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Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "257 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "583" } ], "opinion_index": 0 }, { "cite": "298 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568313 ], "year": 1979, "pin_cites": [ { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0001-01" ] }, { "cite": "472 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "857", "parenthetical": "quoting State v. Goodman, 298 N.C. 1, 22, 257 S.E.2d 569, 583 (1979)" } ], "opinion_index": 0 }, { "cite": "343 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798778 ], "year": 1996, "pin_cites": [ { "page": "546", "parenthetical": "quoting State v. Goodman, 298 N.C. 1, 22, 257 S.E.2d 569, 583 (1979)" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0518-01" ] }, { "cite": "70 P.2d 1015", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1937, "pin_cites": [ { "page": "1016" } ], "opinion_index": 0 }, { "cite": "22 Cal. App. 2d 323", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2363617 ], "year": 1937, "pin_cites": [ { "page": "325-26" } ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/22/0323-01" ] }, { "cite": "77 L. Ed. 2d 1398", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "463 U.S. 1213", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6237890, 6236868, 6238726, 6237546, 6236523, 6238317, 6235632, 6237202, 6236246, 6235963, 6235325 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/463/1213-09", "/us/463/1213-06", "/us/463/1213-11", "/us/463/1213-08", "/us/463/1213-05", "/us/463/1213-10", "/us/463/1213-02", "/us/463/1213-07", "/us/463/1213-04", "/us/463/1213-03", "/us/463/1213-01" ] }, { "cite": "283 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "780" } ], "opinion_index": 0 }, { "cite": "304 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567447 ], "year": 1981, "pin_cites": [ { "page": "278-79" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0249-01" ] }, { "cite": "291 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 } ], "analysis": { "cardinality": 2499, "char_count": 100833, "ocr_confidence": 0.761, "pagerank": { "raw": 3.4901751933909353e-07, "percentile": 0.8822226701247833 }, "sha256": "fad3181b58d2a49cc0b6c9a6953c258b193eddf8bd4328c8f814e8cb2c442312", "simhash": "1:8b6bd232366e1dd2", "word_count": 16371 }, "last_updated": "2023-07-14T15:15:14.712587+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ERIC FERNANDO MURILLO" ], "opinions": [ { "text": "WHICHARD, Justice.\nOn 15 December 1992 a Hoke County grand jury indicted defendant for the first-degree murder of his wife, Beth Murillo. Upon defendant\u2019s motion for a change of venue, the case was transferred for trial to Richmond County. Defendant was tried capitally, and the jury returned a verdict finding him guilty of first-degree murder on the basis of premeditation and deliberation. Following a capital sentencing proceeding pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended that defendant be sentenced to death. For the reasons set forth herein, we conclude that defendant received a fair trial, free from prejudicial error, and that the sentence of death is not disproportionate.\nThe evidence showed that defendant and the victim had been husband and wife since 1987. They had histories of alcohol abuse, and defendant had threatened, verbally abused, and severely beaten the victim on many occasions throughout the marriage. The victim\u2019s school colleagues, family members, and Mends testified to her black eyes and extensive bruising. Law-enforcement officers testified that on numerous occasions when they were summoned to the family home or cabin, they found the victim beaten and bloodied but refusing to swear out a warrant oh defendant. The victim\u2019s family had intervened and taken her home to Massachusetts several times, but the victim always returned to defendant in North Carolina.\nAt the time of her death, the victim was staying with her two sons from a previous marriage at the family\u2019s cabin a short distance away from the family home. She and defendant had argued that evening at the local tavern they owned. Around 1:00 a.m. on 24 June 1992, after consuming numerous beers, the victim left the bar with her two sons. Defendant told her to go to the family home, but the victim instead drove to the cabin where she had been staying. She told her sons that if defendant came near her, she would kill him.\nDefendant claimed he went to the cabin to avoid his wife and to let their tempers cool. The victim\u2019s sons testified that defendant arrived at the cabin, woke them, entered the victim\u2019s bedroom, and closed the door. The boys could hear the two arguing. The victim said, \u201cOh God, oh God,\u201d and a gun fired. Defendant claimed it fired accidentally while they struggled. When the boys asked about the sound, defendant began saying, \u201cOh God, don\u2019t die Beth.\u201d Defendant bundled the victim into his arms and drove her to the hospital, attempting mouth-to-mouth resuscitation as he drove.\nThe victim never regained consciousness and was removed from life support on 25 June 1992. She had bruises over seventy-five percent of her body and died from a single gunshot wound through the right temple. The bullet had passed through her right forearm before entering her head. The trial court admitted evidence that defendant\u2019s first wife, Debbie Kraft Murillo, also had died from a gunshot wound defendant inflicted; that death was ruled accidental.\nIn his first assignment of error, defendant contends that the trial court erred in denying defendant\u2019s motions for discovery and in failing to sanction the State for its failure to provide discovery as the trial court ordered and as applicable statutes and the federal Constitution require. Defendant complains that the documents the State gave in response to orders for discovery were too disjointed to be useful and that his repeated motions to compel discovery are evidence that the State violated the discovery statutes, the requirement that the essence of a statement be provided to a defendant, see State v. Patterson, 335 N.C. 437, 454, 439 S.E.2d 578, 588 (1994), and the spirit of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963). He finally contends that the delay in discovery hindered his ability to locate witnesses.\nOur discovery statutes require the prosecutor \u201c[t]o divulge, in written or recorded form, the substance of any oral statement relevant to the subject matter of the case made by the defendant, regardless of to whom the statement was made.\u201d N.C.G.S. \u00a7 15A-903(a)(2) (1997). \u201cAs used in the statute, \u2018substance\u2019 means: \u2018Essence; the material or essential part of a thing, as distinguished from \u201cform.\u201d That which is essential.\u2019 \u201d State v. Bruce, 315 N.C. 273, 280, 337 S.E.2d 510, 515 (1985) (quoting Black\u2019s Law Dictionary 1280 (5th ed. 1979)). Conversely, \u201cform\u201d is distinguishable from substance and \u201cmeans the legal or technical manner or order to be observed in legal instruments or juridical proceedings.\u201d Black\u2019s Law Dictionary 651 (6th ed. 1990). Defendant complains solely about the form of the discovery provided. As in Patterson, 335 N.C. at 453-54, 439 S.E.2d at 588, the existence of defendant\u2019s statements was not repressed. Rather, the statements were not organized to his satisfaction. The names of witnesses, with exculpatory information, were included, and the substance of both inculpatory and exculpatory statements was present. Indeed, the final version of defendant\u2019s statements was separated by witness, denoted whether the witness was with law enforcement, and estimated a time frame if the statement was not in reference to the victim. This complied with the letter and spirit of the statutory mandate. See State v. Strickland, 346 N.C. 443, 457, 488 S.E.2d 194, 202 (1997), cert. denied, - U.S. -, 139 L. Ed. 2d 757 (1998). \u201c \u2018[T]he purpose of discovery under our statutes is to protect the defendant from unfair surprise by the introduction of evidence he cannot anticipate.\u2019 \u201d Patterson, 335 N.C. at 455, 439 S.E.2d at 589 (quoting State v. Payne, 327 N.C. 194, 202, 394 S.E.2d 158, 162 (1990), cert. denied, 498 U.S. 1092, 112 L. Ed. 2d 1062 (1991)). Defendant clearly was afforded this protection by the substantive discovery provided. The State complied with its duty under N.C.G.S. \u00a7 15A-907 to render continuing discovery. Defendant received all of the discovery to which the statutes entitled him.\nBrady holds that \u201csuppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.\u201d Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218. Defendant has not indicated that the prosecution suppressed any evidence. He has merely asserted disjointed presentation of the statements. The final list of his statements was provided to his counsel well before trial and contained more than adequate demarcation of time and person. Moreover, defendant presented all of the allegedly exculpatory evidence for which he was unable to obtain testifying witnesses through witnesses who did testify. Therefore, any other evidence of which defendant might have been deprived was not material under the standard in Kyles v. Whitley, 514 U.S. 419, 131 L. Ed. 2d 490 (1995). Defendant received a \u201ctrial resulting in a verdict worthy of confidence.\u201d Id. at 434, 131 L. Ed. 2d at 506. There was no evidentiary suppression that \u201c \u2018undermine[d] confidence in the outcome of the trial.\u2019 \u201d Id. (quoting United States v. Bagley, 473 U.S. 667, 678, 87 L. Ed. 2d 481, 491 (1985)). Accordingly, this assignment of error is overruled.\nDefendant next contends that evidence admitted regarding his abusive relationship with the victim was hearsay, inadmissible, and unduly prejudicial. He contends that the statements were not within the state-of-mind exception to the hearsay rule because they were recitations of facts or that they were too remote from the time of the crime to have relevance. Defendant asserts that even if the statements were admissible under the state-of-mind exception, the danger of unfair prejudice substantially outweighed their probative value.\nRelevant evidence is \u201cevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1992). Even relevant evidence is subject to Rule 403, which disallows evidence when the probative value is \u201coutweighed by the danger of unfair prejudice.\u201d N.C.G.S. \u00a7 8C-1, Rule 403 (1992); see State v. Hardy, 339 N.C. 207, 230-31, 451 S.E.2d 600, 613 (1994). Evidence of a defendant\u2019s misconduct toward his wife during the marriage is admissible \u201cunder Rule 404(b) to prove motive, opportunity, intent, preparation, [or] absence of mistake or accident with regard to the subsequent fatal attack upon her.\u201d State v. Syriani, 333 N.C. 350, 376, 428 S.E.2d 118, 132, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993). However, if the evidence is used to prove the truth of the matter asserted, it must still be admissible under the rules against hearsay. See Hardy, 339 N.C. at 231-32, 451 S.E.2d at 614. If it is merely a recitation of facts, offered for the truth of the matter asserted, it is inadmissible. See id. at 229, 451 S.E.2d at 613.\nDefendant first contends that testimony from Lisa Carter that the victim said she was going home to Massachusetts for the summer, leaving the inference that the victim and defendant were separating, was improperly admitted. Competent evidence had been introduced that defendant had threatened to kill the victim if she left him. The victim\u2019s statement indicating the parties were separated or separating \u201cbore directly on the relationship between the victim and defendant at the time of the killing and [was] relevant to show a motive for the killing.\u201d State v. Bishop, 346 N.C. 365, 380, 488 S.E.2d 769, 776 (1997). Statements from the victim indicating that she intended to end the marriage reflected her state of mind and were therefore admissible under Rule 803(3). Defendant\u2019s contention that several witnesses should not have been allowed to testify as to the victim\u2019s statements of her intent to leave him are without merit.\nDefendant contends that Harry Callahan should not have been permitted to testify about a phone conversation in which the victim related that defendant had held a gun to her head. Callahan, the victim\u2019s brother-in-law, testified that the victim called him in November 1987; she was crying, and her voice was cracking. Callahan testified over objection that \u201c[s]he said she was just \u2014 her and Eric Murillo had a fight and he held \u2014 held a gun to her head.\u201d This testimony indicates that the victim called her brother-in-law immediately after the incident, while she was still upset and had not had time to reflect. It thus was properly admitted as an excited utterance. N.C.G.S. \u00a7 8C-1, Rule 803(2) (1992); State v. Smith, 315 N.C. 76, 86-87, 337 S.E.2d 833, 841 (1985).\nDefendant complains that Bob Cannon, the victim\u2019s father, should not have been allowed to testify that the victim told him defendant beat her while they were on a beach trip or that defendant shot a gun next to the victim\u2019s head. The State incorrectly contends that Cannon\u2019s testimony was admissible to corroborate Callahan\u2019s admissible testimony of the events surrounding the victim\u2019s beating and abandonment at Carolina Beach and of the gun-to-head incident. Prior consistent statements of a witness are admissible for corroboration; this rationale, however, \u201c \u2018does not justify admission of extrajudicial declarations of someone other than the witness purportedly being corroborated.\u2019 \u201d State v. Hunt, 324 N.C. 343, 352, 378 S.E.2d 754, 759 (1989) (quoting 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 52, at 243 (3d ed. 1988)). The extrajudicial statement of the victim to her father cannot corroborate Callahan\u2019s testimony about what the victim said to him. See State v. Rose, 335 N.C. 301, 321-22, 439 S.E.2d 518, 529 (hearsay statement of person other than the witness cannot be used to corroborate that witness\u2019 testimony), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 883 (1994). However, the admission of this testimony was not prejudicial. Callahan testified extensively, competently, and with admissible exhibits about how he had to rent a room in Atlantic Beach for the distraught victim. The victim had contacted Callahan immediately after the beating because she had no money and needed a hotel room. Callahan testified that he arranged to pay for the room and produced credit-card statements to prove it; clearly, evidence of the victim\u2019s call to him fell within the excited-utterance exception to the hearsay rule. See N.C.G.S. \u00a7 8C-1, Rule 803(2). Callahan\u2019s explanation of the gun-to-head incident was admissible as an excited utterance under Rule 803(2) as well. We thus are confident that Cannon\u2019s hearsay testimony of what the victim belatedly told him about these same events did not affect the verdict and that the error thus was not prejudicial. See N.C.G.S. \u00a7 15A-1443(a) (1997); Bishop, 346 N.C. at 381, 488 S.E.2d at 777.\nDefendant contends that Carolyn Carter, assistant principal at the victim\u2019s workplace, should not have been permitted to testify about beatings the victim described after the alleged abuse occurred. However, the transcript reveals that the victim recounted the past beatings only when confronted with her injuries. Carter testified that the victim \u201cbroke down\u201d and explained what was happening in her life to make her afraid, upset, and bruised. The victim\u2019s explanatory comments about beatings \u201cwere made contemporaneously with and in explanation of the victim\u2019s statements\u201d and crying, thus showing her state of mind. State v. Westbrooks, 345 N.C. 43, 60, 478 S.E.2d 483, 493 (1996). Accordingly, Carter\u2019s testimony was properly admitted.\nDefendant next contends that the victim\u2019s sisters and friends were improp\u00e9rly allowed to testify to various beatings that the victim described. In each instance, either the victim called the witness immediately after the beating, placing the statements within the Rule 803(2) excited-utterance exception to the hearsay rule, or she described the beatings as the bases for her fear, placing the statements within this Court\u2019s interpretation of the Rule 803(3) state-of-mind or -emotion exception. She referred to the incidents of abuse when explaining why she stayed with defendant and why she wanted to leave him. \u201cThe factual circumstances surrounding her statements of emotion serve only to demonstrate the basis for the emotions.\u201d State v. Gray, 347 N.C. 143, 173, 491 S.E.2d 538, 550 (1997), cert. denied, - U.S. -, 140 L. Ed. 2d 486 (1998). The victim told her family and friends about the beatings \u201ccontemporaneously with and in explanation of [her] statements,\u201d which showed her then-existing state of mind. Westbrooks, 345 N.C. at 60, 478 S.E.2d at 493. Accordingly, the testimony was properly admitted.\nDefendant next contends that Carolyn Dinekamp, a friend of the victim\u2019s, testified to inadmissible hearsay about a voice-activated recorder. Defendant asserts that Dinekamp\u2019s testimony that she gave the victim a voice-activated tape recorder to use to catch defendant committing adultery was not relevant. However, the trial court found the existence of the tape, purportedly recording defendant having an affair, to be relevant to show the victim\u2019s intent to leave the defendant, and that, since there was competent evidence that defendant threatened to kill the victim if she left him, the tape was relevant to prove a motive for the murder. We agree. \u201c[A] victim\u2019s state of mind is relevant if it relates directly to circumstances giving rise to a potential confrontation with the defendant.\u201d State v. McLemore, 343 N.C. 240, 246, 470 S.E.2d 2, 5 (1996). The testimony regarding existence of the tape therefore was properly admitted.\nDefendant next asserts various problems with Ella Ransom\u2019s testimony. We agree that Ransom\u2019s testimony that the victim told her she received a large bruise on her head when defendant threw her into a wall was improper. The victim was not upset, nor was she relating any feelings or intent regarding her relationship with defendant. The testimony therefore falls within Hardy as an improper recitation of mere remembered facts. See Hardy, 339 N.C. at 228, 451 S.E.2d at 612. However, the voluminous admissible testimony regarding violence directed toward the victim in the home renders this error harmless. See Bishop, 346 N.C. at 381, 488 S.E.2d at 777. Defendant\u2019s additional two assignments of error to Ransom\u2019s testimony also lack merit. Contrary to defendant\u2019s assertion, Ransom did not testify that defendant took the victim\u2019s paycheck but rather that the victim\u2019s paycheck was used to pay bills of the couple\u2019s two businesses. This evidence was tangential to the question of defendant\u2019s guilt, and there is no reasonable possibility of a different result if the testimony had been excluded. Therefore, any error was not prejudicial. See id.; McLemore, 343 N.C. at 246-47, 470 S.E.2d at 6. Finally, Ransom\u2019s testimony that the victim called defendant from work every day was based on her own observations. The victim\u2019s statement that she had to call defendant to reassure him that she was at work reflects her state of mind about her marriage and relates directly to an event that could cause a \u201cconfrontation with the defendant.\u201d McLemore, 343 N.C. at 246, 470 S.E.2d at 5. Admission of this testimony was not error.\nDefendant contends Mae Roberson\u2019s testimony that defendant came to the school to collect the victim\u2019s paychecks and that defendant determined whether the victim could drive a car was inadmissible hearsay. Defendant did not object to this testimony; it is therefore reviewable only for plain error. See Gray, 347 N.C. at 174, 491 S.E.2d at 551. We do not conclude that admission of this testimony was such a basic or prejudicial error as to prevent justice from being done. Id.\nSandra Reid, one of defendant\u2019s former employees, testified, over defendant\u2019s objection, that the victim had given part of her paycheck to a friend to create a \u201cnest egg.\u201d Reid said, \u201cShe [the victim] was saving some money, she planned on leaving, and she gave Mark $200 to hold for her.\u201d This clearly reflects the victim\u2019s state of mind about her marriage, and the statements \u201crelated directly to circumstances giving rise to a potential confrontation with defendant.\u201d State v. Corbett, 339 N.C. 313, 332, 451 S.E.2d 252, 262 (1994). This testimony was properly admitted.\nLisa Ryan, the victim\u2019s sister, testified about a beating the victim suffered at Thanksgiving 1988 and about the circumstances leading to the victim\u2019s final trip to Massachusetts to retrieve her sons. Ryan was allowed to testify that because the victim rubbed her brother-in-law\u2019s back, \u201cit angered [defendant]. He said that she was flirting with my husband, and he beat her that night and there was a gun involved.\u201d This incident previously had been explored with competent testimony; thus, any error in the admission of this testimony was harmless. \u201cDefendant cannot show that there is a reasonable possibility that the outcome of [his] trial would have been different if the trial court had excluded the [evidence] at issue.\u201d Bishop, 346 N.C. at 381, 488 S.E.2d at 777. Likewise, Ryan\u2019s testimony that defendant and the victim argued before the victim came to Massachusetts in 1992, if error, was harmless in light of the overwhelming competent evidence that defendant and the victim argued often and that defendant phoned the victim incessantly while she was in Massachusetts. Accordingly, the testimony did not prejudice defendant. The same analysis applies to defendant\u2019s contention that Claire Cannon\u2019s testimony to this event was improper. Id.\nThe final witness about whose testimony defendant complains was Claire Cannon, the victim\u2019s mother. Cannon\u2019s testimony about an incident in which defendant held a gun to the victim\u2019s head was admissible for corroborative purposes, and the trial court properly instructed the jury on corroboration. Earlier, Deputy Phalen had testified that he responded to a domestic incident at defendant\u2019s home and contacted the victim\u2019s family because the victim wished to fly home to Massachusetts. Because the deputy had already testified competently to these facts and to his call to Cannon, Cannon\u2019s testimony was admissible for corroboration. See State v. Alston, 341 N.C. 198, 232-33, 461 S.E.2d 687, 705 (1995), cert. denied, 516 U.S. 1148, 134 L. Ed. 2d 100 (1996). As noted, Cannon\u2019s testimony to the argument between defendant and the victim before the victim\u2019s trip to Massachusetts in 1992 was not prejudicial. The rest of Cannon\u2019s testimony was proper; it recounted excited utterances or the victim\u2019s state of mind. Accordingly, we find no error.\nWhether to exclude evidence under Rule 403 as more prejudicial than probative is within the sound discretion of the trial court. See, e.g., State v. Meekins, 326 N.C. 689, 700, 392 S.E.2d 346, 352 (1990). Contrary to defendant\u2019s assertion, the evidence here was not overly prejudicial as subjecting defendant to trial for beating his wife. The evidence was admitted to show the escalating nature of his attacks and to rebut his claim that the killing was accidental. Testimony about a defendant-husband\u2019s arguments with, violence toward, and threats to his wife are properly admitted in his subsequent trial for her murder. See Syriani, 333 N.C. at 377, 428 S.E.2d at 132.\nDefendant contends finally that certain statements the victim made, admittedly falling within the state-of-mind exception, must nonetheless be excluded because of remoteness. We consistently have allowed evidence spanning the entire marriage when a husband is charged with murdering his wife in order \u201c \u2018to show malice, intent and ill will towards the victim.\u2019 \u201d State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990) (quoting State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985)). \u201cRemoteness \u2018generally affects only the weight to be given . . . evidence, not its admissibility.\u2019 \u201d Syriani, 333 N.C. at 377, 428 S.E.2d at 132 (quoting State v. Stager, 329 N.C. 278, 307, 406 S.E.2d 876, 893 (1991)). Therefore, evidence of the entire pattern and history of violence between defendant and the victim was relevant. Defendant\u2019s assignment of error is meritless.\nIn his third assignment of error, defendant contends that the trial court erred in admitting evidence of his first wife\u2019s death at his hands from a gunshot wound in 1970. He contends that this death was irrelevant to this case, was more prejudicial than probative if relevant, and was contrary to this Court\u2019s holding in State v. Scott, 331 N.C. 39, 42, 413 S.E.2d 787, 788 (1992). Defendant also challenges the propriety of the trial court\u2019s instructions regarding this evidence.\nThe State offered evidence that defendant\u2019s first wife, Debbie Kraft Murillo, was killed by a gunshot wound defendant inflicted in 1970. When defendant objected to this evidence, the trial court conducted an extensive voir dire. Evidence adduced tended to show that defendant married his first wife when he was seventeen and she was fifteen, and they lived together in California. On the afternoon of 23 August 1970, defendant and Debbie were joking about Debbie\u2019s dog; defendant teased Debbie that he would shoot the dog. He chambered a \u201cdud round\u201d in his rifle and walked outside. Debbie followed him, and when Debbie picked up the dog, defendant followed her motion with the muzzle of the rifle. As Debbie turned with the dog, the rifle discharged. Defendant ran for help for his wife, but she died from a gunshot wound through the heart. There was no evidence of a struggle, and there was contradictory, but generally favorable, evidence from Debbie\u2019s family members about the happiness of the marriage. Defendant was charged with voluntary manslaughter; he pled guilty to involuntary manslaughter and was placed on probation. In later years defendant gave varying accounts of his first wife\u2019s death. In 1987 defendant applied for a Special Forces position with the Army and told the interviewing officer that Debbie was shot while she was in the kitchen and he was cleaning a gun in the living room. He made no mention of his role in loading a \u201cdud round,\u201d nor did he mention pointing the gun at his wife and her dog. During the investigation of the present case, defendant told SBI Agent Van Parker that he did not know whether the police investigated Debbie\u2019s death. Defendant then told Parker that his first wife died when a hunting rifle accidentally discharged as he was cleaning it after a hunting trip.\nThe State also introduced evidence of defendant\u2019s own statements about Debbie\u2019s death. Rebecca Huggins, an acquaintance of both the victim in the present case and defendant, testified that in 1991 she was with defendant at his bar complaining about her husband cheating on her. Defendant responded that \u201che knew how it was because his first wife used to run around on him and she was a whore.\u201d Additionally, Bobby Cannon, brother of the victim here, testified that the victim told him in 1987 that defendant had held a gun to her head and told her, \u201cI should shoot you in the head just like I did my first wife.\u201d Cannon testified that defendant told him during a telephone call while the victim was in Massachusetts:\nI\u2019ll get her back. I will kill her or she will kill herself. It will \u2014 it won\u2019t happen right away, but it will happen. She\u2019s gotta pay me back first. She owes me. I got kicked out of the Army because of her. I\u2019ve done it before and I\u2019ll do it again.\nThe trial court ruled that evidence of the shooting death of Debbie Kraft Murillo was admissible under Rule 404(b) and listed eight similarities between the deaths to support the decision:\nOne, each of the defendant\u2019s wives in these instances died as a result of one gunshot wound;\nTwo, the defendant was the person in the immediate company of both of the victims;\nThree, that the defendant told each \u2014 told others that each of the shootings was an accident;\nFour, that the defendant told others that he did not intend to shoot his wife;\nFive, that a firearm was found near the location of each shooting;\nSix, that the defendant sought help for each wife;\nSeven, that the wound on each wife was to a vital organ;\nEight, that the shooting of each wife took place at the residence of the defendant and of the wife involved.\nWe agree that evidence of Debbie Kraft Murillo\u2019s death was admissible under Rule 404(b) and was relevant to show lack of accident in this case. As we said in Stager:\nRule 404(b) provides that evidence of prior similar acts is properly admissible so long as it is used to prove something other than the defendant\u2019s propensity or disposition to engage in like conduct. The one exception to that general rule of admissibility applies when the only probative value of the evidence is to show the defendant\u2019s propensity or disposition to commit offenses of the type charged.\nStager, 329 N.C. at 310, 406 S.E.2d at 894. As in Stager, the similarities between the deaths of defendant\u2019s two wives was indicative of intent and lack of accident. Similarities need not be bizarre or uncanny; they simply must \u201ctend to support a reasonable inference that the same person committed both the earlier and later acts.\u201d Id. at 304, 406 S.E.2d at 891. In explaining why evidence of the Stager defendant\u2019s former husband\u2019s accidental shooting death was relevant to her trial for the shooting death of her most recent husband, this Court referred to the doctrine of chances as follows:\n\u201cIn isolation, it might be plausible that the defendant acted accidentally or innocently; a single act could easily be explained on that basis. However, in the context of other misdeeds, . . . [t]he fortuitous coincidence becomes too abnormal, bizarre, implausible, unusual, or objectively improbable to be believed.\u201d\nId. at 305, 406 S.E.2d at 891 (quoting Edward J. Imwinkelreid, Uncharged Misconduct Evidence \u00a7 5:05 (1984) (footnotes omitted)).\nWe recognize that, unlike in Stager, defendant\u2019s first wife\u2019s death had been ruled accidental. The trial court in this case, without objection, ruled that evidence of defendant\u2019s prior conviction was inadmissible unless he took the stand. Defendant was therefore free to argue that Debbie\u2019s death was purely accidental and that he was entirely free from culpability. His assertion, therefore, was exactly that of the defendant in Stager, that his first spouse\u2019s death was an accidental shooting. \u201cWhere, as here, an accident is alleged, evidence of similar acts is more probative than in cases in which an accident is not alleged.\u201d Id. at 304, 406 S.E.2d at 891.\nHere the trial court told the jury that it could consider evidence of Debbie\u2019s shooting when deciding issues of intent, plan, premeditation, and absence of accident. Jurors were expressly warned not to consider the death as \u201cproof of the defendant\u2019s propensity to commit the crime for which [he] is charged or as evidence of the defendant\u2019s character.\u201d Contrary to defendant\u2019s reading of Stager, similarities such as those between the deaths of Debbie and the victim here may be used to support a finding of intent. See id. at 307, 406 S.E.2d at 892-93. The trial court here properly explained to the jury, using agreed-upon instructions, that intent is part of premeditation. See State v. Crawford, 344 N.C. 65, 74, 472 S.E.2d 920, 926 (1996). We therefore reject defendant\u2019s arguments regarding the trial court\u2019s charge to the jury. Debbie Murillo\u2019s death was evidence of a similar act, and it was probative of whether defendant accidentally killed two of his four wives. The evidence was properly admitted to show lack of accident and to support a finding that defendant intended to kill the victim here.\nBecause evidence of Debbie\u2019s death was allowed to show, inter alia, lack of accident, defendant\u2019s reliance on State v. Morgan, 315 N.C. 626, 638, 340 S.E.2d 84, 92 (1986), is misplaced. Rule 404(b) evidence is allowed so long as its probative value is not limited to showing propensity to commit a crime; this remains true even if the evidence tends also to show some other act or propensity or to defeat a claim of self-defense. See State v. Hipps, 348 N.C. 377, 404, 501 S.E.2d 625, 641 (1998).\nDefendant complains that the evidence of the death of his first wife is probative only if one ignores his involuntary-manslaughter conviction and supposes that he murdered his first wife and escaped punishment. Consequently, he argues that admitting evidence of the first wife\u2019s death subjects him to double jeopardy, relying on State v. Scott, 331 N.C. 39, 413 S.E.2d 787. We disagree. Scott involved evidence of a prior criminal charge of which the defendant was acquitted, yet the jury was instructed to consider the evidence \u201con the issue of defendant\u2019s \u2018intent, knowledge, plan, scheme, or design.\u2019 \u201d Id. at 41, 413 S.E.2d at 788. Several distinctions are obvious.\nFirst, defendant here pled guilty to manslaughter and therefore stands convicted of that crime. See, e.g., N.C.G.S. \u00a7 15A-1331(b) (1997); State v. Sidberry, 337 N.C. 779, 782, 448 S.E.2d 798, 800 (1994). A prior conviction may be a bad act for purposes of Rule 404(b) if substantial evidence supports a finding that defendant committed both acts, and the \u201cprobative value is not limited solely to tending to establish the defendant\u2019s propensity to commit a crime such as the crime charged.\u201d Stager, 329 N.C. at 303, 406 S.E.2d at 890. The trial court here conducted an extensive voir dire to determine whether the deaths of defendant\u2019s two wives were sufficiently similar to support an inference by the jury that defendant committed both acts. We hold that substantial evidence was presented from which a jury could determine that defendant committed the similar act, and the evidence was properly admitted.\nSecond, the evidence of Debbie\u2019s death was not admitted to show only intent, plan, or motive. In Scott the State introduced evidence that the defendant had raped a woman two years earlier after meeting her at the same convenience store where he met his current victim. In the prior rape case, the defendant had been acquitted after claiming consent. Therefore, this Court held it was prejudicial to introduce his prior \u201crape\u201d as evidence of a scheme or plan in his current rape prosecution. We held it to be error and violative of Rule 403 as a matter of law to introduce evidence of a prior alleged offense for which a defendant \u201chas been tried and acquitted . . . when its probative value depends, as it did here, upon the proposition that defendant in fact committed the prior crime.\u201d Scott, 331 N.C. at 42, 413 S.E.2d at 788.\nHere, however, defendant was not acquitted of the prior crime which was argued to the jury, so Scott does not control. See State v. Lynch, 337 N.C. 415, 419, 445 S.E.2d 581, 582 (1994) (interpreting Scott to apply only to cases with prior acquittals). Further, the probative value of Debbie\u2019s death does not depend on any additional fact or element not present in defendant\u2019s conviction. Defendant\u2019s claim of accident in Debbie\u2019s death was argued to the jury as making more incredulous his claim of accident in the shooting death of the victim here. \u201c[T]he more often a defendant performs a certain act, the less likely it is that the defendant acted innocently.\u201d Stager, 329 N.C. at 305, 406 S.E.2d at 891. We note that defendant himself made statements to the victim and her brother, Bobby Cannon, before the victim\u2019s death, indicating that he had killed his first wife intentionally. On the day of the victim\u2019s death, defendant angrily complained to his employee, Kendal Breedlove, in reference to the drive to the hospital the night before, \u201cThe bitch s-\u2014 in my truck.\u201d When asked if he was worried about what people would say about his wife\u2019s death, defendant told Breedlove, \u201cI could walk through a pile of s \u2014 and come out smelling like abed of roses.\u201d Clearly, defendant\u2019s own statements call into question his assertion of accident in both wives\u2019 deaths.\nFinally, \u201c[w]hether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court.\u201d Id. at 308, 406 S.E.2d at 893. In light of the extensive voir dire and the findings of fact by the trial court, we find no abuse of discretion in allowing the evidence regarding Debbie Kraft Murillo\u2019s death. Further, the death was not so remote in time as to have lost its probative value or be more prejudicial than probative. See id. at 307, 406 S.E.2d at 893. Accordingly, defendant\u2019s third assignment of error is overruled.\nIn his fourth assignment of error, defendant contends that his federal and state constitutional rights to be present at all stages of his capital trial were violated by three recorded bench conferences. This issue was decided contrary to defendant\u2019s position in State v. Buchanan, 330 N.C. 202, 410 S.E.2d 832 (1991). In Buchanan this Court determined that a defendant\u2019s federal constitutional rights are not violated when, as here, he makes no request to be present at the bench conferences, and his attorneys are present to represent and protect his interests. See id. at 215, 410 S.E.2d at 839-40. We follow Buchanan and hold that defendant\u2019s right under the federal Constitution to be present was not violated.\nDefendant also asserts that his rights under Article I, Section 23 of the North Carolina Constitution were violated. Defendant bears the burden \u201cto show the usefulness of his presence in order to prove a violation of his right to presence.\u201d Id. at 224, 410 S.E.2d at 845. \u201cOnce the defendant meets this burden, the burden shifts to the State to establish that the error is harmless beyond a reasonable doubt.\u201d State v. Neal, 346 N.C. 608, 616, 487 S.E.2d 734, 739 (1997), cert. denied, \u2014 U.S. \u2014, 140 L. Ed. 2d 131 (1998).\n[A] defendant\u2019s state constitutional right to be. present at all stages of his capital trial is not violated when, with defendant present in the courtroom, the trial court conducts bench conferences, even though unrecorded, with counsel for both parties.\nBuchanan, 330 N.C. at 223, 410 S.E.2d at 845.\nDefendant complains that his right to be present was violated by three recorded bench conferences with his attorneys and attorneys for the State. Defendant contends that the first bench conference regarding dismissal of a sick juror and seating of an alternate juror violated his right to be present because he \u201ccould have related to his attorneys his observance of this juror.\u201d This conference was partly in open court outside the jury\u2019s presence and partly at the bench. The second and third conferences, regarding whether opening arguments had referred to the victim\u2019s performance as a teacher and whether the victim and her sister were the same size such that a demonstration was proper, were held with defendant\u2019s counsel present at the bench and defendant in the courtroom. At all times defendant either had actual knowledge of the substance of the discussion or had constructive notice through his attorneys. As in Buchanan, \u201cdefendant, through his attorneys, had every opportunity to inform the court of his position and to contest any action the court might have taken.\u201d Id. Defendant makes no showing that his presence at the bench would have been useful; under Buchanan, his rights were not violated by the bench conferences. See also State v. Robinson, 346 N.C. 586, 601-02, 488 S.E.2d 174, 184 (1997). This assignment of error is without merit.\nIn his fifth assignment of error, defendant asserts that the trial court committed constitutional error in failing to excuse ex mero motu two jurors who inadvertently and fleetingly entered the courtroom during hearings. The record indicates that there was actually only one juror involved. The first alleged misconduct was during a voir dire about evidence of Debbie Kraft Murillo\u2019s death, and it appears in the transcript as follows:\n[Prosecutor]: In that it did not happen the way the defendant said it happened. If I may refer to Ms. Kraft\u2019s testimony before your Honor, the day after the incident, when Ms. Kraft talked to the defendant, he was talking about Deborah holding the dog over her head. You may remember her holding her hands up like this (demonstrating) and then he shoots her.\n(Juror, Mr. Dowless, entering courtroom.)\nThe Court: Wait just a second. You may step out in the hall.\n(Juror, Mr. Dowless, exiting courtroom.)\n[Prosecutor]: Within three days, he tells Mr. Quinn ....\nThe second was during a hearing about a witness\u2019 written statement. It appears in the transcript as follows:\n[Prosecutor]: You have instructed already for us to review this again. We will go back and review again, making sure that every one that we have found to be \u2014 have exculpatory information, that it is properly worded, properly paragraphed, and we will turn that over. If there\u2019s any change at all, we will make it known immediately to defense counsel.\n(Juror, Mr. Dowless, opening the door to jury room.)\nThe Court: Just \u2014 just a moment. Sir, if you can wait just a minute.\n(Juror, Mr. Dowless, complying with request and remaining in the jury room.)\nThe Court: That\u2019s another issue we\u2019re gonna have to deal with before we get around to deliberations.\n[Defense Counsel]: What \u2014 what is the harm, at this point, after this showing? We\u2019re not asking to allow us to go ... .\nThe final instance occurred during a voir dire about a police report. It appears in the transcript as follows:\n[Prosecutrix]: Your Honor, my understanding is the Sheriff\u2019s Department policy is to type up some of the information which is included on the handwritten form and that \u2014 that the typewritten form is kept in a computer and we just have copies of both of them.\n(Juror, Mr. Dallas [sic], opening door to jury room.)\nThe Court: You can step out in hall. Hold on just a second.\n(Juror, Mr. Dallas [sic], complying with request.)\nThe Court: If we can make a copy of that for the record\u2014\n[Defense Counsel]: Surely.\nNo juror named \u201cDallas\u201d was seated for this trial. We thus assume that the juror referred to is again Dowless.\n\u201cThe determination of the existence and effect of jury misconduct is primarily for the trial court whose decision will be given great weight on appeal.\u201d State v. Bonney, 329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991). This Court gives trial courts \u201cthe responsibility to conduct investigations to this effect, including examination of jurors when warranted, to determine whether any misconduct has occurred and has prejudiced the defendant\u201d when allegations of misconduct are made. State v. Barnes, 345 N.C. 184, 226, 481 S.E.2d 44, 67, cert. denied, - U.S. -, 139 L. Ed. 2d 134 (1997), and cert. denied, \u2014 U.S. -, 140 L. Ed. 2d 473 (1998). The trial court retains sound discretion over the scope of any such inquiry. State v. Willis, 332 N.C. 151, 173, 420 S.E.2d 158, 168 (1992).\nIn previous cases there was some evidence that misconduct had occurred outside the presence of the court. \u201cAn inquiry into possible misconduct is generally required only where there are reports indicating that some prejudicial conduct has taken place.\u201d Barnes, 345 N.C. at 226, 481 S.E.2d at 67. In Willis, for example, we held that when outside contact with a juror is shown, the trial court must \u201cdetermine whether such contact resulted in substantial and irreparable prejudice to the defendant.\u201d Willis, 332 N.C. at 173, 420 S.E.2d at 168. What action to take on a motion for a new trial is then within the court\u2019s discretion.\n\u201cThe circumstances must be such as not merely to put suspicion on the verdict, because there was opportunity and a chance for misconduct, but that there was in fact misconduct. When there is merely matter of suspicion, it is purely a matter in the discretion of the presiding judge.\u201d\nState v. Johnson, 295 N.C. 227, 234-35, 244 S.E.2d 391, 396 (1978) (quoting Lewis v. Fountain, 168 N.C. 277, 279, 84 S.E. 278, 279 (1915)).\nWe note first that no motion was made for a new trial based on juror misconduct. We have held that there is no absolute affirmative duty to investigate juror conduct absent reports of prejudicial conduct. See State v. Harrington, 335 N.C. 105, 115, 436 S.E.2d 235, 240-41 (1993). Both the existence of misconduct and the effect of misconduct are determinations within the trial court\u2019s discretion. See id. at 115-16, 436 S.E.2d at 241. The trial court here witnessed all of the events in question. Neither party moved for a hearing or for a further inquiry into what juror Dowless might have overheard; both simply continued with their arguments. Further, any discussion juror Dowless might have overheard was either eventually allowed before the jury (the first instance) or tangential to the issues (the second and third instances). We conclude that the trial court did not abuse its discretion in not excusing juror Dowless ex mero motu for juror misconduct. Accordingly, this assignment of error is overruled.\nIn his sixth assignment of error, defendant contends the trial court erroneously admitted certain evidence. He first contends that the trial court should not have allowed, over his objection, character evidence concerning the victim\u2019s performance as a school teacher. The trial court held a voir dire regarding this evidence and concluded that it was relevant to rebut the contention raised in defendant\u2019s opening statement that the victim was an irresponsible alcoholic. \u201cEvidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case.\u201d State v. Sloan, 316 N.C. 714, 724, 343 S.E.2d 527, 533 (1986); see also N.C.G.S. \u00a7 8C-1, Rule 401. We have held that\n\u201cin a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible. It is not required that evidence bear directly on the question in issue, and evidence is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known, to properly understand their conduct or motives, or if it reasonably allows the jury to draw an inference as to a disputed fact.\u201d\nState v. Jones, 336 N.C. 229, 243, 443 S.E.2d 48, 54 (quoting State v. Arnold, 284 N.C. 41, 47-48, 199 S.E.2d 423, 427 (1973)) (citations omitted in original), cert. denied, 513 U.S. 1003, 130 L. Ed. 2d 423 (1994). The trial court here evaluated the evidence for its probative value and determined that the victim\u2019s teaching performance, testified to by professional colleagues who worked with her on a regular basis, was relevant to rebut contentions in defendant\u2019s opening statement that the victim was a violent alcoholic whose abusive behavior was not limited to defendant. This determination was well within the bounds of the trial court\u2019s discretion. See State v. Jones, 342 N.C. 457, 464, 466 S.E.2d 696, 699, cert. denied, 518 U.S. 1010, 135 L. Ed. 2d 1058 (1996). Accordingly, we find no error.\nDefendant next contends the trial court erred in overruling his objection to a demonstration by the victim\u2019s sister, Paula Callahan. After testifying that she and the victim wore th\u00e9 same clothes and were the same size, Callahan demonstrated for the jury that her forearm and head could not be positioned such that the bullet holes matched as they did in the victim\u2019s body if an accident had occurred in the way defendant claimed. She based this demonstration on autopsy photos of the victim. Defendant contends this demonstration was not necessary for the trier of fact and that Callahan could easily have faked her inability to position her body. He argues that the demonstration was unduly prejudicial under Rule 403.\nWhere, as here, the asserted defense is accident, a demonstration tends to \u201cmake the existence of [a] fact that is of consequence . . . more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401. The decision of whether to exclude relevant evidence under Rule 403 rests in the discretion of the trial court. See State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990). The trial court conducted a voir dire and evaluated the probative and prejudicial value of the demonstration. Having determined it to have been conducted under conditions that were reasonably similar, to be helpful, and not to be overly prejudicial, the trial court determined that the evidence was admissible. We find no abuse of discretion and overrule defendant\u2019s assignment of error.\nDefendant next contends that evidence of the voice-activated recorder given to the victim by Carolyn Dinekamp violated Rules 401 through 403. As previously determined in considering defendant\u2019s second assignment of error, this evidence was relevant to show the victim\u2019s state of mind. The exclusion of relevant evidence under Rule 403 rests in the trial court\u2019s discretion. See id. We find no abuse of that discretion here. This argument is without merit.\nDefendant further contends that the trial court erroneously sustained the State\u2019s objection to defense counsel\u2019s cross-examination of Keith Hanson, the victim\u2019s minor son. Defendant asserts that the failure to allow impeachment of the witness with a prior inconsistent statement violates N.C.G.S. \u00a7 8C-1, Rule 607. Hanson testified at trial that defendant looked angry immediately before the shooting; no such description was present in the statement he made to police officers immediately after the shooting. The State objected to defense counsel\u2019s question, \u201cNow, you did not tell Detective Underwood that, did you?\u201d The objection was based on the detective\u2019s having \u201cbarely talked to the boys because they were traumatized.\u201d The trial court sustained the objection.\nOrdinarily, \u201cthe scope of cross-examination is subject to appropriate control in the sound discretion of the court.\u201d Id. at 290, 389 S.E.2d at 61. It \u201cis not ground for reversal unless the cross-examination is shown to have improperly influenced the verdict.\u201d State v. Woods, 345 N.C. 294, 307, 480 S.E.2d 647, 653, cert. denied, -U.S. -, 139 L. Ed. 2d 132 (1997). Hanson had already read to the jury the statement he gave to Detective Underwood. Thus, when the tried court sustained the State\u2019s objection, Hanson had already presented the jury with the very evidence defendant sought to elicit in asking Hanson whether he told Detective Underwood that defendant looked angry. Because the State\u2019s objection could have been sustained for repetitiveness, we find no abuse of discretion. See State v. Jaynes, 342 N.C. 249, 279-80, 464 S.E.2d 448, 467 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). Accordingly, this argument is without merit.\nNext, defendant contends that the trial court improperly limited his evidence that his marriage to Debbie Kraft Murillo was happy. Defendant sought to introduce photographs and testimony rebutting the claim of State\u2019s witnesses that the apartment defendant shared with his first wife had bullet holes in the walls. He contends the photographs taken eight months before Debbie was killed were relevant to rebut the State\u2019s evidence and were necessary to his defense.\nAfter hearing arguments from both attorneys regarding the probative value and prejudicial effect of photographs of Debbie, her sisters, her dog, and defendant, the court allowed the majority of the photos to rebut various contentions of family animosity that were raised by the testimony of Debbie\u2019s stepmother. It determined that some could be used to illustrate testimony of the persons pictured. Because no one could testify to taking the pictures of the walls and because they were not necessary or sufficiently dated to illustrate testimony of witnesses who denied seeing bullet holes in the walls, the photos of the walls were disallowed.\n\u201cWhether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court.\u201d Coffey, 326 N.C. at 281, 389 S.E.2d at 56. Rule 403 allows the exclusion of relevant evidence that is probative but poses greater danger of confusing the issues, misleading the jury, or being cumulative. See N.C.G.S. \u00a7 8C-1, Rule 403. The trial court here exercised proper discretion to exclude unreliable photographs, taken at an indeterminate date, that could have been more confusing or misleading than probative. Defendant presented numerous witnesses who testified that he had a happy marriage with Debbie. He has not shown an abuse of discretion by the trial court in excluding these photographs, nor has he shown that he was unable to present a defense without the excluded photographs. This argument is without merit.\nIn his seventh assignment of error, defendant contends the evidence was insufficient to support his murder conviction based on premeditation and deliberation. He argues that without allegedly inadmissible prejudicial evidence, the jury would not have returned a conviction. He asserts that the uncontroverted facts raise only a suspicion or conjecture that he killed his wife; therefore, his conviction cannot stand under State v. Lee, 287 N.C. 536, 215 S.E.2d 146 (1975).\nFor reasons stated above, defendant\u2019s contentions that inadmissible evidence was presented during his trial and prejudiced him are without merit. The evidence presented supports a conviction for premeditated and deliberate murder. This assignment of error is overruled.\nIn his eighth assignment of error, defendant asserts that the trial court should have intervened ex mero mo tu several times during the prosecutors\u2019 closing arguments in the guilt phase. Defendant asserts that the prosecutor asked the jury to find him guilty of first-degree murder because he \u201cgot away with it\u201d in the death of Debbie Murillo. Defendant contends that the arguments that he \u201cgot away with\u201d something were inherently unfair because the prosecutor knew of defendant\u2019s previous conviction for Debbie\u2019s death. The trial court had previously ruled, without objection, that evidence of defendant\u2019s conviction would be inadmissible unless defendant took the stand. Thus, under State v. Locklear, 294 N.C. 210, 241 S.E.2d 65 (1978), the prosecutor should not have argued that defendant \u201cgot away with\u201d anything. Defendant contends that this argument was grossly improper and that the trial court abused its discretion in failing to intervene ex mero motu.\n\u201c \u2018Argument of counsel is largely within the control and discretion of the trial judge. Counsel must be allowed wide latitude in the argument of hotly contested cases.\u2019 \u201d State v. Brogden, 329 N.C. 534, 549, 407 S.E.2d 158, 168 (1991) (quoting State v. Lynch, 300 N.C. 534, 551, 268 S.E.2d 161, 171 (1980)). Because defendant did not object,\n\u201cthe standard of review to determine whether the trial court should have intervened ex mero mo tu is whether the allegedly improper argument was so prejudicial and grossly improper as to interfere with defendant\u2019s right to a fair trial.\u201d\nState v. Gaines, 345 N.C. 647, 673, 483 S.E.2d 396, 412 (quoting State v. Alford, 339 N.C. 562, 571, 453 S.E.2d 512, 516 (1995)), cert. denied, - U.S. -, 139 L. Ed. 2d 177 (1997).\nThe trial court had already determined that evidence of Debbie\u2019s death was admissible to show intent and lack of accident under Rule 404(b). We have held that this was proper. A review of closing arguments in the guilt phase reveals that the prosecutors did no more than indicate similarities between the two wives\u2019 deaths and argue the improbability that an expert shooter would accidentally shoot and kill two of his four wives. These are reasonable inferences from the evidence presented and therefore were proper arguments. See id. at 675, 483 S.E.2d at 413. This assignment of error is without merit.\nDefendant next contends that the prosecutor impermissibly argued that defendant\u2019s forensic expert, Robert Kopec, was paid to lie on the stand. He assigns error to the following argument:\n[SBI Agent] Tom Trochum said no one identifies stippling from a photograph. It is improper, it is unscientific, and it leads to erroneous results, which is exactly what Kopec testified to you. An erroneous result. It is a sad state of our legal system, that when you need someone to say something, you can find them. You can pay them enough and they\u2019ll say it.\nDefendant cites the Court of Appeals\u2019 decision in State v. Vines, 105 N.C. App. 147, 412 S.E.2d 156 (1992), to support his argument. However, even in Vines, where the Court of Appeals found gross impropriety in the prosecutrix\u2019s argument that \u201c[y]ou can get a doctor to say just about anything these days\u201d and in her insinuation that the expert was motivated by \u201cpay,\u201d the court determined that a new trial was not warranted in light of the overwhelming case against the defendant. See id. at 156, 412 S.E.2d at 162-63. When we have analyzed closing arguments in sentencing proceedings and referred to Vines, we have assumed arguendo that the statements were error but held them not prejudicial error requiring a new sentencing proceeding. See State v. Hill, 347 N.C. 275, 300, 493 S.E.2d 264, 278 (1997) (assuming error arguendo in statement that mitigators \u201cwere developed skillfully by the defense experts who go around this State testifying for defendants in capital cases, selling their services and opinions at rates from $75 to $125 an hour,\u201d but finding no entitlement to new sentencing proceeding), cert. denied, - U.S. -, 140 L. Ed. 2d 1099 (1998); State v. Spruill, 338 N.C. 612, 652, 452 S.E.2d 279, 300 (1994) (assuming error arguendo in statement, \u201cYou know, he\u2019s been paid, you know darn well he did,\u201d but finding no entitlement to new sentencing proceeding), cert. denied, 516 U.S. 834, 133 L. Ed. 2d 63 (1995). While these cases are instructive, they are not controlling because the challenged arguments here were during the guilt phase of defendant\u2019s trial.\n\u201c[T]his Court has consistently held that \u2018an expert witness\u2019 compensation is a permissible cross-examination subject to test partiality towards the party by whom the expert was called.\u2019 \u201d State v. Brown, 335 N.C. 477, 493, 439 S.E.2d 589, 598-99 (1994) (quoting State v. Allen, 322 N.C. 176, 195, 367 S.E.2d 626, 636 (1988)). Therefore, evidence that defendant paid the expert was proper; the question is whether it was a proper subject in the closing argument. \u201c[I]t is not improper for the prosecutor to impeach the credibility of an expert during his closing argument.\u201d State v. Norwood, 344 N.C. 511, 536, 476 S.E.2d 349, 361 (1996), cert. denied, -U.S. -, 137 L. Ed. 2d 500 (1997). In assessing the propriety of references to payment of expert witnesses in guilt-phase closing arguments, this Court has relied on common knowledge. We have found no error even when defendant had objected during the arguments. For example, we said:\nThe prosecutor also argued that the psychiatrist admitted in his testimony that \u201che was hired for the sole purpose to form this intoxication defense.\u201d Although the record does not show the psychiatrist testified he was hired to form a defense, it is evident this was the reason he was employed.\nWe hold that the defendant was not unfairly prejudiced by the prosecutor\u2019s argument.\nState v. Jones, 339 N.C. 114, 150, 451 S.E.2d 826, 845 (1994), cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995). Likewise, in approving an argument by a prosecutor that a defendant\u2019s mother \u201chas tried to color this as best she can in the light that is most favorable to [her son;] I mean a mother would do that,\u201d we found no prejudicial error because \u201c[i]t is a matter of common knowledge that a mother will likely shade her testimony favorably for her son.\u201d State v. Harris, 338 N.C. 129, 147, 449 S.E.2d 371, 379 (1994), cert. denied, 514 U.S. 1100, 131 L. Ed. 2d 752 (1995).\nIn light of our previous holdings, we cannot conclude that the prosecutor\u2019s arguments were so grossly improper as to require the trial court to intervene ex mero motu when, at trial, defense counsel apparently did not believe the argument was prejudicial. See State v. Campbell, 340 N.C. 612, 630, 460 S.E.2d 144, 153 (1995), cert. denied, 516 U.S. 1128, 133 L. Ed. 2d 871 (1996). Further, even assuming arguendo that this portion of the argument was improper, it was not prejudicial to defendant in light of the substantial evidence of his guilt. See id. at 631, 460 S.E.2d at 154. This assignment of error is overruled.\nIn his ninth assignment of error, defendant contends that the trial court erred in allowing the prosecution\u2019s improper closing arguments during the sentencing phase. He contends the trial court erroneously overruled defendant\u2019s objection to one improper argument and erroneously failed to intervene ex mero motu in other improper arguments. Although defendant asserts constitutional claims regarding the closing arguments, he \u201cmade no constitutional claims at trial concerning the State\u2019s closing arguments and will not be heard on any constitutional grounds now.\u201d Barnes, 345 N.C. at 237, 481 S.E.2d at 73; see N.C. R. App. P. 10 (b)(1). Preliminarily, we note that \u201ctrial counsel are granted wide latitude in the scope of jury argument, and control of closing arguments is in the discretion of the trial court.\u201d State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487-88 (1992).\nThe only evidence the State presented at sentencing was a certified copy of defendant\u2019s record from California with the relevant statute attached. The record, detailing defendant\u2019s conviction for the 1970 death of his first wife, showed that the involuntary manslaughter charge was dismissed within one year of defendant\u2019s guilty plea. Defendant asserts that it was error for the prosecutrix to tell the jury that dismissals of felony convictions happen all the time. He says the arguments were designed to \u201cdenigrate the seriousness that the California judicial system placed on defendant\u2019s role\u201d in the shooting of Debbie Murillo.\nIn Barnes we held that defendant\u2019s allegation that the prosecutor misstated the law regarding mitigators was not error because the arguments had to be viewed in context and as a whole. See Barnes, 345 N.C. at 239, 481 S.E.2d at 75. Here defendant asserts that the prosecutrix misstated the law regarding the sole aggravator by telling the jury that dismissals such as defendant\u2019s are commonplace. Viewing the argument as a whole, however, we conclude that the prosecutrix was explaining why defendant\u2019s California conviction still counted as a conviction for purposes of the jury\u2019s finding the aggravating circumstance contained in N.C.G.S. \u00a7 15A-2000(e)(3) (prior violent felony). The prosecutrix explained how a dismissal may occur and when a dismissal must occur, and illustrated that the dismissal was not an exoneration by referring to several cases. As in Barnes, when viewed as a whole, \u201cthe argument was correct, and defendant was not prejudiced.\u201d Id. Further, even if this statement was error, defendant suffered no prejudice from it. Defense counsel was free to argue, and in fact did argue at sentencing, that not all convictions are set aside and that certain conditions must be met for that to occur. Accordingly, this assignment of error is overruled.\nDefendant also assigns as error sentencing-phase closing arguments to which he did not object. Our inquiry is as to whether the remarks were \u201cso grossly improper as to require the trial court to intervene ex mero motu.\u201d Bishop, 346 N.C. at 395, 488 S.E.2d at 785. Defendant contends that the prosecutor impermissibly asked the jury to find that some of the nonstatutory mitigators were in fact aggravators. He argues that the following argument required ex mero motu intervention:\nBeth Murillo had previously threatened the defendant. Beth Murillo also said that she didn\u2019t mean it. Beth said, \u201cI could never do that. I would kill myself first.\u201d And I submit to you, if Beth Murillo had been treated like a woman and a lady by a gentle, loving, and caring husband, she would never have even gotten to the point of even uttering such things. But it was Beth that was receiving, especially toward the end of her life, these murderous threats, \u201cShall I kill you today or shall I wait?\u201d\nMitigating circumstance, members of the jury, for him? What value could you assign to that? Or should it actually go against him? Should it actually be considered against him?\nBeth Murillo threatened the defendant that night. The same argument, members of the jury ....\nViewing the argument as a whole, see State v. Ingle, 336 N.C. 617, 646, 445 S.E.2d 880, 895 (1994), cert. denied, 514 U.S. 1020, 131 L. Ed. 2d 222 (1995), we conclude that the prosecutor merely argued the weight of the nonstatutory mitigating circumstances.\nThis Court has consistently held that when a jury determines that a statutory mitigating circumstance exists, it is not free to refuse to consider the circumstance and must give it some weight in its final sentencing determinations, but the amount of weight any circumstance may be given is a matter left to the jury. We have also consistently held, however, that it is for the jury to determine whether submitted nonstatutory mitigating circumstances established by the evidence should be given any mitigating value. As a matter of law, nonstatutory mitigating circumstances are mitigating only when one or more jurors deem them to be so.\nState v. Keel, 337 N.C. 469, 495, 447 S.E.2d 748, 762-63 (1994) (citations omitted), cert. denied, 513 U.S. 1198, 131 L. Ed. 2d 147 (1995). A prosecutor may argue the weight to be given to mitigators in his arguments at sentencing. See State v. Walls, 342 N.C. 1, 57, 463 S.E.2d 738, 768 (1995), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 794 (1996); State v. Craig, 308 N.C. 446, 460, 302 S.E.2d 740, 749, cert. denied, 464 U.S. 908, 78 L. Ed. 2d 247 (1983). Here the prosecutor argued that the nonstatutory mitigating circumstances should not weigh heavily in the jurors\u2019 minds. There was no additional submission of aggravators; indeed, the prosecution in closing arguments emphasized that only one aggravator was being submitted to the jury. There was no error in the argument and certainly none that would require the trial court to intervene ex mero motu. See State v. Geddie, 345 N.C. 73, 100, 478 S.E.2d 146, 160 (1996), cert. denied, - U.S. -, 139 L. Ed. 2d 43 (1997).\nDefendant next contends that the prosecutor impermissibly argued for imposition of the death penalty because it will deter crime generally, citing the following argument:\nAmerica has been confronted, at various stages in its history, with various crises. America\u2019s had to fight evil in various places in various ways. We\u2019ve had to have a fighting for principles, for justice, for decency, for law and for order. World War II, our young men and women had to go off and they had to fight for the principle of liberty against wickedness. Various other wars. And today, America has to fight for principles of decency and liberty within its own boundaries because of the crime.\nToday, look at where we are, where the decent people are literally imprisoned in their homes, not safe in the streets. And you are the ones'that can send a message out of [sic]: We will stand up, we will have our women and children and men able to walk around free and in safety. It doesn\u2019t get fixed without Americans being willing to take the duty that they are required to take under the law, that you said you were willing to take.\nWe disagree with defendant\u2019s characterization of this argument.\nThis Court has upheld closing arguments reminding jurors that they were \u201cthe conscience of the community.\u201d State v. Moseley, 338 N.C. 1, 52-53, 449 S.E.2d 412, 443 (1994), cert. denied, 514 U.S. 1091, 131 L. Ed. 2d 738 (1995). In Walls we approved a closing argument in a capital-sentencing proceeding that urged jurors to \u201csend a thunderous message to anybody who would think about committing such a wicked, evil, heinous act in the borders of the county.\u201d Walls, 342 N.C. at 61-62, 463 S.E.2d at 770-71. We previously have distinguished the arguments in State v. Scott, 314 N.C. 309, 333 S.E.2d 296 (1985) (improper to ask the jury to lend an ear to the community), on which defendant relies, from arguments such as those here. In Quesinberry we approved a closing argument, saying, \u201c[h]ere, instead, the prosecutor asked the jury to send a message to the community, not to \u2018lend an ear to the community.\u2019 \u201d State v. Quesinberry, 325 N.C. 125, 141, 381 S.E.2d 681, 691 (1989), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990). Here the prosecutor was reminding the jury of its role and obligation to follow the law in sentencing defendant. The argument did not impermissibly cite to general deterrence, and the prosecutor stayed within the bounds this Court has established when the prosecutor is arguing zealously for the highest penalty. Accordingly, this argument is without merit.\nFinally, defendant argues that the prosecutor impermissibly told the jury that the law does not permit sympathy in its consideration of a proper penalty. Defendant asserts error in the following argument:\nI suggest to you, this is not a matter for sympathy or prejudice at this time. This is a matter for you to look at what you have seen. It is wickedness. Don\u2019t let the wickedness spread like a bay tree. Cut it down. It is evil. What you have heard is evil to the core. Like a rattlesnake. Get rid of it, members of the jury. And if you follow the law, that\u2019s what you will do. There\u2019s no question about it.\nAlthough the trial court may not preclude the jury from considering compassion, \u201cthe prosecutor may discourage the jury from having mere sympathy not related to the evidence in the case affect its decision. Such statements are consistent with the prosecutor\u2019s role in seeking a recommendation of death.\u201d State v. Rouse, 339 N.C. 59, 93, 451 S.E.2d 543, 561 (1994) (citations omitted), cert. denied, 516 U.S. 832, 133 L. Ed. 2d 60 (1995). Moreover, the prosecutor here did not tell the jury it could not consider sympathy; rather, he suggested that the jury should not consider sympathy and should instead focus on the facts. This was not a misstatement of the law and \u201cwas well within the wide latitude permitted to prosecutors in their arguments.\u201d State v. Richmond, 347 N.C. 412, 443, 495 S.E.2d 677, 694, cert. denied, - U.S. -, - L. Ed. 2d -, 67 U.S.L.W. 3232 (1998). Accordingly, this assignment of error is overruled.\nIn defendant\u2019s tenth assignment of error, he contends that submission of the (e)(3) aggravating circumstance was improper. See N.C.G.S. \u00a7 15A-2000(e)(3) (1988) (amended 1994). Defendant asserts that although California law allows a dismissed conviction to be pled and proved in a subsequent prosecution, no cases do so when the prior conviction was twenty-two years earlier. Further, he contends that because California capital-sentencing law does not consider a conviction of involuntary manslaughter as an aggravating circumstance, it is unfair to use his California conviction thereof to aggravate his sentence in this case. Finally, he contends that using the prior California conviction in this sentencing defeats the purpose of the California legislature in allowing dismissals. He cites State v. Calloway, 305 N.C. 747, 291 S.E.2d 622 (1982), for the proposition that since the sole aggravator was submitted in error, his death sentence must be vacated.\nUnder North Carolina law the jury may consider a conviction for involuntary manslaughter as an aggravating circumstance. See N.C.G.S. \u00a7 15A-2000(e)(3); Keel, 337 N.C. at 490-91, 447 S.E.2d at 760. The fact that the conviction originated in another state does not preclude our courts from submitting it under (e)(3). See State v. Taylor, 304 N.C. 249, 278-79, 283 S.E.2d 761, 780 (1981), cert. denied, 463 U.S. 1213, 77 L. Ed. 2d 1398 (1983). Defendant concedes that California law, under which he was convicted, allows a dismissed conviction to be pled and proved in any subsequent prosecution. See People v. Majado, 22 Cal. App. 2d 323, 325-26, 70 P.2d 1015, 1016 (1937). He does not argue any effect that the dismissal may have on North Carolina\u2019s sentencing procedures. Instead, defendant contends that the conviction for involuntary manslaughter was too remote in time to be used to enhance a subsequent conviction. We disagree.\nWe recently reiterated the requirements for consideration of a prior conviction under the (e)(3) aggravator. N.C.G.S. \u00a7 15A-2000(e)(3)\n\u201crequires that there be evidence that (1) defendant had been convicted of a felony, that (2) the felony for which he was convicted involved the \u2018use or threat of violence to the person,\u2019 and that (3) the conduct upon which this conviction was based was conduct which occurred prior to the events out of which the capital felony charge arose.\u201d\nState v. Bishop, 343 N.C. 518, 546, 472 S.E.2d 842, 857 (1996) (quoting State v. Goodman, 298 N.C. 1, 22, 257 S.E.2d 569, 583 (1979)), cert. denied, - U.S. -, 136 L. Ed. 2d 723 (1997). These requirements were met. We do not find defendant\u2019s arguments about frustrating California\u2019s legislative intent relevant. This assignment of error is overruled.\nDefendant next raises several issues which he correctly notes we have decided contrary to his position, including: (1) that the trial court violated his constitutional rights by denying his motion to require the State to disclose aggravating circumstances; (2) that the trial court violated his due-process rights by preventing him from arguing to the jury about parole eligibility; (3) that the trial court erred in denying his motion to declare the death penalty unconstitutional; (4) that the trial court committed constitutional error by denying his motion to bifurcate the trial; (5) that the trial court\u2019s instructions allowing the jury to consider mitigating and aggravating circumstances in equipoise violated his constitutional rights; (6) that the trial court\u2019s definition of mitigating circumstances unconstitutionally limited the mitigating evidence the jury could consider; (7) that the trial court\u2019s instruction that all evidence in both phases of the trial was competent for sentencing allowed a death sentence to be returned based on nonstatutory aggravating circumstances; (8) that the trial court\u2019s instructions defining the burden of proof for mitigating circumstances were vague and erroneously allowed jurors to define the legal standard for themselves; (9) that the trial court\u2019s instruction allowed jurors to reject submitted mitigators because they had no mitigating value and thus violated his constitutional rights; and (10) that the trial court\u2019s instructions gave the jury discretion to reject proven mitigating circumstances and thus violated his constitutional rights. We have reviewed defendant\u2019s arguments, and we find no compelling reason to reconsider our prior holdings. These assignments of error are overruled.\nHaving found no error in defendant\u2019s trial or sentencing proceeding, we now review the record to determine: (1) whether the evidence supports the aggravating circumstance found by the jury; (2) whether the sentence was entered under the influence of passion, prejudice, or any other arbitrary consideration; and (3) whether the sentence is \u201cexcessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\u201d N.C.G.S. \u00a7 15A-2000(d)(2).\nThe jury found as an aggravating circumstance that defendant previously had been convicted of a felony involving the use of violence to the person. See N.C.G.S. \u00a7 15A-2000(e)(3). We conclude that evidence in the record fully supports the finding of this aggravating circumstance. Further, we find no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary consideration. We therefore turn to our final statutory duty of proportionality review.\nOne purpose of proportionality review is to \u201celiminate the possibility that a sentence of death was imposed by the action of an aberrant jury.\u201d State v. Lee, 335 N.C. 244, 294, 439 S.E.2d 547, 573, cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994). Another is to guard \u201cagainst the capricious or random imposition of the death penalty.\u201d State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980). In 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. See State v. McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162 (1993), cert. denied, 512 U.S. 1254, 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. Gaines, 345 N.C. 647, 483 S.E.2d 396, and 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); and Atate v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).\nThis case is distinguishable from each of these cases. First, defendant here was convicted of murder on the basis of premeditation and deliberation. In three of the seven disproportionate cases\u2014Benson, Stokes, and Rogers \u2014 the defendants were convicted solely on the basis of the felony murder rule. We have often emphasized that \u201c[a] conviction based on the theory of premeditation and deliberation indicates a more calculated and cold-blooded crime.\u201d State v. Davis, 340 N.C. 1, 31, 455 S.E.2d 627, 643, cert. denied, 516 U.S. 846, 133 L. Ed. 2d 83 (1995). Further, the jury found the (e)(3) statutory aggravating circumstance of prior conviction of a violent felony. None of the seven cases in which this Court found a sentence of death disproportionate included this aggravating circumstance. See Harris, 338 N.C. at 161, 449 S.E.2d at 387. Moreover, this Court has found the (e)(3) circumstance, standing alone, sufficient to sustain a sentence of death. See State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994), cert. denied, 514 U.S. 1114, 131 L. Ed. 2d 860 (1995); State v. Keel, 337 N.C. 469, 447 S.E.2d 748; see generally State v. Bacon, 337 N.C. 66, 110 n.8, 446 S.E.2d 542, 566 n.8 (1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995).\nAlthough defendant did seek medical attention for his victim, as did the defendant in Bondurant, we said in Bondurant, \u201cwe do not mean to imply that this factor is determinative of our proportionality consideration.\u201d Bondurant, 309 N.C. at 694 n.1, 309 S.E.2d at 183 n.1. Here, unlike in Bondurant, there was an expressed motive for the killing; defendant had said that if the victim left him, he would kill her, and evidence indicated that the parties were separated or separating. We also noted in Bondurant that there was no history of violence or animosity between the parties; here, by contrast, defendant had physically abused and threatened to kill the victim for years prior to actually killing her. Further, the victim was awakened in her home and killed. The sanctity of the home renders a murder there more deserving of the ultimate penalty. See State v. Brown, 320 N.C. 179, 231, 358 S.E.2d 1, 34, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987). We find the instant case distinguishable from each of the seven cases in which we have found the death penalty to be disproportionate.\nIt is also proper for this Court to \u201ccompare this case with the cases in which we have found the death penalty to be proportionate.\u201d McCollum, 334 N.C. at 244, 433 S.E.2d at 164. Although this Court reviews all cases in the pool when engaging in proportionality review, we have repeatedly stated that \u201cwe will not undertake to discuss or cite all of those cases each time we carry out that duty.\u201d Id. It suffices to say here that we conclude that the present case is more similar to cases in which we have found the sentence of death proportionate than to those in which we have found it disproportionate or those in which juries have consistently returned recommendations of life imprisonment. Defendant correctly asserts that many cases of domestic violence ending in murder result in life sentences. Similarity of cases, however, is not the final word on proportionality; it \u201cmerely serves as an initial point of inquiry.\u201d State v. Daniels, 337 N.C. 243, 287, 446 S.E.2d 298, 325 (1994), cert. denied, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995). The issue of whether the death penalty is proportionate in a particular case ultimately rests \u201con the experienced judgment of the members of this Court, not simply on a mere numerical comparison of aggravators, mitigators, and other circumstances.\u201d Id. The jury here found eleven of twenty mitigating circumstances but notably rejected five indicating that the violence in the relationship was reciprocal. No member of the jury found any of the following submitted mitigators: Beth Murillo became aggressive while consuming alcohol and was consuming alcohol that night; Beth Murillo had previously threatened defendant; Beth Murillo had threatened defendant that night; Beth Murillo had previously assaulted defendant; Beth Murillo and defendant were engaged in an argument at the cabin prior to the time of the shooting. Additionally, the jury rejected the mitigating circumstance that defendant had a loving relationship with his first wife, Debbie, who also died by his hand.\nIn light of these factors, the prior violent felony resulting in another death, and the long history of defendant\u2019s abuse of the victim, we cannot conclude as a matter of law that the sentence of death was excessive or disproportionate. We hold that the defendant received a fair trial and a fair capital sentencing proceeding, free from prejudicial error.\nNO ERROR.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Debra C. Graves, Assistant Attorney General, for the State.", "Margaret Greasy Ciardella for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERIC FERNANDO MURILLO\nNo. 209A96\n(Filed 31 December 1998)\n1. Criminal Law \u00a7 98 (NCI4th Rev.)\u2014 discovery \u2014 form of response\nThe trial court did not err in a first-degree murder prosecution by denying defendant\u2019s motions for discovery and by failing to sanction the State for its failure to provide discovery. Defendant did not indicate that the prosecution suppressed any evidence, but merely asserted disjointed presentation of the statements. The statements provided complied with the letter and the spirit of the mandate of N.C.G.S. \u00a7 15A-903(a)(2), defendant was protected from unfair surprise, and any other evidence of which defendant might have been deprived was not material.\n2. Evidence and Witnesses \u00a7\u00a7 876, 881 (NCI4th)\u2014 first-degree murder \u2014 statements of victim \u2014 abused spouse\u2014 state of mind hearsay exception\nThe trial court did not err in a capital prosecution for the first-degree murder of an abused spouse by admitting testimony that the victim had said she was going home to Massachusetts for the summer, leaving the inference that the victim and defendant were separating. Competent evidence had been introduced that defendant had threatened to kill the victim if she left him and her statement was relevant to show motive and to show her state of mind.\n3. Evidence and Witnesses \u00a7 929 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 statement of victim \u2014 excited utterance\nThe trial court did not err in a capital prosecution for the first-degree murder of an abused spouse by admitting testimony about a phone conversation in which the victim related that defendant had held a gun to her head. The testimony indicated that the victim had called her brother-in-law immediately after the incident while she was still upset and had not had time to reflect; the testimony was properly admitted as an excited utterance. N.C.G.S. \u00a7 8C-1, Rule 803(2).\n4. Evidence and Witnesses \u00a7\u00a7 929, 3126 (NCI4th)\u2014 first-degree murder \u2014 statement of victim \u2014 excited utterance\u2014 not corroboration\nThere was no prejudicial error in a capital prosecution for the first-degree murder of an abused spouse where the court allowed the victim\u2019s father to testify that the victim had told him that defendant had beaten her while they were on a beach trip and that defendant had shot a gun next to her head. The testimony was not admissible to corroborate the witness\u2019s testimony about the two incidents; prior consistent statements are admissible for corroboration, but this rationale does not justify admission of extrajudicial declarations of someone other than the witness. However, this witness gave testimony as to these incidents within the excited utterance exception, so that the hearsay testimony of what the victim belatedly told the witness about the same events did not effect the verdict and was not prejudicial.\n5. Evidence and Witnesses \u00a7 876 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 statements by victim in workplace\nThe trial court did not err in a capital prosecution for the first-degree murder of an abused spouse by permitting the assistant principal at the victim\u2019s workplace to testify about beatings the victim described after the alleged abuse occurred. The transcript reveals that the victim recounted the past beatings only when confronted with her injuries and that she broke down and explained what was happening in her life to make her afraid, upset, and bruised. The victim\u2019s explanatory comments about the beatings were made contemporaneously with and in explanation of her statements and crying, thus showing her state of mind.\n6. Evidence and Witnesses \u00a7\u00a7 876, 929 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 statements to sisters and friends\nThe trial court did not err in a capital prosecution for the first-degree murder of an abused spouse by allowing the victim\u2019s sisters and friends to testify as to various beatings that the victim described. The victim either called the witnesses immediately after the beating or described the beatings as the bases for her fear, placing the statements within the excited-utterance exception or the state of mind or emotion exception.\n7. Evidence and Witnesses \u00a7 876 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 tape recorder \u2014 state of mind of victim\nThe trial court did not err in a capital prosecution for the first-degree murder of an abused spouse by allowing a friend of the victim to testify that she gave the victim a voice-activated tape recorder to use to catch defendant committing adultery. The trial court found that there was competent evidence that defendant had threatened to kill the victim if she left him and the existence of the tape was relevant to show the victim\u2019s intent to leave the defendant.\n8. Evidence and Witnesses \u00a7\u00a7 876, 929 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 victim\u2019s statement as to bruise\nThere was no prejudicial error in a capital prosecution for the first-degree murder of an abused spouse where the court permitted a witness to testify that the victim had told her that she received a large bruise on her head when defendant threw her into a wall. The victim was not upset and was not relating feelings or intent regarding her relationship with defendant, so that the testimony was an improper recitation of mere remembered facts. However, the voluminous admissible testimony regarding violence directed toward the victim renders this error harmless. Other testimony by this witness was tangential to the question of defendant\u2019s guilt or reflected the victim\u2019s state of mind about her marriage and related to an event that could cause a confrontation with defendant.\n9. Evidence and Witnesses \u00a7 735 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 admission not plain error\nThere was no plain error in a capital prosecution for the first-degree murder of an abused spouse where the court admitted hearsay testimony that defendant came to the school where the victim worked to collect her paychecks and that the defendant determined whether the victim could drive a car. The admission of this testimony was not such a prejudicial error as to prevent justice from being done.\n10. Evidence and Witnesses \u00a7 876 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 creation of nest egg \u2014 state of mind hearsay exception\nThe trial court did not err in a capital prosecution for the first-degree murder of an abused spouse by admitting testimony that the victim had given part of her paycheck to a friend to create a \u201cnest egg\u201d- and that she planned on leaving defendant. This clearly reflects the victim\u2019s state of mind about her marriage and related directly to circumstances giving rise to a potential confrontation with defendant.\n11. Evidence and Witnesses \u00a7 761 (NCI4th) \u2014 first-degree murder \u2014 abused spouse \u2014 testimony of previous incidents\u2014 admission not prejudicial\nThere was no prejudicial error in a capital prosecution for the first-degree murder of an abused spouse where the trial court admitted testimony from the victim\u2019s sister about a beating the victim had suffered at Thanksgiving in 1988 and about the circumstances leading to the victim\u2019s final trip to Massachusetts to retrieve her sons. The Thanksgiving beating had previously been explored with competent testimony and the testimony that defendant and the victim argued before the Massachusetts trip was harmless in light of overwhelming competent evidence that defendant and the victim argued often.\n12. Evidence and Witnesses \u00a7 3127 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 testimony of victim\u2019s mother\u2014 corroboration\nThere was no prejudicial error in a capital prosecution for the first-degree murder of an abused spouse in the admission of testimony from the victim\u2019s mother. Her testimony about an incident in which defendant held a gun to the victim\u2019s head was admissible to corroborate a deputy\u2019s earlier testimony, the mother\u2019s testimony to an argument between defendant and the victim was not prejudicial in light of overwhelming competent evidence that defendant and the victim argued often, and the remainder of her testimony recounted excited utterances or the victim\u2019s state of mind.\n13. Evidence and Witnesses \u00a7 90 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 previous attacks on spouse \u2014 not overly prejudicial\nThere was no abuse of discretion in a capital prosecution for the first-degree murder of an abused spouse in the admission of evidence of prior incidents toward the spouse. Contrary to defendant\u2019s assertion, the evidence was not overly prejudicial as subjecting defendant to trial for beating his wife. Testimony about a defendant-husband\u2019s arguments with, violence toward, and threats to his wife were properly admitted in his subsequent trial for her murder.\n14. Evidence and Witnesses \u00a7 876 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 state of mind hearsay exception \u2014 remoteness\nThe trial court did not err in a capital prosecution for the first-degree murder of an abused spouse by admitting certain statements of the victim as within the state of mind exception. Although defendant contended that the statements should have been excluded because of remoteness, evidence spanning the entire marriage has been allowed when a husband is charged with murdering his wife.\n15. Evidence and Witnesses \u00a7 335 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 killing of prior spouse\u2014 admissible\nThe trial court did not err in a capital prosecution for the first-degree murder of an abused spouse by admitting evidence of defendant\u2019s first wife\u2019s death at his hands in 1970. The evidence was properly admitted to show lack of accident and to support a finding that defendant intended to kill this victim. The court told the jury that it could consider evidence of the prior shooting when deciding issues of intent, plan, premeditation, and absence of accident, but expressly warned jurors not to consider the death as proof of defendant\u2019s propensity to commit the crime.\n16. Evidence and Witnesses \u00a7 292 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 killing of prior spouse \u2014 involuntary manslaughter conviction\nThe trial court did not abuse its discretion in a first-degree murder prosecution by admitting evidence of the death of defendant\u2019s first wife where defendant was convicted of involuntary manslaughter in that death. Although defendant argues that admitting evidence of his first wife\u2019s death subjects him to double jeopardy, there was substantial evidence from which a jury could determine that defendant committed the similar act; the evidence of the prior death was not admitted to show only intent, plan, or motive; the probative value of that death does not depend on any additional fact or element not present in defendant\u2019s conviction and defendant\u2019s own statements call into question his assertion of accident in both deaths. Furthermore, the first death was not so remote in time as to have lost its probative value or be more prejudicial then probative.\n17. Constitutional Law \u00a7 344.1 (NCI4th)\u2014 first-degree murder \u2014 right to be present \u2014 recorded bench conferences\nThe federal constitutional rights of a capital first-degree murder defendant were not violated by three recorded bench conferences. Furthermore, defendant\u2019s rights under Article I, Section 23 of the North Carolina Constitution were not violated because defendant at all times either had actual knowledge of the substance of the discussion or constructive knowledge through his attorneys. He makes no showing that his presence at the bench would have been useful.\n18. Criminal Law \u00a7 532 (NCI4th Rev.)\u2014 first-degree murder\u2014 juror entering courtroom during hearings \u2014 juror not dismissed\nThe trial court did not abuse its discretion in a capital prosecution for first-degree murder by not excusing a juror ex mero motu where the juror twice entered the courtroom inadvertently and fleetingly during hearings. No motion was made for a new trial based on juror misconduct or for a further inquiry into what the juror might have heard and any discussion the juror might have overheard was either eventually allowed before the juror or tangential to the issues. The trial court witnessed all of the events in question and both the existence of misconduct and the effect of misconduct are determinations within the trial court\u2019s discretion.\n19. Evidence and Witnesses \u00a7 264 (NCI4th)\u2014 first-degree murder \u2014 victim\u2019s performance as school teacher \u2014 rebuttal of defendant\u2019s contention\nThe trial court did not abuse its discretion in a capital prosecution for the first-degree murder of an abused spouse by admitting character evidence concerning the victim\u2019s performance as a school teacher. The trial court determined that the victim\u2019s teaching performance was relevant to rebut contentions in defendant\u2019s opening statement that the victim was a violent alcoholic whose abusive behavior was not limited to defendant.\n20. Evidence and Witnesses \u00a7 1776 (NCI4th)\u2014 first-degree murder \u2014 demonstration\u2014witness the same size as defendant\nThe trial court did not abuse its discretion in a capital prosecution for the first-degree murder of an abused spouse by allowing the victim\u2019s sister to demonstrate, after testifying that she and the victim wore the same clothes and were the same size, that her forearm and head could not be positioned such that the bullet holes matched as they did in the victim\u2019s body if an accident had occurred in the way defendant claimed. The trial court conducted a voir dire and evaluated the probative and prejudicial value of the demonstration.\n21. Evidence and Witnesses \u00a7 3161 (NCX4th)\u2014 first-degree murder \u2014 cross-examination of victim\u2019s minor son \u2014 use of prior inconsistent statement\nThere was no abuse of discretion in a capital prosecution for the first-degree murder of an abused spouse where defendant contended that the trial court erroneously sustained the State\u2019s objection to defense counsel\u2019s cross-examination of the victim\u2019s minor son regarding a prior inconsistent statement. Although the son testified that defendant looked angry immediately before the shooting, no such description was present in the statement made to police officers immediately after the shooting; the objection was sustained based on the detective barely talking to the boys because they were traumatized. The son had already presented the evidence defendant sought to elicit and the objection could have been sustained for repetitiveness.\n22. Evidence and Witnesses \u00a7 1657 (NCI4th)\u2014 first-degree murder \u2014 abused spouse \u2014 nature of relationship \u2014 photographs \u2014 excluded\nThere was no abuse of discretion in a capital prosecution for the first-degree murder of an abused spouse where defendant sought to introduce photographs and testimony rebutting various contentions of family animosity, the court determined that some of the photographs could be used to illustrate testimony of the persons pictured, but excluded testimony of the walls of the apartment because no one could testify to taking the pictures and they were not necessary or sufficiently dated to illustrate the testimony of witnesses who denied seeing bullet holes in the walls. The trial court exercised proper discretion to exclude unreliable photographs taken at an indeterminate date that could have been more confusing or misleading than probative, and defendant presented numerous witnesses who testified that he had a happy marriage.\n23. Criminal Law \u00a7 439 (NCI4th Rev.)\u2014 first-degree murder\u2014 prosecutor\u2019s closing arguments \u2014 prior murder\nThere was no error in a capital prosecution for first-degree murder where the trial court did not intervene ex mero mo tu in the prosecutor\u2019s closing argument in the guilt phase where defendant asserted that the prosecutor asked the jury to convict defendant of first-degree murder because he \u201cgot away with it\u201d in the death of a prior spouse. A review of the closing arguments reveals that the prosecutors did no more than indicate similarities between the two wives\u2019 deaths and argue the improbability that an expert shooter would accidentally shoot and kill two of his four wives; these are reasonable inferences from the evidence and proper arguments.\n24. Criminal Law \u00a7 447 (NCI4th Rev.)\u2014 first-degree murder\u2014 prosecutor\u2019s argument \u2014 paid expert witness\nThe prosecutor\u2019s arguments in the guilt phase of a capital first-degree murder prosecution concerning payment of defendant\u2019s forensic expert were not so grossly improper as to require the trial court to intervene ex mero mo tu. Prior cases involving arguments from sentencing proceedings are instructive but not controlling and, when .defense counsel apparently did not believe the argument was prejudicial at trial, the Court could not conclude that the trial court should have intervened. Even assuming that the argument was improper, it was not prejudicial in light of the substantial evidence of defendant\u2019s guilt.\n25. Criminal Law \u00a7 457 (NCI4th Rev.)\u2014 capital sentencing\u2014 prior out-of-state conviction \u2014 prosecutor\u2019s argument\nThe trial court did not err in a capital sentencing proceeding by allowing the prosecutor\u2019s statement that dismissals such as defendant\u2019s in the 1970 California killing of his first wife were commonplace. Viewed as a whole, the prosecutor was explaining why defendant\u2019s California conviction still counted as a conviction for purposes of finding the prior violent felony aggravating circumstance and, even if the statement was error, defendant suffered no prejudice because he argued that not all convictions are set aside and that certain conditions must be met for that to occur.\n26. Criminal Law \u00a7 460 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s argument \u2014 nonstatutory mitigating factors\nThe trial court did not err by not intervening ex mero motu in a capital sentencing proceeding where defendant contended that the prosecutor impermissibly asked the jury to find that some of the nonstatutory mitigators were aggravators, but the prosecutor in fact argued that the nonstatutory mitigating circumstances should not weigh heavily in the jurors\u2019 minds. There was no additional submission of aggravators and the prosecution emphasized in arguments that only one aggravator was being submitted to the jury.\n27. Criminal Law \u00a7 461 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s argument \u2014 death penalty as deterrent\nThe trial court did not err by not intervening ex mero motu in a capital sentencing proceeding where defendant contended that the prosecutor impermissibly argued for imposition of the death penalty because it would deter crime generally. The prosecutor was reminding the jury of its role and obligation to follow the law, did not impermissibly cite to general deterrence, and stayed within the established bounds.\n28. Criminal Law \u00a7 460 (NCI4th Rev.)\u2014 capital sentencing proceeding \u2014 prosecutor\u2019s argument \u2014 sympathy\nThe trial court did not err in a capital sentencing proceeding by not intervening ex mero motu where defendant contended that the prosecutor impermissibly told the jury that the law does not permit sympathy. Although the trial court may not preclude the jury from considering compassion, the prosecutor may discourage the jury from having mere sympathy not related to the evidence; moreover, the prosecutor here did not tell the jury that it could not consider sympathy, but suggested that the jury focus on the facts and not consider sympathy.\n29. Criminal Law \u00a7 1364 (NCI4th Rev.)\u2014 capital sentencing\u2014 aggravating circumstance \u2014 prior California conviction\nThe trial court did not err in a capital sentencing proceeding by allowing the submission of the prior violent felony aggravating circumstance based on a twenty-two-year-old California conviction for voluntary manslaughter. Defendant did not argue' any effect that the subsequent dismissal of the conviction under California law may have had on North Carolina\u2019s sentencing procedures and contended instead that the conviction was too remote in time. The requirements of N.C.G.S. \u00a7 15A-2000(e)(3) were met and defendant\u2019s arguments about frustrating California\u2019s legislative intent were not relevant.\n30. Criminal Law \u00a7 1402 (NCI4th Rev.)\u2014 death penalty \u2014 not arbitrary\nIn a capital sentencing proceeding for the first-degree murder of an abused spouse, the evidence in the record fully supports the finding by the jury of the aggravating circumstance of a prior felony involving the use of violence and there was no indication that the sentence of death was\u2019 imposed under the influence of passion, prejudice, or any other arbitrary consideration.\n31. Criminal Law \u00a7 1402 (NCI4th Rev.)\u2014 death penalty \u2014 not disproportionate\nA sentence of death for the first-degree murder of an abused spouse was not disproportionate in light of a prior violent felony resulting in another death and the long history of defendant\u2019s abuse of this victim.\nAppeal of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Ellis, J., on 18 April 1996 in Superior Court, Richmond County, upon a jury verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 30 September 1998.\nMichael F. Easley, Attorney General, by Debra C. Graves, Assistant Attorney General, for the State.\nMargaret Greasy Ciardella for defendant-appellant." }, "file_name": "0573-01", "first_page_order": 611, "last_page_order": 652 }