{ "id": 867660, "name": "STATE OF NORTH CAROLINA v. JAMES EDWARD THOMAS", "name_abbreviation": "State v. Thomas", "decision_date": "1996-11-08", "docket_number": "No. 91A95", "first_page": "639", "last_page": "658", "citations": [ { "type": "official", "cite": "344 N.C. 639" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "65 ALR4th 838", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "63 ALR4th 478", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 2, "opinion_index": -1 }, { "cite": "35 ALR2d 769", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "99 ALR2d 7", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "90 ALR3d 17", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "40 L. Ed. 2d 886", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "73 ALR2d 769", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "72 ALR2d 308", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "464 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "affirming a death sentence based on both the (e)(3) and the (e)(5) aggravators" } ], "opinion_index": 0 }, { "cite": "342 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796105 ], "year": 1995, "pin_cites": [ { "parenthetical": "affirming a death sentence based on both the (e)(3) and the (e)(5) aggravators" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0198-01" ] }, { "cite": "133 L. Ed. 2d 871", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "460 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "161" } ], "opinion_index": 0 }, { "cite": "340 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790241 ], "year": 1995, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0612-01" ] }, { "cite": "467 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "87" }, { "page": "86" } ], "opinion_index": 0 }, { "cite": "342 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795950 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "455" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0419-01" ] }, { "cite": "108 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4836, 5158, 4882, 5207, 5176 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1023-04", "/us/494/1023-03", "/us/494/1023-05", "/us/494/1023-02", "/us/494/1023-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "506" } ], "opinion_index": 0 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "year": 1989, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "345 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "162", "parenthetical": "autopsy revealed small superficial lacerations along the wall of the vagina which might have been caused by a male penis or by a pair of scissors" } ], "opinion_index": 0 }, { "cite": "317 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4776805 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0148-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "305 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763650 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0026-01" ] }, { "cite": "309 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761257 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0674-01" ] }, { "cite": "319 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686205 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0465-01" ] }, { "cite": "325 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758195 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0669-01" ] }, { "cite": "364 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569559 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0570-01" ] }, { "cite": "341 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694780 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0203-01" ] }, { "cite": "352 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741422 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0001-01" ] }, { "cite": "372 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566216 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0318-01" ] }, { "cite": "129 L. Ed. 2d 895", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "433 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "162" }, { "page": "164" } ], "opinion_index": 0 }, { "cite": "334 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530367 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "240" }, { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0208-01" ] }, { "cite": "133 L. Ed. 2d 879", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "462 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "16" } ], "opinion_index": 0 }, { "cite": "341 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793213 ], "year": 1995, "pin_cites": [ { "page": "454-55" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0426-01" ] }, { "cite": "130 L. Ed. 2d 895", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "446 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "275-76" } ], "opinion_index": 0 }, { "cite": "337 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549971 ], "year": 1994, "pin_cites": [ { "page": "43-44" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0001-01" ] }, { "cite": "463 U.S. 992", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6202816 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "1014" }, { "page": "1189" } ], "opinion_index": 0, "case_paths": [ "/us/463/0992-01" ] }, { "cite": "129 L. Ed. 2d 133", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 39205 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/us/512/0154-01" ] }, { "cite": "131 L. Ed. 2d 292", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "448 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "99-100", "parenthetical": "citations omitted" }, { "page": "112" } ], "opinion_index": 0 }, { "cite": "337 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551833 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "516-17" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0505-01" ] }, { "cite": "226 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "290 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561482 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0349-01" ] }, { "cite": "229 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "912-13" }, { "page": "913-14" } ], "opinion_index": 0 }, { "cite": "291 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557860 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0235-01" ] }, { "cite": "459 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 104", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793219 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0104-01" ] }, { "cite": "134 L. Ed. 2d 526", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "461 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "674" } ], "opinion_index": 0 }, { "cite": "341 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793157 ], "year": 1995, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0470-01" ] }, { "cite": "130 L. Ed. 2d 1083", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "446 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "556" }, { "page": "558-59" } ], "opinion_index": 0 }, { "cite": "337 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550101 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "97-98" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0066-01" ] }, { "cite": "439 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "124" } ], "opinion_index": 0 }, { "cite": "335 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2528091 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "471" }, { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0457-01" ] }, { "cite": "98 L. Ed. 2d 406", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 970", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600992, 599913, 599204, 599758 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0970-03", "/us/484/0970-02", "/us/484/0970-01", "/us/484/0970-04" ] }, { "cite": "358 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "34", "parenthetical": "a murder in the home \"shocks the conscience, not only because a life was senselessly taken, but because it was taken by the surreptitious invasion of an especially private place, one in which a person has a right to feel secure\"" }, { "page": "30" } ], "opinion_index": 0 }, { "cite": "320 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730916 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "231" }, { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0179-01" ] }, { "cite": "98 L. Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 599537, 600738 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0959-02", "/us/484/0959-01" ] }, { "cite": "357 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723637 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0233-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "526" }, { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "284" }, { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "365 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "617" } ], "opinion_index": 0 }, { "cite": "321 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567021 ], "year": 1988, "pin_cites": [ { "page": "741" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0738-01" ] }, { "cite": "402 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "394", "parenthetical": "quoting State v. Murphy, 321 N.C. 738, 741, 365 S.E.2d 615, 617 (1988)" } ], "opinion_index": 0 }, { "cite": "328 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539039 ], "year": 1991, "pin_cites": [ { "page": "491", "parenthetical": "quoting State v. Murphy, 321 N.C. 738, 741, 365 S.E.2d 615, 617 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0477-01" ] }, { "cite": "129 L. Ed. 2d 883", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "439 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "528" } ], "opinion_index": 0 }, { "cite": "335 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527119 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0301-01" ] }, { "cite": "185 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "280 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569823 ], "year": 1971, "pin_cites": [ { "page": "72-73" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0067-01" ] }, { "cite": "302 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "789" } ], "opinion_index": 0 }, { "cite": "308 N.C. 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705445 ], "year": 1983, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0530-01" ] }, { "cite": "297 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "307 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561451 ], "year": 1982, "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0258-01" ] }, { "cite": "129 U.S. 52", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8299134 ], "weight": 2, "year": 1889, "opinion_index": 0, "case_paths": [ "/us/129/0052-01" ] }, { "cite": "476 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867623 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0482-01" ] }, { "cite": "134 L. Ed. 2d 482", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "462 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "34" } ], "opinion_index": 0 }, { "cite": "341 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793083 ], "year": 1995, "pin_cites": [ { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0364-01" ] }, { "cite": "166 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "275 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558305 ], "year": 1969, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0198-01" ] }, { "cite": "392 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "363" } ], "opinion_index": 0 }, { "cite": "326 N.C. 792", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309049 ], "year": 1990, "pin_cites": [ { "page": "794" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0792-01" ] }, { "cite": "407 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 423", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554806 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0423-01" ] }, { "cite": "494 U.S. 433", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4898 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/0433-01" ] } ], "analysis": { "cardinality": 1343, "char_count": 46264, "ocr_confidence": 0.718, "pagerank": { "raw": 1.3228722292170346e-07, "percentile": 0.6271352113578823 }, "sha256": "820b8b6e507248db6b37f41954603f45c4276d4c3828afa63d9ca26c2daad9dd", "simhash": "1:4f6dc126160e00d4", "word_count": 7435 }, "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. JAMES EDWARD THOMAS" ], "opinions": [ { "text": "FRYE, Justice.\nOn 23 June 1986, defendant James Edward Thomas was indicted for murder and first-degree sexual offense. At the 6 July 1987 Criminal Session of Superior Court, Wake County, he was tried capitally to a jury, found guilty, and sentenced to death for the first-degree murder conviction and to a consecutive term of life imprisonment for the sexual offense conviction. On appeal, this Court ordered a new capital sentencing proceeding on the first-degree murder conviction based on the United States Supreme Court\u2019s decision in McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990). State v. Thomas, 329 N.C. 423, 407 S.E.2d 141 (1991). Defendant\u2019s new capital sentencing proceeding was held 13 through 24 February 1995, Judge Jack Thompson presiding.\nAt defendant\u2019s new capital sentencing proceeding conducted pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended a sentence of death for the first-degree murder conviction. The jury found as aggravating circumstances that defendant had been previously convicted of a violent felony, N.C.G.S. \u00a7 15A-2000(e)(3) (1988) (amended 1994); and that the murder had been committed while defendant was engaged in a sexual offense, N.C.G.S. \u00a7 15A-2000(e)(5). The jury also found twenty-six of the twenty-nine statutory and nonstatutory mitigating circumstances submitted to it. On 24 February 1995, Judge Thompson, upon the jury\u2019s recommendation, imposed a sentence of death.\nDefendant appeals to this Court as of right from the sentence of death. On this appeal, defendant makes eleven arguments, supported by fourteen assignments of error. We reject each of these arguments and conclude that defendant\u2019s capital sentencing proceeding was free of prejudicial error and that the death sentence is not disproportionate. Accordingly, we uphold defendant\u2019s sentence of death.\nThe evidence supporting defendant\u2019s conviction is summarized in this Court\u2019s prior opinion, State v. Thomas, 329 N.C. 423, 407 S.E.2d 141, in which we vacated defendant\u2019s death sentence for McKoy error and remanded the murder case for a new capital sentencing proceeding. That evidence will not be repeated here, except where necessary to discuss the issues before us.\nIn his first argument, defendant contends that the trial court committed plain error at his capital resentencing proceeding by allowing the case to be tried before a jury that had not been duly sworn in open court in the presence of defendant and his counsel. We reject defendant\u2019s argument since there is no evidence that the case was tried before a jury that had not been duly sworn.\nUnder our Constitution, the accused in a criminal trial is entitled to trial by an impartial jury. N.C. Const, art. I, \u00a7 24. Our legislature has provided statutory procedures for selection, excusal, and swearing of jurors. See, e.g., N.C.G.S. \u00a7\u00a7 9-6 (Supp. 1995), 9-14, 9-15 (1986). These statutes contemplate a procedure whereby each juror is sworn to \u201ctruthfully and without prejudice or partiality try all issues in criminal or civil actions that come before him and render true verdicts according to the evidence.\u201d N.C.G.S. \u00a7 9-14. However, once all jurors, including alternate jurors, have been selected to try a particular criminal case, they are impaneled by the clerk as follows:\n\u201cMembers of the jury, you have been sworn and are now impaneled to try the issue in the case of State of North Carolina versus ............You will sit together, hear the evidence, and render your verdict accordingly.\u201d\nN.C.G.S. \u00a7 15A-1216 (1988).\nOur Constitution also provides that a defendant has the right to be present at every stage of the trial. State v. Smith, 326 N.C. 792, 794, 392 S.E.2d 362, 363 (1990). This right cannot be waived in capital trials. State v. Moore, 275 N.C. 198, 208, 166 S.E.2d 652, 659 (1969). We have declined to extend the nonwaivable right to be present in capital trials to pretrial jury selection matters. State v. McCarver, 341 N.C. 364, 381, 462 S.E.2d 25, 34 (1995), cert. denied,-U.S.-, 134 L. Ed. 2d 482 (1996); see also State v. Workman, 344 N.C. 482, 476 S.E.2d 301 (1996).\nDefendant admits that he was present for the selection and impaneling of the jury selected for his capital sentencing proceeding. He does not even contend that he was not physically present when the jurors were given their oath of office. He contends, rather, that the record does not affirmatively show whether the jurors were sworn and, if sworn, the form of the oath taken by them and whether the oath was taken in his presence in open court. Admitting that no objection was made at trial, and that no question was raised as to whether the jurors were sworn or the circumstances surrounding any oaths taken by the jurors, defendant nevertheless contends that this Court should find plain error because he was not tried by a jury that had been duly sworn.\nIn Baldwin v. Kansas, 129 U.S. 52, 32 L. Ed. 640 (1889), the United States Supreme Court held that a journal entry to the effect that the oath has been given is sufficient to overcome the contention that a jury was not adequately sworn. In State v. Fennell, 307 N.C. 258, 262, 297 S.E.2d 393, 396 (1982), this Court noted the presumption of regularity in a trial, stating that \u201cwhere the record is silent on a particular point, it will be presumed that the trial court acted correctly.\u201d See also State v. Bennett, 308 N.C. 530, 534, 302 S.E.2d 786, 789 (1983); State v. Sanders, 280 N.C. 67, 72-73, 185 S.E.2d 137, 140 (1971). In the instant case, however, the record is not silent. As defendant concedes, there are two notations in the record to the effect that the jury had been duly sworn. The judge stated to the jury: \u201cYou have taken an oath as jurors that you will try all matters that come before you and render true verdicts according to the evidence.\u201d The record also includes a statement by the clerk: \u201cMembers of the jury, you have all been duly sworn.\u201d Thus, to the extent that the record in the instant case shows anything, it shows that the jurors were duly sworn. Defendant presents no evidence to the contrary. Accordingly, we reject defendant\u2019s argument that he was tried by a jury that had not been duly sworn.\nDefendant\u2019s second argument is based on two assignments of error. In one assignment of error, defendant contends that the trial court erred in denying his motion to exclude photographs of the victim on the grounds that the photographs were prejudicial and unnecessary. In the other assignment of error, defendant contends that the trial court erred in partially denying his motion regarding the especially heinous, atrocious, or cruel aggravating circumstance and then by allowing the State thereafter to conduct its voir dire of prospective jurors and to present evidence or question witnesses in ways suggesting that the crime was especially heinous, atrocious, or cruel.\nBefore trial, defendant filed several motions, including a \u201cMotion to Exclude Photographs,\u201d which the trial court denied. Defendant also filed a \u201cMotion to Prevent the State of North Carolina from Submitting N.C.G.S. \u00a7 15A-2000(e)(9), Which Was Previously Rejected by the Jury, as an Aggravating Factor and to Exclude Evidence Tending to Show that the Murder of Teresa Ann West was Heinous, Atrocious and Cruel.\u201d The trial court granted defendant\u2019s motion insofar as it requested that the aggravating circumstance that the murder was \u201cespecially heinous, atrocious, or cruel\u201d not be allowed. The trial court denied the motion as it related to the State\u2019s presentation of evidence concerning the circumstances of the killing.\nAddressing the photographs first, defendant concedes that, pursuant to N.C.G.S. \u00a7 15A-2000(a)(3), the jury in a capital sentencing proceeding may consider all the circumstances surrounding the killing. However, defendant argues that the photographs of the victim were introduced to prove that the killing was done in an \u201cespecially heinous, atrocious, or cruel\u201d manner, an impermissible circumstance in this case since defendant\u2019s first jury rejected this circumstance. We disagree with defendant\u2019s contention that the trial court erred in denying his motion to exclude the photographs.\nIn State v. Rose, 335 N.C. 301, 439 S.E.2d 518, cert. denied,-U.S.-, 129 L. Ed. 2d 883 (1994), we said:\nThis Court has stated that \u201c[p]hotographs of homicide victims are admissible at trial even if they are \u2018gory, gruesome, horrible, or revolting, so long as they are used by a witness to illustrate his testimony and so long as an excessive number of photographs are not used solely to arouse the passions of the jury.\u2019 \u201d State v. Thompson, 328 N.C. 477, 491, 402 S.E.2d 386, 394 (1991) (quoting State v. Murphy, 321 N.C. 738, 741, 365 S.E.2d 615, 617 (1988)). \u201cPhotographs may also be introduced in a murder trial to illustrate testimony regarding the manner of killing so as to prove circumstantially the elements of murder in the first degree.\u201d State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988).\nRose, 335 N.C. at 319, 439 S.E.2d at 528.\nAdmissible evidence may be excluded, however, under Rule 403 of the North Carolina Rules of Evidence if the probative value of such evidence is substantially outweighed by its prejudicial effect. \u201cWhether the use of photographic evidence is more probative than prejudicial and what constitutes an excessive number of photographs in light of the illustrative value of each . . . lies within the discretion of the trial court.\u201d Hennis, 323 N.C. at 285, 372 S.E.2d at 527.\nIn this case, seven photographs were introduced into evidence. Although some of the photographs were gruesome, they were relevant to illustrate the circumstances of the killing and tended to establish that the murder was committed during the commission of a sexual offense which supported the N.C.G.S. \u00a7 15A-2000(e)(5) aggravating circumstance. These photographs were neither cumulative nor excessive in number and their probative value was not substantially outweighed by the danger of unfair prejudice. Accordingly, the trial court did not err in admitting these photographs into evidence.\nIn the other assignment of error supporting his second argument, defendant contends that the prosecutor impermissibly called attention to the especially heinous, atrocious, or cruel aggravating circumstance by repeatedly referring to sexual \u201csadism\u201d and \u201ctorture\u201d during cross-examination of two defense witnesses and by repeatedly characterizing the case as \u201cunique\u201d during jury voir dire. Defendant did not object at the time to the prosecutor\u2019s cross-examination or voir dire.\nFirst, as to counsel\u2019s questions on cross-examination, we note that the jury in a capital sentencing proceeding may consider all the circumstances surrounding the killing. N.C.G.S. \u00a7 15A-2000(a)(3) (Supp. 1995). N.C.G.S. \u00a7 15A-2000(a)(3) provides:\nIn the [capital sentencing] proceeding there shall not be any requirement to resubmit evidence presented during the guilt determination phase of the case, unless a new jury is impaneled, but all such evidence is competent for the jury\u2019s consideration in passing on punishment. Evidence may be presented as to any matter that the court deems relevant to sentence, and may include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (e) and (f). Any evidence which the court deems to have probative value may be received.\nIn the instant case, a new jury was impaneled for defendant\u2019s new capital sentencing proceeding and the prosecutor presented evidence to support the aggravating circumstances and cross-examined the witnesses for the defense as t\u00f3 the extent of their knowledge of the crime and the defendant. Since the trial court had ruled that it would not submit the N.C.G.S. \u00a7 15A-2000(e)(9) aggravating circumstance, the prosecutor did not mention the \u201cespecially heinous, atrocious, or cruel\u201d language during the presentation of the evidence or the cross-examination of the defense witnesses. In light of the foregoing and the fact that the questions were relevant to the circumstances of the killing, including the violent sexual assault, we hold that the prosecutor did not impermissibly call attention to the especially heinous, atrocious, or cruel aggravating circumstance.\nSecond, in reviewing counsel\u2019s arguments, we have said:\nControl of counsel\u2019s argument is largely left to the trial court\u2019s discretion. State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987). When a defendant does not object to an alleged improper jury argument, the trial judge is not required to intervene ex mero motu unless the argument is so grossly improper as to be a denial of due process. State v. Brown, 320 N.C. 179, 358 S.E.2d 1, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987).\nState v. Howell, 335 N.C. 457, 471, 439 S.E.2d 116, 124 (1994). We conclude that the prosecutor\u2019s repeated use of the word \u201cunique\u201d during jury voir dire in this capital sentencing proceeding was not so grossly improper as to require the court to intervene ex mero motu. Accordingly, we reject defendant\u2019s second argument.\nDefendant\u2019s third argument is in two parts. First, the essence of defendant\u2019s argument is that it was improper for the prosecutor to describe defendant\u2019s offenses in ways that suggested the murder was especially heinous, atrocious, or cruel, and that any argument suggesting such required the trial court to intervene ex mero motu. Second, defendant contends that the jury returned the death sentence under the influence of passion, prejudice, and other arbitrary factors because of the prosecutor\u2019s impermissible argument. We disagree with both contentions.\nWe will first address defendant\u2019s contentions regarding the prosecutor\u2019s argument. Since defendant did not object at trial, we must determine whether the prosecutor\u2019s argument was so grossly improper as to require the trial court to intervene ex mero motu. Howell, 335 N.C. at 471, 439 S.E.2d at 124.\nThis Court rejected a similar argument in State v. Bacon, 337 N.C. 66, 446 S.E.2d 542 (1994), cert. denied,-U.S.-, 130 L. Ed. 2d 1083 (1995). In Bacon, the defendant contended that his due process rights were violated when the prosecutor repeatedly emphasized future dangerousness and brutality during his closing argument where the especially heinous, atrocious, or cruel aggravating circumstance could not be considered. This Court held that the defendant suffered no undue prejudice from the prosecutor\u2019s arguments because neither the trial court nor the district attorney ever mentioned the especially heinous, atrocious, or cruel aggravating circumstance and it was clear to the jury what aggravating circumstance could be considered. Id. at 93, 446 S.E.2d at 556.\nIn the instant case, the prosecutor\u2019s argument included repeated references to torture and sadism. Here, as in Bacon, neither the prosecutor nor the trial judge used the \u201cespecially heinous, atrocious, or cruel\u201d language, and we are satisfied that the jury was not confused as to what aggravating circumstances it could consider. The prosecutor\u2019s argument was not so grossly improper as to have required the trial court to intervene ex mero motu. Id. For similar reasons, we also reject defendant\u2019s contention that the prosecutor\u2019s argument led the jury to return a sentence of death based on passion, prejudice, or other arbitrary factors.\nIn his fourth argument, defendant contends that the trial court committed prejudicial error in failing to intervene ex mero motu to prevent the prosecutor\u2019s voir dire of prospective jurors. Defendant contends that the prosecutor engaged in a series of lectures by which the prosecutor was attempting to establish rapport with the jurors. In addition, defendant contends that, while technically accurate, the prosecutor\u2019s statements during voir dire were unduly prejudicial because the statements led the jurors to expect a large number of mitigating circumstances and to believe that mitigating circumstances have less value than aggravating circumstances.\nDefendant cites the following as an example of the prosecutor\u2019s improper statements:\nAnd those things go to the nature of the person, how they were brought up, how they were raised, you might hear some psychological reports, that sort of thing. And they are not limited [in] numbers, they are just \u2014 submit fifty mitigating factors and \u2014 and it should be that way. But you don\u2019t, on the other hand, you don\u2019t compare the numbers of factors. You don\u2019t add up one aggravating factor and three mitigating factors and say the mitigating factors win. You\u2019ve got to use your common sense and put value on what they mean.\nFor example, somebody could have a terrible childhood, one brother or one sister, and do bad and the other child could do wonderful; so, it might not mean anything in some circumstances.\nWe note first that defendant did not object to the prosecutor\u2019s statements. Thus, the trial court had no opportunity to correct any perceived errors in the statements. Assuming, arguendo, that the statements may have raised the jury\u2019s expectation regarding the number of mitigating circumstances to be submitted, the statements clearly were not so grossly improper as to require the trial court to intervene ex mero motu. See State v. Frye, 341 N.C. 470, 491, 461 S.E.2d 664, 674 (1995), cert. denied,-U.S.-, 134 L. Ed. 2d 526 (1996) (comments during jury selection constituting shorthand summaries of the definitions of aggravating and mitigating circumstances which were substantially correct were not so grossly improper as to require the trial court to intervene ex mero motu, even if slightly slanted toward the State\u2019s perspective). We note further that the trial court properly instructed the jury regarding the aggravating and mitigating circumstances, and that the law to be applied was as stated by the court rather than by the attorneys. Under these circumstances, we are convinced that the jury was not misled and that its recommendation was not unduly influenced by the prosecutor\u2019s statements during voir dire. Accordingly, we reject defendant\u2019s fourth argument.\nIn his fifth argument, defendant, relying on State v. Johnson, 341 N.C. 104, 459 S.E.2d 246 (1995), contends that the trial court committed plain error in not conducting an inquiry and in not declaring a mistrial ex mero motu when a panel of prospective jurors was allowed to see defendant in leg irons. In Johnson, this Court found no error in the trial court\u2019s denial of the defendant\u2019s motion for a mistrial where the trial court conducted voir dire upon the defendant\u2019s motion, determined that the jurors had seen the defendant in handcuffs and leg restraints, gave corrective instructions, and inquired as to whether the jurors would be influenced by what they had seen. Unlike in Johnson, defendant here made no motion for a mistrial or for curative instructions to the jury.\nIn State v. Montgomery, 291 N.C. 235, 229 S.E.2d 904 (1976), this Court reaffirmed its holding and reasoning in State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976), which recognized that as a general rule a defendant in a criminal case is entitled to appear at trial free from shackles, except in extraordinary circumstances, in order to protect the presumption of innocence. Nevertheless, this Court held that the trial court did not err by refusing to grant the defendant\u2019s motion for mistrial because the jury observed him in handcuffs while being escorted from the jail to the courtroom. In so holding, this Court noted:\n[I]t is readily apparent that [the] instant case differs factually from Tolley. Here defendant was never shackled or bound while in the courtroom. The only basis upon which the trial judge could have granted a new trial was that the fleeting view of the handcuffed defendant while being transported from the jail to the courtroom may have suggested to some of the jurors that defendant was \u201can obviously bad and dangerous person whose guilt is a foregone conclusion.\u201d\nMontgomery, 291 N.C. at 250, 229 S.E.2d at 912-13 (quoting Tolley, 290 N.C. at 366, 226 S.E.2d at 367). In Montgomery, this Court further stated:\n[S]ome of the jurors may have momentarily viewed defendant in handcuffs while he was being escorted from the separate jail building to the courthouse. It is common knowledge that bail is not obtainable in all capital cases and the officer having custody of a person charged with a serious and violent crime has the authority to handcuff him while escorting him in an open, public area. Indeed, it would seem that when the public safety and welfare is balanced against the due process rights of the individual in this case, such action was not only proper but preferable. Under the circumstances of this case, the trial judge correctly denied defendant\u2019s motion for a mistrial.\nId. at 252, 229 S.E.2d at 913-14.\nIn the present case, as in Montgomery, defendant was not shackled or bound while in the courtroom, but may have been seen in restraints by prospective jurors as he was brought through the lobby of the courthouse. Further, this was a sentencing proceeding; therefore, defendant\u2019s guilt had already been determined as defendant had been previously convicted of first-degree murder. The jury was aware of this. Thus, being temporarily observed in restraints did not infringe on defendant\u2019s presumption of innocence, since there was no such presumption. Accordingly, the trial court did not err in not conducting an inquiry and granting a mistrial.\nIn defendant\u2019s sixth argument, defendant first contends that the trial court erred by denying defendant\u2019s \u201cMotion to Question Potential Jurors Concerning their Beliefs as to Parole Eligibility.\u201d We recently addressed the issue of the denial of a similar motion in State v. Payne, 337 N.C. 505, 448 S.E.2d 93 (1994), cert. denied,-U.S.-, 131 L. Ed. 2d 292 (1995), and held against defendant\u2019s position. In Payne, we said:\nWe previously have held that evidence about parole eligibility is not relevant in a capital sentencing proceeding because it does not reveal anything about defendant\u2019s character or record or about any circumstances of the offense. The United States Supreme Court\u2019s recent decision in Simmons v. South Carolina, [512] U.S. [154], 129 L. Ed. 2d 133 (1994), does not affect our prior rulings on this issue. There, the Court ruled that a sentencing jury must be informed that a defendant is parole ineligible when the State argues to the jury for the death penalty based on the premise that the defendant will be dangerous in the future. The Court, however, noted that where a defendant is eligible for parole, \u201c[s]tates reasonably may conclude that truthful information regarding the availability of commutation, pardon, and the like, should be kept from the jury in order to provide \u2018greater protection in [the States\u2019] criminal justice system than the Federal Constitution requires.\u2019 \u201d Id. at [168], 129 L. Ed. 2d at 145 (quoting California v. Ramos, 463 U.S. 992, 1014, 77 L. Ed. 2d 1171, 1189 (1983)); see also State v. Bacon, 337 N.C. 66, 97-98, 446 S.E.2d 542, 558-59, (1994). Here, defendant would have been eligible for parole had he been given a life sentence. We continue to adhere to our prior rulings on this issue. This assignment of error is overruled.\nPayne, 337 N.C. at 516-17, 448 S.E.2d at 99-100 (citations omitted). We reject defendant\u2019s argument relating to the denial of his motion for reasons similar to those stated in Payne.\nDefendant further contends that the trial court erred by giving the jury a false response to its inquiry during deliberations concerning parole eligibility. In response to specific questions from the jury, the trial court informed the jury that eligibility for parole is not a proper matter for the jury to consider, and in determining whether to recommend death or life imprisonment, it \u201cshould determine the question as though life imprisonment means exactly what the statute says: imprisonment for life in the State\u2019s prison.\u201d Defendant contends that this answer is false.\nWe have rejected similar contentions in State v. Skipper, 337 N.C. 1, 43-44, 446 S.E.2d 252, 275-76 (1994), cert. denied,-U.S.-, 130 L. Ed. 2d 895 (1995), and State v. McLaughlin, 341 N.C. 426, 454-55, 462 S.E.2d 1, 16 (1995), cert. denied,-U.S.-, 133 L. Ed. 2d 879 (1996). Having found no compelling reason to depart from our prior holdings, we reject defendant\u2019s sixth argument.\nIn his seventh argument, defendant seeks a new capital sentencing proceeding on the basis of the admission of inadmissible and prejudicial evidence offered by the State. The State introduced into evidence in support of the N.C.G.S. \u00a7 15A-2000(e)(3) aggravating circumstance (previous conviction of a felony involving the use or threat of violence to a person) State\u2019s Exhibit No. 73, a copy of a 1976 California change of plea and an order indicating that defendant had pleaded guilty to one count of armed robbery with a .22-caliber pistol. State\u2019s Exhibit No. 73 also indicated that defendant had pleaded guilty to a second count of felony robbery, and that two additional armed robbery charges had been dropped. Although defendant did not object to the admission of this exhibit, he now contends that the trial court\u2019s admission of this exhibit into evidence entitles him to a new capital sentencing proceeding since the jury may have relied upon this exhibit in recommending a sentence of death. This contention is without merit.\nAssuming, arguendo, that State\u2019s Exhibit No. 73 would not have been admissible over a proper objection, we nevertheless conclude that its admission did not impact the jury\u2019s recommendation in light of the evidence that was properly admitted and the fact that the jury was properly instructed as to the requirement for finding the existence of the N.C.G.S. \u00a7 15A-2000(e)(3) aggravating circumstance. In addition, defense counsel candidly admitted the existence of this aggravating circumstance during his argument to the jury. Accordingly, we reject this assignment of error.\nIn his eighth argument, defendant contends that the jury returned the death verdict under the influence of passion, prejudice, and other arbitrary factors. Defendant\u2019s argument is based on his previous assignments of error, and having rejected defendant\u2019s arguments on those assignments of error, we reject defendant\u2019s eighth argument.\nPRESERVATION ISSUES\nDefendant also raises two additional arguments that he concedes have been decided contrary to his position previously by this Court: (1) the trial court erred in its instructions on nonstatutory mitigating circumstances, permitting jurors to reject submitted mitigating circumstances on the basis that they had no mitigating value; and (2) the trial court erred in using the word \u201cmay\u201d in its instructions in sentencing Issues Three and Four, on tlie ground that the court\u2019s action denied the jurors discretion to find these circumstances to have mitigating value.\nDefendant raises these issues for the purpose of permitting this Court to reexamine its prior holdings and also for the purpose of preserving them for any possible further judicial review of this case. We have carefully considered defendant\u2019s arguments on these issues and find no compelling reason to depart from our prior holdings. Accordingly, we reject these arguments.\nPROPORTIONALITY REVIEW\nHaving concluded that defendant\u2019s capital sentencing proceeding was free of prejudicial error, we turn to the duties reserved by N.C.G.S. \u00a7 15A-2000(d)(2) exclusively for this Court in capital cases. It is our duty in this regard to ascertain: (1) whether the record supports the jury\u2019s findings of the aggravating circumstances on which the sentence of death was based; (2) whether the death sentence was entered under the influence of passion, prejudice, or other arbitrary consideration; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and defendant. N.C.G.S. \u00a7 15A-2000(d)(2).\nIn the instant case, the jury found defendant guilty of first-degree murder under the theory of malice, premeditation, and deliberation as well as under the felony murder rule. The jury also convicted defendant of first-degree sexual offense. During defendant\u2019s resentencing proceeding, the trial court submitted three aggravating circumstances to the jury: that defendant had been previously convicted of a violent felony, N.C.G.S. \u00a7 15A-2000(e)(3); that the murder was committed while defendant was engaged in the commission of a sexual offense, N.C.G.S. \u00a7 15A-2000(e)(5); and that the murder was committed to disrupt or hinder the enforcement of the law, N.C.G.S. \u00a7 15A-2000(e)(7). The jury found the (e)(3) and (e)(5) aggravating circumstances to exist. Of the statutory mitigating circumstances submitted, the jury found that the murder was committed while the defendant was mentally or emotionally disturbed, N.C.G.S. \u00a7 15A-2000(f)(2), and that defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was impaired, N.C.G.S. \u00a7 15A-2000(f)(6), but rejected the catchall mitigating circumstance, N.C.G.S. \u00a7 15A-2000(e)(9). Of the twenty-six nonstatutory mitigating circumstances submitted, the jury found twenty-four. After thoroughly examining the record, transcripts, and briefs in the present case, we conclude that the record fully supports the two aggravating circumstances found by the jury. Further, we find no indication that the sentence of death in this case was imposed under the influence of passion, prejudice, or any other arbitrary consideration. We must turn then to our final statutory duty of proportionality review.\nIn our proportionality review, it is proper to compare the present case with other cases in which this Court has concluded that the death penalty was disproportionate. State v. McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162 (1993), cert. denied,-U.S.-, 129 L. Ed. 2d 895 (1994). We have found the death penalty disproportionate in seven cases. State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983). We conclude that this case is not substantially similar to any case in which this Court has found the death penalty disproportionate.\nIn support of his argument that his death sentence is disproportionate, defendant submits that the instant case is comparable to two first-degree murder cases involving sexual offenses in which juries did not return death sentences: State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980), and State v. Prevette, 317 N.C. 148, 345 S.E.2d 159 (1986). We find these cases distinguishable.\nIn Powell, the sole basis for the conviction was felony murder. By contrast, in the instant case, defendant was convicted of first-degree murder on the basis of premeditation and deliberation and under the felony murder rule. \u201cThe finding of premeditation and deliberation indicates a more cold-blooded and calculated crime.\u201d State v. Artis, 325 N.C. 278, 341, 384 S.E.2d 470, 506 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990); see also State v. Kandies, 342 N.C. 419, 455, 467 S.E.2d 67, 87 (1996). Accordingly, the instant case is unlike Powell.\nIn Prevette, the defendant was convicted of first-degree murder and first-degree kidnapping. The charge of first-degree sexual offense was dismissed by the State prior to trial. That case is also distinguishable from the instant case. First, in the instant case, defendant was convicted of first-degree sexual offense. Further, the sexual offense in this case was more brutal and dehumanizing than may have occurred in Prevette. See Prevette, 317 N.C. at 152, 345 S.E.2d at 162 (autopsy revealed small superficial lacerations along the wall of the vagina which might have been caused by a male penis or by a pair of scissors). Finally, the jury in the instant case found the (e)(5) aggravating circumstance, that the murder was committed during a sexual offense, and that circumstance was not found in Prevette.\nIt is also proper to compare this case to those where the death sentence was found not disproportionate. McCollum, 334 N.C. at 244, 433 S.E.2d at 164. \u201c[W]e have never found a death sentence disproportionate in a case involving a victim of first-degree murder who also was sexually assaulted.\u201d Kandies, 342 N.C. at 455, 467 S.E.2d at 86. In addition, we have noted that \u201cjuries tend to return death sentences in murder cases involving a sexual assault on the victim.\u201d State v. Campbell, 340 N.C. 612, 644, 460 S.E.2d 144, 161 (1995), cert. denied,-U.S.-, 133 L. Ed. 2d 871 (1996).\nIn State v. Payne, 337 N.C. 505, 448 S.E.2d 93, this.Court upheld a death sentence when the only aggravating circumstance found by the jury was the (e)(5) circumstance that the murder was committed during commission of a sexual offense. In that case, the location of the murder, which was the victim\u2019s home, was an important consideration. Id. at 537, 448 S.E.2d at 112; see also Brown, 320 N.C. at 231, 358 S.E.2d at 34 (a murder in the home \u201cshocks the conscience, not only because a life was senselessly taken, but because it was taken by the surreptitious invasion of an especially private place, one in which a person has a right to feel secure\u201d). Further, the Court found it significant in Payne that the defendant was found guilty of murder based on both the felony murder rule and on malice, premeditation, and deliberation.\nIn the instant case, the jury found the (e)(3) aggravating circumstance (previously convicted of a violent felony) as well as the (e)(5) aggravator. This Court has noted that the (e)(3) aggravating circumstance \u201creflects] upon the defendant\u2019s character as a recidivist.\u201d Brown, 320 N.C. at 224, 358 S.E.2d at 30.\nThere are four statutory aggravating circumstances which, standing alone, this Court has held sufficient to sustain death sentences. Bacon, 337 N.C. at 110 n.8, 446 S.E.2d at 566 n.8. Both the (e)(3) and (e)(5) aggravators are among them. Id. There was sufficient evidence introduced at trial from which the jury could find that defendant had been previously convicted of a felony involving the use 'or threat of violence and that the murder was committed during the commission of a sexual offense.\nThe aggravating circumstances found in this case have been present in other cases where this Court has found the sentence of death proportionate. See, e.g., State v. Buckner, 342 N.C. 198, 464 S.E.2d 414 (1995) (affirming a death sentence based on both the (e)(3) and the (e)(5) aggravators); Zuniga, 320 N.C. 233, 357 S.E.2d 898 (affirming a death sentence based on the (e)(5) factor alone); Brown, 320 N.C. 179, 358 S.E.2d 1 (affirming a death sentence based on the (e)(3) factor alone).\nIn this case, the victim was found dead in her home, with bite marks on her breasts, her inner thighs bruised, her head covered by a pillow, and a telephone inserted inside her vagina. There were signs of both manual and ligature strangulation which was determined to be the cause of death. Further, defendant had been convicted previously of armed robbery, a violent felony.\nAfter comparing this case to other roughly similar cases as to the crime and the defendant, we conclude that this case has the characteristics of first-degree murders for which we have previously upheld the death penalty as proportionate. Accordingly, we cannot conclude that defendant\u2019s death sentence is excessive or disproportionate. We hold that defendant received a capital sentencing proceeding free of prejudicial error, and that the sentence of death is not disproportionate.\nNO ERROR.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by RalfF. Haskell, Special Deputy Attorney General, for the State.", "Elizabeth G. McCroddenfor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES EDWARD THOMAS\nNo. 91A95\n(Filed 8 November 1996)\n1. Jury \u00a7 266 (NCI4th)\u2014 capital resentencing \u2014 swearing of jury\nThere was no plain error in a capital resentencing where defendant alleged that the case was not tried before a jury duly sworn in open court in the presence of defendant and his counsel. Defendant admits that he was present for the selection and impaneling of the jury and does not contend that he was not physically present when the jurors were given their oath of office. To the extent that the record shows anything, it shows that the jurors were duly sworn and defendant presents no evidence to the contrary.\nAm Jur 2d, Jury \u00a7\u00a7 217 et seq.\n2. Evidence and Witnesses \u00a7 1693 (NCI4th)\u2014 capital resentencing \u2014 photographs of victim \u2014 admissible\nThe trial court did not err in a capital resentencing proceeding by admitting into evidence seven photographs where defendant argued that the photographs were introduced to prove that the killing was done in an especially heinous, atrocious, or cruel manner, an aggravating circumstance which the first jury had rejected. The photographs were neither cumulative nor excessive in number and their probative value was not substantially outweighed by the danger of unfair prejudice. Although some of the photographs were gruesome, they were relevant to illustrate the circumstances of the killing and tended to establish that the murder was committed during the commission of a sexual offense, which supported the N.C.G.S. \u00a7 15A-2000(e)(5) circumstance.\nAm Jur 2d, Homicide \u00a7\u00a7 417 et seq.\nAdmissibility in evidence of enlarged photographs or photostatic copies. 72 ALR2d 308.\nAdmissibility of photograph of corpse in prosecution for homicide or civil action for causing death. 73 ALR2d 769.\n3. Criminal Law \u00a7 1343 (NCI4th)\u2014 capital resentencing\u2014 especially heinous, atrocious, or cruel circumstance\u2014 rejected at first hearing \u2014 references by prosecutor\nThere was no plain error in a capital resentencing where the previous jury had rejected the especially heinous, atrocious, or cruel aggravating circumstance, the trial court in this proceeding had granted defendant\u2019s motion that this circumstance not be allowed, and defendant argued that the prosecutor impermissibly called attention to the especially heinous, atrocious, or cruel aggravating circumstance by repeatedly referring to sexual \u201csadism\u201d and \u201ctorture\u201d during cross-examination of two defense witnesses and by repeatedly characterizing the case as \u201cunique\u201d during jury voir dire. A jury in a capital sentencing proceeding may consider all the circumstances surrounding the killing; the prosecutor did not mention .the especially heinous, atrocious, or cruel language during the presentation of the evidence or the cross-examination of the defense witnesses. The prosecutor\u2019s repeated use of the word \u201cunique\u201d during jury voir dire was not so grossly improper as to require the court to intervene ex mero motu.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598 et seq.\n4. Criminal Law \u00a7 452 (NCI4th)\u2014 capital resentencing\u2014 especially heinous, atrocious or cruel aggravating circumstance not allowed \u2014 prosecutor\u2019s argument \u2014 references to torture and sadism\nA prosecutor\u2019s argument in a capital resentencing hearing was not so grossly improper as to require the trial court to intervene ex mero motu, and did not lead the jury to return a sentence of death based on passion, prejudice, or other arbitrary factors, where the previous jury had rejected the especially heinous, atrocious, or cruel aggravating circumstance and the court in this proceeding had granted defendant\u2019s motion that this circumstance not be allowed, but defendant alleges that the prosecutor described defendant\u2019s offenses in ways that suggested the murder was especially heinous, atrocious, or cruel. Although the prosecutor\u2019s argument included repeated references to torture and sadism, neither the prosecutor nor the judge used the especially heinous, atrocious, or cruel language and the jury was not confused as to what aggravating circumstances it could consider.\nAm Jur 2d, Trial \u00a7\u00a7 648 et seq.\nSupreme Court\u2019s views as to what courtroom statements made by prosecuting attorney during criminal trial violate due process or constitute denial of fair trial. 40 L. Ed. 2d 886.\n5. Criminal Law \u00a7 1303 (NCI4th)\u2014 capital resentencing \u2014 jury selection \u2014 prosecutor\u2019s statements\nThere was no error in a capital resentencing so grossly improper as to require the trial court to intervene ex mero motu where defendant contended that the prosecutor engaged in a series of lectures by which he attempted to establish rapport with the jurors and that, while technically accurate, the prosecutor\u2019s statements were unduly prejudicial because the statements led the jurors to expect a large number of mitigating circumstances and to believe that mitigating circumstances have less value than aggravating circumstances. The trial court had no opportunity to correct any perceived errors in the statements, the trial court properly instructed the jury regarding the aggravating and mitigating circumstances, and the law to be applied was as stated by the court rather than by the attorneys. The jury was not misled and its recommendation was not unduly influenced by the prosecutor\u2019s statements during voir dire.\nAm Jur 2d, Criminal Law \u00a7 600.\n6. Criminal Law \u00a7 352 (NCI4th)\u2014 capital resentencing\u2014 defendant seen in leg irons \u2014 no plain error\nThere was no plain error in a capital resentencing where the trial court did not err by not conducting an inquiry and not declaring a mistrial ex mero motu when a panel of prospective jurors was allowed to see defendant in leg irons. Defendant was not shackled or bound while in the courtroom, but may have been seen in restraints by prospective jurors as he was brought through the lobby of the courthouse. The jury was aware that this was a sentencing proceeding and that defendant\u2019s guilt had been determined, as he had been previously convicted of first-degree murder, and being temporarily observed in restraints did not infringe on defendant\u2019s presumption of innocence, since there was no such presumption.\nAm Jur 2d, Criminal Law \u00a7\u00a7 844-846.\nPropriety and prejudicial effect of gagging, shackling, or otherwise physically restraining accused during course of state criminal trial. 90 ALR3d 17.\n7. Jury \u00a7 141 (NCI4th)\u2014 capital resentencing \u2014 jury selection \u2014 parole eligibility \u2014 questions not allowed\nThe trial court did not err in a capital resentencing by denying defendant\u2019s motion to question potential jurors concerning parole eligibility.\nAm Jur 2d, Jury \u00a7\u00a7 205, 206.\nPropriety and effect of asking prospective jurors hypothetical questions, on voir dire, as to how they would decide issues of case. 99 ALR2d 7.\n8. Criminal Law \u00a7 1322 (NCI4th)\u2014 capital resentencing\u2014 parole eligibility \u2014 jury question \u2014 instruction\nThe trial court did not err in a capital resentencing by informing the jury, in response to specific questions from the jury, that eligibility for parole is not a proper matter for the jury to consider and that it should determine the question of death as though life imprisonment means exactly what the statute says.\nAm Jur 2d, Trial \u00a7\u00a7 286, 1443.\nProcedure to be followed where jury requests information as to possibility of pardon or parole from sentence imposed. 35 ALR2d 769.\n9. Criminal Law \u00a7 1312 (NCI4th)\u2014 capital resentencing\u2014 aggravating circumstance \u2014 previous conviction involving violence \u2014 1976 California plea\nThere was no prejudicial error in a capital resentencing where the State introduced in support of the aggravating circumstance of a previous conviction involving violence a copy of a 1976 California change of plea and order indicating that defendant had pleaded guilty to one count of armed robbery with a .22 caliber pistol, that defendant had pleaded guilty to a second count of felony robbery, and that two additional armed robbery charges had been dropped. Assuming that the exhibit would not have been admissible over a proper objection, its admission did not impact the jury\u2019s recommendation in light of the evidence that was properly admitted and the fact that the jury was properly instructed. Additionally, defense counsel admitted the existence of this aggravating circumstance in his argument to the jury.\nAm Jur 2d, Criminal Law \u00a7 328.\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.\n10. Criminal Law \u00a7 1373 (NCI4th)\u2014 death penalty \u2014 not disproportionate\nA sentence of death was proportionate where the record fully supported the two aggravating circumstances found by the jury, and there is no indication that the sentence of death in this case was imposed under the influence of passion, prejudice, or any other arbitrary consideration. The victim was found dead in her home, with bite marks on her breasts, her inner thighs bruised, her head covered by a pillow, and a telephone inserted inside her vagina; there were signs of both manual and ligature strangulation which was determined to be the cause of death; and defendant had been convicted previously of armed robbery, a violent felony. This case has the characteristics of first-degree murders for which the death penalty has been upheld.\nAm Jur 2d, Criminal Law \u00a7 628.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like \u2014 post-Gregg cases. 63 ALR4th 478.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society, and the like \u2014 post-Gregg cases. 65 ALR4th 838.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Thompson, J., at the 13 February 1995 Criminal Session of Superior Court, Wake County. Heard in the Supreme Court 12 September 1996.\nMichael F. Easley, Attorney General, by RalfF. Haskell, Special Deputy Attorney General, for the State.\nElizabeth G. McCroddenfor defendant-appellant." }, "file_name": "0639-01", "first_page_order": 671, "last_page_order": 690 }