{ "id": 551277, "name": "STATE OF NORTH CAROLINA v. TONY MITCHELL SIDDEN", "name_abbreviation": "State v. Sidden", "decision_date": "1997-10-03", "docket_number": "No. 148A95", "first_page": "218", "last_page": "235", "citations": [ { "type": "official", "cite": "347 N.C. 218" } ], "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": "67 ALR4th 887", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "53 ALR2d 1102", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "323 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564753 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0371-01" ] }, { "cite": "111 L. Ed. 2d 777", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "497 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6268812, 6267060, 6268214, 6267352, 6267610, 6266778, 6268507, 6267902 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/497/1021-08", "/us/497/1021-02", "/us/497/1021-06", "/us/497/1021-03", "/us/497/1021-04", "/us/497/1021-01", "/us/497/1021-07", "/us/497/1021-05" ] }, { "cite": "381 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487626 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0001-01" ] }, { "cite": "130 L. Ed. 2d 650", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "513 U.S. 1089", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1330912, 1335109, 1330918, 1335077, 1335365, 1331497, 1331403, 1330808, 1334705, 1330705, 1331381, 1331288, 1332409, 1331131 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/513/1089-08", "/us/513/1089-06", "/us/513/1089-12", "/us/513/1089-05", "/us/513/1089-04", "/us/513/1089-10", "/us/513/1089-11", "/us/513/1089-13", "/us/513/1089-01", "/us/513/1089-02", "/us/513/1089-03", "/us/513/1089-09", "/us/513/1089-07", "/us/513/1089-14" ] }, { "cite": "443 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "321" } ], "opinion_index": 0 }, { "cite": "336 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535633 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0078-01" ] }, { "cite": "476 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12814 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/0001-01" ] }, { "cite": "444 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "434-35" } ], "opinion_index": 0 }, { "cite": "336 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534961 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0412-01" ] }, { "cite": "447 S.E.2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "729" } ], "opinion_index": 0 }, { "cite": "337 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552812 ], "year": 1994, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0543-01" ] }, { "cite": "282 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "447" } ], "opinion_index": 0 }, { "cite": "304 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565336 ], "year": 1981, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0093-01" ] }, { "cite": "136 L. Ed. 2d 723", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "472 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "858" } ], "opinion_index": 0 }, { "cite": "343 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798778 ], "year": 1996, "pin_cites": [ { "page": "548-49" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0518-01" ] }, { "cite": "134 L. Ed. 2d 794", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "463 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796135 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0001-01" ] }, { "cite": "420 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "171" } ], "opinion_index": 0 }, { "cite": "332 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506498 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0151-01" ] }, { "cite": "457 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "339 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557374 ], "year": 1994, "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0622-01" ] }, { "cite": "109 L. Ed. 2d 541", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "495 U.S. 951", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 633957, 634149, 634118, 634316, 633725, 633774, 633934, 633904, 633712, 633906, 633977, 633785, 633821, 634110 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/495/0951-02", "/us/495/0951-04", "/us/495/0951-09", "/us/495/0951-03", "/us/495/0951-14", "/us/495/0951-11", "/us/495/0951-13", "/us/495/0951-10", "/us/495/0951-15", "/us/495/0951-08", "/us/495/0951-07", "/us/495/0951-06", "/us/495/0951-12", "/us/495/0951-05" ] }, { "cite": "386 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489106 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0550-01" ] }, { "cite": "131 L. Ed. 2d 292", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "514 U.S. 1038", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1339040, 1338753, 1338913, 1339776, 1340320, 1340099, 1339211, 1339212, 1339180, 1339374, 1339951, 1340496, 1338611, 1339575, 1340089 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/514/1038-15", "/us/514/1038-09", "/us/514/1038-02", "/us/514/1038-12", "/us/514/1038-07", "/us/514/1038-06", "/us/514/1038-13", "/us/514/1038-11", "/us/514/1038-08", "/us/514/1038-14", "/us/514/1038-03", "/us/514/1038-10", "/us/514/1038-01", "/us/514/1038-05", "/us/514/1038-04" ] }, { "cite": "448 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551833 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0505-01" ] }, { "cite": "309 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 794", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761361 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0794-01" ] }, { "cite": "346 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "662" } ], "opinion_index": 0 }, { "cite": "317 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4775498 ], "year": 1986, "pin_cites": [ { "page": "496-97" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0487-01" ] }, { "cite": "337 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715712, 4720431, 4715122, 4720187, 4718559 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0188-02", "/nc/315/0188-05", "/nc/315/0188-04", "/nc/315/0188-03", "/nc/315/0188-01" ] }, { "cite": "334 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "250" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 623", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527736 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0623-01" ] }, { "cite": "391 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "175" } ], "opinion_index": 0 }, { "cite": "326 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305171 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0542-01" ] }, { "cite": "420 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "425" } ], "opinion_index": 0 }, { "cite": "332 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506667 ], "year": 1992, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0372-01" ] }, { "cite": "469 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11959771 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/469/0412-01" ] }, { "cite": "480 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "635" } ], "opinion_index": 0 }, { "cite": "345 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53847 ], "year": 1997, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0319-01" ] }, { "cite": "83 L. Ed. 2d 299", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 0 }, { "cite": "469 U.S. 963", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12034269, 12034334 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/469/0963-01", "/us/469/0963-02" ] }, { "cite": "316 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "215" } ], "opinion_index": 0 }, { "cite": "311 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679881 ], "year": 1984, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0001-01" ] }, { "cite": "133 L. Ed. 2d 169", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "455 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "152" } ], "opinion_index": 0 }, { "cite": "339 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557266 ], "year": 1995, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0663-01" ] }, { "cite": "100 L. Ed. 2d 935", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "486 U.S. 1061", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6375268, 6376325, 6375755, 6375564, 6375412, 6376092 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/486/1061-01", "/us/486/1061-06", "/us/486/1061-04", "/us/486/1061-03", "/us/486/1061-02", "/us/486/1061-05" ] }, { "cite": "362 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "537" } ], "opinion_index": 0 }, { "cite": "321 N.C. 125", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567820 ], "year": 1987, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0125-01" ] }, { "cite": "492 U.S. 302", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6214810 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/us/492/0302-01" ] }, { "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" ] }, { "cite": "108 L. Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1022", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5540, 5547, 5516, 5166, 5366, 4823, 5560 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1022-04", "/us/494/1022-06", "/us/494/1022-03", "/us/494/1022-05", "/us/494/1022-01", "/us/494/1022-02", "/us/494/1022-07" ] }, { "cite": "373 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 } ], "analysis": { "cardinality": 1277, "char_count": 38356, "ocr_confidence": 0.755, "pagerank": { "raw": 7.237934470952296e-08, "percentile": 0.43187575800751316 }, "sha256": "7f618e273c62999c942a8c1682e008f51711afa72656bc7d744e1e88d46cec15", "simhash": "1:827ca32a130225e4", "word_count": 6457 }, "last_updated": "2023-07-14T20:32:58.211595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. TONY MITCHELL SIDDEN" ], "opinions": [ { "text": "WEBB, Justice.\nThe defendant first argues error in the process of selecting the jury. He says seven jurors were excused without an adequate inquiry as to their ability to impose the death penalty. He does not argue that the form of the questions and answers did not satisfy the requirements of Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841 (1985). He argues that the jurors were asked whether their feelings would prevent or substantially impair their ability to perform their duties to consider fairly the possible punishments. He says this called on prospective jurors to apply a legal standard subjectively, which they could not do. He also says the questions presupposed that the prospective jurors understood the complex legal standards outlining the parameters of their duties, which is not so. If the questions called on the prospective jurors to apply a legal standard subjectively, this was not error. The questions were straightforward and easily understood. The jurors should have had no trouble answering them. If the jurors did not understand the legal standards outlining the parameters of their duties, this does not mean they could not properly answer the questions.\nThe defendant argues that it was wrong for the court to tell the jurors that they must make a recommendation \u201csetting aside personal feelings.\u201d This was not error. In determining what sentence to impose, a juror should follow the law and not his personal feelings. Nor can we hold, as urged by the defendant, that the court implied that reservations about capital punishment would disqualify prospective jurors from serving when it said it was the duty of the jury \u201cto fairly consider both possible punishments.\u201d This was an admonition to the jury to be fair to both sides.\nThe defendant also argues under this assignment of error that he should have been allowed to rehabilitate those jurors excused for cause. The defendant at trial asked to rehabilitate only one of the jurors who was excused for cause. The answers of all the excused jurors revealed that their feelings would prevent or substantially impair the performance of their duties as jurors. It was within the discretion of the trial judge whether to allow the rehabilitation of the jurors. State v. Taylor, 332 N.C. 372, 390, 420 S.E.2d 414, 425 (1992).\nThis assignment of error is overruled.\nThe defendant next assigns error to the admission of evidence in regard to the murder of Garry Sidden, Sr. The State introduced evidence that defendant and his stepson killed Garry Sidden, Sr. This evidence included photographs of the body and crime scene, diagrams, and the testimony of Sabon Johnson, an eyewitness. Evidence of the commission of a crime other than the one for which the defendant is being tried is admissible if such evidence is so intertwined with the evidence of the principal crime that the circumstances of the charged crime cannot be established without such evidence. State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990).\nIn this case, the evidence showed the defendant and his stepson kidnapped the two boys and put them in the trunk of an automobile. They left the two boys in the trunk while they murdered the boys\u2019 father. They then murdered the two boys. Evidence of the murder of the father was so intertwined with evidence of the murder of the boys that in order to show the circumstances of the crime, it was admissible. It was not barred by N.C.G.S. \u00a7 8C-1, Rule 404(b). Id. at 549, 391 S.E.2d at 175. It was not an abuse of discretion pursuant to N.C.G.S. \u00a7 8C-1, Rule 403 for the court to admit this evidence.\nThis assignment of error is overruled.\nThe defendant next contends that the trial court committed plain error in allowing the testimony of two State\u2019s witnesses. The first witness was SBI Agent Steve Cabe. He testified to contents of prior statements made by Sabon Johnson to him. He then testified that Johnson\u2019s testimony at trial had been basically \u201cthe same statements as he made initially both to law enforcement and in the first trial [the defendant\u2019s trial for the murder of Garry Sidden, Sr.].\u201d\nThe defendant acknowledges that a witness\u2019 prior consistent statements are admissible for the purpose of corroboration. However, he contends that the trial court erred in allowing Agent Cabe to state his opinion that Johnson\u2019s testimony was the same as he had made to the officers. The defendant relies on State v. Norman, 76 N.C. App. 623, 334 S.E.2d 247, disc. rev. denied, 315 N.C. 188, 337 S.E.2d 863 (1985), in support of his argument.\nIn Norman, the Court of Appeals held that testimony of an officer that a witness\u2019 testimony was substantially the same as his prior statements was error. Id. at 627, 334 S.E.2d at 250. However, in that case, the Court of Appeals noted that the officer had not testified as to the contents of the previous statement. Id. The present case is distinguishable since the officer in this case did testify as to the contents of the previous statement. The jury was able to draw its own conclusion as to whether the statements were the same. Furthermore, the trial court instructed the jury as to the limited use of this testimony. State v. Jones, 317 N.C. 487, 496-97, 346 S.E.2d 657, 662 (1986).\nThe second witness about which defendant complains was FBI Agent James Davis. Agent Davis testified without objection that the FBI had used information provided to it by Jesse Lord on twenty different occasions. Agent Davis testified that, based on his dealings with Lord, he had formed an opinion as to Lord\u2019s truthfulness. The court then sustained an objection to this testimony, and the witness did not testify as to his opinion. No curative instruction was given.\nThe defendant says that Agent Davis was allowed to promote the credibility of State\u2019s witness Lord by testifying as to specific instances of conduct, in violation of N.C.G.S. \u00a7 8C-1, Rule 608(b). We do not believe that was the purpose of the testimony. Apparently, the witness was laying the foundation for giving his opinion as to Lord\u2019s truthfulness. He was stopped from doing so by the sustaining of the objection.\nIn his colloquy, Agent Davis testified without objection as to the times the FBI had relied on Lord. Davis was not allowed to express his opinion as to Lord\u2019s truthfulness. This does not rise to the level of plain error.\nThis assignment of error is overruled.\nIn his next assignment of error, the defendant contends the court erred in its response to a question from the jury. During the guilt-phase deliberations, the jury submitted a written question to the court, asking, \u201cWhere is Jerry Prevette, and why was he not called to testify?\u201d The court responded:\nIn regards to that, Ladies and Gentlemen, I would instruct you that you are to decide this matter based on upon [sic] the evidence that has been presented and you are \u2014 it is your duty to recall all of the evidence and to base your decision on the evidence and on the law.\nThe defendant says this instruction was erroneous because it was incomplete, it failed to remind the jury to consider the arguments of counsel, and it did not address the thrust of the jury\u2019s inquiry, which was the obligation of the jury should it have a reasonable doubt. The defendant argues that this instruction misinformed the jury by telling it that the evidence was sufficient to convict the defendant. The defendant says there is a distinct possibility that this instruction stripped him of his presumption of innocence. We disagree.\nThe jury asked why a person whose name had been mentioned in the evidence did not testify. The court properly instructed the jury to decide the case based on the evidence presented. The court was not required to reinstruct the jury to consider arguments of counsel after it had properly done so in its charge. State v. Hockett, 309 N.C. 794, 309 S.E.2d 249 (1983). We do not believe the instruction told the jury the evidence was sufficient to convict the defendant; although, if the evidence was believed by the jury, it was so sufficient. Nor do we believe it could have caused the jury not to hold the State to proof beyond a reasonable doubt.\nThis assignment of error is overruled.\nThe defendant next assigns error to the following instructions given by the trial court during the sentencing phase of the trial:\nThe existence of any mitigating circumstance must be established by a preponderance of the evidence. That is, the evidence taken as a whole must satisfy you not beyond a reasonable doubt but simply satisfy you that any mitigating circumstance exist[s].\nThe defendant argues that the court should have defined preponderance of the evidence as \u201cmore probable than not.\u201d He also contends that the court erred in using the term \u201csatisfies you,\u201d as it is vague and highly subjective.\nWe have previously considered and rejected this contention. State v. Payne, 337 N.C. 505, 448 S.E.2d 93 (1994), cert. denied, 514 U.S. 1038, 131 L. Ed. 2d 292 (1995).\nThis assignment of error is overruled.\nIn his next assignment of error, the defendant contends that the prosecutor made several improper arguments during both phases of the trial.\nThe first argument complained of by the defendant is the prosecutor\u2019s argument that the defendant failed to call his ex-wife, Brenda Sidden, as a witness to support his alibi, even though she had been present in court for the entire trial. The defendant had contended that he had been with her on the evening of the murders. The prosecutor stated:\nAnd remember I asked Mr. Ockert, of all the people in these photographs, how many of them are here in this courtroom? And he said, \u201cwell, there\u2019s me, there\u2019s Tony [the defendant] and there\u2019s Brenda Sidden back there.\u201d Sitting where she is now with the defense witnesses and family and friends back there. Sitting all week that way. Why didn\u2019t they call her up here to testify about these pictures? She\u2019s sitting right back there with them. ... If he wants to call her\u2014 he didn\u2019t call her. He left her sitting back there among the other witnesses.\nJean Ockert testified for the defendant that at the time of the murder, the defendant had been at Ockert\u2019s house with Brenda Sidden. The identity of Brenda Sidden and the fact that she was in the courtroom had been brought into evidence during the State\u2019s cross-examination of Ockert. The prosecutor asked Ockert to point out Brenda Sidden, both in a photograph and in the courtroom.\nThe prosecutor was properly commenting on the defendant\u2019s failure to produce exculpatory evidence. State v. Brewer, 325 N.C. 550, 386 S.E.2d 569 (1989), cert. denied, 495 U.S. 951, 109 L. Ed. 2d 541 (1990). It is permissible for such comments to note a defendant\u2019s failure to produce an alibi witness. State v. Hunt, 339 N.C. 622, 641, 457 S.E.2d 276 (1994).\nNext, the defendant argues that the trial court should have intervened ex mero motu during the following argument by the prosecutor:\nWe have been criticized for using Jesse Lord, and you know prison is a place \u2014 and we have never been there, but I have heard it said that when you go ... to try the devil, you\u2019ve got to go to hell to get your witnesses, and Marion, Illinois qualifies in that respect. The Defendant over here qualifies in that respect.\nThe defendant, relying on State v. Willis, 332 N.C. 151, 420 S.E.2d 158 (1992), says it was error for the prosecuting attorney to characterize him as the devil. In Willis, the prosecutor argued, \u201cwhen you try the devil, you have to go to hell to find your witnesses.\u201d Id. at 171, 420 S.E.2d at 167. We said this did not characterize the defendant as the devil but described the type witness available in that case. Id. In this case, the prosecuting attorney in effect said the defendant qualified as the devil.\nIn the context in which it was said, we do not believe the jury could have thought the prosecutor believed the defendant was the devil. He meant that the defendant was a bad man. The argument was not so egregious that the court should have stricken it ex mero motu.\nThe defendant next contends that the trial court erred in allowing the prosecutor to use photographs of the victims during closing argument. The photographs were in evidence and, therefore, could be properly used in argument by either party.\nThe defendant also says that the prosecutor should not have been permitted to argue that the defendant had turned the victims into \u201cskeletal remains.\u201d The prosecutor said, \u201cI ask you to go by the evidence, not by the falsehoods supplied by the Defendant and find this man guilty of turning these boys from that to this, from that to this,\u201d while gesturing toward a photograph of the skeletal remains of the victims.\nThe prosecutor may draw inferences from the evidence. In the present case, there was ample evidence to support the prosecutor\u2019s inference that the defendant had turned the victims into skeletons. The defendant had buried the two boys in an old well and covered their bodies with lime and several bottles of Drano. The bodies were not located for nine years, and only the victims\u2019 skeletons were found.\nThe defendant also complains that the prosecutor improperly called the defendant \u201cthe Godfather of Traphill.\u201d The prosecutor argued:\nAll that money he was paying out up there. You know where that money came from based on what the evidence is coming out to you. He was the Godfather of Traphill. Giving out money to people. Oh, you need $65 to get your motorcycle back? Well, here, take [$]80. You need $300 for the tombstone of your son. Here\u2019s the $300.\nThe defendant had previously argued that the catchall mitigator was supported by his generosity to his community. He had presented evidence that he had given money to people in his neighborhood.\nThe prosecutor was properly rebutting the defendant\u2019s argument in support of the \u201ccatch-all\u201d mitigator by noting that the evidence at trial also showed that the defendant had been involved in the illegal sale of drugs and alcohol for many years. The prosecutor properly drew the inference that the money the defendant gave his neighbors came from illegal drug and liquor sales.\nThe defendant next says that the prosecutor\u2019s biblical references were grossly improper and that the trial court should have intervened ex mero motu. During the guilt phase, the prosecutor argued:\nYou know, the Bible, Luke 17, Versus [sic] 2, \u201cIt were better for him that a millstone were hanged about his neck and he cast into the sea than that he should offend one of these little ones.\u201d And that\u2019s what we have in this case, Ladies and Gentlemen. It is [an] offense committed against little ones.\nThe prosecutor also referred to this passage again in the sentencing phase arguments. He stated:\nYou know, that\u2019s how important this case is. If you can come back and say \u2014 look Pat Pruitt right in the eye and say, \u201cWell, I know he murdered your two sons. I know he took them out there after he slaughtered their father when they could either see or hear it. Took them out to Cecile Holder\u2019s property and laid them face down there on the ground and shot them in the back of the head. And even though that happened, we think these 17 or 18 mitigating circumstances is [sic] appropriate and his family life, whatever, makes up for it; and he ought not to get the death sentence.\u201d Well, that is not justice, and when you come back in on the basis of these kind of mitigating \u2014 alleged mitigating circumstances and look her in the eye and inform her her sons[] weren\u2019t worth anymore than that \u2014 it would be better for him that a millstone were hanged about his neck and he cast into the sea than he should offend one of these little ones.\nLadies and Gentlemen, I ask you under the law, what\u2019s right and what\u2019s just, that you take a millstone and you hang it around his neck and you cast it right into the sea for having offended these little ones.\nThe prosecutor\u2019s argument was not grossly improper. He did not contend that the state law or its officers were divinely inspired. State v. Walls, 342 N.C. 1, 463 S.E.2d 738 (1995), cert. denied, - U.S. -, 134 L. Ed. 2d 794 (1996). The prosecutor urged the jury to return a recommendation of death under the law.\nThis assignment of error is overruled.\nIn his next assignment of error, the defendant argues that the trial court erred in refusing to submit to the jury the mitigating circumstances that the defendant\u2019s codefendant received a life sentence. He also argues that the trial court should have, alternatively, set aside the jury\u2019s recommendation of death for this same reason.\nAside from the fact that we have repeatedly held that a codefendant\u2019s sentence for the same murder is irrelevant in the sentencing proceedings, State v. Bishop, 343 N.C. 518, 548-49, 472 S.E.2d 842, 858 (1996), cert. denied, - U.S. -, 136 L. Ed. 2d 723 (1997); State v. Irwin, 304 N.C. 93, 104, 282 S.E.2d 439, 447 (1981), the codefendant in this case was tried noncapitally pursuant to N.C.G.S. \u00a7 14-17 because he was a juvenile when the crimes were committed, State v. Blankenship, 337 N.C. 543, 546, 447 S.E.2d 727, 729 (1994). We decline to reconsider this issue.\nThis assignment of error is overruled.\nThe defendant next assigns error to the court\u2019s failure to submit the (f)(1) mitigator, \u201c[t]he defendant has no significant history of prior criminal activity.\u201d N.C.G.S. \u00a7 15A-2000(f)(l) (1988) (amended 1994). He argues first that the murder of Garry Sidden, Sr. cannot be considered prior criminal conduct for purposes of this mitigating circumstance because it was a part of the course of conduct in which the two boys were murdered. The defendant relies on State v. Coffey, 336 N.C. 412, 444 S.E.2d 431 (1994), for this argument. We do not believe Coffey is helpful to the defendant. It holds that to be considered in regard to this mitigator, the criminal conduct must have occurred before the date of the crime for which the defendant is being tried, rather than the date of the trial. Id. at 418, 444 S.E.2d at 434-35. The murder of Garry Sidden, Sr. occurred before the murder of the two boys, which makes it fit within the words of the mitigator as \u201cprior criminal activity.\u201d It has to be considered when determining whether to submit this mitigating circumstance.\nThe evidence showed the defendant had been dealing in the illegal sale of alcohol and drugs all his adult life. This evidence of constant criminal activity culminating in the murder of Garry Sidden, Sr. was such that the jury could not reasonably find that the defendant had no significant history of prior criminal activity. It was not error not to submit this mitigator.\nThis assignment of error is overruled.\nThe defendant next assigns error to the failure to submit the nonstatutory mitigating circumstance, \u201c[t]he Defendant is likely to adjust well in the future to prison.\u201d In support of this circumstance, the defendant adduced testimony from John F. Warren, a forensic psychologist who testified that the defendant had been treated for major depression while in prison and had responded so well that he was able to stop taking medication. Dr. Warren also testified that while the defendant was incarcerated, he had voluntarily participated in group therapy and benefitted from those involvements. Dr. Warren testified further that some of the defendant\u2019s most stable and consistent social and educational experiences occurred during his incarceration. He testified finally that the defendant\u2019s work adjustment while incarcerated was exemplary and that there was no indication that the defendant is violence-prone. A deputy sheriff testified that he had handled the defendant on several occasions while the defendant was incarcerated and had never had any disciplinary problems.\nIn Skipper v. South Carolina, 476 U.S. 1, 90 L. Ed. 2d 1 (1986), the United States Supreme Court held that evidence of a defendant\u2019s ability to adjust to prison life is relevant to a jury\u2019s sentencing recommendation and that a defendant is entitled to present evidence concerning his conduct in custody and his ability to adjust to prison. Assuming this mitigating circumstance should have been submitted, we hold that the failure to submit it was harmless beyond a reasonable doubt. N.C.G.S. \u00a7 15A-1443(b) (1996).\nIn State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 650 (1995), the superior court refused to submit the nonstatutory circumstance that \u201c[i]n a structured prison environment, [the defendant] is able to conform his behavior to the rules and regulations and performs tasks he is required to perform.\u201d Id. at 109, 443 S.E.2d at 321. An expert witness testified that the defendant functioned well in a prison environment, followed the rules, got along well with other inmates, and was able to live in that environment without disturbing or offending other inmates by his behavior.\nWe held it was harmless error not to submit the requested mitigating circumstance because the jury was allowed to consider fully this evidence in regard to mitigating circumstances that were submitted. The circumstances that were submitted included (1) that the defendant had a good prison record while at Central Prison, (2) that the defendant had exhibited good behavior while incarcerated at the Guilford County jail in High Point and had volunteered to serve meals to his fellow inmates and to perform other custodial duties such as mop the floor, and (3) any other circumstance or circumstances arising from the evidence which the jury deemed to have mitigating value. The jury did not find any of these mitigating circumstances. We held that if the jury refused to find these circumstances, it would not have found the defendant\u2019s requested circumstance, which was supported by the same evidence.\nAmong the mitigating circumstances that were submitted in this case were the following: (1) the defendant has an exemplary work record in prison, (2) the defendant has not given local authorities problems in his care and housing and has behaved appropriately while in custody, and (3) any other circumstance or circumstances arising out of the evidence that one or more of the jurors deem to have mitigating value. The jury did not find any of these mitigating circumstances. Following the rationale of Robinson, we hold that mitigating circumstances were submitted to the jury which allowed it to consider the defendant\u2019s evidence. If the jury did not find the circumstances submitted, we can conclude it would not have found one that was not submitted. Any error in not submitting the circumstance was harmless.\nThis assignment of error is overruled.\nThe defendant next says the court committed error in its charge on nonstatutory mitigating circumstances. The court charged the jury that one or more jurors would have to believe a submitted nonstatutory mitigating circumstance had mitigating value in order for the jury to find it. The defendant argues that the jury should have been told that it must give such circumstances some weight in reaching its decision.\nThe defendant concedes that we have rejected his argument in State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), sentence vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990), and State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 602 (1990). He says these cases have been overruled by McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990), and Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256 (1989). We disagree. McKoy dealt with our requirement that the jury must be unanimous before it can find a mitigating circumstance. The United States Supreme Court held this prevented the jury from considering mitigating evidence. We do not have that problem in this case. Penry dealt with Texas\u2019 method of imposing the death sentence. The United States Supreme Court held that the issues submitted to the jury did not allow it to give adequate consideration to mitigating evidence. In this case, the jury was able to fully consider the defendant\u2019s mitigating evidence. The jury rejected this evidence, which was its prerogative.\nThis assignment of error is overruled.\nIn his final assignment of error, the defendant contends the court should have set aside the jury\u2019s verdict recommending the death penalty. He bases this argument on the jury\u2019s failure to find any of the submitted mitigating circumstances, including the nonstatutory circumstances for which the court gave peremptory instructions. The defendant says it is obvious that the jury ignored the court\u2019s instructions.\nThe superior court did not have the authority to set aside the verdict. State v. Holden, 321 N.C. 125, 164, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). Furthermore, nonstatutory mitigating circumstances do not have mitigating value as a matter of law. It is for the jury to make this decision. State v. Miller, 339 N.C. 663, 690, 455 S.E.2d 137, 152, cert. denied, - U.S. -, 133 L. Ed. 2d 169 (1995). The jury was not required to find these mitigating circumstances.\nThis assignment of error is overruled.\nIn regard to our statutory duties required by N.C.G.S. \u00a7 15A-2000(d)(2), we find that the record supports the jury\u2019s findings of the aggravating circumstances upon which the sentence of death was based. We also find that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor.\nIn determining whether the death sentence was excessive or disproportionate, we note first that in State v. Maynard, 311 N.C. 1, 35, 316 S.E.2d 197, 215, cert. denied, 469 U.S. 963, 83 L. Ed. 2d 299 (1984), we held that the death penalty is proportionate when the only purpose for a murder is to eliminate a witness. Even if Maynard is not controlling, we have no difficulty finding the sentence proportionate because we have never found a death sentence disproportionate in a double-murder case. State v. Conner, 345 N.C. 319, 338, 480 S.E.2d 626, 635 (1997). This case involves a triple murder. It is hard to find a case to compare with this one. The facts in this case demonstrate a wanton cruelty which is beyond comparison. The defendant kidnapped two young boys and kept them locked first in the trunk of his automobile while he murdered their father and then in an attic before killing them. We can only imagine the terror the two boys felt as they awaited their fate. The torture endured by these two children removes any doubt that the sentence of death in this case is proportionate.\nIn the defendant\u2019s trial, we find\nNO ERROR.", "type": "majority", "author": "WEBB, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Thomas S. Hicks, Special Deputy Attorney General, for the State. .", "Jeffery M. Hedrick for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TONY MITCHELL SIDDEN\nNo. 148A95\n(Filed 3 October 1997)\n1. Jury \u00a7 153 (NCI4th)\u2014 capital trial \u2014 voir dire \u2014 consideration of possible punishments \u2014 question not improper\nIt was not error for the prosecutor to ask prospective jurors in a capital murder trial whether their feelings would prevent or substantially impair their ability to perform their duties to consider fairly the possible punishments even if the question called on the jurors to apply a legal standard subjectively.\nAm Jur 2d, Jury \u00a7\u00a7 206, 207.\n2. Jury \u00a7 146 (NCI4th)\u2014 capital sentencing \u2014 instruction\u2014 setting aside personal feelings\nIt was not error for the trial court in a capital murder trial to tell prospective jurors that they must make a recommendation \u201csetting aside personal feelings.\u201d\nAm Jur 2d, Trial \u00a7\u00a7 1653-1655.\n3. Jury \u00a7 150 (NCI4th)\u2014 capital trial \u2014 excusal for cause\u2014 rehabilitation not permitted\nIt was within the trial court\u2019s discretion to refuse to permit defendant to rehabilitate jurors excused for cause where the answers of all excused jurors revealed that their feelings would prevent or substantially impair the performance of their duties as jurors.\nAm Jur 2d, Jury \u00a7\u00a7 159, 160.\n4. Evidence and Witnesses \u00a7 364 (NCI4th Rev.)\u2014 murder trial \u2014 evidence of another murder \u2014 chain of circumstances \u2014 admissibility\nIn a prosecution for the murder of two boys, evidence of the murder of their father was so intertwined with evidence of the murder of the boys that it was admissible to show the circumstances of the charged crimes where the evidence showed that defendant and his stepson kidnapped the two boys, left them in the trunk of an automobile while they murdered the boys\u2019 father, and then murdered the boys.\nAm Jur 2d, Evidence \u00a7\u00a7 301, 404 et seq.\n5. Evidence and Witnesses \u00a7 3174 (NCI4th)\u2014 corroboration \u2014 consistency of statements \u2014 opinion testimony\nThe admission of an officer\u2019s opinion that the testimony of an eyewitness was basically the same as statements he had made to officers was not plain error where the officer testified to the contents of the prior statements and the trial court instructed the jury on the limited use of this testimony.\nAm Jur 2d, Witnesses \u00a7\u00a7 1001 et seq.\n6. Evidence and Witnesses \u00a7 3158 (NCI4th)\u2014 number of times informant used \u2014 testimony not plain error\nThe admission of an FBI agent\u2019s testimony that the FBI had used information provided to it by a State\u2019s witness on twenty different occasions did not permit the agent to promote the credibility of the witness by testimony as to specific instances of conduct in violation of N.C.G.S. \u00a7 8C-1, Rule 608(b) and was not plain error.\nAm Jur 2d, Witnesses \u00a7\u00a7 1027, 1028.\n7. Criminal Law \u00a7 878 (NCI4th Rev.)\u2014 question by jury \u2014 propriety of instruction\nWhen the jury asked during deliberations why a person whose name had been mentioned in the evidence did not testify, the trial court properly instructed the jury to decide the case based on the evidence presented; the court was not required to reinstruct the jury to consider arguments of counsel, and the instruction did not tell the jury that the evidence was sufficient to convict defendant.\nAm Jur 2d, Trial \u00a7\u00a7 1213, 1218, 1315 et seq.\n8. Criminal Law \u00a7 430 (NCI4th Rev.)\u2014 prosecutor\u2019s argument \u2014 failure to call alibi witness\nThe prosecutor\u2019s jury argument that defendant failed to call his ex-wife to support his alibi that he was with her at the time of the crimes even though she had been present in the courtroom for the entire trial was a proper comment on defendant\u2019s failure to produce exculpatory evidence.\nAm Jur 2d, Trial \u00a7\u00a7 592, 597, 598.\n9. Criminal Law \u00a7 439 (NCI4th Rev.)\u2014 prosecutor\u2019s argument \u2014 characterization of defendant as devil \u2014 no gross impropriety\nThe prosecutor\u2019s jury argument that when you \u201ctry the devil, you\u2019ve got to go to hell to get your witnesses\u201d and that the defendant \u201cqualifies in that respect\u201d was not so egregious that the court should have stricken it ex mero mo tu.\nAm Jur 2d, Trial \u00a7 291.\n10.Criminal Law \u00a7 474 (NCI4th Rev.)\u2014 prosecutor\u2019s argument \u2014 use of photographs\nThe prosecutor could properly use photographs of murder victims during closing argument where the photographs were in evidence.\nAm Jur 2d, Evidence \u00a7\u00a7 960-970, 1070, 1451; Trial \u00a7\u00a7 345, 349.\nAdmissibility in evidence of colored photographs. 53 ALR2d 1102.\n11. Criminal Law \u00a7 470 (NCI4th Rev.)\u2014 prosecutor\u2019s argument \u2014 skeletal remains \u2014 inference from evidence\nThe prosecutor could properly argue that defendant had turned the victims into \u201cskeletal remains\u201d where the evidence tended to show that defendant buried the victims in an old well after shooting them and covered their bodies with lime and Drano; their bodies were not discovered for nine years; and only the victims\u2019 skeletons were found.\nAm Jur 2d, Trial \u00a7\u00a7 632-639.\n12. Criminal Law \u00a7 458 (NCI4th Rev.)\u2014 mitigating circumstance \u2014 generosity to community \u2014 drug and alcohol money \u2014 prosecutor\u2019s argument\nWhere the evidence in a murder trial showed that defendant had been involved in the illegal sale of drugs and alcohol for many years, the prosecutor could rebut defendant\u2019s argument that the catchall mitigator was supported by his generosity to his community by arguing the inference that the money defendant gave his neighbors came from the drug and liquor sales and by referring to defendant as the \u201cGodfather of Traphill.\u201d\nAm Jur 2d, Trial \u00a7 1291.\n13. Criminal Law \u00a7 460 (NCI4th Rev.)\u2014 prosecutor\u2019s argument \u2014 death penalty \u2014 biblical references \u2014 no gross impropriety\nThe prosecutor\u2019s biblical references in urging the jury to return a recommendation of death under the law were not grossly improper and did not require the trial court to intervene ex mero motu where the prosecutor did not contend that the state law or its officers were divinely inspired.\nAm Jur 2d, Criminal Law \u00a7\u00a7 533, 534.\n14. Criminal Law \u00a7 1392 (NCI4th Rev.)\u2014 codefendant received life sentence \u2014 not mitigating circumstance\nThe trial court did not err in refusing to submit to the jury in a capital sentencing proceeding the mitigating circumstance that defendant\u2019s codefendant received a life sentence since (1) a codefendant\u2019s sentence for the same murder is irrelevant in a sentencing proceeding, and (2) the codefendant was tried noncapitally because he was a juvenile when the murders were committed.\nAm Jur 2d, Criminal Law \u00a7\u00a7 527, 598, 599.\n15. Criminal Law \u00a7 1882 (NCI4th Rev.)\u2014 murder of victims\u2019 father \u2014 prior criminal activity \u2014 no significant criminal history mitigating circumstance\nIn a capital sentencing proceeding for the murders of two boys, defendant\u2019s murder of the boys\u2019 father just prior to the murders of the boys constitutes \u201cprior criminal activity\u201d for purposes of the \u201cno significant history of prior criminal activity\u201d mitigating circumstance even though it was a part of the course of conduct in which the two boys were murdered. N.C.G.S. \u00a7 15A-2000(f)(l).\nAm Jur 2d, Criminal Law \u00a7\u00a7 527, 598, 599.\n16. Criminal Law \u00a7 1382 (NCI4th Rev.)\u2014 mitigating circumstance \u2014 no significant criminal history \u2014 submission not required\nThe trial court did not err by failing to submit the \u201cno significant history of prior criminal activity\u201d mitigating circumstance to the jury in a capital sentencing proceeding for the murders of two young boys where the evidence showed that defendant had been dealing in the illegal sale of alcohol and drugs all of his adult life and that he murdered the boys\u2019 father prior to killing the boys.\nAm Jur 2d, Criminal Law \u00a7\u00a7 527, 598, 599.\n17. Criminal Law \u00a7 1392 (NCI4th Rev.)\u2014 nonstatutory mitigating circumstance \u2014 refusal to submit \u2014 harmless error\nAssuming that evidence offered by defendant would have supported the submission of the requested nonstatutory mitigating circumstance that defendant is likely to adjust well in the future in prison, the trial court\u2019s failure to submit this mitigating circumstance was harmless error where other mitigating circumstances were submitted which allowed the jury to consider defendant\u2019s evidence, and the jury failed to find any of those circumstances. Since the jury did not find the circumstances submitted, it would not have found a circumstance supported by the same evidence.\nAm Jur 2d, Criminal Law \u00a7\u00a7 527, 598, 599.\n18. Criminal Law \u00a7 1375 (NCI4th Rev.)\u2014 nonstatutory mitigating circumstance \u2014 mitigating value \u2014 instruction\nThe trial court did not err in instructing the jury that one or more jurors would have to believe a submitted nonstatutory mitigating circumstance had mitigating value in order for the jury to find it and in failing to instruct that the jury must give such circumstance some weight in reaching its decision.\nAm Jur 2d, Criminal Law \u00a7\u00a7 527, 598, 599.\n19. Criminal Law \u00a7 1358 (NCI4th Rev.)\u2014 death penalty recommendation \u2014 binding on trial court\nThe trial court did not have the authority to set aside the jury\u2019s verdict recommending the death penalty.\nAm Jur 2d, Criminal Law \u00a7\u00a7 609, 628.\n20. Criminal Law \u00a7 1402 (NCI4th Rev.)\u2014 murders of two boys \u2014 death sentences proportionate\nSentences of death imposed upon defendant for the first-degree murders of two young boys were not excessive or disproportionate where defendant kidnapped the boys and locked them in the trunk of his car while he robbed and killed their father, and defendant then kept the boys locked in an attic for eight hours until he shot each of them in the head with a pistol.\nAm Jur 2d, Criminal Law \u00a7\u00a7 627, 628.\nSufficiency of evidence, for death penalty purposes, to establish statutory aggravating circumstance that murder was committed in course of committing, attempting, or fleeing from other offense, and the like \u2014 post-Gregg cases. 67 ALR4th 887.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from judgments imposing sentences of death entered by Ross, J., at the 20 February 1995 Special Criminal Session of Superior Court, Alexander County, upon jury verdicts of guilty of first-degree murder. The defendant\u2019s motion to bypass the Court of Appeals as to two additional judgments for kidnapping was allowed 23 July 1996. Heard in the Supreme Court 13 February 1997.\nThe defendant was tried for. the murder and kidnapping of Garry Sidden, Jr. and Galvin Sidden. The testimony of the defendant\u2019s cellmate, Jesse Lord, tended to show that on or about 23 or 24 July 1982, the defendant and his fifteen-year-old stepson, Ray Blankenship, decided to rob Garry Sidden, Sr. Garry Sidden, Sr. lived with his two sons, Garry Sidden, Jr., sixteen years old, and Galvin Sidden, ten years old, in a mobile home. Garry Sidden, Sr. also ran a club and country store on his property.\nOn the evening of the robbery, the two boys came out of the club between 10:30 and 11:30 p.m. and began to walk toward the mobile home. The defendant and his stepson subdued the two boys, bound their arms and legs with tape, and locked them in the trunk of the defendant\u2019s car. The defendant and his stepson then went to the mobile home, where they murdered Garry Sidden, Sr. and stole cocaine, money, and marijuana.\nThe defendant told Lord that he and his stepson next drove the two boys to an old farmhouse, where they kept them locked in the attic for approximately eight hours while they dug a hole. The defendant then took the boys one at a time to the hole and shot each of them in the head with a .38-caliber pistol. The defendant then covered the bodies of the two boys.\nThe bodies of Garry, Jr. and Galvin Sidden were not found until nine years later when the defendant\u2019s stepson led law enforcement officers to the location. The bodies were found in an old well. They had apparently been buried with lime and Drano.\nMichael F. Easley, Attorney General, by Thomas S. Hicks, Special Deputy Attorney General, for the State. .\nJeffery M. Hedrick for defendant-appellant." }, "file_name": "0218-01", "first_page_order": 258, "last_page_order": 275 }