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ISAAC JACKSON STROUD" ], "opinions": [ { "text": "LAKE, Justice.\nThe defendant was indicted on 17 May 1993 for the first-degree murder of Jocelyn Mitchell and on 7 November 1994 for the first-degree kidnapping of Mitchell. The defendant was tried capitally, and the jury found the defendant guilty of first-degree murder on the basis of felony murder and on the basis of murder by torture. The defendant was also found guilty of second-degree kidnapping. Following a capital sentencing proceeding pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended that the defendant be sentenced to death. Judge Allen entered a prayer for judgment continued on the kidnapping conviction and sentenced the defendant to death for the murder conviction.\nAt trial, the State presented evidence tending to show that Jocelyn Mitchell died on 1 May 1993 from dozens of blunt force injuries to her body. Defendant was in the apartment with the victim the night of the beating. John McPhatter, the defendant\u2019s next-door neighbor, and McPhatter\u2019s girlfriend, Debra Harper, each testified that on 1 May 1993, between 12:30 and 1:30 a.m., they awoke to a loud thump from defendant\u2019s apartment. McPhatter and Harper also heard the defendant arguing and the victim talking and crying. They specifically heard the defendant say, \u201cYou shouldn\u2019t have gone to that party,\u201d and heard the victim say, \u201cLook what you\u2019ve done to my face.\u201d McPhatter and Harper testified that as the night went on, the defendant continued to argue, but the victim stopped talking and only cried. McPhatter testified that when he left his apartment at 5:30 a.m., he could still hear the defendant arguing and the victim crying. Similarly, when Harper left the apartment between 6:00 and 6:30 a.m., she could still hear the defendant arguing and the victim \u201cwhimpering.\u201d Linda Baldwin, an upstairs neighbor, testified that by 7:30 a.m., there were no noises coming from the apartment occupied by the defendant and Mitchell.\nApproximately seven hours later, the defendant called 911 from his apartment. He told the dispatcher that Mitchell had collapsed, that he could not wake her and that she was breathing lightly. The victim was not breathing when paramedics arrived, she had no pulse and her neck and arms were stiff. Defendant told the paramedics that Mitchell had been assaulted around 6:00 p.m. the night before at the school where she was employed as a teacher. The paramedics called the police.\nOfficers M.L. Hayes and J.A. Pickett, Jr., of the Durham Police Department arrived at the defendant\u2019s apartment around 3:00 p.m. The defendant told Officer Hayes that he and Mitchell had been fighting all night. Defendant also told the officers that Mitchell had come home around 8:00 p.m. and stated that she had been attacked and could not breathe. At trial, however, the State presented evidence that at about 8:00 p.m., Mitchell was seen parking her car and that she looked normal, had no visible injuries, was not bleeding and had no trouble walking. The State also presented evidence from a co-worker who observed Mitchell shopping at a grocery store around 11:55 p.m. The co-worker noticed nothing strange about Mitchell\u2019s appearance or actions and testified that Mitchell was not crying and appeared to be in good health.\nDr. John Butts, Chief Medical Examiner of the State of North Carolina, performed an autopsy on the victim. Dr. Butts\u2019 examination revealed, among other injuries, bruising on either side of the eyes, behind the right ear, on the lower part of the neck and over the front part of the skull. There was a laceration on the top of the head that extended into the deeper skin tissue that covers the skull. There were multiple bruises on the upper and mid-back, as well as extensive bruising of the right side and back, upper left arm and elbow, buttocks, back of the right thigh and all along the front part of the legs. The victim\u2019s skin was tom and scratched in several places. One back left rib was broken in two places, and ribs eight through eleven on the right side in the back were broken. One of the victim\u2019s ribs punctured the right lung, causing it to collapse and causing bleeding into the chest cavity. Dr. Butts characterized the wounds to the hands and forearms as defensive wounds from fending off her assailant\u2019s blows.\nDr. Butts testified that, in his opinion, Jocelyn Mitchell was struck dozens of times, causing her tissues to rupture and bleed into the muscles and fat beneath her skin. Further, some of her fat was broken up by the blunt-force trauma. The fat liquified and flowed into the victim\u2019s lungs, causing hypoxia, a lack of oxygen to the tissues. The overall process of internal bleeding, loss of blood to the tissues, collapse of the lung and fat in the lungs gradually resulted in loss of consciousness, coma and then death. Dr. Butts further testified that the victim\u2019s injuries would have been very painful, would have affected the victim\u2019s ability to move or walk and eventually would have incapacitated her.\nIn his first assignment of error, the defendant contends that the trial court erred by denying his motion to dismiss the second-degree kidnapping charge. This is based on defendant\u2019s assertion that all of the blows dealt to the victim in this case were essential to or related to the victim\u2019s death. Therefore, the argument continues, the restraint that resulted in the victim\u2019s murder is indistinguishable from the restraint used by the State to support the kidnapping charge. As a result, defendant contends, all three theories of first-degree murder submitted to the jury were tainted by the failure to dismiss the second-degree kidnapping charge. We disagree.\nWhen a defendant moves for dismissal, the trial court must determine whether the State has presented substantial evidence of each element of the offense charged and substantial evidence that the defendant was the perpetrator of such offense. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). If substantial evidence of each element is presented, the motion to dismiss is properly denied. State v. Quick, 323 N.C. 675, 682, 375 S.E.2d 156, 160 (1989). Substantial evidence is \u201cthat amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981). In ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. Olson, 330 N.C. at 564, 411 S.E.2d at 595.\nViewed in the light most favorable to the State, the evidence is clearly sufficient to establish that the blows used for restraint were separate and apart from the blows causing death. An argument ensued between the defendant and the victim sometime between 12:30 and 1:30 a.m. and continued for six or seven hours, during which time the victim\u2019s talking degenerated to crying, then whimpering and finally silence. The autopsy evidence shows that the victim suffered dozens of blunt-force injuries. In addition to a number of broken ribs, she had bruises and cuts all over her body, from her head down to her legs. These injuries caused internal bleeding, loss of blood to the tissues, accumulation of fat in the lungs and collapse of one lung. The medical examiner testified that the injuries would have affected the victim\u2019s ability to move or walk and eventually would have incapacitated the victim. From this evidence, it is reasonable to infer that at some point the victim\u2019s injuries were severe enough to prevent her from leaving but not so severe as to cause death. Based on this evidence, we find sufficient evidence that the restraint and death blows were separable and conclude that the trial court did not err in denying defendant\u2019s motion to dismiss the second-degree kidnapping charge.\nDefendant attempts to analogize this case to State v. Prevette, 317 N.C. 148, 345 S.E.2d 159 (1986). In Prevette, the victim suffocated to death from a gag being placed in her mouth. The evidence established that the victim would not have died from the gag if her hands, knees and ankles had not been bound. As a result, the bonds could not be regarded as a separate and distinguishable restraint because they were necessary conditions of the cause of death. In the present case, however, there were innumerable and various blows struck over the course of many hours, some of which initially merely immobilized and restrained and others of which proximately caused death. Because not all of the blows were necessary conditions of the cause of death, Prevette is not applicable in the present case.\nMoreover, the evidence regarding restraint is irrelevant to the charge of first-degree murder based on murder by torture. In this case, the defendant was convicted of first-degree murder on the basis of felony murder and on the basis of murder by torture, as well as convicted of second-degree kidnapping. In order to sustain a conviction of first-degree murder by torture, the State must prove that the defendant intentionally tortured the victim and that such torture was a proximate cause of the victim\u2019s death. State v. Crawford, 329 N.C. 466, 479-81, 406 S.E.2d 579, 586-88 (1991). Conviction for kidnapping requires proof that \u201cthe defendant unlawfully confined, restrained, or removed the person for one of the eight purposes set out in the statute.\u201d State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986).\nIn State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988), this Court considered and rejected a restraint argument similar to defendant\u2019s. In Wilson, the defendant tied the victim\u2019s hands behind his back, looped the rope around his neck and body, and pulled the loose end under the victim\u2019s groin area. The victim died from ligature strangulation. The defendant was convicted of first-degree murder on the theories of premeditation and deliberation and felony murder, as well as first-degree kidnapping: As here, the defendant argued that the restraint integral to the kidnapping was not separate from the strangulation that resulted in the victim\u2019s death. This Court rejected the defendant\u2019s argument, reasoning that a \u201crestraint is not essential to a charge of premeditated and deliberated murder.\u201d Id. at 139, 367 S.E.2d at 602.\nSimilarly, in this case, restraint is not an essential element of first-degree murder by torture. There is no requirement that the victim be restrained in order to convict the defendant of murder by torture, and there is no requirement that death or torture occur to convict the defendant of kidnapping. Because the crimes have separate, integral elements, any purported error in the submission of second-degree kidnapping (of which we have found none) would not infect the submission and conviction of first-degree murder by torture.'\nDefendant also argues that the trial court\u2019s failure to dismiss the kidnapping charge and the subsequent submission of the charge of first-degree felony murder based on the underlying felony of kidnapping unconstitutionally subjected him to multiple punishments for the same offense. We find defendant\u2019s argument to be without merit. As related to punishment, the Double Jeopardy Clauses of the North Carolina and United States Constitutions only protect against multiple punishments for the same offense. State v. Gardner, 315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986). The defendant in this case was not sentenced for the kidnapping; a prayer for judgment continued was granted as to the kidnapping charge. The trial court did not subject the defendant to multiple punishment merely by submitting to the jury, under separate statutes, both the second-degree kidnapping charge and the charge of felony murder based on the underlying felony of kidnapping. While the law requires that a defendant convicted of murder solely on the theory of felony murder not be sentenced for the felony underlying the felony murder conviction, it is not error to deny a motion to dismiss the underlying felony charge. Id. at 459, 340 S.E.2d at 712.\nThe defendant concedes that the submission of the underlying felony as an aggravating circumstance is prohibited only when the defendant is convicted solely of felony murder. State v. Conaway, 339 N.C. 487, 531, 453 S.E.2d 824, 852, cert. denied, - U.S. -, 133 L. Ed. 2d 153 (1995). The defendant in this case was convicted of both felony murder and murder by torture. Submission of kidnapping as an aggravating circumstance was therefore proper. After careful review, we find no compelling reason to overrule prior precedent of this Court. This assignment of error is overruled.\nIn his next assignment of error, the defendant contends that the admission of hearsay testimony of eight witnesses relating to the defendant\u2019s alleged prior acts of violence against the victim deprived the defendant of his state and federal constitutional rights to confrontation, to due process of law, to a fair trial by jury, to effective assistance of counsel and to be free from cruel and unusual punishment. The defendant concedes that this Court has rejected similar claims of error in admission of hearsay testimony. State v. Alston, 341 N.C. 198, 461 S.E.2d 687 (1995), cert. denied, - U.S. -, 134 L. Ed. 2d 100 (1996); State v. McHone, 334 N.C. 627, 435 S.E.2d 296 (1993), cert. denied, 511 U.S. 1046, 128 L. Ed. 2d 220 (1994); State v. Walker, 332 N.C. 520, 422 S.E.2d 716 (1992), cert. denied, 508 U.S. 919, 124 L. Ed. 2d 271 (1993); State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991); State v. Payne, 327 N.C. 194, 394 S.E.2d 158 (1990), cert. denied, 498 U.S. 1092, 112 L. Ed. 2d 1062 (1991); State v. Meekins, 326 N.C. 689, 392 S.E.2d 346 (1990); State v. Faucette, 326 N.C. 676, 392 S.E.2d 71 (1990); State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990). Defendant makes no further argument in support of his position. Therefore, defendant\u2019s argument is waived pursuant to Rule 28 of the North Carolina Rules of Appellate Procedure. Nevertheless, we have examined the statements at issue, and we find no grounds for overruling the trial court\u2019s rulings. This assignment of error is therefore overruled.\nDefendant further contends that he is entitled to a new capital sentencing proceeding because of several improper arguments by the prosecutor which deprived him of his constitutional rights to due process of law, to a fair trial by jury and to be free from cruel and unusual punishment. Again, the defendant concedes this Court has consistently rejected similar claims of error in prosecutors\u2019 closing arguments in the penalty phase of a capital trial, State v. Alston, 341 N.C. 198, 461 S.E.2d 687; State v. Gregory, 340 N.C. 365, 459 S.E.2d 638 (1995), cert. denied, - U.S. -, 134 L. Ed. 2d 478 (1996); State v. Rouse, 339 N.C. 59, 451 S.E.2d 543 (1994), cert. denied, - U.S. -, 133 L. Ed. 2d 60 (1995), and he makes no further argument in his favor. Likewise, this issue is deemed waived. Despite defendant\u2019s abandonment of his argument, we have thoroughly reviewed the record, and we find that the prosecutor\u2019s arguments all fall within the wide latitude accorded prosecutors in the scope of their argument. State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487 (1992). Thus, this assignment of error is overruled.\nPRESERVATION ISSUES\nThe defendant next assigns error to the trial court\u2019s denial of his motion to permit voir dire of prospective jurors regarding their beliefs about parole eligibility. The defendant concedes that this issue previously has been decided against him by this Court.\nThis Court has consistently held that \u201cevidence 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.\u201d 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). This Court has also held that the United States Supreme Court\u2019s decision in Simmons v. South Carolina, 512 U.S. 154, 129 L. Ed. 2d 133 (1994), does not affect our position on this issue where, as here, the defendant would have been eligible for parole if given a life sentence. State v. Miller, 339 N.C. 663, 676, 455 S.E.2d 137, 151, cert. denied, - U.S. -, 133 L. Ed. 2d 169 (1995). This assignment of error is overruled.\nDefendant next argues that the trial court improperly instructed the sentencing jury by giving pattern jury instruction 150.10, which instruction fails to adequately limit the facially vague N.C.G.S. \u00a7 15A-2000(e)(9) aggravating circumstance that the murder was especially heinous, atrocious, or cruel. We have consistently upheld the instruction as given. \u201cBecause these jury instructions incorporate narrowing definitions adopted by this Court and expressly approved by the United States Supreme Court, or are of the tenor of the definitions approved, we reaffirm that these instructions provide constitutionally sufficient guidance to the jury.\u201d State v. Syriani, 333 N.C. 350, 391-92, 428 S.E.2d 118, 141, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993). Upon careful review of defendant\u2019s arguments, we find no reason to alter or reverse our previous holdings. Accordingly, this assignment of error is overruled.\nPROPORTIONALITY REVIEW\nHaving found no error in either the guilt/innocence phase of defendant\u2019s trial or the capital sentencing proceeding, we are required by statute to review the record and determine (1) whether the evidence supports the aggravating circumstances found by the jury; (2) whether passion, prejudice or \u201cany other arbitrary factor\u201d influenced the imposition of the death sentence; and (3) whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. N.C.G.S. \u00a7 15A-2000(d)(2) (Supp. 1995).\nIn the present case, the defendant was convicted of first-degree murder on the theories of felony murder and murder by torture. The jury found the aggravating circumstances that the murder was committed while the defendant was engaged in the commission of a kidnapping, N.C.G.S. \u00a7 15A-2000(e)(5), and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9). After thoroughly reviewing the record, transcript and briefs in the present case, we conclude that the record fully supports the aggravating circumstances found by the jury. We further conclude that the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor.\nThe final statutory duty of this Court is to conduct a proportionality review. One purpose of proportionality review is to guard against the \u201ccapricious 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). Another \u201cis to eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury.\u201d State v. Holden, 321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). In conducting proportionality review, we compare this case to others in the pool, defined in State v. Williams, 308 N.C. 47, 79-80, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983), and State v. Bacon, 337 N.C. 66, 106-07, 446 S.E.2d 542, 563-64 (1994), cert. denied, - U.S. -, 130 L. Ed. 2d 1083 (1995), that \u201care roughly similar with regard to the crime and the defendant.\u201d State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985). Whether the death penalty is disproportionate \u201cultimately rest[s] upon the \u2018experienced judgments\u2019 of the members of this Court.\u201d State v. Green, 336 N.C. 142, 198, 443 S.E.2d 14, 47, cert. denied, \u2014 U.S. -, 130 L. Ed. 2d 547 (1994).\nThe case sub judice has several distinguishing characteristics: the jury convicted the defendant under the theory of murder by torture; the victim\u2019s brutal murder was found by the jury to be especially heinous, atrocious, or cruel; the jury found the aggravating circumstance that the murder was committed by the defendant while engaged in the commission of a kidnapping; the victim suffered great pain over an extended period of time before death; the victim was of unequal physical strength to the defendant; and the victim feared the defendant. These characteristics distinguish this case from those in which we have held the death penalty disproportionate.\nOf the cases in which this Court has found the death penalty disproportionate, only two involved the especially heinous, atrocious, or cruel aggravating circumstance. State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983). Both Stokes and Bondurant are distinguishable from this case.\nIn Stokes, the seventeen-year-old defendant, along with four accomplices, robbed the victim and beat him to death. This Court found the sentence of death disproportionate because of the defendant\u2019s young age and because the defendant received the death penalty while an older accomplice received only a life sentence. Stokes, 319 N.C. at 21, 352 S.E.2d at 664. By contrast, the defendant\u2019s age is not a mitigating circumstance in the present case. Here, the thirty-eight-year-old defendant, without the aid of an accomplice, beat the victim to death.\nIn Bondurant, the defendant shot the victim while they were riding together in a car. This Court found the death penalty disproportionate because the defendant immediately exhibited remorse and concern for the victim\u2019s life by directing the driver to go to the hospital. The defendant went into the hospital to secure medical help for the victim, voluntarily spoke to police and admitted shooting the victim. Bondurant, 309 N.C. at 694, 309 S.E.2d at 182-83. In the present case, the defendant showed no remorse and denied beating the victim. Additionally, the defendant waited for several hours and attempted to clean up the evidence of the beating before seeking medical help for the victim. Thus, we find no significant similarity between this case and Stokes or Bondurant.\nAs noted above, two aggravating circumstances were found by the jury. Of the cases in which this Court has found a sentence of death disproportionate, the jury found the existence of more than one aggravating circumstance in only two cases, Bondurant and State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985). Bondurant, as discussed above, is clearly distinguishable. In Young, this Court focused on the jury\u2019s failure to find the existence of the especially heinous, atrocious, or cruel aggravating circumstance. The present case is distinguishable from Young because here, the jury found the aggravating circumstance that the murder was especially heinous, atrocious, or cruel. For all of the foregoing reasons, we conclude that the cases in which this Court has found the death penalty disproportionate are distinguishable from the instant case.\nIn performing proportionality review, it is also appropriate for us to compare the case before us to other cases in which we have found the death sentence to be proportionate. State v. McCollum, 334 N.C. 208, 244, 433 S.E.2d 144, 164 (1993), cert. denied, - U.S. -, 129 L. Ed. 2d 895 (1994). Although we review all of the cases in the pool when engaging in our statutory duty of proportionality review, \u201cwe will not undertake to discuss or cite all of those cases each time we carry out that duty.\u201d Id. Here, it suffices to say that we conclude that the present case is more similar to certain cases in which we have found the sentence of death proportionate than to those in which we have found the sentence disproportionate or those in which juries have consistently returned recommendations of life imprisonment.\nBased on the nature of this crime, and particularly the distinguishing features noted above, we cannot conclude as a matter of law that the sentence of death is excessive or disproportionate. We conclude that the defendant received a fair trial and capital sentencing proceeding, free of prejudicial error.\nNO ERROR.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by William P. Hart, Special Deputy Attorney General, for the State.", "Anthony Lynch for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ISAAC JACKSON STROUD\nNo. 162A95\n(Filed 6 December 1996)\n1. Constitutional Law \u00a7 202 (NCI4th)\u2014 kidnapping and murder \u2014 blows to restrain separate from blows causing death \u2014 convictions of both crimes\nThe trial court did not err by denying defendant\u2019s motion to dismiss a charge of second-degree kidnapping in a prosecution for murder and kidnapping on the ground that all of the blows to restrain the victim were essential to or related to the victim\u2019s death where the evidence showed that the victim received innumerable and various blows over the course of many hours, some of which initially immobilized and restrained her and others of which proximately caused her death; the evidence was thus sufficient to establish that the blows used for restraint were separate and apart from the blows causing death; and the evidence regarding restraint was irrelevant to the charge of first-degree murder.\nAm Jur 2d, Abduction and Kidnapping \u00a7 54; Criminal Law \u00a7\u00a7 20, 21.\nWhat felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine. 50 ALR3d 397.\nDue process as violated by successive state criminal trials for single offense or for multiple offenses of the same character, committed simultaneously. 2 L. Ed. 2d 2020.\n2. Constitutional Law \u00a7 202 (NCI4th)\u2014 double jeopardy\u2014 submission of kidnapping and felony murder \u2014 defendant not sentenced for kidnapping\nThe trial court did not subject defendant to multiple punishments for the same offense by submitting to the jury a charge of second-degree kidnapping and a charge of felony murder based on the underlying felony of kidnapping where defendant was not sentenced for kidnapping but prayer for judgment was continued on that charge.\nAm Jur 2d, Criminal Law \u00a7\u00a7 276-279; Homicide \u00a7\u00a7 46, 190.\nSupreme Court\u2019s views as to application, in state criminal prosecutions, of double jeopardy clause of Federal Constitution\u2019s Fifth Amendment. 95 L. Ed. 2d 924.\n3. Criminal Law \u00a7 1367 (NCI4th Rev.)\u2014 felony murder and murder by torture \u2014 underlying felony as aggravating circumstance\nThe underlying felony of kidnapping was properly submitted as an aggravating circumstance where defendant was convicted on theories of felony murder and murder by torture.\nAm Jur 2d, Abduction and Kidnapping \u00a7 54; Criminal Law \u00a7 598; Homicide \u00a7 46.\nWhat constitutes murder by torture. 83 ALR3d 1222.\n4. Appeal and Error \u00a7 418 (NCI4th)\u2014 defendant\u2019s contentions \u2014 concession of rejection by appellate court \u2014 no further argument \u2014 waiver\nDefendant\u2019s contentions that his constitutional rights were violated in a murder trial by the admission of hearsay testimony of eight witnesses relating to his prior acts of violence against the victim and by statements of the prosecutor in his closing argument in the capital sentencing proceeding were waived where defendant conceded that the appellate court has consistently rejected similar claims and made no further argument in support of his contentions. N.C. R. App. P. 28.\nAm Jur 2d, Constitutional Law \u00a7 849; Criminal Law \u00a7\u00a7 647, 722, 957; Evidence \u00a7 892; Homicide \u00a7 560.\nAdmissibility of statement under Rule 803(24), providing for admissibility of hearsay statement not covered by any specific exception but having equivalent circumstantial guarantees of trustworthiness. 36 ALR Fed. 742.\nFederal Constitutional right to confront witnesses\u2014 Supreme Court cases. 98 L. Ed. 2d 1115.\n5. Jury \u00a7 141 (NCI4th)\u2014 capital sentencing \u2014 voir dire\u2014 parole eligibility questions excluded\nThe trial court did not err in the denial of defendant\u2019s motion to permit voir dire of prospective jurors in a capital sentencing proceeding regarding their beliefs about parole eligibility. The decision of Simmons v. South Carolina, 512 U.S. 154, does not affect this issue where, as here, the defendant would have been eligible for parole if given a life sentence.\nAm Jur 2d, Criminal Law \u00a7 913; Jury \u00a7\u00a7 202, 206.\nRight of counsel in criminal case personally to conduct the voir dire examination of prospective jurors. 73 ALR2d 1187.\nPrejudicial effect of statement of prosecutor as to possibility of pardon or parole. 16 ALR3d 1137.\n6. Criminal Law \u00a7 1370 (NCI4th Rev.)\u2014 aggravating circumstance \u2014 heinous, atrocious, or cruel murder \u2014 constitutional instructions\nThe trial court\u2019s instructions on the especially heinous, atrocious, or cruel aggravating circumstance provided constitutionally sufficient guidance to the jury.\nAm Jur 2d, Criminal Law \u00a7 598; Trial \u00a7\u00a7 841, 1760.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like \u2014 post-Gregg cases. 63 ALR4th 478.\n7. Criminal Law \u00a7 1402 (NCI4th Rev.)\u2014 death penalty not excessive or disproportionate\nA sentence of death imposed upon defendant for first-degree murder was not excessive or disproportionate where defendant was convicted on theories of felony murder and murder by torture; defendant beat the victim to death over the course of many hours; the victim\u2019s brutal death was found by the jury to be especially heinous, atrocious, or cruel; the jury found the aggravating circumstance that the murder was committed by defendant while engaged in the commission of a kidnapping; the victim suffered great pain over an extended period of time before her death; the victim was of unequal physical strength to the defendant; the victim feared defendant; defendant was thirty-eight years old at the time of the killing; defendant waited for several hours and attempted to clean up the evidence of the beating before seeking medical help for the victim; and defendant showed no remorse and denied beating the victim.\nAm Jur 2d, Criminal Law \u00a7 628; Homicide \u00a7 48.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like \u2014 post-Gregg cases. 63 ALR4th 478.\nAppeal as of right by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Allen (J.B., Jr.), J., at the 23 January 1995 Criminal Session of Superior Court, Durham County, upon a jury verdict finding defendant guilty of first-degree murder. Defendant\u2019s motion to bypass the Court of Appeals as to an additional judgment imposed for second-degree kidnapping was allowed 30 November 1995. Heard in the Supreme Court 15 May 1996.\nMichael F. Easley, Attorney General, by William P. Hart, Special Deputy Attorney General, for the State.\nAnthony Lynch for defendant-appellant." }, "file_name": "0106-01", "first_page_order": 160, "last_page_order": 172 }