (2) the kidnapping was shown by evidence that defendant loaded the victim into his truck and took him to his employer\u2019s house, and the purpose to terrorize the victim was shown by evidence that defendant invited his employer and another person to participate or watch him as he got answers from the victim, that defendant had earlier expressed to a third person his intent to get answers from the victim, and that defendant carried out this intent by interrogating the victim at gunpoint.\nAm Jur 2d, Criminal Law \u00a7 628.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like \u2014 gost-Gregg cases. 63 ALR4th 478.\nSufficiency of evidence, for death penalty purposes, to establish statutory aggravating circumstance that murder was committed in course of committing, attempting, or fleeing from other offense, and the like \u2014 pos e-Gregg cases. 67 ALR4th 887.\nValidity of death penalty, under Federal Constitution, as affected by consideration of aggravating or mitigating circumstances \u2014 Supreme Court cases. Ill L. Ed. 2d 947.\n6. Criminal Law \u00a7 1320 (NCI4th)\u2014 capital sentencing \u2014 two aggravating circumstances \u2014 consideration of same evidence prohibited \u2014 failure to instruct \u2014 no plain error\nThe trial court did not commit plain error by failing to instruct the jury that it could not consider the same evidence in support of the (e)(5) aggravating circumstance that the murder was committed while defendant was engaged in a kidnapping and the (e)(9) aggravating circumstance that the murder was especially heinous, atrocious, or cruel in light of the strong evidence in the case, including evidence of psychological torture, and the fact that there was independent evidence supporting each aggravating circumstance.\nAm Jur 2d, Criminal Law \u00a7 628; Trial \u00a7 1441.\n7. Criminal Law \u00a7 427 (NCI4th)\u2014 capital sentencing \u2014 prosecutor\u2019s argument \u2014 defendant\u2019s demeanor \u2014 no comment on failure to testify\nThe prosecutor did not suggest that defendant should take the stand and improperly comment on defendant\u2019s failure to testify by her argument in a capital sentencing proceeding about defendant\u2019s lack of remorse and his absence of emotion when the victim\u2019s mother, defendant\u2019s mother, and his sister cried on the stand. Rather, the prosecutor was commenting on the demeanor of the defendant, which was before the jury at all times, and the trial court did not err by failing to intervene ex mero mo tu.\nAm Jur 2d, Trial \u00a7\u00a7 577-587.\nViolation of federal constitutional rule (Griffin v. California) prohibiting adverse comment by prosecutor or court upon accused\u2019s failure to testify, as constituting reversible or harmless error. 24 ALR3d 1093.\nFailure to object to improper questions or comments as to defendant\u2019s pretrial silence or failure to testify as constituting waiver of right to complain of error \u2014 modern cases. 32 ALR4th 774.\nSupreme Court\u2019s views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L. Ed. 2d 886.\n8. Jury \u00a7 132 (NCI4th)\u2014 voir dire \u2014 defendant\u2019s election not to testify \u2014 exclusion of question \u2014 no abuse of discretion\nThe trial court did not unduly restrict defendant\u2019s voir dire of prospective jurors in a capital trial and thus did not abuse its discretion by sustaining an objection to one question to the jury panel regarding whether the prospective jurors would hold defendant\u2019s election not to testify against him where defendant did not exhaust his peremptory challenges; after the objection was sustained, defendant was allowed to ask other questions related to his election not to testify; and the trial court correctly instructed the jury that defendant\u2019s decision not to testify could not be used against him.\nAm Jur 2d, Jury \u00a7 206.\nEffect of accused\u2019s federal constitutional rights on scope of voir dire examination of prospective jurors\u2014 Supreme Court cases. 114 L. Ed. 2d 763.\n9. Criminal Law \u00a7 463 (NCI4th)\u2014 capital sentencing \u2014 prosecutor\u2019s arguments \u2014 no gross impropriety\nThe prosecutor\u2019s jury arguments in a capital sentencing proceeding that one of defendant\u2019s motives in killing the victim was to prevent the victim from testifying against him, that a picture of the victim showed that the victim had beautiful hands and \u201cwe had to cut them off to find out who he was,\u201d and that the jury could imagine the devastation suffered by the victim\u2019s mother when a law officer knocked on her door were not so grossly improper as to have required intervention ex mero mo tu by the trial court.\nAm Jur 2d, Trial \u00a7 554.\nSupreme Court\u2019s views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L. Ed. 2d 886.\n10. Evidence and Witnesses \u00a7 1240 (NCI4th)\u2014 prearrest statements at police station \u2014 defendant not in custody\u2014 Miranda warnings not required\nDefendant was not in custody at the time he made three prearrest statements to law officers so that Miranda warnings were not required and those statements thus did not taint a subsequent statement made by defendant after he had been given the Miranda warnings where the trial court made findings supported by evidence that the defendant agreed to talk with law enforcement officers and agreed to go to the Sheriff\u2019s Department; defendant drove to the Sheriff\u2019s Department, accompanied by a friend; when defendant arrived, he spoke with three law enforcement officers; the officers thanked defendant for coming to the Sheriff\u2019s Department and told defendant that he was not under arrest and was free to leave at any time; the officers spoke to defendant for approximately forty minutes, during which time defendant told three different stories about what happened on the night in question; thereafter, defendant went to the bathroom alone; after defendant returned from the bathroom, the officers asked defendant if he would tell the truth, and defendant said that he would; defendant was then advised of his Miranda rights, and defendant signed a written waiver of those rights; and defendant was given a drink and cigarettes throughout the interview.\nAm Jur 2d, Criminal Law \u00a7\u00a7 788 et seq.; Evidence \u00a7 749.\nWhat constitutes \u201ccustodial interrogation\u201d within rule of Miranda v. Arizona requiring that suspect be informed of his federal constitutional rights before custodial interrogation. 31 ALR3d 565.\n11. Jury \u00a7 142 (NCI4th)\u2014 voir dire \u2014 hypothetical question\u2014 improper attempt to stake our jurors\nThe trial court did not err in refusing to permit defendant to ask prospective jurors in a capital trial whether, if they thought all the evidence and all the factors supported voting for life imprisonment, they would vote for life imprisonment even if eleven other jurors felt that death was appropriate since the question attempted to place jurors in a hypothetical situation of being deadlocked eleven to one and to stake out jurors to a certain position.\nAm Jur 2d, Jury \u00a7\u00a7 208, 209.\nPropriety and effect of asking prospective jurors hypothetical questions, on voir dire, as to how they would decide issues of case. 99 ALR2d 7.\n12. Evidence and Witnesses \u00a7 1695 (NCI4th)\u2014 photographs of decomposed body \u2014 admissibility for illustrative purposes\nThe trial court did not violate defendant\u2019s due process rights to a fair trial and a reliable sentencing proceeding by allowing the State to introduce a number of photographs of a murder victim\u2019s hog-tied body in a state of advanced decomposition, including photographs taken after the victim\u2019s body was retrieved from a river and at the autopsy, since the photographs were admissible to illustrate a pathologist\u2019s testimony with regard to the condition of the victim\u2019s body when found and the wounds it had sustained.\nAm Jur 2d, Homicide \u00a7\u00a7 416 et seq.\nAdmissibility of photograph of corpse in prosecution for homicide or civil action for causing death. 73 ALR2d 769.\n13. Jury \u00a7 257 (NCI4th)\u2014 peremptory challenges of women\u2014 gender discrimination \u2014 prima facie case not shown\nThe prosecutor\u2019s exercise of eight of twelve peremptory challenges against women,- standing alone, was insufficient to establish a prima facie case of gender discrimination in this capital trial.\nAm Jur 2d, Jury \u00a7 245; Criminal Law \u00a7 683.\nExclusion of women from grand or trial jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction. 9 ALR2d 661.\nSex discrimination in jury selection \u2014 Supreme Court cases. 128 L. Ed. 2d 919.\n14. Jury \u00a7 153 (NCI4th)\u2014 capital trial \u2014 jury selection \u2014 prosecutor\u2019s question and argument \u2014 ability to return death penalty \u201cwithout hesitation\u201d \u2014 no gross impropriety\nDefendant\u2019s due process rights were not violated, and there was no gross impropriety requiring the trial court to intervene ex mero motu, when the prosecutor asked prospective jurors whether, if they determined the death penalty to be appropriate, they could recommend a sentence of death \u201cwithout hesitation\u201d and argued this pledge to the jury, since a reasonable interpretation of the prosecutor\u2019s question is whether each juror could recommend the death penalty if he or she found that the aggravating circumstances outweighed the mitigating circumstances, and the prosecutor\u2019s argument was intended only to remind jurors of their duty during the capital sentencing proceeding to recommend a sentence of death if the evidence supported this recommendation.\nAm Jur 2d, Jury \u00a7 199.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post -Witherspoon cases. 39 ALR3d 550.\n15. Criminal Law \u00a7 1309 (NCI4th)\u2014 capital sentencing \u2014 cross-examination of defendant\u2019s mother \u2014 bad act by defendant \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in allowing the prosecutor to ask defendant\u2019s mother on cross-examination in a capital sentencing proceeding if she was aware that defendant had broken his wife\u2019s arm where there was no contention that the question was asked in bad faith.\nAm Jur 2d, Trial \u00a7 500.\n16. Criminal Law \u00a7 1373 (NCI4th)\u2014 death penalty not disproportionate\nA sentence of death imposed upon defendant for first-degree murder was not excessive or disproportionate to the penalty imposed in similar cases where the jury found defendant guilty under the theory of malice, premeditation, and deliberation and also under the felony murder rule; the jury found as aggravating circumstances that the murder was committed while defendant was engaged in the commission of a kidnapping and that it was especially heinous, atrocious, or cruel; defendant bound the victim\u2019s arms and legs behind his back, tied him to a tree, and tortured him for several hours before finally shooting him in the neck; defendant did not seek medical attention for the victim; and defendant threw the victim\u2019s bound body into a river after removing two cement blocks he had tied around the victim\u2019s neck because he could not lift the body with the cement blocks tied to it.\nAm Jur 2d, Criminal Law \u00a7 628.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like \u2014 post-Gregg cases. 63 ALR4th 478.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Rousseau, J., at the 31 October 1994 Criminal Session of Superior Court, Yadkin County, upon a jury verdict of guilty of first-degree murder. Heard in the Supreme Court 11 April 1996.\nMichael F. Easley, Attorney General, by David F. Hoke, Assistant Attorney General, for the State.\nW. David Lloyd for defendant-appellant." }, "file_name": "0564-01", "first_page_order": 612, "last_page_order": 651 }