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Ed. 2d 167", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "467 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "84" } ], "opinion_index": 0 }, { "cite": "342 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795950 ], "year": 1996, "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0419-01" ] }, { "cite": "129 L. Ed. 2d 881", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "436 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "335 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531885 ], "year": 1993, "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0001-01" ] }, { "cite": "126 L. Ed. 2d 341", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "510 U.S. 948", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 231682, 233093, 235270, 233531, 235692, 232590, 231374, 230994, 230899, 232630, 234584, 234875, 235740, 233052 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/us/510/0948-14", "/us/510/0948-04", "/us/510/0948-12", "/us/510/0948-11", "/us/510/0948-13", "/us/510/0948-10", "/us/510/0948-08", "/us/510/0948-09", "/us/510/0948-01", "/us/510/0948-06", "/us/510/0948-07", "/us/510/0948-02", "/us/510/0948-03", "/us/510/0948-05" ] }, { "cite": "428 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "141" }, { "page": "146" } ], "opinion_index": 0 }, { "cite": "333 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549203 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "391-92" }, { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0350-01" ] }, { "cite": "140 L. Ed. 2d 486", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "491 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "560" } ], "opinion_index": 0 }, { "cite": "347 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551097 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "189-90" }, { "page": "186" }, { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0143-01" ] } ], "analysis": { "cardinality": 2370, "char_count": 105360, "ocr_confidence": 0.766, "pagerank": { "raw": 5.052582546939294e-07, "percentile": 0.9372075360378154 }, "sha256": "d597d727412e6307c3c74e39f65124551a09b167ed4787933c0bea8f59e63a69", "simhash": "1:4f6ac026162e8dfe", "word_count": 16927 }, "last_updated": "2023-07-14T14:46:00.917666+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices Martin and Wainwright did not participate in the consideration or decision of this opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN HENRY FLEMING" ], "opinions": [ { "text": "PARKER, Justice.\nDefendant John Henry Fleming was indicted on 23 September 1996 for the first-degree murder of Genie Pelham (\u201cvictim\u201d). Defendant was tried capitally and found guilty of first-degree murder on the basis of premeditation and deliberation. Following a capital-sentencing proceeding, the jury recommended a sentence of death; and the trial court entered judgment accordingly.\nThe State\u2019s evidence at trial tended to show the following. On or about 17 May 1996, defendant entered the home of the victim and assaulted him with a blunt object. Based upon the blood-spatter marks found at the crime scene, Anthony Jernigan, a special agent with the State Bureau of Investigation (\u201cSBI\u201d) and a crime-scene specialist, concluded that the assault began in the victim\u2019s den. The victim moved from the middle of the love seat to the north end of the love seat. While the assault continued, the victim moved from the den, to the kitchen, and finally to the main hallway. Judging from the level of the blood-spatter marks, the victim rose and fell approximately six different times as his assailant hit him on the head. Defendant\u2019s black watch and a shoe impression matching defendant\u2019s unique shoe imprint were found at the scene of the crime.\nThe autopsy revealed over a dozen contusions and lacerations on the victim\u2019s head. The forensic pathologists also found abrasions on the victim\u2019s neck, arms, and right leg. The injuries to the victim\u2019s arms and shin may have been defensive wounds. Additionally, the left side of the victim\u2019s hyoid bone, which is found at the base of the tongue, was broken. The cause of death was strangulation with the hand or hands. This conclusion was consistent with the fingernail marks found on the victim\u2019s neck, the hemorrhage into the tissues underneath the skin of the neck, and the fracture and hemorrhage of the hyoid bone.\nAt the time of the murder, defendant and Eugenia Pelham, the victim\u2019s daughter, were having a relationship; the victim did not approve of this relationship. The victim also intended to be a prosecuting witness against defendant for three counts of uttering forged checks on the victim\u2019s bank account. Defendant\u2019s uttering trial was scheduled for 23 May 1996.\nDefendant presented no evidence at the guilt-innocence phase.\nAdditional facts will be presented as necessary to discuss specific issues.\nPRETRIAL ISSUES\nBy his first assignment of error, defendant contends that the trial court erred in denying his motion to prohibit the use of the aggravating circumstance that the victim\u2019s murder was especially heinous, atrocious, or cruel. N.C.G.S. \u00a7 15A-2000(e)(9) (1997). Defendant argues, inter alia, that the (e)(9) aggravating circumstance is unconstitutionally vague and overbroad and that, based on the evidence presented at trial, its submission was unwarranted. For the following reasons we disagree.\nAs to defendant\u2019s first argument, we have repeatedly rejected the contention that N.C.G.S. \u00a7 15A-2000(e)(9) is unconstitutional for being overbroad or vague. See State v. Gray, 347 N.C. 143,189-90, 491 S.E.2d 538, 560 (1997), cert. denied, \u2014 U.S.-, 140 L. Ed. 2d 486 (1998); see also State v. Syriani, 333 N.C. 350, 391-92, 428 S.E.2d 118, 141, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993).\nFurther, whether a trial court properly submitted the (e)(9) aggravating circumstance depends on the facts of the case. State v. Gibbs, 335 N.C. 1, 61, 436 S.E.2d 321, 356 (1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994). We have stated that the (e)(9) aggravating circumstance is appropriate \u201cwhen the murder in question is conscienceless, pitiless, or unnecessarily torturous to the victim.\u201d State v. Kandies, 342 N.C. 419, 450, 467 S.E.2d 67, 84, cert. denied, 519 U.S. 894, 136 L. Ed. 2d 167 (1996). In determining whether the evidence is sufficient to support the trial court\u2019s submission of the especially heinous, atrocious, or cruel aggravating circumstance, we must consider the evidence in the light most favorable to the State; and the State is entitled to every reasonable inference to be drawn therefrom. See, e.g., State v. Flippen, 349 N.C. 264, 270, 506 S.E.2d 702, 706 (1998).\nApplying these principles in this case, we conclude that the evidence was sufficient to support submission of the (e)(9) aggravating circumstance. Here, the State\u2019s evidence tended to show that the victim was repeatedly assaulted with a blunt object in his own home. As the victim struggled to defend himself, defendant continued to hit him on the head as the victim moved from the den, through the kitchen, and into the main hallway. The victim had multiple cuts and bruises on his head, arms, and right leg. Defendant also manually strangled the victim to the point where his hyoid bone was fractured.\nThe forensic pathologists testified that the repeated blows to the victim\u2019s head did not render the victim unconscious. Defendant then applied so much pressure to the victim\u2019s neck that blood could not reach his brain. At this point the victim lost consciousness, his brain lost its ability to function, he stopped breathing, his heart stopped beating, and he ultimately died of cardiac arrest. One of the forensic pathologists testified that it would take approximately two minutes or more for a strangling victim to lose consciousness.\nWe hold that this evidence, when viewed in the light most favorable to the State, was sufficient to support a reasonable inference that the victim remained conscious during his ordeal and suffered great physical pain and torture as, already bloodied and bruised from the beatings, he was strangled so forcefully that his neck was repeatedly scratched. See State v. Artis, 325 N.C. 278, 320, 384 S.E.2d 470, 494 (1989) (holding that the (e)(9) aggravating circumstance was properly submitted where strangulation victim physically and psychologically suffered), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). This assignment of error is overruled.\nJURY SELECTION\nNext, defendant argues that the trial court erred in denying his motion for individual voir dire and sequestration of jurors during voir dire and that the voir dire process under N.C.G.S. \u00a7 15A-1214(d) through (f) was unconstitutional.\n\u201cIn capital cases the trial judge for good cause shown may direct that jurors be selected one at a time, in which case each juror must first be passed by the State. These jurors may be sequestered before and after selection.\u201d N.C.G.S. \u00a7 15A-1214Q) (1997). Whether to grant sequestration and individual voir dire of prospective jurors rests within the trial court\u2019s discretion and will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Atkins, 349 N.C. 62, 105-06, 505 S.E.2d 97, 123 (1998).\nDefendant\u2019s sole argument in support of abuse of the trial court\u2019s discretion in refusing to permit individual voir dire or sequestration during voir dire is that prospective jurors who were unwilling to serve as jurors did not truthfully answer questions during voir dire. A careful review of the transcript does not reveal that prospective jurors misled the court in order to avoid jury duty. Of the three prospective jurors defendant now claims may have been less than candid, one was excused because he knew the victim\u2019s family; and the other two were excused because they unequivocally stated that they could not recommend the death penalty based on their personal and religious beliefs. Defendant does not allege there is any indication, and we detect no such indication, that the prospective jurors were not telling the truth during voir dire. Therefore, defendant\u2019s argument that the denial of his motion has harmed him is dismissed.\nDefendant further argues that, as a direct result of the statutory process under N.C.G.S. \u00a7 15A-1214(d) through (f), his constitutional rights were violated. N.C.G.S. \u00a7 15A-1214 provides, in pertinent part:\n(d) The prosecutor must conduct his examination of the first 12 jurors seated and make his challenges for cause and exercise his peremptory challenges. If the judge allows a challenge for cause, or if a peremptory challenge is exercised, the clerk must immediately call a replacement into the box. When the prosecu-tor is satisfied with the 12 in the box, they must then be tendered to the defendant. Until the prosecutor indicates his satisfaction, he may make a challenge for cause or exercise a peremptory challenge to strike any juror, whether an original or replacement juror.\n(e) Each defendant must then conduct his examination of the jurors tendered him, making his challenges for cause and his peremptory challenges. If a juror is excused, no replacement may be called until all defendants have indicated satisfaction with those remaining, at which time the clerk must call replacements for the jurors excused. The judge in his discretion must determine order of examination among multiple defendants.\n(f) Upon the calling of replacement jurors, the prosecutor must examine the replacement jurors and indicate satisfaction with a completed panel of 12 before the replacement jurors are tendered to a defendant. Only replacement jurors may be examined and challenged. This procedure is repeated until all parties have accepted 12 jurors.\nFirst, defendant argues that this process created a confusing method of questioning prospective jurors since the questioning of prospective jurors skipped from one juror to another. As a result prospective juror Brenda Jordan was called to juror seat number ten, but she was never excused or seated as a juror; and a Mr. Reeves was polled as a juror at the guilt-innocence phase, but there was no voir dire of Mr. Reeves. WTiile we find it troublesome that the record reveals that Ms. Jordan was called as a prospective juror and that Mr. Reeves was polled at the conclusion of the guilt-innocence phase, we must reject defendant\u2019s argument.\nDefendant concedes that the trial court followed the statutory procedure for jury selection pursuant to N.C.G.S. \u00a7 15A-1214(d) through (f). After the prosecutor passed twelve prospective jurors to defendant, pursuant to N.C.G.S. \u00a7 15A-1214(d), defendant excused, either peremptorily or for cause, eight of these prospective jurors, pursuant to N.C.G.S. \u00a7 15A-1214(e). Therefore, eight seats remained to be filled; however, the courtroom clerk mistakenly called nine people, including Brenda Jordan to fill seat number ten, which was already occupied by juror Donnie Smith. The record discloses no voir dire of Ms. Jordan; thus, we can only conclude that Ms. Jordan was never seated as a prospective juror, and defendant cannot demonstrate any harm. Regarding the alleged sudden appearance of Mr. Reeves, while it is impossible to discern whether the courtroom clerk merely misspoke when polling the jury during the guilt-innocence phase or whether the transcript contains an error, see State v. DeCastro, 342 N.C. 667, 698, 467 S.E.2d 653, 669, cert. denied, 519 U.S. 896, 136 L. Ed. 2d 170 (1996), defendant has not been prejudiced.\nFurther, defendant argues on appeal that the statutory scheme detailed in N.C.G.S. \u00a7 15A-1214(d) through (f) is unconstitutional because it allows the prosecutor a larger pool of prospective jurors to select from than defendant. However, defendant did not raise this constitutional issue at trial; consequently, the trial court did not have the opportunity to consider or rule on this issue. N.C. R. App. P. 10(b)(1). Therefore, defendant has failed to preserve this assignment of error for appellate review. See State v. Flippen, 349 N.C. at 276, 506 S.E.2d at 709-10 (holding that defendant\u2019s failure to raise a constitutional issue at trial waived appellate review of that issue); State v. Frye, 341 N.C. 470, 493, 461 S.E.2d 664, 675 (1995) (same), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526 (1996); State v. King, 342 N.C. 357, 364, 464 S.E.2d 288; 293 (1995) (same). These assignments of error are overruled.\nNext, defendant assigns error to the trial court\u2019s allowing defendant to be tried without first making the jurors take an oath to be truthful during voir dire. The jurors were properly sworn pursuant to N.C.G.S. \u00a7 9-14 and affirmatively responded when the courtroom clerk administered the following oath: \u201cDo you solemnly swear that you will truthfully, without prejudice or partiality try all issues and criminal actions that come before you and give true verdicts according to the evidence, so help you God?\u201d Defendant nonetheless argues that the failure to require prospective jurors to swear to tell the truth during voir dire tainted his trial. Defendant, however, did not object to any lack of oath during voir dire. Thus, this assignment of error is likewise not preserved for appellate review and is accordingly overruled. See N.C. R. App. P 10(b)(1); State v. Flippen, 349 N.C. at 276, 506 S.E.2d at 709-10.\nNext, defendant contends that the trial court erred in denying his motion to permit defense counsel to question prospective jurors challenged for cause by the State. Defendant argues that he should have been afforded an opportunity to rehabilitate prospective jurors Foreman and Joyner when the State challenged them for cause based upon their opposition to the death penalty.\nThe voir dire of prospective juror Foreman follows:\nQ. [Prosecutor] Before yesterday had you ever thought about the death penalty, ever considered the death penalty before yesterday?\nA. [Juror] No.\nQ. Do you have personal or religious feelings concerning the death penalty?\nA. Yes.\nQ. Are those strong feelings that you have for the death penalty? A. Yes.\nQ. Are they personal and religious?\nA. Yes.\nQ. Because of your strong personal and religious feelings with respect to the death penalty, would you, yourself, be able to recommend or vote for the death penalty?\nA. No.\nQ. Knowing the court would follow your vote and impose the death penalty?\nA. No.\nQ. So regardless of what the circumstances might be or the facts might be in the case, you would be unable to recommend the death penalty for anyone under any circumstances; is that correct?\nA. Yes.\nQ. That\u2019s based upon your own personal beliefs and religious beliefs?\nA. Right.\nQ. So regardless of what the law is and the evidence might be in the case, you would not recommend the death penalty for anyone under any circumstances?\nA. No.\nQ. Is that correct?\nA. Yes.\nThe State challenged prospective juror Foreman for cause, and defendant objected and requested an opportunity to rehabilitate. The trial judge overruled the objection and excused Mr. Foreman pursuant to N.C.G.S. \u00a7 15A-1212(8), which provides that a juror may be challenged for his inability to render a verdict in accordance with the laws of the State. Similarly, prospective juror Joyner stated her inability to recommend the death penalty based on her personal or religious feelings, was challenged for cause, and was excused under N.C.G.S. \u00a7 15A-1212(8).\nThe trial court retains discretion as to the extent and manner of questioning, and its rulings on a challenge for cause will not be overturned absent a showing of abuse of discretion. See State v. Atkins, 349 N.C. at 105-06, 505 S.E.2d at 123.\nThe defendant is not allowed to rehabilitate a juror who has expressed unequivocal opposition to the death penalty in response to questions propounded by the prosecutor and the trial court. The reasoning behind this rule is clear. It prevents harassment of the prospective jurors based on their personal views toward the death penalty.\nState v. Cummings, 326 N.C. 298, 307, 389 S.E.2d 66, 71 (1990). Since both prospective jurors unequivocally stated that they could not recommend the death penalty under any circumstances, we hold that the trial court did not abuse its discretion when denying defendant\u2019s request to attempt to rehabilitate these prospective jurors. This assignment of error is overruled.\nNext, defendant claims that the trial court erred in failing to direct the prosecutor to cease questioning prospective jurors about whether they were \u201cstrong enough\u201d to recommend and impose the death penalty. Defendant contends that the prosecutor improperly used this question to \u201cstake out\u201d prospective jurors.\nAccording to defendant, the prosecutor used the term \u201cstrong enough\u201d forty-nine times during jury selection. After the thirty-third time, the trial judge told the prosecutor that he was not sure that he liked the term \u201cstrong enough\u201d and admonished the prosecutor to refrain from using it; nevertheless, the prosecutor continued to use the term \u201cstrong enough\u201d sixteen more times during jury selection. The trial court should not permit counsel to ask questions which would tend to \u201cstake out\u201d the prospective jurors and cause them to pledge themselves to a future course of action. State v. Bond, 345 N.C. 1, 16, 478 S.E.2d 163, 170 (1996), cert. denied, 521 U.S. 1124, 138 L. Ed. 2d 1022 (1997). However, when read in context, the use of the term \u201cstrong enough\u201d was not an impermissible inquiry as to the kind of verdict the prospective jurors would render or how they would be inclined to vote on a given state of facts. See State v. Walls, 342 N.C. 1, 38-39, 463 S.E.2d 738, 757 (1995) (holding that questions which did not attempt to elicit in advance what a juror\u2019s decision would be under a given state of facts were not stake-out questions), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 794 (1996). We note also that defendant did not object to these questions from the prosecutor. This assignment of error is overruled.\nGUILT-INNOCENCE PHASE\nIn his next assignment of error, defendant argues that the trial court\u2019s repeated prompting of the prosecutor on what questions to ask and how to ask them denied defendant his due process rights, violated Article I, Section 18 of the North Carolina Constitution, and violated N.C.G.S. \u00a7 15A-1222. Defendant has listed thirty-nine instances in support of his claim that the trial court improperly involved itself in defendant\u2019s trial. Defendant submits that, inter alia, the trial court repeatedly assisted the prosecutor, told him to qualify witnesses, suggested questions to aid the State\u2019s case or to avoid objections by defendant, and explained defendant\u2019s tactics. Defendant asserts that, alone or in combination, these instances violated the requirement that the trial court remain impartial and prejudiced defendant.\n\u201cThe judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.\u201d N.C.G.S. \u00a7 15A-1222 (1997). N.C.G.S. \u00a7 15A-1222 does not apply when the jury is not present for the questioning. State v. Rogers, 316 N.C. 203, 220, 341 S.E.2d 713, 723 (1986), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, - U.S. -, 139 L. Ed. 2d 177 (1997), and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988). \u201cThe law imposes on the trial judge the duty of absolute impartiality.\u201d Nowell v. Neal, 249 N.C. 516, 520, 107 S.E.2d 107, 110 (1959). The trial judge also has the duty to supervise and control a defendant\u2019s trial, including the direct and cross-examination of witnesses, to ensure fair and impartial justice for both parties. State v. Agnew, 294 N.C. 382, 395, 241 S.E.2d 684, 692, cert. denied, 439 U.S. 830, 58 L. Ed. 2d 124 (1978). \u201cFurthermore, it is well recognized that a trial judge has a duty to question a witness in order to clarify his testimony or to elicit overlooked pertinent facts.\u201d State v. Rogers, 316 N.C. at 220, 341 S.E.2d at 723; see also State v. Jackson, 306 N.C. 642, 651, 295 S.E.2d 383, 388 (1982).\n\u201cIn evaluating whether a judge\u2019s comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized.\u201d [State v.[ Larrimore, 340 N.C. [119,] 155, 456 S.E.2d [789,] 808 [(1995)]. \u201cThe trial court has a duty to control the examination of witnesses, both for the purpose of conserving the trial court\u2019s time and for the purpose of protecting the witness from prolonged, needless, or abusive examination.\u201d State v. White, 340 N.C. 264, 299, 457 S.E.2d 841, 861, cert. denied, [516] U.S. [994], 133 L. Ed. 2d 436 (1995). In performing this duty, however, the trial court\u2019s position as the \u201cstandard-bearer of impartiality\u201d requires that \u201cthe trial judge must not express any opinion as to the weight to be given to or credibility of any competent evidence presented before the jury.\u201d Larrimore, 340 N.C. at 154-55, 456 S.E.2d at 808.\nState v. Jones, 347 N.C. 193, 207, 491 S.E.2d 641, 649-50 (1997).\nApplying these principles to the remarks of the trial court which form the basis of defendant\u2019s assignment of error and after conducting a thorough review of each alleged instance of improper conduct or questioning on the part of the trial judge, we detect no prejudicial error and reject defendant\u2019s claim of partiality. Nonetheless, we will briefly address the alleged improprieties.\nThe first few instances of partiality defendant claims occurred were all during jury-selection bench conferences. First, the trial judge instructed the prosecutor to ask prospective jurors if they \u201cwould be unable or able\u201d to recommend the death penalty in order to avoid confusion in the record, since it appeared to the trial judge that prospective jurors occasionally responded \u201cNo\u201d when they meant to say \u201cYes.\u201d Next, the trial court instructed the prosecutor to ask whether prospective jurors believed the death penalty would be \u201cthe right punishment or the correct thing\u201d under certain circumstances, rather than \u201can appropriate punishment,\u201d to ensure that the prospective jurors understood what was being asked. Later, the prosecutor challenged a prospective juror for cause; defendant objected and requested the opportunity to rehabilitate which was allowed. During this rehabilitation, the trial judge called counsel to the bench and expressed his concern about the prospective juror\u2019s ability to be a fair and impartial juror given her feelings concerning the death penalty. The judge told defense counsel to focus on the issue of the death penalty by asking a hypothetical question and then told the prosecution that when the prospective juror was passed back to the prosecutor for more questioning, he should ask her a \u201cwhy\u201d question as to her position on the death penalty so that the judge could rule on the for-cause challenge. The prosecutor eventually used a peremptory challenge to excuse this prospective juror. Having reviewed the entire transcript of jury selection and having also found that the judge instructed defense counsel to ask certain questions, we determine that the judge was merely fulfilling his duty to ensure that a fair and impartial jury tried defendant\u2019s case.\nThe following complained-of instances occurred during the guilt-innocence phase of defendant\u2019s trial: the trial judge asked a witness what the basis was for her opinion that defendant looked \u201cserious\u201d and later instructed the prosecutor to rephrase a question to prevent a potentially objectionable response from a witness. The judge informed the prosecutor that certain statements would be inadmissible; so the prosecutor rephrased his questions to restrict the witness\u2019 response. The judge admonished the prosecutor for improper comments. During a bench conference, the judge explained to the prosecutor that luminal only reacts to the heme in hemoglobin, not to animal fat. On three occasions the judge intervened ex mero motu to correct improper questions, once to explain in a bench conference why the question was improper and twice to rephrase a question. Several times the judge explained why he sustained or overruled defense counsel\u2019s objections. On two occasions the prosecutor had to rephrase his questions \u2014 the latter instance was based on hearsay which the judge subsequently ruled was not hearsay, explaining why it was not to defense counsel in a bench conference. At another point the judge sustained defendant\u2019s objection and during the ensuing bench conference suggested how the question could be rephrased. On another occasion after two objections by defense counsel, the judge rephrased the question for the prosecutor. The judge intervened to conserve the court\u2019s time and avoid having the prosecutor ask the witness a long stream of questions about where in the kitchen blood was discovered. During voir dire of a witness, the judge intervened to avoid wasting time and later directed the prosecutor to ask certain questions for the judge\u2019s own understanding. The judge twice told the prosecutor that a witness needed to be qualified as an expert before giving an opinion; however, the prosecutor had not yet questioned either witness regarding an opinion. The judge directed the prosecutor to ask a clarifying question regarding evidence pertaining to the victim\u2019s shoes. On another occasion, the judge instructed the prosecutor to ask the witness what Eugenia Pelham had said about the black watch. During voir dire of a witness, the judge ruled that any reference to the fact that defense counsel, during the jury view, had perhaps found and moved the buckle from the black watch would be inadmissible as unfairly prejudicial to defendant and warned the prosecutor to prevent his witness from testifying to that fact. The judge limited the prosecutor\u2019s redirect examination of Deputy Mason concerning his conversation with the assistant commonwealth attorney in Virginia. At one point the judge interrupted the prosecutor and asked a witness ten questions, without objection from either party, regarding his qualifications as an expert; the record indicates that it was nearly time for the court to recess for the evening and that in order to have any meaningful examination prior to recessing, the judge decided to quickly qualify the witness as an expert. The prosecutor asked a leading question to which defense counsel did not object, but the judge intervened anyway and instructed the prosecutor on the proper form of the questions. At another point the judge sustained an objection and suggested how the prosecutor should rephrase the question; it was later discovered that defense counsel\u2019s objection was not based on the form of the question, and the objection was ultimately sustained based on relevancy.\nFrom our review of the transcript, we note that in multiple instances the trial judge also interjected his own questioning while defense counsel was examining witnesses, interrupted defense counsel\u2019s questioning to clarify a witness\u2019 testimony, and instructed defense counsel to ask his witness certain questions during witness examinations.\nDefendant cites eight further instances which occurred at his sentencing. In the first instance defendant contends that the trial judge improperly told the prosecutor how to argue against a mitigating circumstance; however, our review reveals a dialogue between the judge and the prosecutor about whether the prosecutor would be able to argue, not how to argue, against a mitigating circumstance. Next, defendant contends that the judge improperly told the prosecutor how to avoid a hearsay objection; but the transcript discloses that the judge overruled the objection and explained his reasons for doing so. Later, during a bench conference, the trial judge told the prosecutor to ask the witness what his definition of torture was. This direction was not improper since the witness\u2019 understanding of the term and the prosecutor\u2019s understanding were obviously different. Defendant also complains about the trial court\u2019s telling the prosecutor to bring a witness back to the stand to make his point; however, the judge merely explained that in order for the corroborating testimony to be admissible, the prosecutor might need to recall a witness; the judge then overruled defense counsel\u2019s objection. Defendant also argues that on two occasions, the trial judge told the prosecutor how to ask certain questions. The transcript reveals that the judge was merely attempting to clarify the witness\u2019 testimony. Next, defendant notes that the trial judge initiated his own questioning of the witness; the judge, however, felt that these questions were necessary for the jury to understand why the earlier testimony had been elicited. Finally, defendant notes that the trial judge instructed the prosecutor to tie the witness\u2019 illegal actions to defendant. Once again defendant never objected to the testimony, which was otherwise irrelevant if not tied to defendant.\nHaving reviewed the portions of the transcript to which defendant assigns error, we conclude that the trial judge conducted defendant\u2019s guilt-innocence phase and sentencing proceeding in an impartial manner and made every effort to ensure that defendant received a fair trial. State v. Heatwole, 344 N.C. 1, 28, 473 S.E.2d 310, 324 (1996), cert. denied, 520 U.S. 1122, 137 L. Ed. 2d 339 (1997). Further, we note that the trial judge properly instructed the jury at both the guilt-innocence and the sentencing proceedings that the law requires the presiding judge to be impartial and that it should not draw any inferences from his rulings, questions, or anything else he might have said or done.\nWe recognize that in an ideal trial no occasion would arise which would prompt the trial judge to ask questions of a witness for clarification and understanding of the testimony. But as this Court stated in Andrews v. Andrews, \u201c[t]he comment made or the question propounded should be considered in the light of all the facts and attendant circumstances disclosed by the record, and unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.\u201d 243 N.C. 779, 781, 92 S.E.2d 180, 181 (1956). The instances cited by defendant might give the appearance of improper assistance to the prosecution but are not sufficient to have had a prejudicial effect, especially in light of the fact that the judge aided both sides in, inter alia, formulating questions. Accordingly, defendant\u2019s assignment of error is overruled.\nNext, defendant contends that the trial court erred in refusing to allow defendant to question certain witnesses regarding specific issues.\nFirst, defendant argues that he should have been allowed to cross-examine the Virginia prosecutor about the strength of Virginia\u2019s case against defendant. According to the State\u2019s theory, defendant\u2019s motive for murdering the victim was that the victim was the prosecuting witness in a Virginia trial in which defendant was charged with uttering forged checks belonging to the victim. During voir dire the Virginia prosecutor testified that he thought that the Commonwealth\u2019s case against defendant on the uttering charges was weak. Defendant asserts that this evidence was relevant and should have been admitted to rebut the State\u2019s theory of defendant\u2019s motive.\nEvidence is relevant if it has \u201cany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1992). Evidence is \u201crelevant when it reveals a circumstance surrounding one of the parties and is necessary to understand properly their conduct or motives or if it allows the jury to draw a reasonable inference as to a disputed fact.\u201d State v. Gary, 348 N.C. 510, 520, 501 S.E.2d 57, 64 (1998). In this case, however, the testimony proffered by defendant does not go to prove the existence of any fact of consequence in the determination of his guilt. See State v. York, 347 N.C. 79, 95, 489 S.E.2d 380, 389 (1997). The trial court properly ruled that the evidence concerning the Virginia prosecution was relevant only as to \u201cwhether or not [defendant] believed he had committed a criminal act or whether he was likely subject to being found guilty and imprisoned for that criminal act, even if the [Virginia] prosecutor now states\u201d that he does not think that defendant committed a criminal act. Thus, testimony concerning the merits, or lack thereof, of the Commonwealth\u2019s case against defendant was irrelevant and properly excluded. See N.C.G.S. \u00a7 8C-1, Rule 402 (1992) (stating that evidence that is not relevant is not admissible).\nSecond, defendant claims that he should have been permitted to question Annie Clemonts regarding the victim\u2019s alleged sexual acts with the victim\u2019s daughter and granddaughter. Defendant asserts that this evidence was relevant to counter the victim\u2019s granddaughter\u2019s sentencing testimony concerning the impact of her grandfather\u2019s death. Defendant claims that the trial court excluded the evidence based on the prosecutor\u2019s contention that the evidence was untrue. However, the transcript discloses that the trial court did not in fact prohibit defense counsel from asking these questions. Instead, the trial court informed defense counsel that if he elicited these statements from Ms. Clemonts, the State then would be permitted to question Ms. Clemonts regarding the circumstances surrounding these statements, which the trial court suggested would be detrimental to defendant\u2019s case. Defendant and defense counsel presumably agreed since defense counsel did not pursue this line of questioning. Thus, this assignment of error is overruled. See State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) (\u201cThis Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal.\u201d).\nDefendant next argues that the trial court erred in allowing the State to introduce State\u2019s exhibit S-2, a black watch found at the crime scene.\nBefore real evidence may be received into evidence, the party offering the evidence must first satisfy a two-pronged test. \u201cThe item offered must be identified as being the same object involved in the incident and it must be shown that the object has undergone no material change.\u201d State v. Campbell, 311 N.C. 386, 388, 317 S.E.2d 391, 392 (1984). Determining the standard of certainty required to show that the item offered is the same as the item involved in the incident and that it is in an unchanged condition lies within the trial court\u2019s sound discretion. Id. at 388-89, 317 S.E.2d at 392. \u201cA detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered.\u201d Id. at 389, 317 S.E.2d at 392. Any weak links in the chain of custody pertain only to the weight to be given to the evidence and not to its admissibility. Id.\nDefendant notes that the crime scene was initially searched on 17 May 1997, but the watch was not discovered until 20 May 1997. During this interval the crime scene was not secured because the back door did not lock. Moreover, the buckle which was initially on the watch was not on the watch at trial thus suggesting that the watch had been altered.\nWe first note that defendant failed to object to the admission of the watch. Therefore, defendant has failed to properly preserve his right to appellate review. See N.C. R. App. P. 10(b)(1). Since this issue was not preserved for appeal, we may review it only for plain error. State v. Allen, 339 N.C. 545, 555, 453 S.E.2d 150, 155 (1995), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396. This Court has chosen to review such \u201cunpreserved issues for plain error when Rule 10(c)(4) of the Rules of Appellate Procedure has been complied with and when the issue involves either errors in the trial judge\u2019s instructions to the jury or rulings on the admissibility of evidence.\u201d State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d 550, 563 (1997), cert. denied,-U.S.-, 139 L. Ed. 2d 873 (1998). Plain error exists where, after reviewing the entire record, the claimed error is so fundamental, so basic, so prejudicial, or so lacking in its elements that justice could not have been done. State v. Davis, 349 N.C. 1, 29, 506 S.E.2d 455, 470 (1998).\nIn this case several witnesses testified that the watch admitted into evidence was the same watch found at the crime scene and that it was defendant\u2019s watch. The watch was also present in photographs taken during the 17 May 1997 search. Further, except for its having been cleaned up and having the buckle removed, Bernard Mason of the Northampton County Sheriff\u2019s Department testified that the watch was in the same condition as when it was found. Mason further testified that he maintained custody over the watch until it was transported to the SBI lab. Defendant made no showing that the watch admitted into evidence was not the watch found at the scene of the crime; and any alleged weakness in the chain of custody affected merely the weight, not the admissibility, of the watch. Therefore, we hold that the trial court did not commit plain error by admitting the watch into evidence.\nDefendant further argues that the trial court erred by admitting a kitchen tile which allegedly contained an impression of defendant\u2019s shoe. Defendant argues that because the crime scene had been unsecured, the tile lacked reliability and should have been excluded. Again, we note that defendant did not object to the tile\u2019s admission at trial. Normally, we would review this evidentiary matter for plain error; however, defendant failed to contend specifically and distinctly that this issue amounted to plain error as required by Rule 10(b)(4). Therefore, defendant has waived plain error review; and we must overrule this assignment of error.\nBy his next assignment of error, defendant contends that the trial court committed plain error in allowing and instructing the prosecutor to prompt his witnesses after the witnesses had taken the stand thereby violating defendant\u2019s due process rights.\nDefendant\u2019s first argument is that during the prosecutor\u2019s voir dire of Mason, the prosecutor asked the trial court\u2019s permission to talk to Mason and the trial court recessed for eighteen minutes. Defendant maintains that the trial court was allowing the prosecutor an opportunity to prompt his witness.\nAgain, we must acknowledge defendant\u2019s failure to raise this issue during his trial, thus constituting waiver pursuant to Rule 10(b)(2). Further, we have applied the plain error rule only to jury instructions and evidentiary matters, State v. Atkins, 349 N.C. at 81, 505 S.E.2d at 109, and decline to extend application of the plain error rule to this situation. However, a review of the transcript of Mason\u2019s voir dire testimony reveals no impropriety on the part of the prosecutor or the trial court. During the voir dire the trial court interrupted the questioning and conducted a bench conference to inquire how the prosecutor intended to handle the discovery of the clasp from the black watch. After further voir dire and discussion the trial court determined that it would not let Mason testify as to who pointed the clasp out to him. At that point the prosecutor asked to talk with the witness. The trial judge said, \u201cHe\u2019s not to say anything about Mr. Reaves or Mr. Barnes, whatever he says. We\u2019ll take fifteen minutes.\u201d The only logical conclusion that may be drawn is that the recess was used by the prosecutor to ensure that the witness adhered to the trial court\u2019s instruction not to mention the fact that defense counsel may have discovered and moved the watch\u2019s buckle during the jury view of the crime scene. In context the thrust of the trial court\u2019s comments in the bench conference was to prevent any unfair prejudice to defendant. Whether to permit a recess was within the sound discretion of the trial judge, and the trial judge did not abuse his discretion.\nDefendant argues that the trial court also allowed the prosecutor a chance to prompt one of his sentencing witnesses. During cross-examination defense counsel asked Dr. Gilliland to read a portion of a book on forensic pathology. The prosecutor objected on the grounds that the book was not in evidence and that the witness was asked to read only a portion of a book that she had not previously read. The court informed the prosecutor that defense counsel\u2019s line of questioning was proper, decided to take a fifteen-minute recess, told the prosecutor to instruct the witness to answer, and assured the prosecutor that the witness could clarify her testimony on redirect examination. Whether to take a recess was in the trial court\u2019s sound discretion, and defendant has failed to show how he was prejudiced by the trial court\u2019s action in calling the recess. Accordingly, this assignment of error is dismissed.\nDefendant next contends that the trial court erred in allowing the State\u2019s motion for a jury view of the crime scene. Defendant argues that the crime scene was never secured, that evidence there could have been tampered with, and thus that the trial court abused its discretion in allowing the jury view. Defendant further suggests that the trial court should have inquired, sua sponte, about the security of the scene of the crime.\nN.C.G.S. \u00a7 15A-1229(a) provides that the decision to permit a jury view lies within the discretion of the trial court. The decision will not be disturbed absent an abuse of that discretion. State v. Tucker, 347 N.C. 235, 240, 490 S.E.2d 559, 561 (1997), cert. denied,-U.S.-, 140 L. Ed. 2d 649 (1998). \u201cA trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985).\nIn this case defendant\u2019s argument in support of an abuse of discretion focuses on the fact that the crime scene was not secured, that tampering may have occurred, and that the trial court, therefore, had a duty to question witnesses about this fact. We disagree. Prior to the trial court\u2019s granting a jury view, defendant argued that there was only a piece of law-enforcement crime-scene yellow tape securing the back porch and that tampering was a possibility. Thus, the trial court was fully informed of all relevant facts and considered defendant\u2019s arguments when making its decision to permit the jury view. Accordingly, the trial court did not abuse its discretion; and this assignment is overruled.\nBy his next assignment of error, defendant argues that the trial court erred in failing to control the trial in such a manner that defendant would receive effective appellate review. Specifically, he contends that on seven occasions, the transcript of defendant\u2019s trial is so confusing as to render impossible appellate review of the evidence against defendant.\nThe first portion of the transcript about which defendant complains occurred during the prosecutor\u2019s opening statement. Referring to pictures, the prosecutor informed the jury that the State\u2019s evidence would show the layout of the victim\u2019s house and the location of blood-spatter marks and bloodstains. Defendant did not object to these statements and has thus failed to preserve his right to appellate review. N.C. R. App. P. 10(b)(1).\nThe remaining instances to which defendant assigns error involve the testimony of witnesses. Defendant first complains about the testimony of SBI Special Agent Anthony Jernigan. Using a photograph, Jernigan described where certain blood splotches were located; he also drew their location on a board. Next defendant raises the testimony of Deputy Mason. Mason testified, with the assistance of a photograph, about an impression found on a kitchen tile which matched defendant\u2019s shoe. Later, Mason testified, with the aid of a photograph and a diagram, about the location of the watch and the watch buckle. The final three references concern SBI Special Agent Joyce Petzka\u2019s testimony. Using various State\u2019s exhibits, Petzka explained to the jury why the impression on the kitchen tile was identical to defendant\u2019s shoe. Some of the exhibits used during these portions of the trial were admitted into evidence.\nIn order to prevent any alleged confusion in the transcript, defendant had an opportunity at trial to request that the witnesses mark on the exhibits as they testified. Defendant did not do so. Further, our reading of the transcript does not yield the level of confusion that defendant alleges. The exhibits which were admitted into evidence are available for review by this Court and speak for themselves as to the blood spatters, black watch, and the shoe imprints. This assignment of error is overruled.\nDefendant\u2019s next contention is that the trial court erred in allowing the State\u2019s motion in limine to suppress evidence concerning defendant\u2019s polygraph test. Defendant contends that his submission to a polygraph test should have been admitted for the purpose of showing his cooperation with law enforcement officers. Defendant claims that the trial court erroneously excluded this evidence on the grounds of hearsay. Defendant also contends that the testimony was relevant to show a consciousness of innocence in the same way evidence of flight is relevant to show a defendant\u2019s consciousness of guilt.\nWe have previously held \u201cthat in North Carolina, polygraph evidence is no longer admissible in any trial.\u201d State v. Grier, 307 N.C. 628, 645, 300 S.E.2d 351, 361 (1983); see also State v. Jones, 342 N.C. 457, 466, 466 S.E.2d 696, 700, cert. denied, 518 U.S. 1010, 135 L. Ed. 2d 1058 (1996); State v. Mitchell, 328 N.C. 705, 711, 403 S.E.2d 287, 291 (1991). Moreover, the record discloses that defendant was permitted to introduce testimony regarding his cooperation with law enforcement officers. Additionally, the trial court did not exclude the evidence based on hearsay; instead, it properly ruled that polygraph evidence was irrelevant. Defendant\u2019s reliance on State v. Mitchell, 328 N.C. 705, 403 S.E.2d 287 (1991) and State v. Harris, 323 N.C. 112, 371 S.E.2d 689 (1988) is misplaced in that the procedural posture in which the polygraph issue arose in those cases distinguishes them from this case. In Mitchell and Harris a witness actually mentioned taking a polygraph or requesting codefendants to take a polygraph. This Court did not approve such testimony, but concluded, based on the record before it, that the error, if any, was not prejudicial. In this case, the trial court allowed the State\u2019s motion in limine to preclude the testimony. Defendant has presented us with no compelling reason to alter our long-standing holdings that evidence concerning polygraph testing is inadmissible. Thus, we find no merit to this assignment of error.\nNext, defendant argues that the trial judge erroneously challenged defendant to take the witness stand. During a discussion among the trial judge, defense counsel, and the prosecutor outside the jury\u2019s presence over whether to permit evidence of defendant\u2019s polygraph test, the trial judge considered whether defendant\u2019s statement that he agreed to submit to a polygraph test was hearsay. The trial judge then said to defense counsel, \u201cFine. Call him. And let him say that he agreed to take the polygraph test. I\u2019m being facetious about that, but that\u2019s the only way, it appears to me, it can come in.\u201d Defendant submits that this statement put pressure on defendant to take the stand and was another example of the trial court\u2019s partiality against defendant. We disagree.\nAfter conducting more research and hearing further arguments on the issue, the trial judge ruled that the polygraph evidence was not hearsay but that it was inadmissible on relevancy grounds. We are not convinced that this statement exerted pressure on defendant to testify particularly since defendant did not take the stand during the guilt-innocence phase. Likewise, this statement, which was admittedly facetious, does not support a claim that the judge was not impartial. Therefore, we reject defendant\u2019s contention.\nSENTENCING PROCEEDING\nNext, defendant contends that the trial court erred in denying his motion to be apprised of which aggravating circumstances apply and in allowing evidence for which defendant could not prepare.\nDefendant concedes that this Court has held that the State is not required to supply a list of the aggravating circumstances it intends to use against defendant. See, e.g., State v. McLaughlin, 323 N.C. 68, 84, 372 S.E.2d 49, 61 (1988), sentence vacated on other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990). The reasoning behind this holding is that N.C.G.S. \u00a7 15A-2000(e) lists the only eleven circumstances which may be used in aggravation; thus, the statute provides sufficient notice. Id. However, defendant contends that the reasoning is unsupported in this case because (i) defendant did not receive a copy of a report from Dr. M.G.E Gilliland, the State\u2019s expert witness, prior to trial or within sufficient time for preparation; and (ii) the State introduced evidence of additional factors beyond those listed in N.C.G.S. \u00a7 15A-2000(e) to aggravate defendant\u2019s sentence.\nDuring the sentencing proceeding, the State called Dr. Gilliland, a forensic pathologist, to testify about, inter alia, the victim\u2019s wounds and the pain and suffering that these wounds might have caused. Dr. Gilliland had not previously prepared a written report concerning her expert opinion. Soon thereafter, a bench conference occurred in which the trial judge told the prosecutor that he previously had informed both parties that he requires that expert witnesses prepare a report within forty-eight hours of testifying. The judge then instructed the prosecutor to have Dr. Gilliland prepare a report and told him that Dr. Gilliland\u2019s testimony would be delayed until the next morning so that defendant and his counsel could review the report. Defendant submits that the judge\u2019s treatment of the State\u2019s witness is yet another instance of his partiality toward the State.\nBy statute the General Assembly has dictated the scope of discovery in criminal proceedings. N.C.G.S. \u00a7 15A-903 provides, in pertinent part, that\n[u]pon motion of a defendant, the court must order the prosecutor to provide a copy of or to permit the defendant to inspect and copy or photograph results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case, or copies thereof, within the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecutor.\nN.C.G.S. \u00a7 15A-903(e) (1997). While the statute requires the State upon motion to provide defendant with written reports, nowhere does it require that such reports be made. The statute also does not specifically authorize a judge to require that a written report be prepared; however, in our view, the judge did not err by ordering Dr. Gilliland to prepare a written report in this case. See State v. Lee, 335 N.C. 244, 291, 439 S.E.2d 547, 572 (finding no error when trial court ordered defendant\u2019s witness to prepare a report so that the State may prepare for that witness\u2019 testimony), cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994). Since there is no statutory requirement that a report be made, we hold that the trial court did not err when, in its discretion, it ordered the State to instruct its witness to prepare a written report, ordered the State to provide defendant with a copy of that report, and postponed the witness\u2019 testimony until the next day so that defendant could adequately prepare.\nAs for defendant\u2019s argument that the State introduced evidence in aggravation, apart from what is permitted by N.C.G.S. \u00a7 15A-2000(e), defendant has chosen to address that portion of this argument more fully in his next assignment of error. Likewise, we will do the same.\nDefendant next contends that the trial court erred in allowing the State to question defendant\u2019s and its own sentencing witnesses about inadmissible and prejudicial matters. Defendant sets forth a chart containing over twenty instances where he alleges that the prosecutor asked unfounded, prejudicial, or otherwise impermissible questions, thus making defendant appear to be a child molester, a violent man, the head of a prostitution ring, a co-conspirator to embezzlement, an obtainor of money through false pretenses, and an adulterer. Defendant submits that collectively the questioning constitutes plain error.\nThe Rules of Evidence do not apply in sentencing proceedings. N.C.G.S. \u00a7 8C-1, Rule 1101(b)(3) (1997). Any evidence the trial court \u201cdeems relevant to sentence\u201d may be introduced at this stage. N.C.G.S. \u00a7 15A-2000(a)(3). The State \u201cmust be permitted to present any competent, relevant evidence relating to the defendant\u2019s character or record which will substantially support the imposition of the death penalty.\u201d State v. Brown, 315 N.C. 40, 61, 337 S.E.2d 808, 824 (1985) (emphasis omitted), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373. Moreover, \u201c[t]he State may offer evidence tending to rebut the truth of any mitigating circumstance upon which defendant relies and which is supported by the evidence.\u201d State v. Heatwole, 344 N.C. at 21, 473 S.E.2d at 320. The scope of cross-examination is governed by the sound discretion of the trial court and the requirement that the questions be asked in good faith. State v. Larry, 345 N.C. 497, 523, 481 S.E.2d 907, 922, cert. denied, -U.S.-, 139 L. Ed. 2d 234 (1997). Further, \u201cA prosecutor\u2019s questions are presumed to be proper unless the record shows that they were asked in bad faith.\u201d State v. Bronson, 333 N.C. 67, 79, 423 S.E.2d 772, 779 (1992). When a prosecutor affirmatively places before the jury incompetent and prejudicial matter by injecting his own personal opinions which are neither in evidence nor admissible, an abuse of discretion may be found. Id. After careful review of the transcript portions cited by defendant, we reject his argument.\nThe first alleged improper witness examination by the prosecutor involved the cross-examination of Bishop D.L. Manning. The prosecutor inquired whether the bishop had any knowledge about defendant\u2019s involvement in a scheme to embezzle money from a Shoney\u2019s restaurant, defendant\u2019s receiving money for uncompleted construction jobs, or defendant\u2019s prostituting women at his residence. Defendant\u2019s objections were overruled, and the witness denied any knowledge of these matters. Subsequent witnesses testified about the embezzlement scheme and about defendant\u2019s taking money and not completing construction projects. The victim\u2019s daughter had testified previously about the prostitution at defendant\u2019s house. Thus, the questioning was proper; and the trial court did not abuse its discretion in overruling defendant\u2019s objections.\nThe next argument relates to the prosecutor\u2019s questioning of defendant\u2019s sister about whether she talked to others about defendant\u2019s being violent. Defendant failed to object, and the witness said she had not talked about his being violent. Since defendant failed to object to the questions of which he now complains, in applying the plain error rule, we must determine whether the trial court abused its discretion by failing to intervene ex mero motu. See State v. Locklear, 349 N.C. 118, 156, 505 S.E.2d 277, 299 (1998). We hold that these were proper questions attempting to impeach the witness\u2019 direct examination testimony that defendant was not violent; thus, there was no error. The witness was also asked if she had heard that defendant had inappropriately touched her niece\u2019s minor daughter, and without objection she responded that she had heard about the inappropriate touching. Further, the same evidence had been admitted previously; but defendant did not assign error to it on appeal. Not only did the prosecutor ask the question in good faith, but the question was also proper to rebut one or more of the submitted mitigating circumstances. For the same reasons, we find no error in the prosecutor\u2019s questioning the witness about whether she knew that the niece\u2019s daughter was subpoenaed to appear in court or that the witness\u2019 niece sent her daughter to Baltimore.\nThird, defendant contends that the cross-examination of his first cousin was improper. The prosecutor asked about the witness\u2019 knowledge of specific legal matters, namely, defendant\u2019s taking out a warrant for trespassing and filing suit for failure to pay a mortgage payment. The witness had heard about the warrant, but only heard about the other lawsuit in court; however, the civil defendant in that lawsuit previously had testified that defendant had in fact sued her. Defendant contends these statements involved hearsay; however, as already stated, the Rules of Evidence do not apply during sentencing. Again, these questions were asked in good faith; and there was no abuse of discretion. Later, this witness was asked about the inappropriate touching of the minor and about defendant\u2019s shooting a gun at someone. The witness responded that he had heard about neither incident prior to being in court. Defendant failed to object, and we hold that the trial court did not err. The witness was then asked a question regarding defendant\u2019s first wife; defendant objected, and the trial court sustained the objection. Nonetheless, the witness answered the question; and defendant did not make a motion to strike or request a curative instruction. When the trial court sustains an objection to the question, the objecting party has no basis for appeal absent a motion to strike or a request for a curative instruction. State v. Barton, 335 N.C. 696, 709-10, 441 S.E.2d 295, 301-02 (1994). We hold, therefore, that the trial court did not err.\nNext, defendant complains about questions based on hearsay regarding defendant\u2019s prostituting women, having lawsuits filed against him, having his day-care center foreclosed, and shooting at someone. Defendant failed to object to any of these questions. Defendant has not demonstrated that the prosecutor did not have a good faith basis for asking these questions, and we hold that the trial court did not abuse its discretion by failing to intervene ex mero mo tu. We also find no abuse of discretion when the trial court overruled hearsay objections regarding defendant\u2019s receiving money for construction projects that were never completed and about the witness\u2019 receiving complaints concerning defendant\u2019s poor construction work.\nDefendant also complains that the questioning of Thomas Braswell regarding the alleged scheme to embezzle from Shoney\u2019s called for hearsay. The trial court explained during a bench conference that the testimony was not hearsay since it was not being admitted for the truth of the matter asserted. Instead, the testimony was being admitted to explain the discrepancy between Braswell\u2019s earlier statements to the police and his trial testimony. We hold that the trial court properly overruled defendant\u2019s objection.\nDefendant further argues that questioning concerning the reasons why his day-care center was closed down was improper or prejudicial. The witness stated that defendant told him the center was closed because of a rumor that defendant was \u201chaving some type of activity with the children\u201d but that the accusations were not found to be true \u201cby the law.\u201d Defendant argues that the prosecutor asked unfounded questions, based on hearsay rumors; however, we cannot agree with defendant when witnesses, as in this case, responded in the affirmative. Whether taken singly or collectively, we are unconvinced that the prosecutor\u2019s questioning of the witnesses was improper, constituted abuse of the trial court\u2019s discretion, or amounted to plain error, or that defendant has suffered prejudice. Accordingly, these assignments of error are overruled.\nBy his next assignment of error, defendant contends that the trial court erred by denying his motion to dismiss. Defendant argues that the evidence was insufficient to support the charge of first-degree murder; he also argues that this Court\u2019s standard of review of whether a motion to dismiss was properly denied violates the Double Jeopardy Clause of the North Carolina and United States Constitutions.\nFirst, defendant argues that the State\u2019s evidence was not sufficient to prove that he was the perpetrator of the murder. He does not argue that a premeditated and deliberate murder did not take place. According to defendant the evidence was circumstantial and consisted only of hearsay statements by defendant that the victim was going to get himself killed, a black watch that defendant allegedly possessed and that was allegedly found at the scene of the crime, and a shoe impression found on a kitchen tile that allegedly matched defendant\u2019s shoe. The watch and shoe impression were not discovered until three days after the victim\u2019s body was discovered, and in the interim the crime scene was never secured. Further, law enforcement personnel failed to conduct hair, fiber, nail clipping, or fingerprint tests because defendant had previously been in the victim\u2019s house.\nWhen ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State; and the State is entitled to every reasonable inference to be drawn therefrom. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). The State must present substantial evidence of each element of the offense charged. Id. \u201c[T]he trial court should consider all evidence actually admitted, whether competent or not, that is favorable to the State.\u201d State v. Jones, 342 N.C. 523, 540, 467 S.E.2d 12, 23 (1996). If the evidence \u201cis sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed,\u201d State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983); however, \u201c[i]f there is substantial evidence \u2014 whether direct, circumstantial, or both \u2014 to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied,\u201d State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).\nIn the case sub judice, the State\u2019s evidence proved that the victim was the prosecuting witness against defendant in an uttering forged checks case scheduled for trial approximately one week after the murder occurred. The evidence further showed that the victim\u2019s assailant entered the victim\u2019s house and repeatedly hit the victim on the head as the victim tried to escape, leaving a trail of blood-spatter marks leading from the den, into the kitchen, and down the main hallway. Then the assailant manually strangled the victim while the victim unsuccessfully attempted to defend himself. Defendant\u2019s watch and a shoe impression that identically matched defendant\u2019s shoe were also found at the crime scene. While the watch and shoe impression were not discovered until three days after the scene was initially examined, they were present in photographs taken at the initial examination. This evidence supports a reasonable inference \u2014 more than a mere suspicion or conjecture \u2014 that defendant was the perpetrator of the murder.\nDefendant further argues that this Court\u2019s standard of review of the trial court\u2019s denial of his motion to dismiss violates his constitutional rights against double jeopardy. He submits that allowing the appellate court to consider incompetent evidence to defeat a motion to dismiss effectively permits a defendant to be tried twice for the same crime.\nWe note initially that defendant did not raise the constitutionality of considering incompetent evidence on the motion to dismiss at the trial court. \u201c[T]his Court is not required to pass upon a constitutional issue unless it affirmatively appears that the issue was raised and determined in the trial court.\u201d State v. Wilkinson, 344 N.C. 198, 221, 474 S.E.2d 375, 387 (1996). Moreover, based on defendant\u2019s assignments of error on appeal, we have not determined that incompetent evidence was admitted or relied on by the trial court in ruling on the motion to dismiss. This assignment of error is overruled.\nNext, defendant contends that the trial court erred in allowing the State to argue highly prejudicial matters at the close of both the guilt-innocence and sentencing proceedings. Defendant argues that the examples of recklessness and impropriety in the prosecutor\u2019s argument were so numerous and so severe that the trial court\u2019s failure to intervene ex mero mo tu entitles him to a new trial or sentencing proceeding.\nTrial counsel are granted wide latitude in the scope of jury argument, and control of closing arguments is in the discretion of the trial court. State v. Locklear, 349 N.C. at 151-52, 505 S.E.2d at 296. Also, trial counsel \u201cmay argue all of the evidence which has been presented as well as reasonable inferences which arise therefrom.\u201d State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998). Further, the context and factual circumstances surrounding the remarks must be considered. State v. Womble, 343 N.C. 667, 692-93, 473 S.E.2d 291, 306 (1996), cert. denied, 519 U.S. 1095, 136 L. Ed. 2d 719 (1997). Where defendant failed to object to the arguments at trial, defendant must establish that the remarks were so grossly improper that the trial court abused its discretion by failing to intervene ex mero mo tu. \u201cTo establish such an abuse, defendant must show that the prosecutor\u2019s comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.\u201d State v. Davis, 349 N.C. at 23, 506 S.E.2d at 467. Applying these principles to the instant case, we find no error.\nAt five separate points during his juiy argument at the close of the guilt-innocence phase, according to defendant, the prosecutor\u2019s comments warranted the trial court\u2019s intervention. The first one was the prosecutor\u2019s argument that defendant had a key to the victim\u2019s house. The prosecutor argued that if defendant has \u201ca mailbox key, he\u2019s probably got a house key.\u201d While there was no evidence that defendant had a house key, he did have a key to the victim\u2019s post office box. Therefore, that defendant probably had a house key, too, was a reasonable inference based on the evidence. Further, the victim\u2019s daughter testified that defendant showed her how to enter the victim\u2019s house through the sliding door without a key; thus, whether or not defendant had a key was not significant since the evidence showed that he could gain access to the victim\u2019s house at any time. The remaining four instances all involve references by the prosecutor to a hammer. The prosecutor argued to the jury that the blunt object that caused the contusions and lacerations to the victim\u2019s head was a hammer. The autopsy revealed several marks on the victim\u2019s head; some were round, and others were claw-shaped. According to the evidence, defendant was involved in construction projects and possessed at least two claw hammers. The prosecutor\u2019s argument that defendant used a hammer to assault the victim was thus a reasonable inference to be drawn from the evidence. Further, defense counsel had an opportunity to rebut the inference that a hammer was used, and in fact defense counsel did argue in his closing argument that there was no evidence of a hammer and that common sense dictates that a hammer was not used. We hold that these arguments did not infect the trial with unfairness and that the trial court did not abuse its discretion by failing to intervene ex mero mo tu.\nThe other allegedly prejudicial statements occurred during defendant\u2019s sentencing proceeding. \u201c[T]he foci of the arguments in the two phases are significantly different, and rhetoric that might be prejudicially improper in the guilt phase is acceptable in the sentencing phase.\u201d State v. Artis, 325 N.C. at 324, 384 S.E.2d at 496.\nSeveral of the statements again involved references to a hammer. We first note that the State\u2019s forensic pathologist suggested during sentencing that the round and claw-shaped marks on the victim\u2019s head could have been inflicted by a hammer. On cross-examination of defendant\u2019s forensic pathologist, defendant did not object when the prosecutor inquired about the pain caused when someone is hit with a hammer. Accordingly, we hold that use of a hammer was a reasonable inference based on the evidence.\nNext, defendant complains about the prosecutor\u2019s statement that defendant was \u201cmaking a thousand dollars a week sometimes off of each girl.\u201d However, the victim\u2019s daughter testified that she would in fact generate a thousand dollars a week in prostitution and illegal drugs for defendant. Thus, this statement was supported by the evidence. Then the prosecutor mentioned that defendant took advantage of people and that he told the victim, \u201cyou\u2019re going to die today.\u201d A review of the transcript shows that there was evidence that defendant had manipulated people. Further, we hold that an argument that defendant told the victim that he would die on the day defendant murdered him is not so grossly improper as to require the trial court to intervene ex mero motu. In another complained-of comment, the prosecutor correctly anticipated defense counsel\u2019s plea for sympathy for defendant.\nLater, the prosecutor stated that he \u201cthought Mr. Barnes [defense counsel] was going to kill\u201d defendant\u2019s ex-wife. During the ex-wife\u2019s testimony, defense counsel asked whether she knew defendant during the time of his first wife\u2019s death; the witness had a grin on her face, was unable to speak for a minute, and had to have the question repeated. In context the prosecutor\u2019s closing argument was certainly not meant literally, but was meant to imply that defense counsel\u2019s reaction demonstrated that the witness\u2019 demeanor and lack of responsiveness were rather damaging to defendant\u2019s case. This Court does not in any way condone even the most benign implication that an attorney appeared ready to or capable of harming a witness. As this Court has previously stated, \u201ca trial attorney may not make uncomplimentary comments about opposing counsel, and should \u2018refrain from abusive, vituperative, and opprobrious language, or from indulging in invectives.\u2019 \u201d State v. Sanderson, 336 N.C. 1, 10, 442 S.E.2d 33, 39 (1994) (quoting State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 346 (1967)). Further, such comments do not comport with the General Rules of Practice for the Superior and District Courts, which mandate that \u201c[a]ll personalities between counsel should be avoided\u201d and that \u201c[c]ounsel are at all times to conduct themselves with dignity and propriety.\u201d Gen. R. Pract. Super, and Dist. Ct. 12, 1999 Ann. R. N.C. 10. However, based on the record in this case, the trial court did not abuse its discretion by failing to intervene ex mero motu.\nThe prosecutor then mentioned Alzheimer\u2019s disease, which apparently referred to the 180-degree turnaround in the evidence presented by defendant\u2019s witnesses. We can discern no prejudice to defendant by this analogy to Alzheimer\u2019s disease.\nDefendant also argues that the prosecutor improperly stated that defendant\u2019s expert witness was being paid to give favorable testimony. Even assuming arguendo that the statement was improper, it does not entitle defendant to a new sentencing proceeding. State v. Hill, 347 N.C. 275, 300, 493 S.E.2d 264, 278 (1997), cert. denied,U.S.-, 140 L. Ed. 2d 1099 (1998). Next, defendant argues that the prosecutor improperly argued that defendant attempted to suborn perjury and placed a contract on Thomas Braswell. We have reviewed the record and hold that these inferences were based on the evidence and were not grossly improper.\nDefendant challenges the prosecutor\u2019s attempt to discredit defendant\u2019s evidence that he had a loving relationship with his family. This argument was proper during the sentencing proceeding which focuses on defendant\u2019s character. See N.C.G.S. \u00a7 15A-2000(d)(2); State v. Gray, 347 N.C. at 186, 491 S.E.2d at 558.\nAs for the remaining prosecutorial remarks which defendant submits were improper and prejudicial, we have reviewed them and hold that they were either sufficiently supported by the evidence, not so grossly improper as to require the trial court to intervene ex mero motu, or both. Therefore, we conclude that, even viewed collectively, defendant\u2019s contention that the prosecutor\u2019s remarks entitled him to a new trial or sentencing proceeding is meritless.\nDefendant next contends that the trial court erred in denying his motion to set aside the verdict. Defendant argues that the evidence was insufficient to support his conviction and, alternatively, that the jury sentenced him to death under the influence of passion, prejudice, and other arbitrary factors.\nThe denial of a motion to set aside the verdict on the basis of insufficient evidence is within the discretion of the trial court and is reviewable on appeal under an abuse of discretion standard. State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985); see also Anderson v. Hollifield, 345 N.C. 480, 483, 480 S.E.2d 661, 663 (1997). As previously discussed, the jury\u2019s verdict was consistent with substantial evidence regarding each element of first-degree murder and with defendant\u2019s being the perpetrator of the offense. Defendant\u2019s argument that the jury imposed the death penalty under the influence of passion, prejudice, and other arbitrary factors is also rejected and will be fully discussed later as required by N.C.G.S. \u00a7 15A-2000(d)(2). These assignments of error are overruled.\nBy his final assignment of error, defendant contends that the trial court erred in denying defendant\u2019s motion for a new hearing. In support of his contention, defendant references his above arguments. Having determined that no prejudicial error occurred based on any of defendant\u2019s earlier arguments, we are compelled to reject this argument as well.\nPRESERVATION ISSUES\nDefendant raises two additional issues which he concedes have been decided contrary to his position previously by this Court: (i) that the trial court erred in denying defendant\u2019s motion to instruct the jury that every nonstatutory mitigating circumstance had mitigating value as a matter of law, and (ii) that the trial court erred in denying defendant\u2019s motion to substitute the word \u201cmust\u201d for the word \u201cmay\u201d in its instructions in sentencing Issues Three and Four. Defendant raises these issues for the purpose of permitting this Court to reexamine its prior holdings and also for the purpose of preserving the issues for any possible further judicial review. We have considered defendant\u2019s arguments on these issues and find no compelling reason to depart from our prior holdings. These assignments of error are overruled. '\nPROPORTIONALITY\nFinally, defendant argues that the sentence of death in this case was imposed under the influence of passion, prejudice, or other arbitrary considerations and that, based on the totality of the circumstances, the death penalty is disproportionate. We are required by N.C.G.S. \u00a7 15A-2000(d)(2) to review the record and determine (i) whether the record supports the jury\u2019s findings of the aggravating circumstances upon which the court based its death sentence; (ii) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (iii) whether the death sentence is excessive or disproportionate to the penalty imposed in . similar cases, considering both the crime and the defendant. State v. McCollum, 334 N.C. 208, 239, 433 S.E.2d 144, 161 (1993), cert. denied, 512 U.S. 1254, 129 L. Ed. 2d 895 (1994).\nAfter a thorough review of the transcript, record on appeal, and briefs and oral arguments of counsel, we are convinced that the jury\u2019s findings of the two aggravating circumstances submitted were supported by the evidence. We also conclude that nothing in the record suggests that defendant\u2019s death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor.\nFinally, we must consider whether the imposition of the death penalty in defendant\u2019s case is proportionate to other cases in which the death penalty has been affirmed, considering both the crime and the defendant. State v. Robinson, 336 N.C. 78, 133, 443 S.E.2d 306, 334 (1994), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 650 (1995). The purpose of proportionality review is \u201cto eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury.\u201d State v. Holden, 321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). Proportionality review also acts \u201c[a]s a check against 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). Our consideration is limited to those cases within the pool which are roughly similar as to the crime and the defendant, but we are not bound to cite every case used for comparison. State v. Syriani, 333 N.C. at 400, 428 S.E.2d at 146. Whether the death penalty is disproportionate \u201cultimately restfs] upon the \u2018experienced judgments\u2019 of the members of this Court.\u201d State v. Green, 336 N.C. 142, 198, 443 S.E.2d 14, 47, cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547 (1994).\nDefendant was convicted of first-degree murder based on premeditation and deliberation. The jury found both the submitted aggravating circumstances: (i) that the murder was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws, N.C.G.S. \u00a7 15A-2000(e)(7); and (ii) that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9).\nThree statutory mitigating circumstances were submitted for the jury\u2019s consideration: (i) that defendant has no significant history of prior criminal activity, N.C.G.S. \u00a7 15A-2000(f)(l); (ii) defendant\u2019s age at the time of the crime, N.C.G.S. \u00a7 15A-2000(f)(7); and (iii) the catchall mitigating circumstance that there existed any other circumstance arising from the evidence which the jury deemed to have mitigating value, N.C.G.S. \u00a7 15A-2000(f)(9). The jury found none of these three statutory mitigating circumstances to exist.\nTwenty-six nonstatutory mitigating circumstances were submitted; and the jury found nine of these to exist and have mitigating value: (i) that defendant displayed a kind and generous spirit towards many friends in his community, (ii) that he had been helpful to the needs of others within his community, (iii) that he provided a home to several foster children, (iv) that he had built several churches for the community, (v) that he had been a good provider for his family, (vi) that he had used his work skills to the benefit of those within his community, (vii) that the relationship between defendant and the victim\u2019s daughter was an extenuating circumstance, (viii) that defendant had been sensitive to the needs of others within his community, and (ix) that defendant had been productive in his lifetime despite his limited formal education.\nWe begin our analysis by comparing this case to those cases in which this Court has determined the sentence of death to be disproportionate. This Court has determined the death sentence to be disproportionate on seven occasions. 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; State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983). This case is not substantially similar to any of the cases in which this Court has found that the death sentence was disproportionate.\nIn five of the seven cases in which this Court has concluded that the death penalty was disproportionate, the jury did not find the aggravating circumstance that the murder was especially heinous, atrocious, or cruel. State v. Benson, 323 N.C. 318, 372 S.E.2d 517; State v. Rogers, 316 N.C. 203, 341 S.E.2d 713; State v. Young, 312 N.C. 669, 325 S.E.2d 181; State v. Hill, 311 N.C. 465, 319 S.E.2d 163; State v. Jackson, 309 N.C. 26, 305 S.E.2d 703. Since the jury in the present case found this statutory aggravating circumstance to exist, this case is distinguishable from those cases. As we have previously stated, \u201c[w]hile this fact is certainly not dispositive, it does serve as an indication that the sentence of death... is not disproportionate.\u201d State v. Walls, 342 N.C. at 72, 463 S.E.2d at 777. Defendant\u2019s crime in this case, which included multiple blunUforce injuries to the head of the victim, multiple defensive wounds to the victim\u2019s arms and leg, and manual strangulation to death, is equally brutal to other murders where a death sentence was imposed. The evidence of the defensive wounds and the amount of time required for fatal strangulation indicates that the victim suffered before he died and that he was aware of but unable to prevent his impending death.\nThat defendant was convicted of premeditated and deliberate murder is also significant. \u201cThe finding of premeditation and deliberation indicates a more cold-blooded and calculated crime.\u201d State v. Artis, 325 N.C. at 341, 384 S.E.2d at 506.\nIn the other two cases in which we have concluded that the death penalty was disproportionate, the jury did find that the murders were especially heinous, atrocious, or cruel. State v. Stokes, 319 N.C. 1, 352 S.E.2d 653; State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170. However, both cases are distinguishable from the present case on other grounds. In Stokes the Court emphasized that the defendant was found guilty of first-degree murder based upon the felony-murder rule; that there was little, if any, evidence of premeditation and deliberation; and that the defendant was seventeen years old at the time of the murder and acted in concert with a considerably older co-felon. State v. Stokes, 319 N.C. at 21, 24, 352 S.E.2d at 664, 666. In the instant case, defendant was a sixty-nine-year-old adult at the time of the murder, acted alone, and was found guilty of first-degree murder on the basis of premeditation and deliberation.\nIn Bondurant the defendant shot the victim but then immediately directed the driver of the car in which they had been riding to proceed to the emergency room of a hospital. State v. Bondurant, 309 N.C. at 677, 309 S.E.2d at 173. In concluding that the death penalty was disproportionate, we focused on the defendant\u2019s immediate attempt to obtain medical assistance for the victim and the lack of any apparent motive for the killing. Id. at 694, 309 S.E.2d at 182. In contrast, the evidence in the present case tended to show that defendant did have a motive to kill, namely, the fact that the victim was to testify against defendant in a criminal prosecution. Moreover, no evidence in this case suggests that defendant sought medical help for the victim.\nAnother distinguishing characteristic of this case is that two aggravating circumstances were found by the jury. Of the seven cases in which this Court has found a sentence of death disproportionate, in only two, State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170, and State v. Young, 312 N.C. 669, 325 S.E.2d 181, did the jury find the existence of multiple aggravating circumstances. Bondurant, as discussed above, is clearly distinguishable. In Young this Court focused on the failure of the jury to find the existence of the \u201cespecially heinous, atrocious, or cruel\u201d aggravating circumstance, which the jury found in the present case. Moreover, the jury in the present case found as an aggravating circumstance that defendant committed the murder to hinder the enforcement of laws. See State v. Maynard, 311 N.C. 1, 35-36, 316 S.E.2d 197, 216 (holding death penalty not disproportionate where the defendant beat his victim in the head and killed him because the victim had agreed to testify against the defendant in another matter pursuant to a plea arrangement; the jury found as aggravating circumstances that the murder was committed to hinder the enforcement of laws and that it was especially heinous, atrocious, or cruel), cert. denied, 469 U.S. 963, 83 L. Ed. 2d 299 (1984).\nDefendant argues that although at the time of the murder he had yielded to the temptations of the victim\u2019s daughter, a young woman who drew him into a ring of drug addicts, in his younger years and prior to the death of his wife, he had been an upstanding, hardworking citizen. These facts are reflected in the nonstatutory mitigating circumstances found by the jury. The jury considered these mitigating circumstances in reaching its result, and we cannot say the jury\u2019s failure to find that these mitigating circumstances outweighed the aggravating circumstances renders the penalty disproportionate. State v. Gray, 347 N.C. at 192, 491 S.E.2d at 561.\nAlthough we review all of the cases in the pool when engaging in this statutory duty, as we have repeatedly stated, it is worth noting again that \u201cwe will not undertake to discuss or cite all of those cases each time we carry out that duty.\u201d State v. McCollum, 334 N.C. at 244, 433 S.E.2d at 164. We conclude that the present case is more similar to certain cases in which we have found the sentence of death proportionate than to those in which we have found the sentence disproportionate or those in which juries have consistently returned recommendations of life imprisonment.\nAccordingly, we conclude that defendant received a fair trial and capital sentencing proceeding, free from prejudicial error, and that the sentence of death recommended by the jury and ordered by the trial court in the present case is not disproportionate.\nNO ERROR.\nJustices Martin and Wainwright did not participate in the consideration or decision of this opinion.", "type": "majority", "author": "PARKER, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Barry S. McNeill, Special Deputy Attorney General, for the State.", "Elizabeth G. McCroddenfor defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN HENRY FLEMING\nNo. 175A97\n(Filed 9 April 1999)\n1. Sentencing\u2014 capital sentencing \u2014 aggravating circumstance \u2014 heinous, atrocious, or cruel murder \u2014 constitutionality \u2014 sufficiency of evidence\nThe (e)(9) especially heinous, atrocious, or cruel aggravating circumstance is not unconstitutionally vague and overbroad. Furthermore, the evidence was sufficient to support submission of this aggravating circumstance to the jury where the State\u2019s evidence tended to show that the murder victim was repeatedly assaulted with a blunt object in his own home; as the victim struggled to defend himself, defendant continued to hit him on the head as the victim moved from the den, through the kitchen, and into the main hallway; the victim had multiple cuts and bruises on his head, arms, and right leg; the repeated blows to the victim\u2019s head did not render the victim unconscious; defendant then manually strangled the victim to the point where his hyoid bone was fractured; it took two minutes or more for the victim to loose consciousness when he was strangled; and the victim suffered great physical pain and torture as, already bloodied and bruised from the beatings, he was strangled so forcefully that his neck was repeatedly scratched.\n2. Jury\u2014 denial of motion for individual voir dire and sequestration\nThe trial court did not abuse its discretion in the denial of defendant\u2019s motion for individual voir dire and sequestration of jurors during voir dire in a capital trial where the record did not support defendant\u2019s contention that prospective jurors who were unwilling to serve as jurors did not truthfully answer questions during voir dire.\n3. Jury\u2014 statutory selection process \u2014 prospective juror called to occupied seat \u2014 nonmember polled \u2014 absence of prejudice\nThe defendant in a capital trial was not prejudiced by the jury selection process set forth in N.C.G.S. \u00a7 15A-1214(d) through (f) because a prospective juror was called to juror seat number ten which was already occupied by another juror where the person called was never seated as a prospective juror, or because a person who was not a jury member was polled as a juror at the conclusion of the guilt-innocence phase of the trial.\n4. Appeal and Error\u2014 preservation of issues \u2014 constitutionality of statute \u2014 lack of oath at voir dire\nDefendant failed to preserve for appeal the issue of the constitutionality of the jury selection process set forth in N.C.G.S. \u00a7 15A-1214(d) through (f) where he did not raise this constitutional issue at trial. Likewise, defendant failed to preserve for appellate review the trial court\u2019s failure to require prospective jurors to swear to tell the truth during voir dire where he did not object to any lack of oath during voir dire.\n5. Jury\u2014 capital trial \u2014 jury selection \u2014 opposition to death penalty \u2014 challenge for cause \u2014 denial of rehabilitation attempt\nThe trial court did not abuse its discretion in denying defendant\u2019s request to attempt to rehabilitate two prospective jurors challenged by the State for cause based upon their opposition to the death penalty where both jurors unequivocally stated that they could not recommend the death penalty under any circumstances.\n6. Jury\u2014 capital trial \u2014 jury selection \u2014 strong enough to impose death penalty \u2014 not improper stake-out question\nThe prosecutor\u2019s questions to prospective jurors in a capital trial as to whether they were \u201cstrong enough\u201d to recommend and impose the death penalty was not an improper \u201cstake-out\u201d question. Use of the term \u201cstrong enough\u201d was not an impermissible inquiry as to the kind of verdict the prospective jurors would render or how they would be inclined to vote on a given state of facts.\n7. Criminal Law\u2014 jury selection \u2014 actions of trial judge \u2014 not partiality to prosecution\nThe trial judge did not express an opinion or show partiality to the prosecution in this capital trial when he instructed the prosecutor during bench conferences to ask prospective jurors certain questions concerning their death penalty views where the trial judge also instructed defense counsel to ask certain questions, and it appears that the judge was merely fulfilling his duty to insure that a fair and impartial jury tried defendant\u2019s case.\n8. Criminal Law\u2014 capital trial \u2014 actions by trial judge \u2014 not improper assistance to prosecutor\nThe trial judge did not express an opinion or show partiality to the prosecution in the guilt-innocence and sentencing phases of a capital trial when he interjected his own questioning during the prosecutor\u2019s examination of witnesses, instructed the prosecutor on the proper form of questions, suggested how the prosecutor should rephrase questions, intervened to correct improper questions by the prosecutor, and instructed the prosecutor to ask witnesses certain questions where the trial judge also interjected his own questioning while defense counsel was examining witnesses, interrupted defense counsel\u2019s questioning to clarify testimony, and instructed defense counsel to ask witnesses certain questions. Although the trial judge\u2019s actions might give the appearance of improper assistance to the prosecution, they are not sufficient to have had a prejudicial effect, especially in light of the fact that the judge aided both sides in formulating questions.\n9. Evidence\u2014 irrelevancy \u2014 murder trial \u2014 weakness of Virginia uttering charges\nIn a first-degree murder prosecution in which the victim was the prosecuting witness on charges against defendant in Virginia of uttering forged checks belonging to the victim, testimony by the Virginia prosecutor that he thought the case against defendant on the uttering charges was weak was irrelevant and properly excluded by the trial court since it did not go to prove the existence of any fact of consequence in the determination of defendant\u2019s guilt of murder.\n10.Evidence\u2014 chain of custody \u2014 watch found at crime scene\nThe trial court did not commit plain error by admitting into evidence a watch found at a murder scene, although the watch was not discovered until three days after the murder, the murder scene had not been secured, and a buckle which was initially on the watch was not on the watch at trial, where several witnesses testified that the watch was the same watch found at the murder scene and that it was defendant\u2019s watch; the watch was present in photographs of the scene taken on the day of the murder; and a member of the county sheriff\u2019s department testified that the watch was in the same condition as when it was found and that he maintained custody over the watch until it was transported to the SBI lab. Any alleged weakness in the chain of custody affected merely the weight, not the admissibility, of the watch.\n11. Criminal Law\u2014 recesses during voir dire and sentencing\u2014 no abuse of discretion\nThe trial court did not improperly allow the prosecutor an opportunity to prompt his witness by allowing a recess during a voir dire hearing where the recess was apparently used by the prosecutor to insure that the witness adhered to the trial court\u2019s instruction not to mention that defense counsel may have discovered and moved a watch buckle during a jury view of the crime scene. Nor did the trial court improperly allow the prosecutor an opportunity to prompt a sentencing witness by taking a recess when the prosecutor objected to defendant\u2019s cross-examination of the witness, and the trial court informed the prosecutor that defense counsel\u2019s line of questioning was proper, told the prosecutor to instruct the witness to answer, and assured the prosecutor that the witness could clarify her testimony on redirect examination. Whether to call a recess was within the sound discretion of the trial judge, and the trial judge did not abuse his discretion.\n12. Criminal Law\u2014 jury view \u2014 unsecured crime scene\nThe trial court did not abuse its discretion in allowing the State\u2019s motion for a jury view of a murder scene, although defendant argued that the scene was not secured and evidence there could have been tampered with, where the trial court was fully informed of all relevant facts and considered defendant\u2019s arguments when making its decision to permit the jury view. N.C.G.S. \u00a7 15A-1229(a).\n13. Appeal and Error\u2014 appellate review of testimony \u2014 transcript sufficient\nThe transcript of defendant\u2019s murder trial was not so confusing as to render impossible appellate review of the testimony of an SBI agent who used a photograph to describe the location of blood splotches, the testimony of a deputy sh\u00e9riff who used photographs and a diagram to aid his description of a shoe impression on a kitchen tile and the location of defendant\u2019s watch, and the testimony of a second SBI agent who used several exhibits to explain why the impression on the kitchen tile was identical to defendant\u2019s shoe. In order to prevent any alleged confusion in the transcript, defendant had an opportunity to request that the witnesses mark on the exhibits as they testified but failed to do so; a reading of the transcript does not yield the level of confusion alleged by defendant; and the exhibits speak for themselves as to the blood spatters, watch, and shoe imprints.\n14. Evidence\u2014 polygraph test \u2014 inadmissibility\nEvidence concerning defendant\u2019s polygraph test was irrelevant and not admissible to show his cooperation with law officers or to show a consciousness of innocence.\n15. Criminal Law\u2014 ruling on evidence \u2014 facetious statement by trial judge \u2014 not pressure on defendant to testify or showing of partiality\nThe trial judge\u2019s facetious statement, made when considering whether defendant\u2019s statement that he agreed to submit to a polygraph test was hearsay, \u201cFine. Call him. And let him say that he agreed to take the polygraph test,\u201d did not exert pressure on defendant to testify or show partiality by the trial judge against defendant, particularly since defendant did not take the stand during the guilt-innocence phase of the trial.\n16. Discovery\u2014 pathologist as witness \u2014 requirement of written report \u2014 provision to defendant \u2014 discretion of trial court\nAlthough there was no statutory requirement that a written report be prepared by a forensic pathologist who testified for the State in a capital sentencing proceeding, the trial court did not err when, in its discretion, it ordered the State to instruct this witness to prepare a written report, ordered the State to provide defendant with a copy of that report, and postponed the witness\u2019s testimony until the next day so that defendant could adequately prepare. N.C.G.S. \u00a7 15A-903(e).\n17. Evidence\u2014 capital sentencing \u2014 embezzlement, false pretenses, prostitution \u2014 foundation for questions\nThe prosecutor was not improperly permitted to ask unfounded questions to a witness in a capital sentencing proceeding concerning whether he had knowledge of defendant\u2019s involvement in an embezzlement scheme, defendant\u2019s receipt of money for uncompleted construction jobs, or defendant\u2019s prostituting women at his residence where the witness denied knowledge of these matters, but subsequent witnesses testified about the embezzlement scheme and about defendant\u2019s taking money and not completing construction projects, and defendant\u2019s daughter had testified previously about the prostitution at defendant\u2019s house.\n18. Evidence\u2014 capital sentencing \u2014 cross-examination\u2014impeachment \u2014 good faith questions \u2014 rebuttal of mitigating circumstances\nThe prosecutor\u2019s cross-examination of defendant\u2019s sister in a capital sentencing proceeding concerning whether she talked to others about defendant being violent was properly permitted to impeach the witness\u2019s direct testimony that defendant was not violent. Furthermore, the prosecutor\u2019s question as to whether this witness had heard that defendant inappropriately touched her niece\u2019s minor daughter was asked in good faith where the witness responded that she had heard about the inappropriate touching and the same evidence had been admitted previously, and this question was proper to rebut one or more of the submitted mitigating circumstances.\n19. Appeal and Error\u2014 objection sustained \u2014 question answered \u2014 motion to strike \u2014 request for curative instruction\nWhen the trial court sustains an objection to a question but the witness nonetheless answers the question, the objecting party has no basis for appeal absent a motion to strike or a request for a curative instruction.\n20. Evidence\u2014 hearsay \u2014 embezzlement scheme \u2014 admission for nonhearsay purpose\nTestimony elicited from a witness concerning an alleged embezzlement scheme was not hearsay since it was not admitted for the truth of the matter asserted but was admitted to explain the discrepancy between the witness\u2019s earlier statements to the police and his trial testimony.\n21. Evidence\u2014 affirmative answers to questions \u2014 questions not unfounded\nThe prosecutor did not ask unfounded questions based on hearsay rumors about the reasons why defendant\u2019s day-care center was closed down when the witnesses responded affirmatively to those questions.\n22. Homicide\u2014 first-degree murder \u2014 defendant as perpetrator \u2014 sufficient evidence\nThe State\u2019s evidence was sufficient to prove that defendant was the perpetrator of a first-degree murder where it tended to show that the victim was the prosecuting witness against defendant in an uttering forged checks case scheduled for trial approximately one week after the murder occurred; the victim\u2019s assailant entered the victim\u2019s house and repeatedly hit the victim on the head as the victim tried to escape, leaving a trail of blood-spatter marks leading from the den, into the kitchen, and down the main hallway; the assailant then manually strangled the victim while the victim unsuccessfully attempted to defend himself; defendant\u2019s watch and a shoe impression that matched defendant\u2019s shoe were found at the crime scene; and while the watch and shoe impression were not discovered until three days after the scene was initially examined, they were present in photographs taken at the initial examination.\n23. Appeal and Error\u2014 preservation of issues \u2014 constitutionality of review standard \u2014 failure to raise in trial court\nDefendant\u2019s contention that the standard of review which allows the appellate court to consider incompetent evidence to defeat a motion to dismiss violates defendant\u2019s constitutional right against double jeopardy will not be considered on appeal where defendant did not raise this issue in the trial court; furthermore, the appellate court has not determined that incompetent evidence was admitted or relied on by the trial court in ruling on defendant\u2019s motion to dismiss.\n24. Criminal Law\u2014 prosecutor\u2019s closing argument \u2014 inferences supported by evidence\nWhere the evidence in a first-degree murder case showed that defendant had a key to the murder victim\u2019s post office box, the prosecutor\u2019s jury argument that if defendant has \u201ca mail box key, he\u2019s probably got a house key\u201d was a reasonable inference based on the evidence; moreover, whether defendant had a key was not significant since the evidence showed that defendant could gain access to the victim\u2019s house through a sliding door without a key. Also, the prosecutor\u2019s argument that defendant used a hammer to assault the victim was a reasonable inference to be drawn from evidence that an autopsy revealed both round and claw-shaped marks on the victim\u2019s head and that defendant possessed at least two claw hammers.\n25. Criminal Law\u2014 prosecutor\u2019s closing argument \u2014 capital sentencing \u2014 statements supported by evidence, not grossly improper\nThe prosecutor\u2019s argument in a capital sentencing proceeding that defendant \u201cwas making a thousand dollars a week sometimes off of each girl\u201d was supported by testimony of the victim\u2019s daughter that she would in fact generate a thousand dollars a week in prostitution and illegal drugs for defendant. Further, the prosecutor\u2019s argument that defendant told the victim that he would die on the day defendant murdered him was not so grossly improper as to require the trial court to intervene ex mero motu.\n26. Criminal Law\u2014 prosecutor\u2019s closing argument \u2014 capital sentencing \u2014 defense counsel\u2019s reaction to witness \u2014 no gross impropriety\nThe prosecutor\u2019s statement in his closing argument in a capital sentencing proceeding that he thought defense counsel \u201cwas going to kill\u201d defendant\u2019s ex-wife was not meant literally but was meant to imply that defense counsel\u2019s reaction to the ex-wife\u2019s demeanor and lack of responsiveness when defense counsel asked whether she knew defendant during the time of his first wife\u2019s death were damaging to defendant\u2019s case; therefore, the statement was not so grossly improper as to require intervention by the trial court ex mero motu.\n27. Criminal Law\u2014 prosecutor\u2019s closing argument \u2014 capital sentencing \u2014 defense witnesses \u2014 Alzheimer\u2019s disease\nThe prosecutor\u2019s analogy to Alzheimer\u2019s disease when referring to the 180-degree turnaround in the evidence presented by defendant\u2019s witnesses was not prejudicial to defendant.\n28. Criminal Law\u2014 prosecutor\u2019s closing argument \u2014 capital sentencing \u2014 payment of expert \u2014 no gross impropriety\nAssuming arguendo that the prosecutor\u2019s argument in a capital sentencing proceeding that defendant\u2019s expert witness was being paid to give favorable testimony was improper, it did not entitle defendant to a new sentencing proceeding.\n29. Criminal Law\u2014 prosecutor\u2019s closing argument \u2014 capital sentencing \u2014 discrediting family relationship \u2014 no impropriety\nThe prosecutor\u2019s closing argument attempting to discredit defendant\u2019s evidence that he had a loving relationship with his family was proper during a capital sentencing proceeding which focused on defendant\u2019s character.\n30. Criminal Law\u2014 death penalty not disproportionate\nA sentence of death imposed upon defendant for first-degree murder was not excessive or disproportionate to the penalty imposed in other cases considering both the crime and the defendant where defendant was convicted on the basis of premeditation and deliberation; the jury found as aggravating circumstances (1) that the murder was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws, and (2) that the murder was especially heinous, atrocious, or cruel; the evidence showed multiple blunt-force injuries to the head of the victim, multiple defensive wounds to the victim\u2019s arms and leg, and manual strangulation to death; the evidence of the defensive wounds and the amount of time required for fatal strangulation indicated that the victim suffered before he died and that he was aware of but unable to prevent his impending death; defendant\u2019s motive for killing the victim was that the victim was to testify against defendant in a criminal prosecution; and no evidence in the case suggests that defendant sought medical help for the victim.\nJustices Martin and Wainwright did not participate in the consideration or decision of this opinion.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Grant (Cy A.), J., on 8 April 1997 in Superior Court, Northampton County, upon a jury verdict of guilty of first-degree murder. Heard in the Supreme Court 16 November 1998.\nMichael F. Easley, Attorney General, by Barry S. McNeill, Special Deputy Attorney General, for the State.\nElizabeth G. McCroddenfor defendant-appellant." }, "file_name": "0109-01", "first_page_order": 161, "last_page_order": 203 }