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Ed. 2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "328-29" }, { "page": "239" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 2379, "char_count": 110805, "ocr_confidence": 0.743, "pagerank": { "raw": 3.4134844496295585e-07, "percentile": 0.878236144269415 }, "sha256": "525677bb8222395d0a1a33d400b989990951466628cf451ddc359f1965576bc3", "simhash": "1:0353c932b61e9950", "word_count": 18309 }, "last_updated": "2023-07-14T22:15:37.608853+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOHN ROBERT ELLIOTT" ], "opinions": [ { "text": "PARKER, Justice.\nDefendant John Robert Elliott was tried capitally on an indictment charging him with the first-degree murder of Brandie Jean Freeman (\u201cBrandie\u201d). The jury returned a verdict finding defendant guilty as charged based on premeditation and deliberation. The jury also found defendant guilty of felony child abuse. Following a capital sentencing proceeding pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended that defendant be sentenced to death for the murder; and the trial court entered judgment accordingly. The trial court also sentenced defendant to a term of ten years\u2019 imprisonment for felony child abuse. For the reasons discussed herein, we conclude that the jury selection, guilt-innocence phase, and sentencing proceeding of defendant\u2019s trial were free from prejudicial error and that the death sentence is not disproportionate. Accordingly, we uphold defendant\u2019s conviction and sentence for first-degree murder and his conviction and sentence for felony child abuse.\nBrandie Jean Freeman was two years old at the time of her death. Defendant was the boyfriend of Brandie\u2019s mother, Bobbie Linker. Soon after moving into their home in November of 1992, defendant began taking care of Brandie while her mother was at work. Ms. Linker permitted defendant to discipline Brandie; and the evidence suggested that Brandie sustained bruises, black eyes, and other injuries while in defendant\u2019s care. After Ms. Linker became concerned that defendant was spanking Brandie too hard, defendant began using the \u201cpunishment position,\u201d a form of discipline described by witnesses as requiring Brandie to lie on her stomach with her arms and legs raised for ten to twenty minutes.\nOn the morning of 3 January 1993, Bobbie Linker went to work and left Brandie in defendant\u2019s care. Several hours later Brandie woke defendant and told him that she had \u201cpoopied\u201d in her pants. This made defendant angry. Defendant cleaned and changed the victim and told her to assume the punishment position. Defendant went to the kitchen to get a glass of water for himself. When defendant returned Brandie was in the punishment position with her head raised. Defendant grabbed Brandie by the hair on the back of her head and slammed her head to the floor six or seven times.\nDefendant asked the child if she was okay, and Brandie attempted to raise her arm and put it around defendant\u2019s neck. When defendant failed to get any further response from Brandie, he shook her, slapped her, and hit her in what he claimed was an effort to obtain a response. As part of this effort, defendant took Brandie to the bathroom, where he ran water over her and continued to hit and slap the child repeatedly.\nAt 11:45 a.m., forty-five minutes after slamming Brandie\u2019s head to the floor, defendant called Bobbie Linker and asked her if she could come home. Defendant explained that Brandie had \u201cfallen again.\u201d When Ms. Linker arrived at her house, Brandie appeared lifeless. Defendant told Ms. Linker that Brandie had fallen off a bed.\nDefendant and Ms. Linker drove Brandie to Rowan Memorial Hospital. Because of the severe nature of her injuries, Brandie was transferred to Baptist Hospital in Winston-Salem, where she died the following day.\nDr. David Skowronek, ah expert in emergency medicine, treated Brandie in the emergency room at Rowan Memorial Hospital. Skowronek observed a severe head injury and saw bruises on Brandie\u2019s cheeks, eyes, pubic area, buttocks, feet, and the entire front of her chest. Skowronek testified that there was absolutely no way that Brandie could have sustained her injuries merely by falling off a bed.\nDr. Sarah Sinai, an expert in pediatrics and child abuse, examined Brandie after her death. Sinai observed a massive head injury; bruises over the entire course of the body; a fracture of the left wrist; and a ruptured frenulum, the membrane that attaches the lip to the gum. Sinai noticed that a great deal of hair had been forcefully pulled from Brandie\u2019s head. Sinai testified that almost all Brandie\u2019s injuries would not occur in the course of a normal child\u2019s life without someone\u2019s knowing they had happened and that the injuries could not have been sustained by falling off a bed which was seventeen inches high. In Sinai\u2019s opinion the injuries suffered by Brandie were consistent with the \u201cbattered child syndrome.\u201d Sinai opined that many of the blows to the head would have been very painful and that Brandie was probably conscious if she was able to lift her arm in an attempt to put it around defendant\u2019s neck.\nDr. Donald Jason performed an autopsy on 5 January 1993. Jason observed a substantial, forceful, blunt-force injury to the head which required more than one blow. The cause of death was the massive head injury. Jason also found multiple injuries to Brandie\u2019s chest, back, buttocks, arms, and legs. Microscopic examination of Brandie\u2019s head revealed that thirty percent of Brandie\u2019s hair had been pulled from her scalp. Brandie\u2019s injuries were consistent with having her head slammed to the floor several times while lying in a prone position on the floor.\nDefendant testified during the guilt-innocence phase. According to defendant Brandie woke him to tell him that she had \u201cpoopied\u201d in her pants. Angry, defendant cleaned Brandie, changed her, and told her to get in the punishment position. Defendant went to the kitchen to get a drink of water. When he returned Brandie did not have her head down, so he grabbed her by the hair on the back of her head and pushed her head to the floor three or four times. Contradicting evidence offered by the State which suggested that he was \u201ccoming off crack\u201d cocaine at the time of the killing, defendant stated that he did not use crack cocaine on the day of the killing.\nDuring the sentencing proceeding the State initially relied on the evidence presented during the guilt-innocence phase.\nDefendant presented evidence that he had no infractions at Central Prison, that his school records suggested no disciplinary problems, and that he was a good employee. Defendant also presented numerous witnesses who testified to his good character, his loving relationships with family and friends, and his good relationship with Brandie.\nDefendant also offered the testimony of Dr. John Warren, an expert in forensic psychology. Warren testified that defendant had substance abuse problems; that defendant\u2019s long-term use of marijuana and cocaine could cause him to be irritable; and that if defendant was \u201ccoming off crack\u201d cocaine, his ability to conform his behavior to the dictates of the law could have been impaired.\nIn rebuttal the State presented the testimony of Oscar Edwards, who had been one of defendant\u2019s supervisors at Lothridge Plumbing Company. Edwards stated that on one occasion defendant cursed him, pushed him, and knocked his glasses off his head when he corrected defendant on the job.\nAdditional facts will be presented as necessary to address specific issues.\nJURY SELECTION\nBy several assignments of error, defendant contends that the trial court abused its discretion by unduly restricting his voir dire of prospective jurors. \u201cThe voir dire of prospective jurors serves a twofold purpose: (i) to determine whether a basis for challenge for cause exists, and (ii) to enable counsel to intelligently exercise peremptory challenges.\u201d State v. Gregory, 340 N.C. 365, 388, 459 S.E.2d 638, 651 (1995), cert. denied,-U.S. -, 134 L. Ed. 2d 478 (1996). \u201cRegulation of the manner and the extent of inquiries on voir dire rests largely in the trial court\u2019s discretion.\u201d State v. Green, 336 N.C. 142, 164, 443 S.E.2d 14, 27, cert. denied,-U.S.-, 130 L. Ed. 2d 547 (1994). \u201cIn order for the defendant to show reversible error, he must show that the trial court abused its discretion and that he was prejudiced thereby.\u201d State v. Jones, 339 N.C. 114, 134, 451 S.E.2d 826, 835 (1994), cert. denied,-U.S. -, 132 L. Ed. 2d 873 (1995).\nDefendant argues that the trial court erred by sustaining objections to questions which inquired into the ability of prospective jurors to stand by their convictions during jury deliberations. In the first instance cited by defendant, the trial court sustained an objection to the form of the following question:\nIn other words, if you believe something, you don\u2019t have to just change over because ten others did or nine voted a certain way. If you strongly believe in your heart that particular thing, that you can remain steadfast in that and will each of you do that particular thing?\n\u201cCounsel may not pose hypothetical questions designed to elicit in advance what the juror\u2019s decision will be under a certain state of the evidence or upon a given state of facts.\u201d State v. Vinson, 287 N.C. 326, 336, 215 S.E.2d 60, 68 (1975), death sentence vacated, 428 U.S. 902, 49 L. Ed. 2d 1206 (1976). \u201c[S]uch questions tend to \u2018stake out\u2019 the juror and cause him to pledge himself to a future course of action.\u201d Id. In State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981), the defendant asked a question which required each prospective juror to assume that he had formed the opinion that the defendant was not guilty after the State presented all of its evidence. The defendant\u2019s question asked whether any juror would change his opinion simply because the eleven other jurors were of the opinion defendant was guilty. Id. at 118-19, 277 S.E.2d at 395. We concluded that this question could not reasonably be expected to result in an answer bearing on the qualification of the juror and that the question was designed to commit the juror to a fixed position in regard to the evidence. Id. A question which is designed to determine how well a prospective juror would stand up to other jurors in the event of a split decision amounts to an impermissible \u201cstake out.\u201d State v. Syriani, 333 N.C. 350, 374, 428 S.E.2d 118, 130, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993). The excluded question in this case seems to be designed to determine how well prospective jurors would stand up to other jurors in the event of a split decision. For this reason the trial court did not abuse its discretion in sustaining the objection to the form of the question.\nDefendant\u2019s next question asked the following: \u201cWill each of you make up your own mind about each and every aspect of this case?\u201d The trial court sustained the State\u2019s objection to the form of this question. \u201c[H]ypothetical questions so phrased as to be ambiguous and confusing or containing incorrect or inadequate statements of the law are improper and should not be allowed.\u201d Vinson, 287 N.C. at 336, 215 S.E.2d at 68. While each juror is required to make his or her own decisions about a case, each juror also has a duty to deliberate with other jurors with a view to reaching an agreement. See N.C.G.S. \u00a7 15A-1235(b) (1988). In the context of this portion of defendant\u2019s voir dire, the excluded question may have had the tendency to suggest that jurors should make decisions without considering the opinions of other jurors. For this reason the trial court did not abuse its discretion in sustaining the objection to the form of defendant\u2019s question. Furthermore, a careful review of the transcript of the voir dire shows that the trial court permitted defendant to explore this panel of prospective jurors\u2019 understanding of their right to reach their own opinions. In response each prospective juror indicated he or she understood that each juror had one vote, that no one juror\u2019s vote was stronger than any other juror\u2019s vote, and that each juror had a right to remain steadfast to his or her own resolve about a particular issue. Accordingly, defendant cannot show any prejudicial error in the trial court\u2019s ruling.\nDefendant next argues that the trial court erred in restricting his voir dire of prospective juror Bryant. The following exchange occurred between defendant and Bryant:\n[D]o you understand . . . that while the law requires you to deliberate with the other jurors in order to try to reach a unanimous decision, that you do have the right to stand by your beliefs in this case?\nA. That\u2019s exactly right.\nQ. And you would do that?\n[Prosecutor]: Objection.\nThe Court: Sustained.\nBryant informed defendant that he understood his right to stand by his beliefs during jury deliberations. The question excluded by the court prevented defendant from asking Bryant whether he would do so in this case. This question amounted to an impermissible attempt to \u201cstake out\u201d the prospective juror. Vinson, 287 N.C. at 336, 215 S.E.2d at 68. Accordingly, the trial court did not abuse its discretion in sustaining the objection to the excluded question.\nNext, defendant argues that the trial court erred by preventing defense counsel from asking the prospective jurors whether they would \u201chold to\u201d the presumption of innocence. The presumption of innocence \u201cis an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created.\u201d Coffin v. United States, 156 U.S. 432, 459, 39 L. Ed. 481, 493 (1895), quoted in State v. Marley, 321 N.C. 415, 425, 364 S.E.2d 133, 139 (1988). The question asking prospective jurors whether they would \u201chold to\u201d the presumption of innocence may have suggested that jurors should do so without considering the evidence offered by the State to overcome the presumption. If so, the question amounted to an impermissible attempt to \u201cstake out\u201d the jurors. Vinson, 287 N.C. at 336, 215 S.E.2d at 68. For this reason we conclude that the trial court did not abuse its discretion in sustaining the objection. This assignment of error is overruled.\nDefendant next Assigns as error the trial court\u2019s refusal to permit him to define first-degree murder or malice for prospective jurors. Defendant argues that a defendant has the right to inquire whether prospective jurors would have difficulty following the law and that a defendant must be able to ask questions which state the law in order to do this properly.\nThe trial court sustained an objection to defendant\u2019s attempt to inform the jury that first-degree murder\nis the killing of another human being with malice, which I think the judge will explain to you later is an evil intent, ill will \u2014 with malice with premeditation . . . and with deliberation.\nLater, the trial court sustained an objection to defendant\u2019s attempt to define malice by stating that it generally \u201cmeans with ill will.\u201d The trial court ruled that it would not allow defendant to explain malice to the prospective jurors and sustained the State\u2019s objections to further attempts by defendant during voir dire to define first-degree murder or malice.\n\u201cMalice is not only hatred, ill-will, or spite, as it is ordinarily understood \u2014 to be sure that is malice \u2014 but it also means that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification.\u201d State v. Benson, 183 N.C. 795, 799, 111 S.E. 869, 871 (1922), overruled on other grounds by State v. Phillips, 264 N.C. 508, 142 S.E.2d 337 (1965). Defendant\u2019s attempt to define malice as simply meaning ill will did not provide the jury with a complete statement of the law. Furthermore, it is well within the discretion of the trial court to prohibit counsel from instructing prospective jurors on the law during voir dire. State v. Huffstetler, 312 N.C. 92, 103, 322 S.E.2d 110, 118 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985). Defendant did not ask the trial court to define first-degree murder or malice for the prospective jurors. After careful review of the transcript, we con-elude that the trial court did not abuse its discretion by preventing defendant from doing so. This assignment of error is overruled.\nDefendant next contends that the trial court erred in denying defendant\u2019s pretrial motion to permit voir dire of prospective jurors on their perceptions of parole eligibility. Defendant\u2019s argument on this issue has previously been rejected by this Court. State v. Payne, 337 N.C. 505, 516, 448 S.E.2d 93, 99 (1994), cert. denied,-U.S.-, 131 L. Ed. 2d 292 (1995). Since defendant would have been eligible for parole if given a life sentence, the decision in Simmons v. South Carolina, 512 U.S. 154, 129 L. Ed. 2d 133 (1994), does not affect our position on this issue. Id. at 516-17, 448 S.E.2d at 99-100. This assignment of error is overruled.\nDefendant also contends that the trial court erred by not granting defendant\u2019s pretrial motion to instruct the jury on parole eligibility. \u201cThis Court has consistently held that the possibility of parole is not a relevant issue during jury selection, closing argument, or jury deliberation in a capital sentencing proceeding.\u201d State v. Bacon, 337 N.C. 66, 98, 446 S.E.2d 542, 558 (1994), cert. denied,-U.S.-, 130 L. Ed. 2d 1083 (1995). This assignment of error is overruled.\nDefendant next contends that the trial court erred by restricting defendant\u2019s voir dire of prospective jurors with respect to their ability to consider a sentence of life imprisonment. Defendant argues that by preventing defendant from asking the excluded questions, defendant\u2019s right to life-qualify the jury was improperly restricted. See Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492 (1992); State v. Conner, 335 N.C. 618, 440 S.E.2d 826 (1994). We conclude that defendant has failed to show any prejudicial error.\nDefendant argues that the trial court erred by disallowing two questions asking prospective juror Bryant whether he could think of any situ\u00e1tion where he could vote to impose a sentence other than death for first-degree murder. \u201cCounsel should not fish for answers to legal questions before the judge has instructed the juror on applicable legal principles by which the juror should be guided. . . . Jurors should not be asked what kind of verdict they would render under certain named circumstances.\u201d State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980), quoted in State v. Robinson, 339 N.C. 263, 273, 451 S.E.2d 196, 202 (1994), cert. denied,-U.S.-, 132 L. Ed. 2d 818 (1995). In Robinson the trial court sustained an objection to a question asking prospective jurors whether they could follow the trial court\u2019s instructions even though the defendant had killed three people and had a previous conviction for first-degree murder. Robinson, 339 N.C. at 272, 451 S.E.2d at 202. The Court found that the defendant\u2019s question was \u201can improper attempt to \u2018stake out\u2019 the jurors as to their answers to legal questions before they are informed of legal principles applicable to their sentencing recommendation.\u201d Id. at 273, 451 S.E.2d at 202. In the present case we conclude that the questions asking prospective juror Bryant whether he could think of any situation where he could vote to impose a sentence other than death for first-degree murder were an impermissible attempt to determine what kind of verdict he would render under certain circumstances.\nDefendant also argues that the trial court erred by sustaining the State\u2019s objections to questions asked of prospective juror Legge. The transcript shows that defendant was permitted to ask Legge whether she would automatically impose the death penalty and that she answered by stating that she would follow the instructions given by the trial court. Legge stated that the fact that child abuse was involved would not change her answer. Defendant cannot show that any error in restricting further voir dire of Legge was prejudicial. Defendant exercised a peremptory challenge to excuse Legge. Furthermore, defendant did not exhaust his peremptory challenges in selecting the twelve jurors who decided his case. Accordingly, defendant cannot show any prejudicial error in the trial court\u2019s rulings restricting voir dire of prospective juror Legge. This assignment of error is overruled.\nGUILT-INNOCENCE PHASE\nIn his next assignment of error, defendant contends that the trial court erred in denying defendant\u2019s motion to dismiss the charge of first-degree murder on the grounds that there was insufficient evidence of specific intent to kill and insufficient evidence of deliberation. Defendant argues that he was provoked by Brandie\u2019s conduct and that he could not have formed a specific intent to kill in a cool state of blood.\nIn ruling on a motion to dismiss a first-degree murder charge, the trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom. State v. Jackson, 317 N.C. 1, 22, 343 S.E.2d 814, 827 (1986), judgment vacated on other grounds, 479 U.S. 1077, 94 L. Ed. 2d 133 (1987). Substantial evidence must be introduced tending to prove the essential elements of the crime charged and that defendant was the perpetrator. Id. The evidence may contain contradictions or discrepancies; these are for the jury to resolve and do not require dismissal. Id. at 22-23, 343 S.E.2d at 827.\nState v. Truesdale, 340 N.C. 229, 234, 456 S.E.2d 299, 302 (1995).\nFirst-degree murder \u201cis the unlawful killing of a human being with malice and with premeditation and deliberation.\u201d State v. Fleming, 296 N.C. 559, 562, 251 S.E.2d 430, 432 (1979). \u201cPremeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation.\u201d Conner, 335 N.C. at 635, 440 S.E.2d at 835-36. \u201cDeliberation means an 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 lawful or just cause or legal provocation.\u201d Id. at 635, 440 S.E.2d at 836. \u201cThe phrase \u2018cool state of blood\u2019 means that the defendant\u2019s anger or emotion must not have been such as to overcome the defendant\u2019s reason.\u201d State v. Thomas, 332 N.C. 544, 560-61, 423 S.E.2d 75, 84 (1992).\n\u201cPremeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence.\u201d State v. Brown, 315 N.C. 40, 59, 337 S.E.2d 808, 822-23 (1985), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988). In the present case the evidence tended to show that defendant grabbed the two-year-old victim by the hair on the back of her head and forcefully slammed her head to the floor six or seven times. Viewing this evidence in the light most favorable to the State, the jury could have concluded that defendant knew that this conduct would result in Brandie\u2019s death and that he intended to kill her. See State v. Greene, 332 N.C. 565, 572-73, 422 S.E.2d 730, 734 (1992).\nThe evidence was sufficient to permit the jury to conclude that defendant acted with deliberation. The evidence tended to show that defendant became angry when Brandie soiled her pants and failed to keep her head on the floor while in the punishment position. Defendant went into the kitchen to get a glass of water after instructing Brandie to assume the punishment position and before grabbing her head and repeatedly slamming it to the floor. This evidence, when viewed in the light most favorable to the State, permitted the jury to conclude that defendant formed the intent to kill and carried out that intent in a cool state of blood and not as a result of a violent passion attributable to sufficient provocation. We conclude that the evidence was sufficient to support a verdict of guilty of first-degree murder based on premeditation and deliberation. This assignment of error is without merit.\nIn his next assignment of error, defendant contends that the trial court committed plain error in its instruction on malice. After defining malice the trial court gave the following instruction:\nMalice may be implied from the evidence that the deceased\u2019s death resulted from an attack by hand alone without the use of other weapons when the attack was made by a strong or mature person upon a weaker or defenseless person.\nDefendant contends that this instruction unconstitutionally reduced the State\u2019s burden of proof on malice. As defendant did not object to this instruction at trial, defendant must show plain error. \u201c[T]he term \u2018plain error\u2019 does not simply mean obvious or apparent error.\u201d State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993); accord State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). \u201cIn order to rise to the level of plain error, the error in the trial court\u2019s instructions must be so fundamental that (i) absent the error, the jury would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.\u201d State v. White, 340 N.C. 264, 299, 457 S.E.2d 841, 862, cert. denied,-U.S.-, 133 L. Ed. 2d 436 (1995); accord Collins, 334 N.C. at 62, 431 S.E.2d at 193. We conclude that the trial court\u2019s instruction on malice did not constitute error, much less plain error.\nDefendant argues that the instruction created a conclusive presumption of malice. The instruction informed the jury that it could infer malice from an attack by hand alone when the attack was made by a strong or mature person upon a weaker or defenseless person. This charge permitted the jury to infer malice from the evidence presented in this case but did not require the jury to do so.\nDefendant further argues that it is unreasonable to infer malice from evidence that an adult attacked a child by hand alone. This Court has previously stated that malice may be inferred from the \u201cwillful blow by an adult on the head of an infant.\u201d State v. Perdue, 320 N.C. 51, 58, 357 S.E.2d 345, 350 (1987); accord State v. West, 51 N.C. 505, 509 (1859); State v. Sallie, 13 N.C. App. 499, 510-12, 186 S.E.2d 667, 674-75, cert. denied, 281 N.C. 316, 188 S.E.2d 900 (1972). Malice is not implied when death ensues from an attack made with the hands or feet on a strong or mature person, death not ordinarily being caused by such an attack. See West, 51 N.C. at 509; Sallie, 13 N.C. App. at 510-11, 186 S.E.2d at 674-75. However, this reasoning is inapplicable when a strong or mature person makes an attack by hands or feet alone upon a two-year-old child. Such an attack is reasonably likely to result in death or serious bodily injury.\nIn State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983), the Court stated that\n[t]he fact that a defendant struck a person with his hand or kicked a person [with his feet] and proximately caused that person\u2019s death would not support either a presumption of malice as a matter of law or an inference of malice as a matter of fact unless the defendant was then using his hands or feet as deadly weapons.\nId. at 524, 308 S.E.2d at 323. The evidence in Lang tended to show that the victim, an adult woman, was intoxicated at the time the defendant and another adult man kicked her with their feet and attacked her with their hands. Defendant also cut the victim with a knife, and his accomplice hit her with a baseball bat. Id. at 526, 308 S.E.2d at 324. The trial court gave the following instruction, which the Court determined to be prejudicial error:\nIf the state proves beyond a reasonable doubt, or if it\u2019s admitted that the defendant intentionally kicked, cut or struck [the victim], thereby proximately causing [the victim\u2019s] death, you may infer first that the killing was unlawful and second, that it was done with malice. But, you are not compelled to do so. You may consider this along with other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.\nId. at 524, 308 S.E.2d at 323. We stated that the trial court could have instructed the jury, on the facts of that case, that the jury could infer malice if it found \u201cfrom the evidence and beyond a reasonable doubt that the defendant intentionally assaulted the deceased with his hands, fists, or feet, which were then used as deadly weapons.\u201d Id. at 526-27, 308 S.E.2d at 325.\nThe instruction given in the present case is distinguishable from the instruction given in Lang by the fact that it required the jury to find that \u201cthe attack was made by a strong or mature person upon a weaker or defenseless person.\u201d While the evidence in Lang suggested that defendant was an adult and that the victim was severely intoxicated at the time she was killed, the instruction given by the trial court permitted the jury to infer malice simply from the evidence that the defendant kicked or struck the victim. The instruction in Lang neither required the jury to find that the defendant used his hands, fists, or feet as deadly weapons nor required the jury to find that \u201cthe attack was made by a strong or mature person upon a weaker or defenseless person.\u201d\nWe conclude that defendant has failed to show any error, much less plain error, in the trial court\u2019s instruction on malice. Accordingly, this assignment of error is overruled.\nDefendant next contends that the trial court\u2019s instruction on premeditation and deliberation constituted plain error. The trial court gave the following instruction:\nFourth, the State must prove beyond a reasonable doubt that the defendant acted with premeditation. That is, that he formed the intent to kill Brandie Freeman over some period of time, however short, before he acted.\nFifth, the State must prove beyond a reasonable doubt that the defendant acted with deliberation, which means that he acted, that is, he must have acted while he was in a cool state of mind. This does not mean that there had to be a total absence of passion or emotion. If the intent to kill was formed with a fixed purpose, not under the influence of some suddenly aroused violent passion, it is immaterial that the defendant was in a state of passion or excited when the intent was carried into effect. I instruct you, members of the jury, that neither premeditation nor deliberation are usually susceptible of direct proof. They must be proved by proof of circumstances from which they may be inferred, such as the lack of provocation by the deceased, conduct of the defendant before, during and after the killing, any brutal or vicious circumstances of the killing or the manner in which or the means by which the killing was done.\nDefendant first argues that the jury could have understood the instruction to express the trial court\u2019s opinion that the State had proven \u201clack of provocation.\u201d The instruction informed the jury that lack of provocation by the deceased is a circumstance which, if shown to exist, permits premeditation and deliberation to be inferred. See State v. Leach, 340 N.C. 236, 241, 456 S.E.2d 785, 788-89 (1995). The instruction did not suggest, and could not be reasonably understood to imply, that the trial court was of the opinion that the State had proven lack of provocation.\nDefendant next argues that the instruction was flawed in that it permitted the jury to convict defendant based upon lack of evidence of provocation and improperly narrowed the scope to lack of provocation \u201cby the deceased.\u201d The instruction given by the trial court is based upon the pattern jury instructions. N.C.P.I. \u2014 Crim. 206.11 (1994). The instruction requires the State to prove lack of provocation by the deceased and does not permit the jury to infer premeditation and deliberation from lack of evidence of provocation. Furthermore, this instruction is consistent with this Court\u2019s repeated statement that lack of provocation by the deceased is a circumstance that may be considered in determining whether a killing was done with premeditation and deliberation. See, e.g., State v. Alston, 341 N.C. 198, 245, 461 S.E.2d 687, 713 (1995), cert. denied,-U.S.-, 134 L. Ed. 2d 100 (1996); Truesdale, 340 N.C. at 234-35, 456 S.E.2d at 302; Brown, 315 N.C. at 59, 337 S.E.2d at 823.\nDefendant also argues that the instruction improperly renders any nonaccidental killing of a child a first-degree murder since a child is incapable of \u201clegal\u201d provocation. This argument has no merit in this case. The trial court did not instruct the jury that a child was incapable of provocation.\nDefendant further argues that the instruction erroneously informed the jury that deliberation means that defendant \u201cacted while he was in a cool state of mind.\u201d Defendant argues that defendant must have been in a cool state of mind when he formed the intent to kill. \u201cDeliberation means an 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 lawful or just cause or legal provocation.\u201d Conner, 335 N.C. at 635, 440 S.E.2d at 836. The trial court\u2019s instruction is consistent with the pattern jury instructions and our definition of deliberation. We conclude that defendant has failed to show any plain error in the trial court\u2019s instruction on premeditation and deliberation. Accordingly, this assignment of error is overruled.\nBy his next assignment of error, defendant contends that the trial court erred in denying defendant\u2019s pretrial motion to exclude the testimony of Dr. Sarah Sinai with respect to the \u201cbattered child syndrome.\u201d Defendant argues that Sinai\u2019s testimony was irrelevant and unfairly prejudicial. We disagree.\nEvidence is relevant if it has \u201cany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1992). Generally, all relevant evidence is admissible. N.C.G.S. \u00a7 8C-1, Rule 402 (1992). This Court has consistently stated that \u201cin a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible.\u201d State v. Collins, 335 N.C. 729, 735, 440 S.E.2d 559, 562 (1994).\nRelevant evidence may, however, be excluded \u201cif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 403 (1992). \u201cWhether to exclude relevant but prejudicial evidence under Rule 403 is a matter left to the sound discretion of the trial court.\u201d State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992). We conclude that the trial court did not abuse its discretion by permitting Sinai to give opinion testimony with respect to the injuries incurred by the victim.\nSinai, who was qualified as an expert in pediatrics and child abuse, gave extensive testimony with respect to the nature and extent of Brandie\u2019s injuries. Sinai testified that most of the injuries would not ordinarily be sustained in the course of a normal child\u2019s life and that the injuries could not have resulted from an accidental fall from a bed. Sinai further testified that all of Brandie\u2019s injuries were consistent with the battered child syndrome.\nThis Court has previously approved the admission of expert testimony with respect to the battered child syndrome. State v. Wilkerson, 295 N.C. 559, 568-71, 247 S.E.2d 905, 911-12 (1978). Evidence demonstrating the battered child syndrome \u201c \u2018simply indicates that a child found with [certain injuries] has not suffered those injuries by accidental means.\u2019 \u201d Id. at 570, 247 S.E.2d at 911 (quoting People v. Jackson, 18 Cal. App. 3d 504, 507, 95 Cal. Rptr. 919, 921 (1971)). \u201cWhen offered to show that certain injuries are a product of child abuse, rather than accident, evidence of prior injuries is relevant even though it does not purport to prove the identity of the person who might have inflicted those injuries.\u201d Estelle v. McGuire, 502 U.S. 62, 68, 116 L. Ed. 2d 385, 396 (1991).\nIn the present case Sinai\u2019s testimony was relevant to show that Brandie was killed by intentional means. Sinai\u2019s testimony with respect to the number, nature, and extent of Brandie\u2019s injuries was also relevant to show premeditation and deliberation. We conclude that Sinai\u2019s testimony was relevant and that the trial court did not abuse its discretion under Rule 403 in permitting the State to present this evidence to the jury. Accordingly, this assignment of error is overruled.\nDefendant next contends that the trial court committed plain error by failing to instruct the jury that absence of motive is a circumstance which could be considered in determining defendant\u2019s guilt or innocence. The trial court is required to instruct the jury on all substantial features of a case. State v. Rose, 323 N.C. 455, 458, 373 S.E.2d 426, 428 (1988). \u201cIn the absence of a special request the trial judge is not required to instruct the jury on subordinate features of a case.\u201d State v. Lester, 289 N.C. 239, 243, 221 S.E.2d 268, 271 (1976). Motive is not an element of first-degree murder, nor is its absence a defense. State v. Gainey, 343 N.C. 79, 84, 468 S.E.2d 227, 230 (1996); State v. Van Landingham, 283 N.C. 589, 600, 197 S.E.2d 539, 546 (1973). The presence or absence of motive is merely a circumstance which may be considered in determining guilt or innocence in a criminal case. Van Landingham, 283 N.C. at 600, 197 S.E.2d at 546. We conclude that absence of motive is a subordinate feature of a first-degree murder case. Accordingly, the trial court did not err in failing to instruct the jury on motive in the absence of a request from defendant. This assignment of error is overruled.\nDefendant next contends that the trial court erred by permitting the prosecutor to make certain arguments at the close of the guilt-innocence phase of the trial.\nAs defendant failed to object to any of these arguments at trial, they are reviewable only to determine whether they were so grossly improper that the trial court erred by failing to intervene ex mero motu to correct the errors. State v. Sexton, 336 N.C. 321, 349, 444 S.E.2d 879, 895, cert. denied, \u2014 U.S. \u2014, 130 L. Ed. 2d 429 (1994). \u201c[T]he impropriety of the argument 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.\u201d State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979).\nGregory, 340 N.C. at 424, 459 S.E.2d at 672.\nDefendant first contends that the prosecutor asked the jurors to put themselves in the position of the victim with the following argument:\nBrandie Jean Freeman. Her date of birth, July the 5th, 1990. Her date of death, January the 4th, 1993. About two and a half years old. Her epitaph would read like this: (Mr. Morris on the table laying [sic] on stomach with legs up and arms behind his back and head up.)\n\u201cI was in the punishment position, I don\u2019t know how long, and I couldn\u2019t keep my head up (demonstrating). And I was there because I pooed in my pants. And I tapped my sitter on the shoulder. And it angered him and he told me I was a bad girl. And I knew what I was going to have to do. I knew I was going to have to get in the position that\u2019s depicted in State\u2019s Exhibit Number 15, and State\u2019s Exhibit Number 12. And I knew my head was going to have to be up instead of down like Mr. Elliott told you.\u201d You know why we know that? Brandie knew that because she\u2019s not looking into the camera in that picture, that\u2019s from the side. Mr. Elliott told you she only has her head up in this picture because she\u2019s looking at the camera.\nAnd it would read that, \u201cwhile I was there for however long Mr. Elliott went and got a glass of water in the kitchen, came back, and he was still angry. I still couldn\u2019t keep my little head up or feet, as Dennis Rowe told you. And Mr. Elliott, my caretaker, while my mother was at work trying to earn a living, came up and grabbed me by the back of my hair. He pulled a lot of it out. It hurt.\u201d Doctors have told you it hurt. There shouldn\u2019t be any question in your mind about the pain that little girl went through. \u201cAnd he grabbed me by the back of my head, but instead of doing what he initially told you when his attorney was asking you the questions yesterday, bam, bam, bam, he really did do what like Mr. Morris told you in the questions. What kind of force? BAM..BAM..BAM..BAM (quickly.)\u201d\nWe have previously reviewed closing arguments which suggested what a victim may have been thinking as he or she was dying and concluded that they were not grossly improper. State v. Hunt, 339 N.C. 622, 651-52, 457 S.E.2d 276, 293-94 (1995); State v. McNeil, 324 N.C. 33, 49, 375 S.E.2d 909, 919 (1989), sentence vacated on other grounds, 494 U.S. 1050, 108 L. Ed. 2d 756 (1990); State v. King, 299 N.C. 707, 711-13, 264 S.E.2d 40, 43-44 (1980). The prosecutor\u2019s remarks in this case described what Brandie .may have been thinking as defendant beat her. This argument was based upon the evidence presented at trial and reasonable inferences which could be drawn therefrom. By making this argument the prosecutor did not ask the jurors to put themselves in the position of the victim. Accordingly, we conclude that the trial court did not err by failing to intervene ex mero motu.\nNext, defendant argues that the trial court erred by permitting the prosecutor to make several arguments in which he indicated that he was a representative of the victim. The prosecutor began his guilt-innocence phase closing argument in the following manner:\nLadies and gentlemen of the jury, this is my opportunity on behalf of the State of North Carolina and Brandie Freeman to argue to you what I think you should find from the facts that we spent all these days trying to present to you.\nIn McNeil the prosecutor told the jury that \u201c[b]eing a prosecutor is not always a pleasant task, for I speak, Mr. Hobgood speaks for two dead ladies who can not speak.\u201d 324 N.C. at 48, 375 S.E.2d at 918. The McNeil Court noted that the prosecutor\u2019s statement only reminded the jury that he was an advocate for the two victims and concluded that the argument was not so grossly improper that the court abused its discretion in failing to intervene ex mero motu. Id. In the present case the prosecutor\u2019s remarks similarly reminded the jury that he was an advocate for the State and the victim, and the trial court did not err by failing to intervene ex mero motu.\nDefendant next complains about the emphasized portion of the following argument:\nThe defendant is entitled to a fair trial. That is our system. John Robert Elliott is entitled to a fair trial. He has gotten a fair trial. You have seen that he has gotten a fair trial. This man gets the fair trial (pointing to defendant). That\u2019s fine. If any of you were charged with anything you would ivant a fair trial. I want a fair trial for Brandie Jean Freeman. I think that\u2019s at least what she\u2019s entitled to for the little time she spent on this earth. I think the bottom of the epitaph should say: \u201cShe got her trial. That a jury in Davidson County will not stand for this crap. That John Robert Elliott is guilty of first degree murder and felony child abuse. \u201d\n(Emphasis added.)\nIn State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976), this Court did not find any gross impropriety in the district attorney\u2019s statement that \u201ceverybody is concerned about the rights of the defendants ...[.] When in God\u2019s name are we going to start getting concerned about the rights of the victims?\u201d Id. at 328, 226 S.E.2d at 640. We stated that this utterance seemed \u201cto be only a stirring plea that the defendants and the State be given equal consideration by the jury.\u201d Id. at 328, 226 S.E.2d at 641. In the present case the prosecutor told the jury that defendant was entitled to a fair trial. His subsequent statement that the victim was also entitled to a fair trial amounted to nothing more than a request that the State be given equal consideration. We conclude that the trial court did not abuse its discretion in declining to intervene ex mero mo tu.\nDefendant further assigns error to the following argument:\nMake her life worth something. Don\u2019t let him get away with this. When he\u2019s denied killing her up until yesterday and said it was an accident and that she fell out of the bed, don\u2019t let him get away with that.\nThe prosecutor\u2019s argument is well-grounded in the record. Defendant denied killing Brandie prior to trial, stating that Brandie sustained her injuries when she fell off a bed. Defendant\u2019s testimony at trial admitting that he killed Brandie followed the presentation of extensive evidence which suggested that Brandie\u2019s injuries could not have been caused by a fall from a bed that was only seventeen inches high. We conclude that the trial court did not abuse its discretion by failing to intervene ex mero mo tu to stop the prosecutor\u2019s argument. This assignment of error is overruled.\nDefendant next assigns error to the trial court\u2019s failure to grant his motion to dismiss the charge of felony child abuse. The basis for this assignment of error was that the evidence was insufficient to support a verdict of guilty. Defendant does not make any argument or cite any authority in support of the contention that the evidence was insufficient to support felony child abuse. For this reason this assignment of error is deemed abandoned. N.C. R. App. P. 28(b)(5).\nRather than contending that the evidence was insufficient, defendant contends that the trial court erred by entering judgment against the defendant for both first-degree murder and felony child abuse. Defendant argues that sentencing him for both convictions violated his double jeopardy rights because the serious physical injury element of felony child abuse was established by the head injury which resulted in Brandie\u2019s death.\nIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party\u2019s request, objection or motion.\nN.C. R. App. P. 10(b)(1). \u201cExcept as otherwise provided herein, the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10.\u201d N.C. R. App. P. 10(a). Defendant did not object to the trial court\u2019s imposition of punishment for both the felony child abuse and first-degree murder convictions, defendant did not make any motion or receive a ruling from the trial court with respect to the constitutionality of sentencing defendant for both convictions, and defendant did not assign error to the trial court\u2019s failure to dismiss the felony child abuse conviction on the basis that the court could not sentence defendant for both felony child abuse and first-degree murder. Accordingly, defendant has failed to preserve this issue for appellate review.\nAssuming arguendo that this issue had been preserved for appellate review, we would conclude that double jeopardy does not preclude punishing defendant for felony child abuse in this case.\nBoth the Fifth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution protect against multiple punishments for the same offense. State v. Rambert, 341 N.C. 173, 175, 459 S.E.2d 510, 511-12 (1995); State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986). \u201c[Wjhere a legislature clearly expresses its intent to proscribe and punish exactly the same conduct under two separate statutes, a trial court in a single trial may impose cumulative punishments under the statutes.\u201d State v. Murray, 310 N.C. 541, 547, 313 S.E.2d 523, 528 (1984), overruled on other grounds by State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988); accord Missouri v. Hunter, 459 U.S. 359, 368-69, 74 L. Ed. 2d 535, 544 (1983); Gardner, 315 N.C. at 453, 340 S.E.2d at 708. The language of the felony child abuse provision permits us to conclude that the legislature intended to punish felony child abuse and first-degree murder separately, even when both offenses arise out of the same conduct. See Gardner, 315 N.C. at 461, 340 S.E.2d at 712.\nFelony child abuse is defined by N.C.G.S. \u00a7 14-318.4, and the legislature\u2019s intent to punish felony child abuse is set forth in this provision. N.C.G.S. \u00a7 14-318.4(b) expressly provides that felony child abuse \u201cis an offense additional to other civil and criminal provisions and is not intended to repeal or preclude any other sanctions or remedies.\u201d N.C.G.S. \u00a7 14-318.4(b) (1993). The legislature\u2019s intent to provide for cumulative punishment may also be inferred from the fact that first-degree murder and felony child abuse each \u201c \u2018requires proof of a fact which the other does not.\u2019 \u201d See Gardner, 315 N.C. at 454-55, 340 S.E.2d at 708-09 (quoting Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309 (1932)). Felony child abuse requires the State to prove that the accused is \u201ca parent or any other person providing care to or supervision of a child less than 16 years of age\u201d and that the accused intentionally inflicted a serious physical injury upon the child or intentionally committed an assault resulting in a serious physical injury to the child. N.C.G.S. \u00a7 14-318.4(a). First-degree murder \u201cis the unlawful killing of a human being with malice and with premeditation and deliberation.\u201d Fleming, 296 N.C. at 562, 251 S.E.2d at 432. Felony child abuse is not a lesser included offense of murder. It requires the State to prove facts not required to prove murder; and it addresses a distinct evil, the serious physical abuse of children by parents or other persons providing care to or supervision of children.\nThe legislature expressly stated that felony child abuse is an offense additional to other criminal provisions and that it is not intended to preclude other sanctions. We conclude that the legislature clearly expressed its intent to punish a defendant cumulatively for felony child abuse and first-degree murder convictions arising out of the same conduct. Therefore, double jeopardy does not preclude punishing defendant for felony child abuse in this case. This assignment of error is overruled.\nCAPITAL SENTENCING PROCEEDING\nDefendant contends that the trial court committed reversible error in submitting the especially heinous, atrocious, or cruel aggravating circumstance on the ground that the evidence was insufficient to warrant its submission.\nIn determining sufficiency of the evidence to support this circumstance, the trial court must consider the evidence in the light most favorable to the State. State v. Quick, 329 N.C. 1, 31, 405 S.E.2d 179, 197 (1991). The State is entitled to every reasonable inference to be drawn from the facts. Contradictions and discrepancies are for the jury to resolve, and all evidence admitted which is favorable to the State is to be considered. State v. Stanley, 310 N.C. 332, 339, 312 S.E.2d 393, 397 (1984).\nState v. Gibbs, 335 N.C. 1, 61, 436 S.E.2d 321, 356-56 (1993), cert. denied,-U.S.-, 129 L. Ed. 2d 881 (1994). This Court has previously identified several types of murder which may warrant the submission of the especially heinous, atrocious, or cruel circumstance.\nOne type includes killings physically agonizing or otherwise dehumanizing to the victim. State v. Lloyd, 321 N.C. 301, 319, 364 S.E.2d 316, 328[, sentence vacated on other grounds, 488 U.S. 807, 102 L. Ed. 2d 18] (1988). A second type includes killings less violent but \u201cconscienceless, pitiless, or unnecessarily torturous to the victim,\u201d State v. Brown, 315 N.C. 40, 65, 337 S.E.2d 808, 826-27 (1985), including those which leave the victim in her \u201clast moments aware of but helpless to prevent impending death,\u201d State v. Hamlet, 312 N.C. 162, 175, 321 S.E.2d 837, 846 (1984). A third type exists where \u201cthe killing demonstrates an unusual depravity of mind on the part of the defendant beyond that normally present in first-degree murder.\u201d Brown, 315 N.C. at 65, 337 S.E.2d at 827.\nGibbs, 335 N.C. at 61-62, 436 S.E.2d at 356.\nThe evidence, viewed in the light most favorable to the State, supported the submission of the especially heinous, atrocious, or cruel circumstance. Defendant grabbed Brandie by the hair on the back of her head and slammed her head to the floor six or seven times, causing a massive head injury which led to her death. After repeatedly slamming Brandie\u2019s head to the floor, defendant continued to slap and hit the child in what defendant claimed was an effort to revive her. The beating left Brandie with severe bruises on her legs, abdomen, back, buttocks, chest, shoulders, neck, face, and head. Thirty percent of Brandie\u2019s hair was forcefully ripped from her scalp. Brandie attempted to put her arm around defendant\u2019s neck shortly after the beating, permitting the inference that she was conscious and in a great deal of pain at that time. This evidence permitted the jury to conclude that the killing would have been \u201cphysically agonizing\u201d or \u201cconscienceless, pitiless, or unnecessarily torturous\u201d to the victim.\nThe victim\u2019s age and the existence of a parental relationship between the victim and the defendant may also be considered in determining the existence of the especially heinous, atrocious, or cruel circumstance. State v. Burr, 341 N.C. 263, 307, 461 S.E.2d 602, 626 (1995), cert. denied, - U.S. -, 134 L. Ed. 2d 526 (1996). Brandie was two years old at the time of her death. Defendant lived with Brandie and her mother and had assumed a parental role in caring for Brandie in the months prior to her death. Brandie\u2019s mother permitted defendant to discipline Brandie and trusted defendant to take care of Brandie while she was at work. As in Burr \u201cdefendant\u2019s murder of this defenseless child was not only pitiless, but it also betrayed the special role which defendant had been given in the family.\u201d Id. at 308, 461 S.E.2d at 626. Having reviewed all the circumstances surrounding this murder, we conclude that there was sufficient evidence to support a finding that the murder was especially heinous, atrocious, or cruel. Therefore, we hold that the trial court did not err in submitting this circumstance to the jury. This assignment of error is overruled.\nNext, defendant contends that the trial court\u2019s instruction for the especially heinous, atrocious, or cruel circumstance was unconstitutionally vague, violating defendant\u2019s federal and state constitutional rights to be free from cruel or unusual punishment and to due process of law.\nAfter defining heinous, atrocious, and cruel, the trial court instructed the jury that\nit was not enough that this murder be heinous, atrocious or cruel as those terms have just been defined to you.\nUnder the law this murder must have been especially heinous, atrocious, or cruel and not every murder is especially so. For this murder to have been especially heinous, atrocious or cruel, any brutality which was involved in it must have exceeded that which is normally present in any killing or this murder must have been a consciousless [sic] or pitiless crime which was unnecessarily torturous to the victim.\n\u201cThis Court has consistently held that the especially heinous, atrocious, or cruel aggravating circumstance is constitutional when the narrowing definition is incorporated into the instruction.\u201d State v. Lynch, 340 N.C. 435, 472, 459 S.E.2d 679, 698 (1995), cert. denied,-U.S.-, 134 L. Ed. 2d 558 (1996); accord Syriani, 333 N.C. at 391-92, 428 S.E.2d at 141. Defendant has failed to provide us with any compelling reasons to overrule our prior holdings on this issue.\nDefendant further contends that this instruction is unconstitutional as applied to defendant. Defendant argues that most killings committed by parents against their children are tried noncapitally and that there is no principled distinction between this case and numerous cases in which such conduct has been punished noncapitally. Disparity in sentences imposed upon parents who have killed their children does not render the instruction on the especially heinous, atrocious, or cruel circumstance unconstitutional as applied to defendant. This assignment of error is overruled.\nDefendant next contends that the trial court erred by permitting the prosecutor to make certain sentencing proceeding closing arguments. Defendant did not object to any of these arguments; therefore, \u201cthey are reviewable only to determine whether they were so grossly improper that the trial court erred by failing to intervene ex mero motu to correct the errors.\u201d Gregory, 340 N.C. at 424, 459 S.E.2d at 672.\nDefendant contends that the trial court should have intervened in the prosecutor\u2019s repeated argument that this killing was the \u201cworst of the worst.\u201d Defendant argues that this argument amounted to a personal vouching by the prosecutor that this killing was worse than other first-degree murders. In State v. McCollum, 334 N.C. 208, 433 S.E.2d 144 (1993), cert. denied,-U.S.-, 129 L. Ed. 2d 895 (1994), the prosecutor argued that \u201cthis is probably the most cruel, atrocious, and heinous crime you\u2019ll ever come in contact with.\u201d Id. at 227, 433 S.E.2d at 154. The Court stated that the \u201cprosecutor was not stating his personal opinion, but merely arguing that the jury should conclude from the evidence before it that the imposition of the death penalty was proper in this case.\u201d Id. We conclude that the prosecutor in this case did not state his personal opinion by arguing that Brandie\u2019s killing was the \u201cworst of the worst.\u201d As in McCollum the prosecutor was merely arguing that the jury should conclude from the evidence that it should recommend a sentence of death.\nDefendant also argues that this argument by the prosecutor improperly diminished the jury\u2019s responsibility for recommending a sentence of death in violation of Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231 (1985). In Caldwell the Supreme Court held that it was unconstitutional \u201cto rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant\u2019s death rests elsewhere.\u201d Id. at 328-29, 86 L. Ed. 2d at 239. \u201cThis Court has limited Caldwell\u2019s applicability to those cases in which the prosecutor \u2018suggests] to the jurors that they could depend upon judicial or executive review to correct any errors in their verdict.\u2019 \u201d Alston, 341 N.C. at 250, 461 S.E.2d at 716 (quoting McCollum, 334 N.C. at 226, 433 S.E.2d at 153). The prosecutor\u2019s remarks in this case did not tend to suggest to the jurors that the responsibility for recommending a sentence of death rested elsewhere or that the jurors could rely on judicial or executive review to correct any errors in the jury\u2019s verdict.\nDefendant further argues that the prosecutor\u2019s argument improperly placed defendant at a disadvantage in that defendant\u2019s counsel could not argue that \u201cthis killing was not all that bad\u201d without offending the jurors. This argument is without merit. \u201c[T]he prosecutor in a capital case has a duty to strenuously pursue the goal of persuading the jury that the facts of the particular case at hand warrant imposition of the death penalty.\u201d Green, 336 N.C. at 188, 443 S.E.2d at 41. After careful review of the record, we conclude that the prosecutor\u2019s argument was reasonable in light of the evidence presented at trial and that the trial court did not abuse its discretion by failing to intervene ex mero mo tu. This assignment of error is overruled.\nDefendant next contends that the prosecutor misstated the law with respect to the burden of proof with the following sentencing proceeding closing arguments:\nI defy anybody to tell me that the murder of this little girl isn\u2019t especially heinous, atrocious or cruel.\n... [Y]ou will also be given an opportunity to consider a lot of mitigating circumstances, those things that they will contend are matters that will make this less than a death penalty [case]. The bottom line is, it\u2019s a death penalty case. You in your conscious [sic] say it is a death penalty case.\n. . . Those are the mitigating circumstances. And the rest of it is pretty much, you know what you got to do. You balance those things and you decide the weight and you decide whether this little girl\u2019s life was worth his significant work history or his abusing marijuana since age 15 or him not having committed acts of violence, significant acts of violence against someone else.\nDefendant contends that these arguments suggested that defendant was required to present sufficient evidence to convince the jury not to recommend death and that the jury should weigh mitigating circumstances against the value of the victim\u2019s life. We first note that defendant did not assign error to any of these arguments in the record on appeal. \u201cExcept as otherwise provided herein, the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10.\u201d N.C. R. App. P. 10(a). For this reason defendant\u2019s argument with respect to these remarks is beyond the scope of our review.\nEven if we were to consider defendant\u2019s argument pursuant to Rule 2 of the Rules of Appellate Procedure, defendant would not be entitled to relief. \u201cOn appeal, particular prosecutorial arguments are not viewed in an isolated vacuum.\u201d State v. Moseley, 338 N.C. 1, 50, 449 S.E.2d 412, 442 (1994), cert. denied,-U.S.-, 131 L. Ed. 2d 738 (1995). \u201c \u2018Fair consideration must be given to the context in which the remarks were made and to the overall factual circumstances to which they referred.\u2019 \u201d Id. (quoting State v. Pinch, 306 N.C. 1, 24, 292 S.E.2d 203, 221, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), overruled on other grounds by State v. Rouse, 339 N.C. 59, 451 S.E.2d 543 (1994), cert. denied,-U.S.-, 133 L. Ed. 2d 60 (1995), by State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied,-U.S.-, 130 L. Ed. 2d 650 (1995), and by State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988)). Our review of the prosecutor\u2019s argument reveals that he explained the balancing process that jurors are required to undertake in considering aggravating and mitigating circumstances. The thrust of the prosecutor\u2019s argument was that the mitigating circumstances had little value and that the especially heinous, atrocious, or cruel nature of the killing justified imposing the death penalty. While it was improper to suggest that the jury should balance the mitigating circumstances against Brandie\u2019s life, we conclude that the prosecutor\u2019s remarks were not so grossly improper as to require the trial court to intervene ex mero mo tu.\nDefendant next contends that the prosecutor improperly suggested that the death penalty was divinely required in this case to redeem or give value to the life of the victim. The prosecutor made the following arguments:\nI told you the other day, it is the State\u2019s goal to ask you to try to redeem that little child\u2019s unjust [death]. The State says we are halfway there. You have convicted Mr. Elliott of first degree murder. You did not let him get away with that. Mr. Elliott needs to be put to death by the State, by your recommendation. That fully redeems that little girl\u2019s life on this earth and that finishes the epitaph that we talked about.\n. . . \u201cDance death! Your deeds are done. A new time has set in and you are summoned by the Maker. One day death itself will dance before the Lord. The wind and breath of the Lord will call for death, and slowly death will bring all limp life and all brittle forms of death to the judgment seat. God will pronounce death guilty, will sentence death to death and thus sentence to death tears, crying, hunger, lonesomeness and disease. Even now there is enough evidence gathered against death by those who live under the spirit. They build evidence while they work and while they wait for the dance and death of death. The date has been set. God knows the hour.\u201d You jurors know the hour. A life for a life because of the facts of this case.\nDefendant argues that the prosecutor\u2019s remarks constituted \u201ctheo-babble\u201d which had the effect of suggesting that the death penalty is divinely required in this case in order to \u201credeem\u201d or give value to the life of the victim.\nThis Court has in the past disapproved of prosecutorial arguments that made improper use of religious sentiment. See, e.g., State v. Moose, 310 N.C. 482, 501, 313 S.E.2d 507, 519-20 (1984) (argument that the power of public officials is ordained by God and to resist them is to resist God disapproved); State v. Oliver, 309 N.C. 326, 359, 307 S.E.2d 304, 326 (1983) (indicating the impropriety in arguing that the death penalty is divinely inspired).\nState v. Ingle, 336 N.C. 617, 648, 445 S.E.2d 880, 896 (1994), cert. denied,-U.S.-, 131 L. Ed. 2d 222 (1995).\nA careful review of the prosecutor\u2019s remarks reveals, however, that neither argument suggested that the law enforcement powers of the State were divinely inspired or ordained by God. Neither argument improperly suggested that the death penalty was divinely required in this case. Accordingly, we conclude that the prosecutor\u2019s remarks were not so grossly improper as to require the trial court to intervene ex mero mo tu.\nDefendant next assigns error to the emphasized portion of the following argument:\nAnd now it is time for you all to consider the punishment. You are the voice and your voice is the conscious [sic] of this county. You are the last link in the State\u2019s chain of law enforcement, if you will, in this case, because the officers have done all they can do. I have certainly done all I think I can do.\n(Emphasis added.)\nTo suggest that the jury is effectively an arm of the State in the prosecution of the defendant or that the jury is the last link in the State\u2019s chain of law enforcement is improper. State v. Brown, 320 N.C. 179, 203-04, 358 S.E.2d 1, 18, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987). However, the prosecutor\u2019s remarks in this case were not so grossly improper as to require the trial court to intervene ex mero mo tu. The essence of the prosecutor\u2019s argument was that defendant had committed a serious crime and that the time had come for the jury to make a decision in this case. This Court previously approved arguments suggesting that juries are \u201cthe voice and conscience of the community.\u201d Hunt, 339 N.C. at 651-52, 457 S.E.2d at 293; accord Brown, 320 N.C. at 204, 358 S.E.2d at 18. We conclude that the trial court did not abuse its discretion by failing to intervene ex mero motu to prevent this argument.\nDefendant finally contends that the trial court should not have permitted the prosecutor to make the following argument:\nBrandie Freeman can\u2019t come into this courtroom and tell me and tell you, when he slammed my head down the first time, it was extremely painful and I didn\u2019t die. She can\u2019t say, \u201cI was begging for my life.\u201d She can\u2019t say, \u201cWhen he slammed my head down the second time it was again extremely painful and I felt this place on the back of my neck.\u201d\nDefendant argues that there is no evidence suggesting that Brandie begged for her life and that the prosecutor referred to what Brandie could \u201cnot\u201d say.\nAn \u201cargument \u2018[u]rging the jurors to appreciate the \u201ccircumstances of the crime\u2019 \u201d is not improper during the penalty phase of a trial.\u201d Gregory, 340 N.C. at 426, 459 S.E.2d at 673 (quoting State v. Artis, 325 N.C. 278, 325, 384 S.E.2d 470, 497 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990)). The nature of the defendant\u2019s crime \u201cis one of the touchstones for propriety in a capital sentencing argument.\u201d Id. The prosecutor\u2019s argument related to the nature of defendant\u2019s crime and was supported by facts in evidence and reasonable inferences which could be drawn therefrom. The evidence in this case tended to show that defendant slammed Brandie\u2019s head to the floor six or seven times, that she remained conscious for a short period of time after this beating, and that she experienced a great deal of pain. While there was no evidence suggesting that Brandie begged for her life during the beating, the prosecutor\u2019s argument was not so grossly improper as to require the trial court to intervene ex mero mo tu. This assignment of error is overruled.\nNext, defendant assigns error to the jury\u2019s failure to find the nonstatutory mitigating circumstance that defendant had a good employment record. \u201cUnlike statutory mitigating circumstances, the jury may determine that a nonstatutory mitigating circumstance has no value even if that circumstance is found to exist.\u201d Alston, 341 N.C. at 257, 461 S.E.2d at 720. Defendant\u2019s evidence of a good employment record was contradicted by evidence which showed that defendant was unemployed at the time of the murder, worked sporadically in the months preceding the murder, and assaulted a supervisor at Lothridge Plumbing Company in March of 1992. The jury either rejected the evidence suggesting defendant had a good employment record or determined that this circumstance had no mitigating value. Accordingly, this assignment of error is overruled.\nPRESERVATION ISSUES\nDefendant raises three issues which he concedes have been decided against his position by this Court: (i) the trial corut erred by permitting the State to peremptorily excuse jurors who showed a reluctance to vote for the death penalty, (ii) the trial court erred by denying his motion to prevent the State from \u201cdeath-qualifying\u201d the jury, and (iii) the trial court erred in denying his motion to strike the death penalty on the ground that the North Carolina death penalty statute is unconstitutional. We have considered defendant\u2019s arguments on these issues and find no compelling reason to depart from our prior holdings. Therefore, we overrule these assignments of error.\nPROPORTIONALITY\nHaving found no error in the guilt-innocence phase or the capital sentencing proceeding, we must undertake our statutory duty to determine whether (i) the evidence supports the aggravating circumstance found by the jury; (ii) passion, prejudice, or any other arbitrary factor influenced the imposition of the death sentence; and (iii) the death sentence is \u201cexcessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\u201d N.C.G.S. \u00a7 15A-2000(d)(2) (Supp. 1995).\nDefendant was found guilty of first-degree murder based on premeditation and deliberation. Following a capital sentencing proceeding, the jury found the aggravating circumstance that the capital felony was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9). The jury found the statutory mitigating circumstance that defendant had no significant history of prior criminal activity, N.C.G.S. \u00a7 15A-2000(f)(l). The trial court submitted three statutory mitigating circumstances which were rejected by the jury: (i) the murder was committed while defendant was mentally or emotionally disturbed, N.C.G.S. \u00a7 15A-2000(f)(2); (ii) 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); and (iii) the catchall circumstance, N.C.G.S. \u00a7 15A-2000(f)(9). The jury found ten of the eleven nonstatutory mitigating circumstances submitted for its consideration.\nWe have reviewed the sufficiency of the evidence supporting the especially heinous, atrocious, or cruel aggravating circumstance and conclude that the evidence supports this circumstance. We further conclude from our review of the record that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor. We must now determine whether the sentence of death in this case is excessive or disproportionate.\nOne purpose of proportionality review is \u201cto eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury.\u201d State v. Holden, 321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). Another purpose is to guard \u201cagainst the capricious or random imposition of the death penalty.\u201d State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980). We compare this case to others in the pool, which we defined in State v. Williams, 308 N.C. 47, 79-80, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983), and Bacon, 337 N.C. at 106-07, 446 S.E.2d at 563-64, that \u201care roughly similar with regard to the crime and the defendant.\u201d State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985).\nThis Court has determined that the sentence of death was disproportionate in seven cases. 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 Vandiver, 321 N.C. 570, 364 S.E.2d 373; 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 find the instant case distinguishable from each of these seven cases.\nNone of the cases found disproportionate by this Court involved the murder of a child. State v. Kandies, 342 N.C. 419, 455, 467 S.E.2d 67, 87, cert. denied,-U.S.-, 136 L. Ed. 2d 167 (1996); State v. Walls, 342 N.C. 1, 71, 463 S.E.2d 738, 776-77 (1995), cert. denied,-U.S.-, 134 L. Ed. 2d 794 (1996). Further, \u201conly two involved the \u2018especially heinous, atrocious, or cruel\u2019 aggravating circumstance.\u201d Syriani, 333 N.C. at 401, 428 S.E.2d at 146-47 (citing Stokes, 319 N.C. 1, 352 S.E.2d 653; Bondurant, 309 N.C. 674, 309 S.E.2d 170). Stokes and Bondurant are easily distinguishable from this case.\nThe defendant in Stokes was one of four individuals involved in the brutal beating death of a robbery victim. Stokes, 319 N.C. at 3, 352 S.E.2d at 654. In finding the sentence of death disproportionate, the Stokes Court emphasized that the defendant was found guilty of first-degree murder based upon the felony murder rule; that there was little, if any, evidence of premeditation and deliberation; and that the defendant was seventeen years old at the time of the murder. Id. at 21, 24, 352 S.E.2d at 664, 666. In the instant case the jury found the thirty-one-year-old defendant guilty of first-degree murder on the basis of premeditation and deliberation. \u201cThe finding of premeditation and deliberation indicates a more cold-blooded and calculated crime.\u201d Artis, 325 N.C. at 341, 384 S.E.2d at 499-500.\nIn Bondurant the defendant, the victim, and several friends were riding in a car when the defendant began taunting the victim by threatening to shoot him. The defendant eventually shot the victim and then immediately drove the victim to the hospital. The killing consisted of one gunshot wound to the head, and there was substantial evidence that the defendant was highly intoxicated at the time of the shooting. Bondurant, 309 N.C. at 677, 693-94, 309 S.E.2d at 173, 182. In the present case defendant brutally beat a two-year-old girl entrusted to his care. Despite the fact that he recognized the severity of Brandie\u2019s injuries, defendant did not immediately seek medical attention for her. While the State introduced evidence suggesting that defendant was \u201ccoming off crack\u201d cocaine at the time of the killing, defendant testified and denied using crack cocaine or marijuana on the day of the killing.\nWe conclude that this case is not sufficiently similar to any of the seven cases found disproportionate by this Court to warrant a finding of disproportionality.\nDefendant refers us to several additional cases in which juries recommended life sentences following a capital sentencing proceeding. We recognize that juries have returned sentences of life imprisonment in cases involving the murder of a child by a parent or an adult caretaker. However, \u201cthe fact that in one or more cases factually similar to the one under review a jury or juries have recommended life imprisonment is not determinative, standing alone, on the issue of whether the death penalty is disproportionate in the case under review.\u201d Green, 336 N.C. at 198, 443 S.E.2d at 46.\nWe conclude that this case is most analogous to cases in which this Court has held the death penalty not to be disproportionate. The case in the pool most similar to this one is State v. Burr, 341 N.C. 263, 461 S.E.2d 602. In Burr the defendant was the thirty-three-year-old boyfriend of the mother of the four-month-old victim. The evidence in Burr tended to show that the defendant had taken on a parental role in caring for the victim and that the defendant brutally beat the victim to death. The defendant in Burr was convicted of first-degree murder on the basis of premeditation and deliberation. The only aggravating circumstance found by the jury was the especially heinous, atrocious, or cruel circumstance. We upheld the death penalty in Burr. This case is strikingly similar. Defendant assumed a parental role in caring for Brandie, defendant brutally beat Brandie while he was caring for her, and Brandie died from a massive head injury caused by that beating. As in Burr defendant was convicted of first-degree murder on the basis of premeditation and deliberation; and the jury found only the especially heinous, atrocious, or cruel aggravating circumstance.\nAfter comparing this case to similar cases in the pool used for proportionality review, we conclude that defendant\u2019s death sentence is not excessive or disproportionate.\nWe hold that defendant received a fair trial and capital sentencing proceeding free from prejudicial error. Comparing defendant\u2019s case to similar cases in which the death penalty was imposed and considering both the crime and defendant, we cannot hold as a matter of law that the death penalty was disproportionate or excessive.\nNO ERROR.", "type": "majority", "author": "PARKER, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Gail E. Weis, Associate Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Mark D. Montgomery, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN ROBERT ELLIOTT\nNo. 224A94\n(Filed 6 September 1996)\n1. Jury \u00a7 123 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 whether a juror would stand up to other jurors \u2014 attempt to stake out jurors\nThe trial court did not abuse its discretion during jury selection for a capital first-degree murder prosecution by excluding a question which seemed designed to determine how well prospective jurors would stand up to other jurors in the event of a split decision, which amounts to an impermissible \u201cstake out.\u201d\nAm Jur 2d, Jury \u00a7\u00a7 189, 206, 208, 209.\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.\n2. Jury \u00a7 124 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 question as to whether juror would make up his own mind \u2014 improper\nThe trial court did not abuse its discretion during jury selection for a capital first-degree murder prosecution by excluding the question \u201cWill each of you make up your own mind about each and every aspect of this case?\u201d In the context of this portion of defendant\u2019s voir dire, the excluded question may have had the tendency to suggest that jurors should make decisions without considering the opinions of other jurors. Furthermore, there was no prejudice in that the trial court permitted defendant to explore this panel\u2019s understanding of their right to reach their own opinions and each indicated an understanding that each juror has one vote, that no one juror\u2019s vote was stronger than any other, and that each had a right to remain steadfast to his or her own resolve.\nAm Jur 2d, Jury \u00a7\u00a7 189, 206, 208, 209.\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.\n3. Jury \u00a7 123 (NCX4th)\u2014 capital murder \u2014 jury selection\u2014 right of juror to stand by beliefs \u2014 attempt to stake out jurors\nThe trial court did not abuse its discretion during jury selection for a capital first-degree murder prosecution by excluding a question to a prospective juror where defendant asked whether the juror understood that while the law requires deliberation with other jurors, he has the right to stand by his beliefs, the juror replied affirmatively, and the court sustained the State\u2019s objection to whether the juror would stand by his beliefs. This question amounted to an impermissible attempt to \u201cstake out\u201d the prospective juror.\nAm Jur 2d, Jury \u00a7\u00a7 189, 206, 208, 209.\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.\n4. Jury \u00a7 123 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 presumption of innocence \u2014 attempt to stake out jurors\nThe trial court did not abuse its discretion during jury selection for a first-degree murder prosecution by preventing defense counsel from asking prospective jurors whether they would \u201chold to\u201d the presumption of innocence. The question may have suggested that jurors should do so without considering the evidence offered by the State to overcome the presumption; if so, the question amounted to an impermissible attempt to \u201cstake out\u201d the jurors.\nAm Jur 2d, Jury \u00a7\u00a7 189, 206, 208, 209.\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.\n5. Jury \u00a7 124 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 defendant\u2019s attempt to define malice\nThe trial court did not abuse its discretion during jury selection for a capital first-degree murder prosecution by not allowing defendant to explain malice to prospective jurors where defendant\u2019s attempt to define malice did not provide the jury with a complete statement of the law. It is well within the discretion of the court to prohibit counsel from instructing prospective jurors on the law during voir dire.\nAm Jur 2d, Jury \u00a7\u00a7 189, 205, 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.\n6. Jury \u00a7 141 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 questions as to parole eligibility\nThe trial court did not abuse its discretion during jury selection for a capital first-degree murder prosecution by denying defendant\u2019s pretrial motion to permit voir dire of prospective jurors on their perceptions of parole eligibility.\nAm Jur 2d, Jury \u00a7\u00a7 189, 205-208.\n7. Criminal Law \u00a7 860 (NCI4th)\u2014 capital murder \u2014 jury selection \u2014 parole eligibility \u2014 motion to instruct denied\nThe trial court did not err in a first-degree murder prosecution by denying defendant\u2019s pretrial motion to instruct the jury on parole eligibility.\nAm Jur 2d, Jury \u00a7\u00a7 189, 205-208.\n8. Jury \u00a7 148 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 whether juror could vote for sentence other than death\nThe trial court did not err during jury selection for a first-degree murder by disallowing questions asking a prospective juror whether he could think of any situation where he could vote to impose a sentence other than death for first-degree murder. The questions were an impermissible attempt to determine what kind of verdict he would render under certain circumstances.\nAm Jur 2d, Jury \u00a7\u00a7 189, 205-208.\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. Jury \u00a7 148 (NCI4th)\u2014 capital murder \u2014 jury selection\u2014 voir dire of prospective juror restricted \u2014 peremptory exercised \u2014 no prejudice\nDefendant could not show prejudicial error during jury selection for a capital first-degree murder prosecution where defendant was permitted to ask a prospective juror whether she would automatically impose the death penalty, she answered by stating that she would follow the instructions given by the trial court, she stated that the fact that child abuse was involved would not change her answer, the court restricted further voir dire, defendant exercised a peremptory challenge, and defendant did not exhaust his peremptory challenges.\nAm Jur 2d, Jury \u00a7\u00a7 189, 205, 234, 235.\nComment Note. \u2014 Beliefs regarding capital punishment as disqualifying juror in capital case \u2014 post -Witherspoon cases. 39 ALR3d 550.\n10. Homicide \u00a7 253 (NCI4th)\u2014 capital murder \u2014 child abuse\u2014 premeditation and deliberation \u2014 sufficiency of evidence\nThere was sufficient evidence to support a verdict of guilty of first-degree murder based on premeditation and deliberation in a prosecution arising from the death of a two year old child named Brandie where the evidence showed that defendant, the boyfriend of Brandie\u2019s mother, became angry when Brandie soiled her pants; after cleaning and changing her he told her to assume a punishment position and went to the kitchen for a glass of water; Brandie was in the position with her head raised rather than down when defendant returned; and defendant grabbed Brandie by her hair and slammed her head to the floor six or seven times. The evidence that defendant became angry and went into the kitchen to get a glass of water after instructing Brandie to assume the punishment position and before grabbing her head and repeatedly slamming it to the floor permitted the jury to conclude that defendant formed the intent to kill and carried out that intent in a cool state of blood and not as a result of a violent passion attributable to sufficient provocation.\nAm Jur 2d, Homicide \u00a7\u00a7 228, 260.\nModern status of the rules requiring malice \u201caforethought,\u201d \u201cdeliberation,\u201d or \u201cpremeditation,\u201d as elements of murder in the first degree. 18 ALR4th 961.\n11. Homicide \u00a7 446 (NCI4th)\u2014 capital murder \u2014 instructions\u2014 malice \u2014 use of hands or feet\nThere was no plain error in a prosecution for capital first-degree murder and felony child abuse in the court\u2019s instruction on malice where defendant contended that the instruction unconstitutionally reduced the State\u2019s burden of proof. Although malice is not implied when death ensues from an attack made with the hands or feet on a strong or mature person, death not ordinarily being caused by such an attack, this reasoning is inapplicable when a strong or mature person makes an attack by hands or feet alone upon a two-year-old child. The instruction here informed the jury that it could infer malice from an attack by hand alone when the attack was made by a strong or mature person upon a weaker or defenseless person, but did not require the jury to infer malice from the evidence.\nAm Jur 2d, Homicide \u00a7\u00a7 227, 265, 482, 483, 500, 509.\nInference of malice or intent to kill where killing is by blow without weapon. 22 ALR2d 854.\nCriminal liability of parent, teacher, or one in loco parentis for homicide by excessive or improper punishment inflicted on child. 89 ALR2d 417.\n12. Homicide \u00a7 493 (NCI4th)\u2014 capital murder and felony child abuse \u2014 instructions\u2014premeditation and deliberation\u2014 lack of provocation\nThere was no plain error in a prosecution for capital first-degree murder and felony child abuse in the court\u2019s instruction on premeditation and deliberation where defendant contended that the jury could have understood the instruction to express the trial court\u2019s opinion that the State had proven lack of provocation, but the instruction informed the jury that lack of provocation by the deceased is a circumstance which permits premeditation and deliberation to be inferred and did not suggest, and could not reasonably be understood to imply, the opinion that the State had proven lack of provocation.\nAm Jur 2d, Homicide \u00a7\u00a7 45, 52, 501, 508.\nInstructions as to presumption of deliberation and premeditation. 96 ALR2d 1435.\nModern status of the rules requiring malice \u201caforethought,\u201d \u201cdeliberation,\u201d or \u201cpremeditation,\u201d as elements of murder in the first degree. 18 ALR4th 961.\n13. Homicide \u00a7 482.1 (NCI4th)\u2014 capital murder and felony child abuse \u2014 instructions\u2014premeditation and deliberation \u2014 lack of provocation by victim\nThere was no plain error in the trial court\u2019s instruction on premeditation and deliberation in a prosecution for capital first-degree murder and felony child abuse where defendant argued that the instruction, which was based upon the pattern jury instruction, improperly narrowed the scope of provocation by the deceased. The instruction required the State to prove lack of provocation by the deceased, did not permit the jury to infer premeditation and deliberation from lack of evidence of provocation, and was consistent with the Supreme Court\u2019s repeated statement that lack of provocation by the deceased is a circumstance that may be considered in determining whether a killing was done with premeditation and deliberation.\nAm Jur 2d, Homicide \u00a7\u00a7 45, 52, 483, 484.\nInstructions as to presumption of deliberation and premeditation. 96 ALR2d 1435.\nConstruction of statutes or rules making mandatory the use of pattern or uniform approved jury instructions. 49 ALR3d 128.\nModern status of the rules requiring malice \u201caforethought,\u201d \u201cdeliberation,\u201d or \u201cpremeditation,\u201d as elements of murder in the first degree. 18 ALR4th 961.\n14. Homicide \u00a7 483 (NCI4th) \u2014 first-degree murder \u2014 instructions on premeditation and deliberation \u2014 killing of child\nThere was no plain error in a prosecution for capital first-degree murder and felony child abuse in the trial court\u2019s instruction on premeditation and deliberation where defendant argued that the instruction improperly rendered any nonaccidental killing of a child a first-degree murder since a child is incapable of legal provocation, but the court did not instruct the jury that a child was incapable of provocation, and defendant argued that the instruction erroneously informed the jury that deliberation means that defendant acted in a cool state of mind, but the instruction given was consistent with the pattern jury instructions and the North Carolina Supreme Court\u2019s definition of deliberation.\nAm Jur 2d, Homicide \u00a7\u00a7 45, 52, 483, 501.\nInstructions as to presumption of deliberation and premeditation. 96 ALR2d 1435.\nConstruction of statutes or rules making mandatory the use of pattern or uniform approved jury instructions. 49 ALR3d 128.\nModern status of the rules requiring malice \u201caforethought,\u201d \u201cdeliberation,\u201d or \u201cpremeditation,\u201d as elements of murder in the first degree. 18 ALR4th 961.\n15. Evidence and Witnesses \u00a7 2266 (NCI4th)\u2014 capital murder and felony child abuse \u2014 expert testimony \u2014 battered child syndrome\nThe trial court did not abuse its discretion in a prosecution for capital first-degree murder and felony child abuse by permitting the State to present to the jury testimony from an expert in pediatrics and child abuse with respect to battered child syndrome. The testimony was relevant to show that the child was killed by intentional means and to show premeditation and deliberation. N.C.G.S. \u00a7 8C-1, Rule 403.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 37, 179, 218; Homicide \u00a7\u00a7 397, 398.\nAdmissibility of expert medical testimony on battered child syndrome. 98 ALR3d 306.\nModern status of the rules requiring malice \u201caforethought,\u201d \u201cdeliberation,\u201d or \u201cpremeditation,\u201d as elements of murder in the first degree. 18 ALR4th 961.\n16. Homicide \u00a7 477 (NCI4th)\u2014 capital murder \u2014 absence of motive \u2014 instruction not given without request\nThere was no plain error in a capital prosecution for first-degree murder where defendant did not request and the court did not give an instruction that absence of a motive is a circumstance which could be considered in determining defendant\u2019s guilt or innocence. The trial court is required to instruct on all substantial features of a case, but not on subordinate features in the absence of a special request. Motive is not an element of first-degree murder, nor is its absence a defense; the presence or absence of motive is merely a circumstance which may be considered in determining guilt or innocence.\nAm Jur 2d, Homicide \u00a7\u00a7 42, 280, 502.\nNecessity that trial court charge upon motive in homicide case. 71 ALR2d 1025.\n17. Criminal Law \u00a7 443 (NCI4th)\u2014 capital murder and felony child abuse \u2014 prosecutor\u2019s argument \u2014 what the victim would have been thinking\nThe trial court did not abuse its discretion by failing to intervene ex mero motu in a prosecution for capital first-degree murder and felony child abuse where defendant contended that the prosecutor asked the jurors to put themselves in the position of the victim, but the prosecutor\u2019s remarks described what the two-year-old victim may have been thinking as defendant beat her and did not ask the jurors to put themselves in her position. The argument was based upon the evidence presented at trial and reasonable inferences which could be drawn therefrom.\nAm Jur 2d, Trial \u00a7\u00a7 544, 545, 566, 649.\nPropriety and prejudicial effect of prosecutor\u2019s remarks as to victim\u2019s age, family circumstances, or the like. 50 ALR3d 8.\n18. Criminal Law \u00a7 443 (NCI4th)\u2014 capital murder and felony child abuse \u2014 prosecutor\u2019s argument \u2014 advocate for victim\nThe trial court did not err by failing to intervene ex mero motu in a prosecution for capital first-degree murder and felony child abuse where defendant contended that the prosecutor argued that he was a representative of the victim, but the prosecutor\u2019s remarks only reminded the jury that he was an advocate for the State and the victim.\nAm Jur 2d, Trial \u00a7\u00a7 544, 545, 554, 555.\nPropriety and prejudicial effect of prosecutor\u2019s remarks as to victim\u2019s age, family circumstances, or the like. 50 ALR3d 8.\n19. Criminal Law \u00a7 447 (NCI4th)\u2014 capital murder and felony child abuse \u2014 prosecutor\u2019s argument \u2014 fair trial for victim\nThe trial court did not err in a prosecution for capital first-degree murder and felony child abuse by not intervening ex mero mo tu when the prosecutor argued that the victim should receive a fair trial. The prosecutor had also told the jury that defendant should receive a fair trial; his subsequent statement amounted to nothing more than a request that the State be given equal consideration.\nAm Jur 2d, Trial \u00a7\u00a7 544, 545, 554, 555, 649.\nPropriety and prejudicial effect of prosecutor\u2019s remarks as to victim\u2019s age, family circumstances, or the like. 50 ALR3d 8.\n20. Criminal Law \u00a7 463 (NCI4th)\u2014 capital murder and felony child abuse \u2014 prosecutor\u2019s argument \u2014 defendant\u2019s denial of killing\nThe trial court did not err in a prosecution for capital first-degree murder and felony child abuse by not intervening ex mero mo tu when the prosecutor argued that the jury should make the victim\u2019s life worth something and not let defendant get away with claiming before trial that her death was an accident. The argument was well-grounded in the record; defendant denied killing the victim prior to trial, stating that she sustained her injuries when she fell off a bed, and his testimony at trial admitting the killing came after extensive evidence which suggested that her injuries could not have been caused by a fall from her bed.\nAm Jur 2d, Trial \u00a7\u00a7 544, 545, 554, 555, 649.\nPropriety and prejudicial effect of prosecutor\u2019s remarks as to victim\u2019s age, family circumstances, or the like. 50 ALR3d 8.\n21. Appeal and Error \u00a7 421 (NCI4th)\u2014 felony child abuse\u2014 motion to dismiss charge denied \u2014 no argument or authority supporting assignment of error \u2014 deemed abandoned\nAn assignment of error for which defendant did not make any argument or cite any authority was deemed abandoned.\nAm Jur 2d, Trial \u00a7\u00a7 473, 705-707.\nConstruction and application of provision of Rule 51 of Federal Rules of Civil Procedure requiring party objecting to instructions or failure to give instruction to jury, to state \u201cdistinctly the matter to which he objects and the grounds for objections\u201d. 35 ALR Fed. 727.\n22. Appeal and Error \u00a7 150 (NCI4th)\u2014 capital murder and felony child abuse \u2014 claim of double jeopardy \u2014 not preserved for appeal\nAn issue as to whether defendant\u2019s double jeopardy rights were violated when judgment was entered against him for both first-degree murder and felony child abuse was not preserved for appellate review where defendant did not object to the trial court\u2019s imposition of punishment for both convictions, did not make any motion to receive a ruling from the trial court as to the constitutionality of sentencing for both convictions, and did not assign error to the failure to dismiss the felony child abuse conviction.\nAm Jur 2d, Criminal Law \u00a7\u00a7 276, 277, 279; Trial \u00a7 707.\nWho has custody or control of child within terms of penal statute punishing cruelty or neglect by one having custody or control. 75 ALR3d 933.\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.\n23. Constitutional Law \u00a7 216.1 (NCI4th)\u2014 first-degree murder \u00e1nd felony child abuse \u2014 no double jeopardy violation\nAssuming the issue had been preserved for appeal, double jeopardy did not preclude punishing defendant for felony child abuse and first-degree murder arising from the same conduct. A trial court in a single trial may impose cumulative punishments under the statutes where a legislature clearly expresses its intent to proscribe and punish exactly the same conduct under two separate statutes. Here the legislature expressly stated that felony child abuse is an offense additional to other criminal provisions and that it is not intended to preclude other sanctions. Moreover, felony child abuse is not a lesser included offense of murder; it requires the State to prove facts not required to prove murder and it addresses a distinct evil.\nAm Jur 2d, Criminal Law \u00a7\u00a7 276, 277, 279.\nWho has custody or control of child within terms of penal statute punishing cruelty or neglect by one having custody or control. 75 ALR3d 933.\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.\n24. Criminal Law \u00a7 1345 (NCI4th)\u2014 capital sentencing \u2014 especially heinous, atrocious, or cruel aggravating circumstance \u2014 evidence sufficient\nThe trial court did not err in a capital sentencing proceeding by submitting the especially, heinous, atrocious or cruel aggravating circumstance where defendant grabbed the victim by the hair on the back of her head and slammed her head to the floor six or seven times, causing a massive head injury which led to her death; defendant continued to slap and hit the child in what he claimed was an effort to revive her; the beating left the victim with severe bruises on her legs, abdomen, back, buttocks, chest, shoulders, neck, face, and head; thirty percent of the victim\u2019s hair was forcefully ripped from her scalp; the victim attempted to put her arm around defendant\u2019s neck shortly after the beating, permitting the inference that she was conscious and in a great deal of pain at that time; the victim was two years old at the time of her death; defendant lived with the victim and her mother and had assumed a parental role in caring for the victim; and the victim\u2019s mother permitted defendant to discipline the victim and trusted defendant to take care of the victim while she was at work. This evidence permitted the jury to conclude that the killing would have been physically agonizing or conscienceless, pitiless, or unnecessarily torturous to the victim, and the victim\u2019s age and the existence of a parental relationship with defendant could also be considered. There was sufficient evidence to support a finding that the murder was especially heinous, atrocious or cruel.\nAm Jur 2d, Criminal Law \u00a7 525; Homicide \u00a7 549.\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.\n25. Criminal Law \u00a7 1343 (NCI4th)\u2014 capital sentencing\u2014 instructions \u2014 especially heinous, atrocious, or cruel aggravating circumstance\nThe trial court\u2019s instruction for the especially heinous, atrocious, or cruel aggravating circumstance in a capital sentencing proceeding was not unconstitutionally vague.\nAm Jur 2d, Criminal Law \u00a7\u00a7 525, 536.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like \u2014 go&t-Gregg cases. 63 ALR4th 478.\n26. Criminal Law \u00a7 1343 (NCI4th)\u2014 capital sentencing\u2014 disparity in sentences \u2014 especially heinous, atrocious, or cruel aggravating circumstance instruction \u2014 not unconstitutional\nThe trial court\u2019s instruction on the especially heinous, atrocious, or cruel aggravating circumstance was not unconstitutional as applied to defendant in a prosecution for capital first-degree murder and felony child abuse despite defendant\u2019s argument that most killings of children by their parents are tried noncapitally and that there is no principled distinction between this case and numerous cases in which such conduct has been punished noncapitally. Disparity in sentences does not render this instruction unconstitutional as applied to defendant.\nAm Jur 2d, Criminal Law \u00a7\u00a7 535, 538; Homicide \u00a7 525.\nModern status of test of criminal responsibility \u2014 state cases. 9 ALR4th 526.\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.\n27. Criminal Law \u00a7 445 (NCI4th)\u2014 c\u00e1pital sentencing \u2014 prosecutor\u2019s argument \u2014 killing worst of the worst \u2014 not an expression of opinion\nThe trial court did not abuse its discretion by failing to intervene ex mero mo tu in a capital sentencing proceeding where the prosecutor argued that this killing was the \u201cworst of the worst.\u201d The prosecutor did not state his personal opinion and merely argued that the jury should conclude from the evidence that it should recommend a sentence of death.\nAm Jur 2d, Trial \u00a7\u00a7 648, 649.\nPropriety and prejudicial effect of prosecutor\u2019s remarks as to victim\u2019s age, family circumstances, or the like. 50 ALR3d 8.\n28. Criminal Law \u00a7 456 (NCI4th)\u2014 capital sentencing \u2014 prosecutor\u2019s argument \u2014 killing worst of the worst \u2014 did not diminish juror\u2019s responsibility\nA prosecutor\u2019s argument in a capital sentencing proceeding that this killing was the \u201cworst of the worst\u201d did not improperly diminish the jury\u2019s responsibility for recommending a sentence of death in violation of Caldwell v. Mississippi, 472 U.S. 320. The prosecutor\u2019s remarks did not tend to suggest that the responsibility for recommending a sentence of death rested elsewhere or that the jurors could rely on judicial or executive review to correct any errors in the jury\u2019s verdict.\nAm Jur 2d, Trial \u00a7\u00a7 648, 649.\nPropriety and prejudicial effect of prosecutor\u2019s remarks as to victim\u2019s age, family circumstances, or the like. 50 ALR3d 8.\n29. Criminal Law \u00a7 450 (NCI4th)\u2014 capital sentencing \u2014 prosecutor\u2019s argument \u2014 killing worst of the worst \u2014 defendant not placed at unfair disadvantage\nThe trial court did not abuse its discretion by not intervening ex mero mo tu in a capital sentencing proceeding where the prosecutor argued that this killing was the \u201cworst of the worst\u201d on the ground that the argument placed defendant at an unfair disadvantage. The prosecutor\u2019s argument was reasonable in light of the evidence presented at trial.\nAm Jur 2d, Trial \u00a7\u00a7 648, 649.\nPropriety and prejudicial effect of prosecutor\u2019s remarks as to victim\u2019s age, family circumstances, or the like. 50 ALR3d 8.\n30. Appeal and Error \u00a7 341 (NCI4th)\u2014 capital sentencing\u2014 prosecutor\u2019s argument \u2014 failure to assign error\nDefendant did not assign error to the prosecutor\u2019s closing arguments involving the value of mitigating circumstances in a capital sentencing proceeding and they are therefore beyond the scope of review. N.C.R. App. P. 10(a).\nAm Jur 2d, Trial \u00a7\u00a7 533, 534, 706, 707.\nConstruction and application of provision of Rule 51 of Federal Rules of Civil Procedure requiring party objecting to instructions or failure to give instruction to jury, to state \u201cdistinctly the matter to which he objects and the grounds for objections\u201d. 35 ALR Fed. 727.\n31. Criminal Law \u00a7 454 (NCI4th)\u2014 capital sentencing \u2014 prosecutor\u2019s argument \u2014 balancing aggravating and mitigating circumstances\nThe trial court did not abuse its discretion by not intervening ex mero motu in a capital sentencing proceeding where defendant contended that the prosecutor\u2019s argument suggested that defendant was required to present sufficient evidence to convince the jury not to recommend death and that the jury should weigh mitigating circumstances against the value of the victim\u2019s life. Although defendant did not assign error and the argument was beyond the scope of appellate review, defendant would not be entitled to relief if the arguments were considered because, in context, the thrust of the prosecutor\u2019s argument was that the especially heinous, atrocious, or cruel nature of the killing justified imposing the death penalty. While it was improper to suggest that the jury should balance the mitigating circumstances against the victim\u2019s life, the remarks were not so grossly improper as to require the trial court to intervene ex mero motu.\nAm Jur 2d, Trial \u00a7\u00a7 554, 555.\nPropriety and prejudicial effect of prosecutor\u2019s remarks as to victim\u2019s age, family circumstances, or the like. 50 ALR3d 8.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like \u2014 post-6?re