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App. 1982)" } ], "opinion_index": 0 }, { "cite": "314 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4688005 ], "year": 1985, "pin_cites": [ { "page": "312", "parenthetical": "quoting Prado v. Texas, 626 S.W.2d 775, 776 (Tex. Crim. App. 1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0309-01" ] }, { "cite": "453 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "516" } ], "opinion_index": 0 }, { "cite": "339 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558420 ], "year": 1995, "pin_cites": [ { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0562-01" ] }, { "cite": "134 L. Ed. 2d 794", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "108 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. 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Ed. 2d 604 (1990)" }, { "page": "763" } ], "opinion_index": 0 }, { "cite": "342 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796135 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "61", "parenthetical": "quoting State v. Artis, 325 N.C. 278, 331, 384 S.E.2d 470, 500 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990)" }, { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0001-01" ] }, { "cite": "134 L. Ed. 2d 526", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "461 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "341 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793157 ], "year": 1995, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0470-01" ] }, { "cite": "139 L. Ed. 2d 757", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "522 U.S. 1078", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11601344, 11601924, 11601414, 11601018, 11601319, 11601258, 11600907, 11601841, 11601466, 11601497, 11601210, 11601659, 11601756, 11601565 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/522/1078-06", "/us/522/1078-14", "/us/522/1078-07", "/us/522/1078-02", "/us/522/1078-05", "/us/522/1078-04", "/us/522/1078-01", "/us/522/1078-13", "/us/522/1078-08", "/us/522/1078-09", "/us/522/1078-03", "/us/522/1078-11", "/us/522/1078-12", "/us/522/1078-10" ] }, { "cite": "488 S.E.2d 194", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "205", "parenthetical": "the trial court did not err in excluding testimony during a capital sentencing proceeding because of the \"undependable nature of the evidence, its limited mitigating value, and its potential to distract the jury\"" } ], "opinion_index": 0 }, { "cite": "346 N.C. 443", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139431 ], "year": 1997, "pin_cites": [ { "page": "462", "parenthetical": "the trial court did not err in excluding testimony during a capital sentencing proceeding because of the \"undependable nature of the evidence, its limited mitigating value, and its potential to distract the jury\"" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0443-01" ] }, { "cite": "134 L. Ed. 2d 194", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "462 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "211" }, { "page": "211" } ], "opinion_index": 0 }, { "cite": "341 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793117 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "350" }, { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0316-01" ] }, { "cite": "442 U.S. 95", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1532020 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0095-01" ] }, { "cite": "132 L. Ed. 2d 873", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "451 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "847" } ], "opinion_index": 0 }, { "cite": "339 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558011 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "154" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0114-01" ] }, { "cite": "441 S.E.2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "302" } ], "opinion_index": 0 }, { "cite": "335 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526731 ], "year": 1994, "pin_cites": [ { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0696-01" ] }, { "cite": "426 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "697" } ], "opinion_index": 0 }, { "cite": "333 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546948 ], "year": 1993, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0431-01" ] }, { "cite": "145 L. Ed. 2d 162", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1999, "opinion_index": 0 }, { "cite": "510 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "644" }, { "page": "643" } ], "opinion_index": 0 }, { "cite": "350 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132217 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "28" }, { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0001-01" ] }, { "cite": "530 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685099 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0087-01" ] }, { "cite": "142 L. Ed. 2d 66", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "525 U.S. 831", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11085377, 11085316, 11085287, 11085224, 11085432, 11085264, 11085169, 11085201, 11085464, 11085401, 11085243, 11085500, 11085342, 11085151 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/525/0831-10", "/us/525/0831-08", "/us/525/0831-07", "/us/525/0831-04", "/us/525/0831-12", "/us/525/0831-06", "/us/525/0831-02", "/us/525/0831-03", "/us/525/0831-13", "/us/525/0831-11", "/us/525/0831-05", "/us/525/0831-14", "/us/525/0831-09", "/us/525/0831-01" ] }, { "cite": "493 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "442" } ], "opinion_index": 0 }, { "cite": "347 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551271 ], "year": 1997, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0352-01" ] }, { "cite": "508 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "514" } ], "opinion_index": 0 }, { "cite": "349 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571580 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "411" }, { "page": "426" }, { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0382-01" ] }, { "cite": "501 U.S. 808", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108176 ], "weight": 8, "year": 1991, "pin_cites": [ { "page": "825", "parenthetical": "victim-impact evidence may be admitted during a capital sentencing proceeding unless it \"is so unduly prejudicial that it renders the trial fundamentally unfair\"" }, { "page": "735", "parenthetical": "victim-impact evidence may be admitted during a capital sentencing proceeding unless it \"is so unduly prejudicial that it renders the trial fundamentally unfair\"" }, { "page": "825" }, { "page": "735" }, { "page": "825" }, { "page": "735" } ], "opinion_index": 0, "case_paths": [ "/us/501/0808-01" ] }, { "cite": "131 L. Ed. 2d 860", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "448 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "812" }, { "page": "812" }, { "page": "812" } ], "opinion_index": 0 }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnote omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnote omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "132 L. Ed. 2d 263", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "451 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "170" }, { "page": "173" } ], "opinion_index": 0 }, { "cite": "338 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518853 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "593" }, { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0569-01" ] }, { "cite": "135 L. Ed. 2d 1080", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "464 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "457" }, { "page": "457" } ], "opinion_index": 0 }, { "cite": "342 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795939 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "263" }, { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0249-01" ] }, { "cite": "381 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "459", "parenthetical": "reference to the defendant's home as \"Fort Apache\" was not error when no objection was made to an earlier identical reference" }, { "page": "459" }, { "page": "459" } ], "opinion_index": 0 }, { "cite": "325 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491441 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "196", "parenthetical": "reference to the defendant's home as \"Fort Apache\" was not error when no objection was made to an earlier identical reference" }, { "page": "196" }, { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0187-01" ] }, { "cite": "364 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569559 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0570-01" ] }, { "cite": "90 L. Ed. 2d 733", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "337 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "824" } ], "opinion_index": 0 }, { "cite": "315 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716135 ], "year": 1985, "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0040-01" ] }, { "cite": "2000 WL 1629376", "category": "reporters:specialty_west", "reporter": "WL", "year": 2000, "pin_cites": [ { "parenthetical": "No. 00-6684" } ], "opinion_index": 0 }, { "cite": "148 L. Ed. 2d 543", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "pin_cites": [ { "parenthetical": "No. 00-6684" } ], "opinion_index": 0 }, { "cite": "528 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "579", "parenthetical": "No. 00-6684" } ], "opinion_index": 0 }, { "cite": "351 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155910 ], "year": 2000, "pin_cites": [ { "page": "568", "parenthetical": "No. 00-6684" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0562-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "247" }, { "page": "248" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "422 U.S. 35", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9571 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "39" }, { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/us/422/0035-01" ] }, { "cite": "464 U.S. 114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195898 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "119" }, { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/us/464/0114-01" ] }, { "cite": "143 L. Ed. 2d 559", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "505 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "286" }, { "page": "299" } ], "opinion_index": 0 }, { "cite": "349 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571689 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "135" }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0118-01" ] }, { "cite": "358 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729461 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0404-01" ] }, { "cite": "337 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552845 ], "weight": 3, "pin_cites": [ { "page": "723" }, { "page": "723" }, { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0700-01" ] }, { "cite": "130 L. Ed. 2d 547", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "443 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "47" } ], "opinion_index": 0 }, { "cite": "336 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538239 ], "year": 1994, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0142-01" ] }, { "cite": "126 L. Ed. 2d 341", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "428 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "146" } ], "opinion_index": 0 }, { "cite": "333 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549203 ], "year": 1993, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0350-01" ] }, { "cite": "139 L. Ed. 2d 878", "category": "reporters:federal", "reporter": "L. 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Ed. 2d 177", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "522 U.S. 900", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11525121, 11525092, 11524582, 11524807, 11524710, 11525031, 11524847, 11524689, 11524884, 11524761, 11524635, 11524924, 11524734, 11524959 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/522/0900-14", "/us/522/0900-13", "/us/522/0900-01", "/us/522/0900-07", "/us/522/0900-04", "/us/522/0900-12", "/us/522/0900-08", "/us/522/0900-03", "/us/522/0900-09", "/us/522/0900-06", "/us/522/0900-02", "/us/522/0900-10", "/us/522/0900-05", "/us/522/0900-11" ] }, { "cite": "483 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53878 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0647-01" ] }, { "cite": "341 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694780 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0203-01" ] }, { "cite": "352 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "666" } ], "opinion_index": 0 }, { "cite": "319 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741422 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "23-24" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0001-01" ] }, { "cite": "372 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566216 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0318-01" ] }, { "cite": "129 L. 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Ed. 2d", "weight": 2, "year": 1993, "opinion_index": 0 } ], "analysis": { "cardinality": 2713, "char_count": 115334, "ocr_confidence": 0.749, "pagerank": { "raw": 2.212627138239073e-07, "percentile": 0.7766979850948839 }, "sha256": "7ee559d539a25f7aa1f087648d2f6ac00ee2744e0be12db67676aac357ca698c", "simhash": "1:c73b812e7646d9dc", "word_count": 18609 }, "last_updated": "2023-07-14T19:31:00.841375+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. PHILLIP ANTWAN DAVIS" ], "opinions": [ { "text": "FRYE, Chief Justice.\nOn 4 August 1997, defendant pled guilty to the first-degree murders of his aunt, Joyce Miller, and cousin, Caroline Miller. Following the entry and acceptance of the guilty plea, a capital sentencing proceeding was conducted pursuant to N.C.G.S. \u00a7 15A-2000. The jury recommended a sentence of death for the murder of Joyce Miller and life imprisonment without parole for the murder of Caroline Miller. In the Joyce Miller case, the jury found as aggravating circumstances that the murder was: (1) committed while engaged in the commission of armed robbery; (2) committed for pecuniary gain; (3) especially heinous, atrocious, or cruel; and (4) part of a course of conduct, including the commission of other crimes of violence against other persons. The jury also found fifteen of the fifty statutory and non-statutory mitigating circumstances submitted to it. In the Caroline Miller case, the jury found as aggravating circumstances that the murder was: (1) committed while engaged in the commission of armed robbery; and (2) part of a course of conduct, including the commission of other crimes of violence against other persons. The jury also found eighteen of the fifty statutory and nonstatutory mitigating circumstances submitted to it.\nOn 21 August 1997, the trial judge, in accordance with the jury\u2019s recommendation, imposed a sentence of death for the first-degree murder conviction of Joyce Miller and a sentence of life imprisonment without parole for the first-degree murder conviction of Caroline Miller.\nDefendant makes thirty-two arguments on appeal to this Court. For the reasons discussed herein, we reject each of these arguments and conclude that defendant\u2019s capital sentencing proceeding was free of prejudicial error and that the death sentence is not disproportionate. Accordingly, we uphold defendant\u2019s convictions and sentence of death.\nThe State\u2019s evidence in the capital sentencing proceeding tended to show the following facts and circumstances. Defendant, who was eighteen years old, was living in the home of his aunt, Joyce Miller (Miller), in Asheville, North Carolina. Also residing in Miller\u2019s home were Miller\u2019s seventeen-year-old daughter, Caroline Miller (Caroline), and two young foster children.\nApproximately one week before the murders, Miller told her brother, Billy Davis that she was missing $800.00. Caroline believed that defendant had taken the money because he had recently purchased clothing and a gold chain. Miller obtained a receipt for the clothes and returned them. Caroline was hiding the gold chain from defendant so that she and Miller could take it to a pawn shop. Several days before the murders, defendant stated to Caroline, \u201cWell, if I don\u2019t get my chain, it\u2019s only going to hurt you in the long run.\u201d\nOn 24 May 1996, defendant shot and killed his cousin Caroline. On the same day, he killed Miller by shooting her and cutting her with a meat cleaver. Davis visited Miller\u2019s home in the evening and found Miller lying in a pool of blood. Niconda Briscoe, defendant\u2019s girlfriend, arrived at approximately the same time as Davis and called for emergency assistance.\nA paramedic with the Buncombe County Emergency Medical Service arrived at the Miller residence at 7:32 p.m. He noted blood smeared on the outside of the door. He discovered severed fingers on the floor in the foyer and Miller\u2019s body in a large pool of blood. The two foster children were in the living room looking into the foyer. As the paramedic entered the living room to escort the children out, he observed Caroline in her bedroom on the bed. After checking her pulse, he determined that she, too, was dead.\nMeanwhile, between 7:30 and 8:00 p.m., defendant attempted to cash a check in the amount of $360.00, bearing the name of Miller\u2019s former husband, at the Bi-Lo grocery store on Hendersonville Road. The manager refused to cash it, as she did not believe it was legitimate. According to the manager, defendant appeared to be \u201creally calm.\u201d\nAt approximately 8:00 p.m., defendant went to Dillard\u2019s in the Asheville Mall and tried on clothing in the men\u2019s department. The sales receipt showed that defendant purchased six clothing items at 8:08 p.m. for $231.61 using a credit card in Miller\u2019s name. When questioned by the cashier, defendant told her that the credit card belonged to his aunt and that she knew he was using it. Two of the items defendant purchased were identical to the ones Miller had returned several days prior to the murders.\nAt 8:21 p.m., a driver for the Blue Bird Cab Company was dispatched to the Amoco station on Hendersonville Highway. A person matching defendant\u2019s description approached the driver and said, \u201cIt\u2019s me. I\u2019ll be with you in a couple minutes.\u201d He returned with two bags and asked the driver to take him to Pisgah View Apartments.\nDefendant entered unit 29-D of Pisgah View Apartments; showed an acquaintance, Felicia Swinton, the clothes he had purchased; changed clothes; and left to attend a party in West Asheville. He spent approximately twenty minutes in Swinton\u2019s apartment and acted \u201cnormal.\u201d\nKendall Brown and Ryan Mills, friends of defendant\u2019s, heard that Miller and Caroline had been murdered and went to the party to pick up defendant. During the ride back to the Miller residence, defendant asked Brown if it \u201cwas . . . true about the murders\u201d and said he \u201cwanted to know what all had happened.\u201d When they arrived at the residence, defendant sat on the curb; started crying; and said, \u201cPlease don\u2019t let them take me.\u201d\nLater that evening, Sergeant David Shroat took a statement from defendant at the Asheville Police Station. Defendant first told Sergeant Shroat that he did not know what had happened; then blamed others; and finally stated, \u201cMy life is over; I did it.\u201d\nDefendant described the following series of events to the detectives. Earlier in the week, defendant found a gun in the closet and test-fired it in the back yard. At approximately 5:30 p.m. on 24 May 1996, he entered Caroline\u2019s bedroom with the gun in order to get his clothes. Caroline was lying on her bed. He went to the right side of the bed, pointed the gun at her, and fired twice. He then walked around to the other side of the bed and fired a third shot at her. After killing Caroline, defendant ate a sandwich and watched television. Miller arrived at the residence at approximately 7:00 p.m. with the two foster children. When defendant heard.her entering, he hid behind the door. After she entered, defendant shot her in the back. He shot Miller only one time because he had \u201c[n]o more bullets.\u201d Miller attempted to reach the telephone, but defendant pulled the cord from the receptacle. When she tried to leave the house, he took a meat cleaver from the kitchen and struck her with it ten or twelve times with his eyes closed as he stood on top of her in the foyer.\nImmediately thereafter, defendant placed his clothes in a white plastic garbage bag along with the meat cleaver. He took two VCRs, one from Caroline\u2019s bedroom and one from Miller\u2019s, and put them in another plastic bag along with Miller\u2019s brown purse. He also took Miller\u2019s black purse. At approximately 7:15 p.m., he placed the two plastic bags on the front passenger floorboard of Miller\u2019s vehicle. Defendant then drove to the Asheville Mall, where he used Miller\u2019s credit cards to purchase clothing.\nFrom the Asheville Mall, defendant drove to Oak Knoll Apartments and placed the two plastic bags in the Dumpster. He then drove to the Amoco station, where he threw the black purse and the gun into a wooded area behind the station. He told the taxi cab driver whom he had called that he would be there in a minute, returned to Miller\u2019s vehicle, and retrieved the shopping bags containing the clothing he had purchased at Dillard\u2019s.\nDefendant left Miller\u2019s vehicle at the Amoco station and traveled in the taxi to Pisgah View Apartments, where he changed clothes. He then put the stolen credit cards and keys to Miller\u2019s vehicle in a garbage can near Swinton\u2019s apartment. Defendant drove around downtown Asheville with his friend Kelby Moore and smoked marijuana.\nAt 10:30 p.m., defendant arrived at the party in west Asheville. Defendant danced for a while at the party before Brown and Mills took him to Miller\u2019s residence. Upon completing his statement, defendant went to sleep under the table in the interview room.\nThe autopsy of Miller revealed that she had a single gunshot wound to the left side of the head, amputation of two fingers, and fifteen individual and clustered injuries consistent with being inflicted by a meat cleaver. The autopsy of Caroline revealed three separate gunshot wounds, one to the head with stippling around the entrance wound indicating a close range shot; one to the chest; and one to the arm.\nInvestigators found that Caroline\u2019s bedroom was in disarray and that a VCR and television were missing. A large amount of cash and some jewelry were discovered in a book bag in Caroline\u2019s room. In Miller\u2019s bedroom, drawers had been pulled out and items had been dumped on the bed. Investigators found an empty jewelry box, a checkbook, and a box of checks on the floor. A second VCR was missing from the entertainment center in Miller\u2019s bedroom. Miller\u2019s truck, a red Bravada, was also missing.\nPolice officers recovered two VCRs, jewelry, clothes, a bloody meat cleaver, and a brown purse containing Miller\u2019s bank cards from a Dumpster at the Oak Knoll Apartments. Additionally, they found Miller\u2019s credit cards in a trash bag near Pisgah View Apartments. Miller\u2019s Bravada truck, two gloves, a black purse, and a Colt .32 revolver with five spent casings in the cylinder were discovered near the Amoco station.\nWhile defendant did not testify at the capital sentencing proceeding, several witnesses testified on his behalf. Defendant\u2019s evidence tended to show the following. Defendant\u2019s mother was a drug addict, habitual felon, and mental patient who could not care for him, and his father took no responsibility for him. Since his childhood, defendant alternated between the homes of friends and relatives because his mother was periodically incarcerated or incapacitated. Defendant was a good athlete, but his parents never attended his athletic or school events. When he was thirteen years old, defendant sustained a closed-head injury when he intervened in an argument between his mother and a drug addict, who hit defendant with a baseball bat.\nIn the summer of 1995, defendant moved in with Miller and Caroline and obtained a job at a Food Lion grocery store. He made the school football team and stopped working in September when football season began. Teammates described defendant as a leader and a hard worker. In December of 1995, defendant began working as a bag boy at a Bi-Lo grocery store where he was described as a good worker. Defendant\u2019s high school principal described him as a normal and well-behaved student. Defendant was \u201con track\u201d to graduate from high school, was accepted into North Carolina A&T State University, and had passed an Air Force entrance test.\nThere was constant rivalry between defendant and Caroline to the extent that Caroline packed up defendant\u2019s belongings on more than one occasion. There was also tension between defendant and his aunt. On one occasion, Miller pointed a pistol at defendant and said that when she gave him an order, \u201cshe expected it to be done.\u201d Witnesses described defendant as remorseful and noted that he cried whenever he discussed the murders.\nA clinical psychologist, Dr. Jerry Noble, testified as an expert witness. Dr. Noble performed a postarrest evaluation and determined that defendant\u2019s basic psychological, emotional, and nurturing needs had been neglected. Defendant had an IQ of only 78, but he never repeated a grade or had any special-education classes. According to Dr. Noble, defendant had four significant mental disorders on 24 May 1996: (1) borderline intellectual functioning, (2) borderline personality disorder, (3) cannabis abuse, and (4) acute stress disorder. The borderline personality disorder caused defendant to be emotionally unstable and impulsive and to have difficulties in interpersonal relationships. Dr. Noble described defendant as anxious, depressed, immature, and prone to unravel during periods of stress. Defendant\u2019s conduct in eating a sandwich and watching television after he killed Caroline was consistent with acute stress disorder, disassociation, and derealization. According to Dr. Noble, defendant could not fully remember, did not understand, and was genuinely bewildered about Miller\u2019s death. Following the homicides, defendant exhibited suicidal thoughts, increased interest in religion, and signs of remorse. Dr. Noble opined that defendant was under the influence of a mental or emotional disturbance at the time of the murders and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired.\nDefendant appeals to this Court as of right from the judgment imposing a sentence of death for the first-degree murder of Miller. Additionally, this Court allowed defendant\u2019s motion to bypass the Court of Appeals as to his appeal of the judgment imposing a life sentence without parole for the first-degree murder of Caroline.\nI. CAPITAL SENTENCING PROCEEDING\nIn his first argument, defendant contends that the trial court violated state and federal constitutional law during sentencing deliberations by responding improperly to: (1) the jury\u2019s question about the result of an inability to agree, and (2) a juror\u2019s letter indicating an inability to continue as a member of the jury. We cannot agree.\nDuring deliberations, the jury sent a note to the court as follows: \u201cCould we be furnished the last two paragraphs of Judge Payne\u2019s charge to the jury! re: Our final decision[?] On Issue (4) four[,] if we are 11 to one for death what happens [?]\u201d Upon receiving the note, the court informed counsel that it had received a note from the jury and that the jury had a question \u201casking for \u2018what happens if there\u2019s a division on the fourth issue.\u2019 \u201d Counsel for defendant asked the court to instruct the jury about what happens if the jury is unable to agree. The court denied the request, and defendant objected. Without ruling on the objection, the trial court called the jurors back into the courtroom and instructed them on Issue Four a second time. Furthermore, the court instructed the jury as follows:\nNow, members of the jury, I would also instruct you that as to the other question that you have submitted to me, I would remind you that as jurors you\u2019ve taken an oath, that you all have a duty to consult with one another and deliberate with a view to reaching an agreement if it can be done without violence to individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of deliberations, each of you should not hesitate to reexamine your own views and change your opinion if it is erroneous, but none of you should surrender your honest conviction as to the weight or the effect of the evidence solely because of the opinion of your fellow jurors for the mere purpose of returning a verdict.\nThe jury returned to deliberations, and the court called the jury back into the courtroom forty-five minutes later to release it for the evening.\nThe next morning, the court informed counsel that it had received a note from a juror asking to be replaced. In the note, the juror expressed that \u201cwhile the mitigating factors do not offset the aggravating factors in one of the murders, I cannot with any peace of mind vote for the death penalty .... I feel unqualified to continue as a juror....\u201d The trial judge discussed with counsel the content of the note and his planned instructions in general terms, stating in part, \u201cI received a written communication from one of the members of the jury through the sheriff this morning. . . . [T]he juror is indicating they\u2019re [sic] having some difficulty following the law and has asked that I place an alternate in.\u201d\nDefense counsel requested that the court charge the jury pursuant to State v. Smith, 320 N.C. 404, 358 S.E.2d 329 (1987), regarding the jury\u2019s question on the previous day. The trial court refused to give defendant\u2019s requested jury instruction, denied defendant\u2019s motion for a mistrial, and instructed the jury regarding the juror\u2019s letter as follows:\nFolks, I\u2019ve had a communication from one of your members indicating that they\u2019re [sic] having some difficulty in the matter, and it\u2019s asked that they [sic] be replaced. The law doesn\u2019t allow me to do that. Once the jury deliberations begin in the sentencing phase in this type of case, I\u2019m not allowed to remove someone .... I must let the twelve jurors that begin the deliberations conclude the matter.\nNow, yesterday[,] one of the questions that I received was an inquiry as to what would happen in a certain numerical division. I will tell you that your inability to reach a unanimous verdict should not be your concern, but should simply be reported to the Court.\nThe jury returned a verdict of death less than one hour later.\nDefendant contends that the trial court violated defendant\u2019s federal and state constitutional rights to presence and the effective assistance of counsel by refusing to disclose the full content of the notes, failing to let counsel see or read the notes, misrepresenting the content, and responding without eliciting and considering the informed positions of defendant and his counsel. We disagree.\nIn a capital case, a defendant must be present at every stage of the trial. N.C. Const, art. I, \u00a7 23; State v. Locklear, 349 N.C. 118, 135, 505 S.E.2d 277, 286 (1998), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999). \u201cWhen an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties.\u201d Rushen v. Spain, 464 U.S. 114, 119, 78 L. Ed. 2d 267, 273 (1983). Upon receiving a message from a juror, the trial court should give counsel an opportunity to be heard and then answer the message in open court. See Rogers v. United States, 422 U.S. 35, 39, 45 L. Ed. 2d 1, 6 (1975).\nIn the case at hand, defendant was present when the proceeding in question took place. Furthermore, while the trial court did not read the notes verbatim to counsel, the court promptly and adequately summarized the jury\u2019s question and the note from the juror. The trial court informed counsel that the jury had a question about \u201cwhat happens if there\u2019s a division on the fourth issue\u201d and later informed defendant and counsel that there was a numerical division indicated in the note. Similarly, the trial court informed counsel that it had received a communication from a juror \u201cindicating they\u2019re [sic] having some difficulty following the law and has asked that I place an alternate in.\u201d The trial court heard from counsel and responded in open court to each of the communications. As such, we find no violation of defendant\u2019s right to presence.\nDefendant also claims that his attorneys were deprived of their ability to make informed decisions about appropriate responses to the notes. Defendant contends that counsel, had they known the full and trae content of the notes, would have taken greater and more effective steps to protect defendant\u2019s rights.\n\u201cA defendant\u2019s right to counsel includes the right to the effective assistance of counsel.\u201d State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985). Defendant bears the burden of showing that his counsel\u2019s performance was deficient and that the defendant was prejudiced by the deficient performance. Id. at 561-62, 324 S.E.2d at 248.\nIn the present case, it is clear from the record that counsel understood that the jury wanted to know what should happen if the jurors were unable to unanimously agree about Issue Four. Trial counsel immediately requested an instruction advising the jury of \u201cthe results of what happens if they\u2019re not able to agree.\u201d We do not agree that the failure to disclose the jury\u2019s precise numerical division precluded counsel from the full opportunity to defend defendant. The fair and accurate disclosure of the content of the note was sufficient to render counsel the full opportunity to effectively represent defendant. Likewise, the trial judge informed counsel of the substantive content of the juror\u2019s letter and stated, \u201cI\u2019m going to tell them that I can\u2019t replace a juror.\u201d As such, defense counsel had the opportunity to object to the proposed instruction. We conclude that the trial court\u2019s refusal to disclose the exact content of the communications did not deprive defendant of his constitutional right to effective assistance of counsel.\nDefendant also contends that the trial court\u2019s conduct violated N.C.G.S. \u00a7 15A-1234(a)(l) and the Code of Judicial Conduct. We disagree.\nN.C.G.S. \u00a7 15A-1234(a)(l) provides in pertinent part: \u201cAfter the jury retires for deliberation, the judge may give appropriate additional instructions to . . . [r]espond to an inquiry of the jury made in open court____\u201d N.C.G.S. \u00a7 15A-1234(a)(l) (1999). Defendant failed to object to the procedure by which the inquiry was communicated to the trial judge and has thus waived this argument. N.C. R. App. P. 10(b)(1). In any event, we are not convinced that the statute precludes the trial court from receiving a written communication from the jury and responding to such in open court.\nDefendant further argues that the trial court\u2019s actions violated Canon 3A(4) of the Code of Judicial Conduct, which in pertinent part provides: \u201cA judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.\u201d Code of Judicial Conduct Canon 3A(4), 2000 Ann. R. N.C. 276. Having already determined that the trial court\u2019s actions were authorized by law, we find no merit in defendant\u2019s argument.\nIn his second argument, defendant contends that the trial court erroneously admitted evidence of defendant\u2019s bad character during the State\u2019s case-in-chief. Defendant argues that the admitted evidence was irrelevant and inadmissible and that it violated his constitutional right to a fundamentally fair capital sentencing proceeding.\nThe rules of evidence do not apply in sentencing proceedings, N-C.G.S. \u00a7 8C-1, Rule 1101(b)(3) (1999), although they may be used as a guideline to reliability and relevance, State v. Greene. 351 N.C. 562, 568, 528 S.E.2d 575, 579, cert. denied, - U.S. -, 148 L. Ed. 2d 543, 2000 WL 1629376 (Dec. 4, 2000) (No. 00-6684). This Court has said that in a capital sentencing proceeding, \u201cthe prosecution must 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 so as to avoid an arbitrary or erratic imposition of the death penalty.\u201d State v. Brown, 315 N.C. 40, 61, 337 S.E.2d 808, 824 (1985), 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 (1988).\nWe hold that the trial court did not err in allowing the admission of testimony regarding defendant\u2019s temperament, a fight defendant had with his girlfriend at work, an alleged statement by defendant that he smoked marijuana, and a high school homework assignment that showed defendant\u2019s knowledge of drugs, as the testimony was competent, relevant evidence of defendant\u2019s character and did not violate his right to a fundamentally fair capital sentencing proceeding.\nIn his third argument, defendant contends that the trial court erred by admitting a child\u2019s hearsay statement into evidence.\nOfficer Connie Searcy testified that Officer Michele Daugherty told her that Damion, a foster child in the victim\u2019s home, told Officer Daugherty that the person who shot the victims \u201cpointed a gun at me, the man did.... Looked like a monster. He might kill somebody else.\u201d The State cross-examined three other witnesses regarding whether defendant pointed a gun at the foster child. Defendant contends that this evidence and questioning violated settled rules of evidence as well as the United States and North Carolina Constitutions and that the violation constituted plain error.\nA defendant waives any possible objection to testimony by failing to object to this testimony when it is first admitted. See State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989) (reference to the defendant\u2019s home as \u201cFort Apache\u201d was not error when no objection was made to an earlier identical reference).\nIn the present case, defendant failed to object when the State questioned Officer Searcy regarding the gun-pointing incident. By failing to object to this testimony when it was first admitted, defendant waived any possible objection to its admission. Moreover, defendant failed to make an objection at trial on constitutional grounds. This failure to preserve the issue resulted in waiver. N.C. R. App. P. 10(b)(1); State v. Jaynes, 342 N.C. 249, 263, 464 S.E.2d 448, 457 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996).\nBecause defendant failed to object to the admission of this evidence, we review this issue for plain error. State v. Carter, 338 N.C. 569, 593, 451 S.E.2d 157, 170 (1994), cert. denied, 515 U.S. 1107, 132 L. Ed. 2d 263 (1995). Plain error is \u201c \u2018fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.\u2019 \u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (footnote omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). We find no such error in the admission of this evidence.\nIn his fourth argument, defendant contends that the trial court erred by admitting evidence of Miller\u2019s good character during the State\u2019s case-in-chief, thereby violating the rules of evidence as well as the United States and North Carolina Constitutions. Specifically, defendant argues that the evidence was irrelevant and inflammatory. We disagree.\nEvidence is relevant where 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 (1999). This Court has held that evidence that the victim was a good person, or \u201cfleshing out the humanity of the victim,\u201d is permissible \u201cso long as it does not go too far.\u201d State v. Reeves, 337 N.C. 700, 723, 448 S.E.2d 802, 812 (1994), cert. denied, 514 U.S. 1114, 131 L. Ed. 2d 860 (1995); see also Payne v. Tennessee, 501 U.S. 808, 825, 115 L. Ed. 2d 720, 735 (1991) (victim-impact evidence may be admitted during a capital sentencing proceeding unless it \u201cis so unduly prejudicial that it renders the trial fundamentally unfair\u201d).\nIn the instant case, the trial court denied defendant\u2019s pretrial motion to prohibit the State from \u201cintroducing or arguing victim impact evidence\u201d and admitted evidence regarding Miller\u2019s good character during the State\u2019s case-in-chief. Specifically, the State presented evidence that Miller had prepared meals for defendant and other relatives, attended defendant\u2019s athletic events, and generally treated defendant well. The State also presented evidence that Miller appeared to have a close relationship with Caroline. The trial court admitted a photograph of Miller when she was alive and several photographs of her landscaped yard.\nWe note that the State submitted and the jury found as an aggravating circumstance that the murder was especially heinous, atrocious, or cruel. Evidence that defendant had murdered a blood relative who had opened her home to him and offered him a stable environment tended to support this aggravating circumstance. The State\u2019s evidence further showed that the killing of Miller was especially heinous, atrocious, or cruel partially because she had been especially caring, patient, and loving to defendant.\nAfter a careful review of the record, we conclude that the evidence was both relevant and admissible and did not go \u201ctoo far\u201d within the meaning set out in Reeves.\nDefendant also challenges the admission of the evidence on constitutional grounds. However, defendant failed to make an objection at trial on constitutional grounds. This failure to preserve the issue results in waiver. N.C. R. App. P. 10(b)(1); Jaynes, 342 N.C. at 263, 464 S.E.2d at 457.\nIn his fifth argument, defendant contends that the trial court erroneously allowed the prosecutors to cross-examine defense witnesses regarding defendant\u2019s bad character. We disagree.\nA trial court \u201chas broad discretion over the scope of cross examination.\u201d State v. Call, 349 N.C. 382, 411, 508 S.E.2d 496, 514 (1998). The prosecution may offer evidence of a pertinent trait of a defendant\u2019s character to rebut evidence of a pertinent trait of character when first offered by the defendant. See Carter, 338 N.C. at 598, 451 S.E.2d at 173.\nIn the present case, defendant introduced evidence on cross-examination that he was a good worker. Subsequently, defendant\u2019s first witness, his mother, was questioned about or testified on direct-examination as to the following: defendant worked at Food Lion and Bi-Lo, played football and basketball, had taken the SAT to try to get into college, had been admitted to college, took a test to gain admission into the Air Force, and had a girlfriend he took to the prom. Subsequent defense witnesses testified that defendant was polite, had a good attitude, was an overachiever, and behaved appropriately in school.\nOn cross-examination, the State elicited evidence from defendant\u2019s mother and other defense witnesses that defendant sold and used illegal drugs, had parties in hotel rooms, pushed his grandfather down, slapped his girlfriend, had been charged with and convicted of drug offenses, and violated jail rules.\nWe conclude that the trial court did not abuse its discretion in permitting this cross-examination that was offered in rebuttal of defendant\u2019s evidence of good character.\nIn his sixth argument, defendant contends that the trial court erred by allowing the State to cross-examine a witness about defendant\u2019s conduct in Spanish class. Defendant argues that admission of this evidence violated settled evidence rules as well as the United States and North Carolina Constitutions. We disagree.\nThe rules of evidence do not apply to a sentencing hearing, N.C.G.S. \u00a7 8C-1, Rule 1101(b)(3), yet hearsay statements introduced therein must be relevant and bear indicia of reliability, State v. Stephens, 347 N.C. 352, 363, 493 S.E.2d 435, 442 (1997), cert. denied, 525 U.S. 831, 142 L. Ed. 2d 66 (1998).\nIn the present case, defendant filed a motion in limine to exclude evidence about an incident in his Spanish class, but the trial court deferred ruling on this motion.\nOn direct examination, Stephen Chandler, defendant\u2019s history teacher and football coach in 1995, testified for the defense that defendant never had a behavioral problem, always participated in class, came to practice on time, and was never a discipline problem. On cross-examination, when the prosecutor asked Chandler about an incident in Spanish class, the trial court held a voir dire. Over objection, Chandler testified that another math teacher had told him that he heard defendant \u201chad gotten in trouble\u201d and had engaged in \u201caggressive\u201d behavior towards his Spanish teacher. Defendant contends that these statements were double-hearsay since Chandler had no personal knowledge of the incident.\nWe conclude that the trial court did not abuse its discretion in permitting the cross-examination by the State that served to rebut defendant\u2019s evidence that defendant was not a behavior problem in school. Further, since defendant did not object to the admission of the statements on constitutional grounds, we review this issue for plain error. See State v. Lemons, 352 N.C. 87, 530 S.E.2d 542 (2000). After reviewing the record, we find no error so fundamental that justice could not have been done.\nIn his seventh argument, defendant contends that the trial court erred by admitting evidence on cross-examination of the food defendant ate in jail, including numerous candy bars, soft drinks, and snacks.\nWe note that defendant did not object when the State first asked about the subject matter and that defendant did not move to strike any of the answers. This Court has held that \u201cwhen, as here, evidence is admitted over objection, but the same or similar evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.\u201d Hunt, 325 N.C. at 196, 381 S.E.2d at 459. Defendant failed to object to earlier questions and answers related to the food he consumed while in jail; therefore, our review is limited to plain error. Although we strain to see the relevance of what defendant ate while in jail, we conclude that admission of the evidence did not constitute plain error.\nIn his eighth argument, defendant contends that the trial court committed plain error by admitting evidence related to his future dangerousness, in violation of settled evidence rules and defendant\u2019s state and federal constitutional rights. We disagree.\nEvidence of future dangerousness is not improper in a sentencing proceeding. State v. Williams, 350 N.C. 1, 28, 510 S.E.2d 626, 644, cert. denied, 528 U.S. 880, 145 L. Ed. 2d 162 (1999). The prosecutor may \u201curge the jury to recommend death out of concern for the future dangerousness of the defendant.\u201d Id.\nIn the instant case, the State elicited testimony from defense witness Dr. Noble that defendant could be dangerous in the future under certain conditions. The State also elicited testimony that prison inmates make and use homemade knives and that many prison employees are unarmed.\nWe conclude that the trial court did not err in admitting evidence of defendant\u2019s future dangerousness. We note that defendant failed to object to Dr. Noble\u2019s testimony that defendant could \u201cclearly be dangerous under certain conditions\u201d in the future. Even assuming arguendo that it was error to admit such evidence, we do not conclude that \u201cabsent the error, the jury probably would have reached a different result.\u201d State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). Thus, the admission of the evidence relating to defendant\u2019s future dangerousness did not rise to the level of plain error. This assignment of error is rejected.\nIn his ninth argument, defendant contends that the trial court violated evidence rules and defendant\u2019s state and federal constitutional rights by allowing the State to cross-examine witnesses about good character traits of victim Miller. We disagree.\n\u201cThe trial court exercises broad discretion over the scope of cross-examination .. ..\u201d Locklear, 349 N.C. at 156, 505 S.E.2d at 299. Evidence that the victim is a good person is permissible so long as it does not go \u201ctoo far.\u201d Reeves, 337 N.C. at 723, 448 S.E.2d at 812.\nIn the instant case, defendant claims that the evidence elicited by the State went too far and was unduly prejudicial. The State elicited testimony on cross-examination that Miller was a \u201cfine woman,\u201d gave defendant \u201ca beautiful home,\u201d attended his athletic events, provided him with clothing and food, and cared for foster children.\nDefendant failed to object to the above evidence of Miller\u2019s good character. In any event, we hold that the evidence of Miller\u2019s good character elicited by the State on cross-examination did not go too far for purposes of Reeves, nor did it violate defendant\u2019s constitutional right to a fundamentally fair sentencing hearing.\nIn his tenth argument, defendant contends that the trial court erroneously admitted \u201cvictim impact\u201d evidence and allowed the prosecutor to present such evidence throughout the capital sentencing proceeding. We disagree.\nThe Eighth Amendment to the United States Constitution does not bar a prosecutor from arguing \u201cvictim impact\u201d evidence at the sentencing phase of a capital trial. Payne, 501 U.S. at 825, 115 L. Ed. 2d at 735. The State should not be barred from demonstrating the loss to society and to the victim\u2019s family which resulted from the homicide. Id. However, the Fourteenth Amendment to the United States Constitution may provide a defendant relief where the \u201cvictim impact\u201d evidence is \u201cso unduly prejudicial that it renders the trial fundamentally unfair.\u201d Id. Finally, in discussing the admissibility of character evidence of the victim, this Court has held that \u201cthe State should be given some latitude in fleshing out the humanity of the victim so long as it does not go too far.\u201d Reeves, 337 N.C. at 723, 448 S.E.2d at 812.\nIn the present case, defendant filed a motion in limine to prohibit the State from \u201cintroducing or arguing victim impact evidence,\u201d including evidence of the survivors\u2019 \u201cgrief and trauma\u201d at \u201cany phase of\u2019 the sentencing hearing. The trial court denied the motion.\nDuring , jury selection and the sentencing proceeding, the prosecutor, over objection, introduced certain courtroom spectators as good friends or family members of Miller. Furthermore, Bobby Fortune, a witness for the State, testified that he \u201cloved\u201d Miller; \u201cwent together\u201d with Miller for twenty-five years before, between, and after her marriages; and helped Miller landscape her backyard. The State elicited the following testimony from Fortune during direct-examination:\nQ. Mr. Fortune, tell the jury how Joyce Miller\u2019s death has impacted you.\n[Defense Counsel]: Objection.\nCourt: Overruled.\nA. Joyce Miller\u2019s death affected me where I can\u2019t think at times. The job I do, I need to think... and at times she gets on my mind so bad that I can\u2019t even work, or won\u2019t work. I just sit around the house mostly moping or staring or just daydreaming. It helps a lot sometimes if I got friends .. . but after they\u2019re gone and I\u2019m there by myself, that\u2019s when it hurts the most. She is constantly staying on my mind night and day. I get up with her on my mind and go to bed with her on my mind.\nWe conclude that the evidence admitted regarding Fortune\u2019s close relationship with the victim did not go too far and was not \u201cso unduly prejudicial that it rendered] the trial fundamentally unfair.\u201d Payne, 501 U.S. at 825, 115 L. Ed. 2d at 735. The limited \u201cvictim impact\u201d evidence that was introduced at the capital sentencing proceeding was proper pursuant to Payne and Reeves. This assignment of error is rejected.\nIn his eleventh argument, defendant contends that the trial court erred in allowing the prosecutors to ask impertinent and badgering questions. Defendant argues that the trial court violated the rules of evidence as well as the United States and North Carolina Constitutions, and committed plain error. We disagree.\nMany of the questions and answers that defendant challenges either were admitted without objection or, if objected to and sustained, were not followed by a motion to strike. Defendant\u2019s failure to object or, in the alternative, move to strike following a sustained objection limits our review to plain error. State v. Barton, 335 N.C. 696, 709, 441 S.E.2d 295, 302 (1994). We find no plain error.\nThe remaining questions that defendant challenges were objected to and properly overruled because defendant had previously injected the evidence into the proceeding or allowed it to be admitted as evidence earlier with no objection. See Hunt, 325 N.C. at 196, 381 S.E.2d at 459. This assignment of error is without merit.\nIn his twelfth argument, defendant contends that the trial court erred by excluding letters and cards that defendant wrote to his mother since his arrest while he was incarcerated. Defendant contends that the exclusion of the letters violated settled evidence rules as well as the United States and North Carolina Constitutions. We disagree.\nDefendant relies on State v. Jones, 339 N.C. 114, 154, 451 S.E.2d 826, 847 (1994), cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995), in which this Court stated:\nWhen evidence is relevant to a critical issue in the penalty phase of a capital trial, it must be admitted, evidentiary rules to the contrary under state law notwithstanding. Green v. Georgia, 442 U.S. 95, 60 L. Ed. 2d 738 (1979). The jury cannot be precluded from considering mitigating evidence relating to the defendant\u2019s character or record and the circumstances of the offense that the defendant offers as the basis for a sentence less than death.\nIn Jones, this Court held that the trial court erred by excluding the testimony of a witness who was prepared to say that the defendant had communicated remorse for what he had done. However, this Court ultimately found that the exclusion of the evidence was harmless beyond a reasonable doubt because another witness had been allowed to read to the jury a letter the defendant had written in which the defendant expressed regret. Notably, while the rules of evidence do not apply in a sentencing proceeding, the trial judge still must determine the admissibility of evidence subject to general rules excluding evidence that is repetitive or unreliable. State v. Simpson, 341 N.C. 316, 350, 462 S.E.2d 191, 211 (1995), cert. denied, 516 U.S. 1161, 134 L. Ed. 2d 194 (1996).\nIn the present case, defense counsel requested that defendant\u2019s mother be allowed to read the letters to the jury and proffered the exhibits as evidence tending to show defendant\u2019s remorse and relationship with his mother. The State objected. Defendant\u2019s mother was allowed to testify that she received the letters from defendant; that they were personal in nature; and that, in them, defendant expressed remorse for what he had done. The trial court ruled that the letters were inadmissible on grounds that they were cumulative of evidence already before the jury: \u201cI\u2019m going to find that the admission of the letters themselves to prove remorse or his relationship with his mother would be cumulative, that there\u2019s already been evidence produced for the jury to consider on those issues, and I\u2019m going to exclude those letters.\u201d\nWhen the trial court made its ruling, defendant had already presented evidence that he loved his mother. Moreover, several witnesses had testified that defendant constantly cried and expressed remorse about what he had done when they visited him during his incarceration. There was even evidence in the record that defendant frequently cried during the capital sentencing proceeding.\nWe conclude that the letters would have offered substantially the same evidence as the testimony of defendant\u2019s mother and other witnesses. Defendant was allowed to present to the jury evidence of remorse and of a loving relationship with his mother. In any event, the letters were unreliable in that they were written by a defendant facing a capital sentencing proceeding to a likely witness in the proceeding. As such, we hold that the trial court properly excluded the letters as cumulative and unreliable. Assuming arguendo that the trial court erred in excluding the letters from evidence, such error was harmless beyond a reasonable doubt. N.C.G.S. \u00a7 15A-1443(b) (1999); Jones, 339 N.C. at 154, 451 S.E.2d at 848. This argument is without merit.\nIn his thirteenth argument, defendant contends that the trial court erred in excluding the testimony of Colin Wilmont that defendant would make a positive impact on society in prison, thereby violating the rules of evidence and the United States and North Carolina Constitutions. We disagree.\nThe admissibility of mitigating evidence during the sentencing phase is not constrained by the rules of evidence. N.C.G.S. \u00a7 8C-1, Rule 1101(b)(3). However, the trial judge must determine the admissibility of such evidence subject to general rules excluding evidence that is repetitive or unreliable, or lacks an adequate foundation. Simpson, 341 N.C. at 350, 462 S.E.2d at 211; see also State v. Strickland, 346 N.C. 443, 462, 488 S.E.2d 194, 205 (1997) (the trial court did not err in excluding testimony during a capital sentencing proceeding because of the \u201cundependable nature of the evidence, its limited mitigating value, and its potential to distract the jury\u201d), cert. denied, 522 U.S. 1078, 139 L. Ed. 2d 757 (1998).\nIn the instant case, defendant proffered Wilmont, defendant\u2019s seventeen-year-old friend, to testify that defendant would have a positive impact by talking to and counseling young people who visited prison. Defendant contends that the evidence was relevant to mitigating circumstances including age and to the catchall, and to serve as a basis for a sentence less than death. Defendant also contends that this evidence was sufficient rebuttal to the State\u2019s evidence that defendant would not be useful to society in prison and would be a danger to unarmed civilians in prison.\nWe conclude, however, that this testimony by defendant\u2019s friend tending to suggest that defendant would have had a positive impact on young people visiting prison was purely speculative. As such, the trial court did not commit prejudicial error or abuse its discretion by excluding this evidence.\nAssuming arguendo that the court\u2019s ruling was erroneous, the record shows that the trial court admitted evidence that defendant was \u201clike a. . . leader\u201d to Wilmont and had a positive impact on people on and off the football field. Thus, the jury had an opportunity to consider the positive influence defendant had on others for purposes of the catchall mitigating circumstance. As such, any error was harmless beyond a reasonable doubt. See N.C.G.S. \u00a7 15A-1443(b).\nIn his fourteenth argument, defendant assigns error to closing arguments made by the prosecution. Defendant argues that the State\u2019s improper arguments violated rules of evidence as well as defendant\u2019s constitutional rights, and that the trial court\u2019s failure to intervene ex mero mo tu amounted to plain error.\nFirst, defendant contends that the prosecutor made improper biblical arguments. As a general rule, prosecutors have wide latitude in the scope of their argument \u201cto argue the law, the facts, and reasonable inferences supported thereby.\u201d State v. Frye, 341 N.C. 470, 498, 461 S.E.2d 664, 678 (1995), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526 (1996). Furthermore, this Court \u201c \u2018has found biblical arguments to fall within permissible margins more often than not.\u2019 \u201d State v. Walls, 342 N.C. 1, 61, 463 S.E.2d 738, 770 (1995) (quoting State v. Artis, 325 N.C. 278, 331, 384 S.E.2d 470, 500 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990)), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 794 (1996). While this Court has disapproved of arguments that the Bible does not prohibit the death penalty, it has held that such arguments are not so improper as to require intervention ex mero motu by the trial court. Williams, 350 N.C. at 27, 510 S.E.2d at 643. \u201cWe caution all counsel that they should base their jury arguments solely upon the secular law and the facts.\u201d Id.\nWe have reviewed the prosecutor\u2019s argument in its entirety. A portion of the prosecutor\u2019s argument is as follows:\nNow, I\u2019m going to close with some brief remarks from or about the Bible, and I\u2019m going to be brief about that because I don\u2019t wish to offend . . . jurors . . . and because our Supreme Court doesn\u2019t want us to make biblical arguments. And we asked all of you if you could follow the laws of this case and the laws of man. I make any remarks in anticipation of these issues because we\u2019ve had witnesses about this. In the Book of Matthew[,] we\u2019re told about when the Herodians . . . came to test Jesus about the powers of the government.... And he said, \u201cThen render unto Caesar what is Caesar\u2019s, and unto God what is God\u2019s.\u201d And for the purposes of this trial, [defendant] is Caesar\u2019s and these are Caesar\u2019s laws. . . . [A]nd there\u2019s the story about the adulteress brought before Jesus by the crowd, and they were planning to stone her. And Jesus didn\u2019t say, \u201cDon\u2019t stone her.\u201d He told them, \u201cHe who is without sin cast the first stone.\u201d And that, ladies and gentlemen, is the difference between justice and vengeance. . . . The jury swore an oath and you all promised that you wouldn\u2019t be biased, that you would hear the evidence, that you\u2019d decide in accordanee with the law, and sitting as a body under those circumstances with those promises you are sinless and you may cast that stone, and cast it you must.\n\u201cVengeance is mine,\u201d sayeth the Lord. \u201cI will repay.\u201d God may wreak vengeance on [defendant] or God may have mercy on his soul after you do justice. It is not our prerogative to forgive [defendant] under these laws. God may have mercy on his soul or vengeance on his soul, because God can do what man cannot, and man cannot punish these crimes as they were, and man cannot protect any of his potential future victims.\nDefendant objected at this point in the prosecutor\u2019s argument, but stated no grounds for his objection. The trial court sustained the objection as to the statement \u201cfuture victims.\u201d Nothing in the record indicates that defendant specifically objected to the prosecutor\u2019s biblical references in his closing argument.\nIn the absence of objection, our \u201c \u2018standard of review to determine whether the trial court should have intervened ex mero motu is whether the allegedly improper argument was so prejudicial and grossly improper as to interfere with defendant\u2019s right to a fair trial.\u2019 \u201d Walls, 342 N.C. at 48, 463 S.E.2d at 763 (quoting State v. Alford, 339 N.C. 562, 571, 453 S.E.2d 512, 516 (1995)).\nWe disapprove of counsel\u2019s biblical references, especially in light of counsel\u2019s admission that this Court does not condone such arguments. However, we note that here, as in Williams, the prosecutor counseled the jurors that they should base their sentencing decision upon the secular law. Even if error, we do not conclude that the prosecutor\u2019s arguments were so improper as to require intervention by the trial court ex mero motu.\nSecond, defendant contends that the prosecutor misstated the law. The prosecutor stated to the jury:\nThe Supreme Court says, in State vs. Jones that prosecutorial argument encouraging the jury to lend an ear to the community is not proper. However, encouraging the jury to act as the voice and conscience of the community is proper and is one of the very reasons for the establishment of the jury system. So regardless of all the people who would come before you and ask you to listen to the community about the defendant\u2019s life, that is not what the law says.\n[Defense Counsel]: Objection.\n[Prosecutor]: The law says\u2014\nCourt: Overruled.\n[Prosecutor]: \u2014you are the voice and the conscience of the community.\n[Defense Counsel]: Objection.\nCourt: Overruled.\nDefendant contends that this argument was an unconstitutional misstatement of capital sentencing law and that it communicated to the jury that, under North Carolina law as interpreted by this Court, the jury was not required to listen to, consider, or give effect to defendant\u2019s witnesses\u2019 sworn evidence about defendant\u2019s life. We disagree.\nThe State must not ask the jurors to \u201c \u2018lend an ear to the community rather than a voice.\u2019 \u201d State v. Scott, 314 N.C. 309, 312, 333 S.E.2d 296, 298 (1985) (quoting Prado v. Texas, 626 S.W.2d 775, 776 (Tex. Crim. App. 1982)). Yet, it is not improper for the State to \u201cremind the jurors that \u2018they are the voice and conscience of the community.\u2019 \u201d State v. McNeil, 350 N.C. 657, 687-88, 518 S.E.2d 486, 505 (1999) (quoting State v. Brown, 320 N.C. 179, 204, 358 S.E.2d 1, 18, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987)), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d 321 (2000).\nIn the instant case, the prosecutor correctly stated that the jurors must not lend an ear to the community and that the jurors may act as the voice and conscience of the community. We are not convinced by defendant\u2019s contention that the prosecution instructed the jury to disregard the testimony of defense witnesses when it stated: \u201cSo regardless of all the people who would come before you and ask you to listen to the community about the defendant\u2019s life, that is not what the law says.\u201d Admittedly, this statement is unclear in light of the fact that no witness asked the jury to listen to the community. However, any confusion generated by the statement was cured when the trial court instructed the jury that \u201cit would be your duty to consider as a mitigating circumstance any aspect of the defendant\u2019s character or record or any of the circumstances of this murder that the defendant contends is a basis for a sentence less than death, and any other mitigating circumstance arising from this evidence which you deem to have mitigating value.\u201d We find no prejudicial error in the prosecutor\u2019s argument.\nThird, defendant contends that the prosecutor traveled outside the evidentiary record and made arguments not supported by any evidence. Defendant did not object to this portion of the argument. When a defendant fails to object to the prosecutor\u2019s comments during closing arguments, \u201conly an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.\u201d State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, 519 U.S. 890, 136 L. Ed. 2d 160 (1996). We have reviewed the prosecutor\u2019s argument, and we do not find it to be so grossly improper as to require intervention by the trial court ex mero motu.\nFourth, and finally, defendant contends that the prosecutor violated his constitutional rights by commenting on defendant\u2019s silence. The following exchange occurred during the State\u2019s closing arguments:\n[Prosecutor]: Now, [defendant] sits here like this, and I know that it\u2019s hard for you to picture him doing what you know he did and what he\u2019s plead [sic] \u201cguilty\u201d to doing, and it\u2019s especially hard because he grows his hair out and then he tips his head down.\n[Defense Counsel]: Objection.\nCourt: Overruled.\n[Prosecutor]: And then he looks up and he looks pitiful and you can look at him. This is a huge, momentous decision you\u2019re going to make, and you shouldn\u2019t have to sneak a glance to see whether he\u2019s bawling or rolling his eyes or saying \u201cdid not\u201d while a witness is testifying ....\nDefendant contends that this argument was an indirect comment on defendant\u2019s decision not to testify at the hearing. Defendant argues that, by pointing out defendant\u2019s conduct in the courtroom, including sitting at the counsel table, bowing his head, crying, rolling his eyes, and muttering, the prosecutor called attention to what defendant did not do, namely, testify.\n\u201c[A]ny direct reference to defendant\u2019s failure to testify is error and requires curative measures be taken by the trial court.\u201d State v. Reid, 334 N.C. 551, 554, 434 S.E.2d 193, 196 (1993). Furthermore, the constitutional right of the accused to remain silent is violated by language that is \u201cof such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.\u201d State v. Rouse, 339 N.C. 59, 95-96, 451 S.E.2d 543, 563 (1994) (quoting United States v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff'd, 417 U.S. 211, 41 L. Ed. 2d 20 (1974)), cert. denied, 516 U.S. 832, 133 L. Ed. 2d 60 (1995).\nDefendant\u2019s reliance on State v. McLamb, 235 N.C. 251, 257, 69 S.E.2d 537, 541 (1952), as support for his contention is misplaced. In McLamb, while the defendant did not testify, his wife and several men testified on his behalf. The prosecutor commented that the defendant was \u201chiding behind his wife\u2019s coat tail,\u201d an obvious reference to the defendant\u2019s failure to testify. Id. In contrast, in the instant case, the prosecutor\u2019s comments about defendant\u2019s mannerisms in the courtroom did not constitute references to defendant\u2019s constitutional right to remain silent. This argument is rejected.\nIn defendant\u2019s fifteenth argument, he challenges the trial court\u2019s jury instructions regarding the N.C.G.S. \u00a7 15A-2000(e)(5) aggravating circumstance. Defendant contends the trial court\u2019s instruction was erroneous as it failed to submit the essential timing element to the jury. We agree.\nAn aggravating circumstance that may be considered in a capital sentencing proceeding is that \u201c[t]he capital felony was committed while the defendant was engaged ... in the commission of . . . robbery.\u201d N.C.G.S. \u00a7 15A-2000(e)(5) (1999). This subsection \u201cguides the jury\u2019s deliberation upon criminal conduct of the defendant which takes place \u2018while\u2019 or during the same transaction as the one in which the capital felony occurs.\u201d State v. Goodman, 298 N.C. 1, 24, 257 S.E.2d 569, 584 (1979).\nIn the instant case, during the charge conference, the State requested that the court use its proffered (e)(5) jury instruction instead of the pattern instruction. Defense counsel objected and asked the trial court to administer the pattern (e)(5) jury instruction. However, the trial court overruled the objection and used the State\u2019s requested (e)(5) instruction.\nDuring the jury charge for the murder of Miller, the trial court gave the State\u2019s requested instructions as follows:\n[F]our aggravating circumstances . . . may be applicable to the case of Joyce Miller: First, \u201cWas this murder committed by the defendant while the defendant was engaged in the commission of armed robbery?\u201d ... It is sufficient to support this aggravating circumstance that the defendant committed this murder while engaged in the commission of an armed robbery even if the armed robbery was committed after Joyce Miller was killed, so long as the armed robbery occurred during a continuous series of events surrounding Joyce Miller\u2019s death.\nNow, I charge that for you to find that the defendant committed this murder while engaged in the commission of the armed robbery, the State must prove seven things beyond a reasonable doubt. First, that the defendant took property from the person of Joyce Miller or in her presence. Second, that the defendant carried away the property. Third, that Joyce Miller did not voluntarily consent to the taking and carrying away of the property. Fourth, that the defendant knew that he was not entitled to the property. Fifth, that at the time of the taking the defendant intended to deprive Joyce Miller of its use permanently. Sixth, that the defendant had a firearm or other dangerous weapon in his possession at the time he obtained the property. . . . And seventh, that the defendant obtained the property by endangering or threatening the life of Joyce Miller with the firearm or other dangerous weapon.\nDuring deliberations, the jury requested that the trial court reinstruct it on armed robbery. The trial court repeated the State\u2019s requested (e)(5) instruction in full. Defendant again objected. The jury subsequently found the (e)(5) circumstance to exist.\nDefendant contends that the essence of the (e)(5) circumstance is that it provides for greater punishment when a capital felony is committed while a defendant is engaged in the commission of other dangerous felonies. Defendant further argues that the trial court failed to instruct the jury on this essential timing element.\nIn describing the State\u2019s burden, the trial court enumerated seven things the State was required to prove beyond a reasonable doubt in order to show that defendant committed the murder while engaged in the commission of armed robbery. The seven things comprised the elements of armed robbery and did not require a finding that the murder was committed while engaged in the commission of the armed robbery. The consequence of the trial court\u2019s instruction is that the State was able to prove (e)(5) without proving that the murder occurred while defendant was engaged in armed robbery. N.C.G.S. \u00a7 15A-2000(e)(5).\nFollowing the charge, the trial court compounded its error by stating, \u201cSo, I charge that if you find, from the evidence and beyond a reasonable doubt, that on or about May 24th, 1996 [the seven elements of armed robbery were satisfied] ... you would find this aggravating circumstance and so indicate by writing \u2018yes\u2019 in the space after the aggravating circumstance . . .\nWe note that the pattern jury instruction on (e)(5) provides as follows:\nIf you find from the evidence beyond a reasonable doubt that when the defendant killed the victim the defendant was ... (set out the findings necessary for the felony . . .) you would find this aggravating circumstance[.]\nN.C.P.I. \u2014 Crim. 150.10(5A) (1997) (emphasis added). The pattern jury instruction includes a timing element in that it requires the jury to \u201cfind from the evidence beyond a reasonable doubt that when the defendant killed the victim (the elements necessary to commit the felony)\u201d were fulfilled. Id. In the instant case, the trial court\u2019s charge to the jury lacked the requisite timing element.\nWe conclude that the trial court failed to charge the jury with sufficient clarity that the State had the burden to show that the criminal conduct took place while or during the same transaction as the murder. Thus, the trial court erred in giving the instruction to the jury. We next address whether this error warrants a new capital sentencing proceeding.\nA review of the record discloses that defendant indicated to the investigating officer that he killed Miller around 7:00 p.m. Defendant also indicated that he placed the stolen materials, including the VCR, into the Bravada truck and drove to the mall at approximately 7:15 p.m. For purposes of this aggravating circumstance, the jury was instructed to consider the taking of the keys to the Bravada, the Bravada itself, and one of the VCRs. The span of time between Miller\u2019s murder and the alleged armed robbery was at most thirty minutes. Thus, all of the evidence presented during the sentencing proceeding tended to show that the murder and alleged armed robbery were part of a continuous series of events.\nFurthermore, the trial court properly instructed the jury that it could find this aggravating circumstance if it determined that the armed robbery occurred during a continuous series of events surrounding Miller\u2019s death. Finally, on the issues and recommendation form, this issue was stated as follows: \u201cWas this murder committed by the Defendant while the Defendant was engaged in the commission of Armed Robbery?\u201d Therefore, when the jurors marked \u201cyes\u201d on the form, they found that the murder was committed while defendant was engaged in the commission of armed robbery. Thus, the instructions and issues and recommendation form, when considered in light of the evidence in this case, communicated to the jury that the murder had to occur while defendant was engaged in the commission of armed robbery.\nIn light of the foregoing, we conclude that there is no reasonable likelihood that the jury applied the challenged instruction in a manner that violated the Constitution. See State v. Jennings, 333 N.C. 579, 621, 430 S.E.2d 188, 209, cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993). Assuming arguendo that the error was of constitutional magnitude, such error was harmless beyond a reasonable doubt. See N.C.G.S. \u00a7 15A-1443(b).\nDefendant makes a similar argument about the identical instructions the trial court gave regarding Caroline\u2019s murder. However, we need not address this argument since the jury recommended life imprisonment without parole for Caroline\u2019s death. This argument is rejected.\nIn his sixteenth argument, defendant challenges the trial court\u2019s instructions on aggravating circumstance (e)(6), that the murder was committed for pecuniary gain. Defendant contends that the instructions given by the trial court allowed the jury to find the (e)(6) circumstance without making the necessary finding about defendant\u2019s motive in that the instructions did not require the jury to find that defendant murdered for the purpose of pecuniary gain. Defendant contends that the instructions were erroneous in law and violated his rights under the United States and North Carolina Constitutions. We disagree.\nAn aggravating circumstance that may be considered in capital sentencing is that \u201c[t]he capital felony was committed for pecuniary gain.\u201d N.C.G.S. \u00a7 15A-2000(e)(6). \u201cThis aggravating circumstance considers defendant\u2019s motive and is appropriate where the impetus for the murder was the expectation of pecuniary gain.\u201d State v. Moore, 335 N.C. 567, 610, 440 S.E.2d 797, 822, cert. denied, 513 U.S. 898, 130 L. Ed. 2d 174 (1994). However, the jury may find this aggravating circumstance even where financial gain was not the defendant\u2019s primary motivation. Id.\nIn the instant case, during the charge conference, the trial court accepted the State\u2019s requested instruction on the (e)(6) aggravating circumstance, over defendant\u2019s objection. The instruction was given as follows:\n[T]he second aggravating circumstance that you may consider ... is: \u201cWas this murder committed for pecuniary gain?\u201d A murder is committed for pecuniary gain if the defendant, when he commits it, has obtained or intends to obtain money or other things that can be valued in money as a result of the death of the victim. In order to find that this murder was committed for pecuniary gain, you do not have to find that the primary motive of the defendant was financial gain. If you find, from the evidence beyond a reasonable doubt, that when the defendant killed the victim, that the defendant took personal property or other items belonging to Joyce Miller and that he intended or expected to obtain money or property or any other thing that can be valued in money, you would find this aggravating circumstance and would so indicate by having your foreperson write \u201cyes\u201d in the space ....\nThe jury subsequently found the (e)(6) circumstance to exist.\nWe conclude that the trial court properly instructed the jury that it must find that defendant murdered for the purpose of pecuniary gain in order to find the (e)(6) aggravating circumstance. Notably, the trial court began its instructions by setting out the issue for the jury: \u201cWas this murder committed for pecuniary gain?\u201d The trial court subsequently instructed the jury to find this circumstance if it found that, when defendant committed the murder, he had obtained or intended or expected to obtain money. More specifically, the trial court charged the jury that it must determine whether, \u201cwhen defendant took the personal property belonging to Joyce Miller, he intended or expected to obtain money or property or any other thing . . . valued in money.\u201d On the recommendation form, the issue was stated, \u201cWas this murder committed for pecuniary gain?\u201d\nWe note that the instruction given by the trial court was remarkably similar to the pattern instruction. See N.C.P.I. \u2014 Crim. 150.10(6). While defendant argues that the trial court erred in charging the jury that \u201c[i]n order to find that this murder was committed for pecuniary gain, you do not have to find that the primary motive of the defendant was financial gain,\u201d we conclude that the instruction was correct as a matter of law. See Moore, 335 N.C. at 610, 440 S.E.2d at 822. Furthermore, by instructing the jury that it need not find that defendant\u2019s \u201cprimary motive\u201d was financial gain, the trial court implicitly communicated that financial gain must have been a motive. This case is distinguishable from State v. Bishop, 343 N.C. 518, 472 S.E.2d 842 (1996), cert. denied, 519 U.S. 1097, 136 L. Ed. 2d 723 (1997), in which the challenged instruction contained no language concerning the intent or motive of the defendant.\nHaving determined that the trial court\u2019s pecuniary gain instruction was not erroneous, we need not address defendant\u2019s argument that the instruction was unconstitutional.\nIn his seventeenth argument, defendant contends that the trial court erred in instructing the jury on the mitigating circumstance found in N.C.G.S. \u00a7 15A-2000(f)(l). Defendant argues that the trial court\u2019s instruction violated his constitutional rights by peremptorily charging the jury that defendant had a history of prior criminal activity.\nN.C.G.S. \u00a7 15A-2000(f)(l) provides that a mitigating circumstance in capital sentencing may be that \u201c[t]he defendant has no significant history of prior criminal activity.\u201d\nIn the present case, the State introduced contested evidence of defendant\u2019s alleged prior criminal activity. The trial court instructed the jury regarding the (f)(1) mitigating circumstance as follows:\nFirst, consider whether the \u201cdefendant has no significant history of prior criminal activity\u201d prior to the date of the murder. . . . You would find this mitigating circumstance if you find that the assault, drug offenses, use of illegal drugs and gambling or any other acts were not a significant history of prior criminal activity. ... If none of you find this circumstance to exist, you would so indicate by having your foreperson write \u201cno\u201d [on the issues and recommendation form].\nThe jury did not find the (f)(1) circumstance to exist.\nDefendant contends that the trial court\u2019s instruction improperly assumed that the State\u2019s evidence regarding alleged criminal conduct by defendant was true. Therefore, according to defendant, the trial court deprived the jury of the opportunity to determine whether the essential elements of the alleged crimes had been met and whether such alleged criminal conduct constituted a significant history of prior criminal activity. Defendant cites the proposition that \u201cthe trial court in charging a jury may not give an instruction which assumes as true the existence or nonexistence of any material fact in issue.\u201d State v. Cuthrell, 235 N.C. 173, 174, 69 S.E.2d 233, 234 (1952).\nDefendant failed to object to the instruction at trial, thereby failing to preserve this argument for appeal. N.C. R. App. P. 10(b)(2). Moreover, defendant failed to \u201cdistinctly\u201d contend in his assignment of error that the alleged error constituted plain error. Id. Nonetheless, we have examined defendant\u2019s argument, and we find no plain error.\n\u201cIn order to rise to the level of plain error, the error in the trial court\u2019s instructions must be so fundamental that (i) absent the error, the jury would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.\u201d State v. White, 340 N.C. 264, 299, 457 S.E.2d 841, 862, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995).\nAssuming arguendo that the trial court\u2019s instructions assumed that defendant engaged in the prior criminal activity, overwhelming evidence was presented that defendant engaged in the criminal activity listed. Several witnesses testified regarding defendant\u2019s assault of his girlfriend. Defendant\u2019s witness, Dr. Noble, testified regarding defendant\u2019s drug abuse and drug dealing, and defendant\u2019s witness, Orren Daugherty, testified that defendant won money by gambling.\nThe trial court did not assume the jury\u2019s duty to determine whether defendant\u2019s history was significant. Rather, the trial court listed defendant\u2019s prior criminal activity, which was supported by the evidence, and asked that the jury determine the significance of this activity.\nAdmittedly, the pattern jury instructions require the jury to determine whether a defendant has engaged in any prior criminal conduct as well as the significance of any such conduct: \u201c[Y]ou would find this mitigating circumstance if you find that (describe all defendant\u2019s prior criminal activity) and that this is not a significant history of prior criminal activity.\u201d N.C.P.I. \u2014 Crim. 150.10(1); see also State v. Daniels, 337 N.C. 243, 271, 446 S.E.2d 298, 316 (1994) (the trial court properly instructed: \u201cYou would find this mitigating circumstance if you find that the defendant\u2019s prior criminal history is the conviction of driving while impaired, communicating threats, and simple assault, and that this was not a significant history of prior criminal activity\u201d), cert. denied, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995). However, we find no plain error in the instruction because the evidence of defendant\u2019s drug activity, assault, and gambling was overwhelming, and the jury was permitted to determine the significance of said conduct. This assignment of error is rejected.\nIn his eighteenth argument, defendant contends that the trial court erred in refusing to give peremptory instructions about the existence of four mitigating circumstances. Defendant contends that he was entitled to peremptory instructions on the nonstatutory mitigating circumstance \u201c[t]hat the Defendant never had any permanent or even long-term relationship with an appropriate male role model\u201d and on three statutory mitigating circumstances: (f)(1), \u201c[t]he Defendant has no significant history of prior criminal activity\u201d; (f)(2), \u201c[t]he murder was committed while the Defendant was under the influence of mental or emotional disturbance\u201d; and (f)(6), \u201c[t]he capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to requirements of law was impaired.\u201d We disagree.\n\u201cA defendant is entitled to a peremptory instruction when a mitigating circumstance is supported by uncontroverted evidence.\u201d State v. White, 349 N.C. 535, 568, 508 S.E.2d 253, 274 (1998), cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999). \u201c \u2018Conversely, a defendant is not entitled to a peremptory instruction when the evidence supporting a mitigating circumstance is controverted.\u2019 \u201d Id. (quoting State v. Womble, 343 N.C. 667, 683, 473 S.E.2d 291, 300 (1996), cert. denied, 519 U.S. 1095, 136 L. Ed. 2d 719 (1997)).\nDefendant contends that the evidence was uncontroverted that he had no appropriate male role model in his life. However, there was evidence that defendant spent substantial time in the custody of his grandparents. Furthermore, there were male teachers and male coaches who testified on defendant\u2019s behalf and indicated extensive interactions with defendant during his life.\nDefendant also contends that the evidence was uncontroverted that he had no significant history of prior criminal activity. However, the State presented evidence tending to. show that defendant used and sold drugs, assaulted his girlfriend, gambled, and stole money.\nDefendant further contends that the evidence was uncontroverted that the murders were committed while he was under the influence of mental or emotional disturbance and that his capacity was impaired. Defendant\u2019s expert, Dr. Noble, testified that defendant was under the influence of a mental or emotional disturbance when he killed Caroline and Miller. Dr. Noble further testified that when defendant killed Caroline, his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was \u201cdiminished, but he did not completely lose his sense of right and wrong\u201d and that at the time he killed Miller, defendant\u2019s capacity was \u201cimpaired.\u201d The State introduced evidence of different possible interpretations of the results of the MMPI, an assessment tool used by Dr. Noble. The computer software that scored the MMPI generated possible interpretations that defendant was manipulative, aggressive, rebellious of authority figures, resentful, uncompromising, and hedonistic, and that defendant might be physically threatening toward women to whom he was close when he felt frustrated. The State also presented evidence that defendant performed well in school, wrote well-organized homework assignments, and had been accepted at North Carolina A&T State University. Finally, the State\u2019s evidence showed that following the murders, defendant disposed of evidence, went shopping, went to a party, and danced. Therefore, this evidence was controverted as well.\nWe find no error in the trial court\u2019s refusal to give peremptory instructions. This argument is rejected.\nIn his nineteenth argument, defendant argues that the trial court committed constitutional error in refusing to instruct the jury that \u201clife imprisonment without parole\u201d was the punishment alternative to death and instructing instead that the alternative was merely \u201clife imprisonment.\u201d Defendant concedes that the trial court informed the jury on some occasions that the punishment alternative was \u201clife imprisonment without parole\u201d but argues that the phrase was used infrequently and sporadically. Defendant argues that every time the trial court referred to the alternative to death, he should have instructed the jury that it was \u201clife imprisonment without parole.\u201d\nN.C.G.S. \u00a7 15A-2002 provides in pertinent part: \u201cThe judge shall instruct the jury, in words substantially equivalent to those of this section, that a sentence of life imprisonment means a sentence of life without parole.\u201d We hold that the judge in this case did instruct the jury that a sentence of life imprisonment means a sentence of life without parole. In the charge to the jury, the judge instructed the jury, \u201cIf you unanimously recommend a sentence of life imprisonment, the court will impose a sentence of life imprisonment without parole.\u201d We find nothing in the statute that requires the judge to state \u201clife imprisonment without parole\u201d every time he alludes to or mentions the alternative sentence. We find no error in the trial court\u2019s actions. This argument is without merit.\nIn his twentieth argument, defendant contends that the trial court erred in referring to the prosecutor as \u201cour\u201d and/or \u201cyour\u201d district attorney. Defendant claims that the trial court\u2019s statements violated its duty of impartiality and constituted an improper expression of opinion in violation of N.C.G.S. \u00a7 15A-1222 as well as the United States and North Carolina Constitutions. We disagree.\nN.C.G.S. \u00a7 15A-1222 provides that \u201c[t]he 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 \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). Further, since defendant claims that he was deprived of a fair trial by the judge\u2019s statements, he \u201chas the burden of showing prejudice in order to receive a new trial.\u201d State v. Gell, 351 N.C. 192, 207, 524 S.E.2d 332, 342, cert. denied, - U.S. \u2014 , 148 L. Ed. 2d 110 (Oct. 20, 2000) (No. 99-10222). \u201cWhether the accused was deprived of a fair trial by the challenged remarks must be determined by what [was] said and its probable effect upon the jury in light of all attendant circumstances.\u201d State v. Burke, 342 N.C. 113, 122-23, 463 S.E.2d 212, 218 (1995).\nIn the instant case, during jury selection, the trial court asked prospective jurors whether they had any contact with \u201cour\u201d district attorney\u2019s office and whether they knew that the State was represented by \u201cyour\u201d and \u201cour\u201d district attorney; and stated that this case would be prosecuted by \u201cyour\u201d elected district attorney; and that the burden to prove death was on the State through \u201cyour\u201d district attorney. Defendant failed to object to any of these statements.\nWe decline to hold that these comments by the trial judge constituted an improper expression of opinion. We first note that the opinion must be on a \u201cquestion of fact to be decided by the jury.\u201d N.C.G.S. \u00a7 15A-1222 (1999). Whether the district attorney is \u201cour\u201d or \u201cyour\u201d district attorney is not a question of fact to be decided by the jury. After a full examination of the trial transcript, we conclude that, when viewed in the totality of circumstances, defendant has failed to show prejudice. This argument is without merit.\nIn his twenty-first argument, defendant contends that the trial court erred in submitting both aggravating circumstances (e)(5) and (e)(6) to the jury. Defendant argues that the trial court\u2019s submission of both the (e)(5) and (e)(6) aggravating circumstances in this case constituted unconstitutional double-counting. We disagree.\n\u201c \u2018Double-counting\u2019 occurs when two aggravating circumstances based upon the same evidence are submitted to the jury.\u201d Call, 349 N.C. at 426, 508 S.E.2d at 523. In State v. East, 345 N.C. 535, 481 S.E.2d 652, cert. denied, 522 U.S. 918, 139 L. Ed. 2d 236 (1997), this Court stated:\nIt is established law in North Carolina that it is error to submit two aggravating circumstances when the evidence to support each is precisely the same. State v. Gibbs, 335 N.C. 1, 58-59, 436 S.E.2d 321, 354 (1993), cert. denied, [512] U.S. [1246], 129 L. Ed. 2d 881 (1994); State v. Jennings, 333 N.C. 579, 627-28, 430 S.E.2d 188, 213-14, cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993). Conversely, where the aggravating circumstances are supported by separate evidence, it is not error to submit both to the jury, even though the evidence supporting each may overlap. State v. Gay, 334 N.C. 467, 495, 434 S.E.2d 840, 856 (1993); State v. Jones, 327 N.C. 439, 452, 396 S.E.2d 309, 316 (1990).\nEast, 345 N.C. at 553-54, 481 S.E.2d at 664. \u201c[S]ome overlap in the evidence supporting each aggravating circumstance is permissible so long as there is not a complete overlap of evidence.\u201d Call, 349 N.C. at 426, 508 S.E.2d at 523.\nAs to the (e)(5) circumstance, whether the murder was committed while defendant was engaged in the commission of armed robbery, the trial court instructed the jury to consider only:\n[the] taking of the keys to the Bravada automobile, the taking of the Bravada automobile and the VCR which was in the family room ... in considering this aggravating factor. You may not consider the taking of the credit card, Miss Joyce Miller\u2019s purse or the checks of Miss Joyce Miller in order for the State to prove this aggravating factor. Those items may be considered on another aggravating factor which I\u2019ll explain to you later, but you may not consider the taking of the credit card, the checks or the purse of Miss Joyce Miller when you consider this aggravating circumstance.\nAs to the (e)(6) pecuniary gain circumstance, the trial judge then instructed the jury to consider only \u201cthe taking of the credit card, checks and the purse of Miss Miller.\u201d He further clarified that \u201c[y]ou may not consider the taking of the VCR, the automobile \u2014 that is the Bravada \u2014 or the keys to the Bravada automobile when you consider this aggravating factor. Those items may only be considered for purposes of the armed robbery.\u201d\nIt is clear from the record that the trial court did not allow the jury to find both aggravating circumstances using the same evidence. Both circumstances were supported by sufficient, independent evidence. The trial court properly instructed the jury that it could not use the same evidence as the basis for finding both the (e)(5) and (e)(6) circumstances. This argument is rejected.\nIn his twenty-second argument, defendant challenges the prosecutor\u2019s statements to the jurors during jury selection regarding the State\u2019s burden of proof. Defendant contends that he is entitled to a new capital sentencing proceeding because the prosecutor repeatedly told jurors during jury selection that the State\u2019s burden of proof was \u201cbeyond a reasonable doubt to the satisfaction of the jury.\u201d Defendant argues that the prosecutor misstated the standard, causing the jurors to believe that the burden of proof was essentially \u201csatisfaction of the jury.\u201d Defendant further argues that the misstatement confused the jury, constituted plain error, and violated defendant\u2019s constitutional right to a fundamentally fair sentencing hearing.\nDefendant failed to object to the prosecutor\u2019s statements. Defendant\u2019s failure to raise this issue in the trial court constitutes waiver. N.C. R. App. P. 10(b)(2). \u201c \u2018This Court has applied the plain error analysis only to instructions to the jury and evidentiary matters.\u2019 \u201d McNeil, 350 N.C. at 674, 518 S.E.2d at 497 (quoting State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999)). Here, defendant assigns error to statements by the prosecutor during jury selection to which he failed to object. Therefore, defendant has waived appellate review of this issue. This argument is rejected.\nIn his twenty-third argument, defendant contends that the trial court unconstitutionally chilled his right to testify.\nThe trial court addressed defendant as follows:\nCourt: Mr. Davis, I just want to make an inquiry on the record. Have you had an opportunity to discuss with your lawyers about testifying in this matter?\nDefendant: Yes, sir.\nCourt: You understand you have the right to testify, and if you do testify, that you\u2019ll be subject to being cross-examined on a variety of subject matters limited only by my discretion of what\u2019s relevant. Do you understand that?\nDefendant: Yes, sir.\nCourt: As long as you\u2019ve had that explained to you by your lawyers and you\u2019ve been advised about your right, that\u2019s all I need to make an inquiry about.\nDefendant argues that the trial court\u2019s instructions were erroneous in that they did not give more specific details about the rules that guide cross-examination.\nWe hold that the trial court properly instructed defendant since the trial court \u201cdid not attempt to give defendant detailed instructions concerning the scope of cross-examination and did not give an instruction inconsistent with any of the Rules of Evidence.\u201d State v. Davis, 349 N.C. 1, 31, 506 S.E.2d 455, 471 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999). Furthermore, the exchange above indicates that defendant had discussed the consequences of testifying with his counsel. See Id.\nAccordingly, we conclude that the trial court\u2019s instructions were not erroneous and, therefore, did not impermissibly chill defendant\u2019s right to testify. This argument is without merit.\nIn his twenty-fourth and twenty-fifth arguments, defendant contends that the trial court erred in denying his motion to dismiss both charges of first-degree murder on the grounds that the indictments: (1) failed to charge the elements of first-degree murder, (2) failed to allege facts to increase the maximum penalty for the crime, and (3) failed to allege capital aggravating circumstances.\nDefendant recognizes that this Court has held for many years that the \u201cshort-form\u201d murder indictment under N.C.G.S. \u00a7 15-144 is sufficient to allege first-degree murder under theories of both premeditation and deliberation and felony murder. See State v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322, cert. denied, 498 U.S. 871, 112 L. Ed. 2d 155 (1990); Brown, 320 N.C. at 191, 358 S.E.2d at 11; State v. Avery, 315 N.C. 1, 14, 337 S.E.2d 786, 793 (1985). However, defendant contends that the decision in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), brings our prior case law on short-form indictments into question. We disagree.\nWe addressed in full and rejected this argument in State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, - U.S. -, 148 L. Ed. 2d 498, 69 U.S.L.W. 3364 (2000), and reaffirmed our position in State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000). In Braxton, this Court examined the validity of short-form indictments in light of Jones, 526 U.S. 227, 143 L. Ed. 2d 311, and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), and held that nothing in either case altered prior case law on these matters. Braxton, 352 N.C. at 175, 531 S.E.2d at 437-38. Accordingly, we conclude that the short-form indictments are constitutional. Defendant\u2019s arguments concerning the validity of his indictments are without merit and are rejected.\nIn his twenty-sixth argument, defendant contends that the trial court erred in ordering defendant\u2019s mental health expert, Dr. Noble, to prepare and disclose to the State a written report of his findings and a copy of his handwritten notes of interviews with defendant. Defendant contends that the trial court\u2019s order exceeded the scope of N.C.G.S. \u00a7 15A-905(b) and violated defendant\u2019s attorney-client and Fifth Amendment privileges. We disagree.\nN.C.G.S. \u00a7 15A-905 governs the procedures for court-ordered pretrial discovery in criminal- cases. The statute provides, in relevant part:\nIf the court grants any relief sought by the defendant under G.S. 15A-903(e), the court must, upon motion of the State, order the defendant to permit the State 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 and control of the defendant which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial, when the results or reports relate to his testimony.\nN.C.G.S. \u00a7 15A-905(b) (1999). In the case at hand, defendant requested discovery from the State and was given open file access to the State\u2019s files. Once defendant was given access to the State\u2019s files, it was logical and permissible for the trial court to order defendant\u2019s expert to prepare a written report and to produce handwritten notes for the State\u2019s perusal pursuant to N.C.G.S. \u00a7 15A-905(b). The trial court\u2019s order in this case simply provided for the reciprocal discovery requirements under N.C.G.S. \u00a7 15A-905(b) and did not exceed the scope of the discovery statute. See Atkins, 349 N.C. at 92-94, 505 S.E.2d at 116-17 (court order for defense expert to produce \u201call reports\u201d and all of his notes did not violate N.C.G.S. \u00a7 15A-905(b)). We find no error in the trial court\u2019s order, which ensured fairness to both sides in the preparation of their case.\nDefendant further contends that the trial court\u2019s order violated defendant\u2019s attorney-client privilege and privilege against self-incrimination. Defendant argues that the order allowed the State to gain access to information that defendant supplied to his attorney\u2019s agent, Dr. Noble, during and for the purpose of the investigation and preparation of his defense. We disagree.\nDefendant\u2019s communications with Dr. Noble were not protected by an attorney-client privilege. The attorney-client privilege \u201ccovers only confidential communications made by the client to his attorney.\u201d State v. Brown, 327 N.C. 1, 20, 394 S.E.2d 434, 446 (1990). However, \u201c[a] communication is covered by the attorney-client privilege if it has been \u2018made in the course of seeking or giving legal advice for a proper purpose.\u2019 \u201d Jennings, 333 N.C. at 611, 430 S.E.2d at 204 (quoting 1 Henry Brandis, Jr., Brandis on North Carolina Evidence \u00a7 62, 302 (3d ed. 1988)). Nothing indicates that Dr. Noble examined or communicated with defendant in the course of seeking or giving legal advice. We are aware that \u201c \u2018[disclosures made to the attorney\u2019s expert should be equally unavailable, at least until he is placed on the witness stand.\u2019 \u201d State v. Ballard, 333 N.C. 515, 522, 428 S.E.2d 178, 182 (quoting United States ex rel. Edney v. Smith, 425 F. Supp. 1038, 1054 (E.D.N.Y. 1976), aff'd, 556 F.2d 556 (2d Cir.), cert. denied, 431 U.S. 958, 53 L. Ed. 2d 276 (1977)), cert. denied, 510 U.S. 984, 126 L. Ed. 2d 438 (1993). Even if Dr. Noble were the agent of defendant\u2019s attorneys, he clearly lost such privilege once he was placed on the witness stand. Id. Moreover, \u201cthe trial court is always at liberty to compel disclosure of privileged communications if it \u2018is necessary to a proper administration of justice.\u2019 \u201d East, 345 N.C. at 545, 481 S.E.2d at 660 (quoting N.C.G.S. \u00a7 8-53.3 (Supp. 1996)). We find no abuse of the trial court\u2019s discretion in compelling disclosure of the communications. Likewise, defendant\u2019s argument that the order violated his Fifth Amendment privilege against self-incrimination is feckless. Thus, this assignment of error is without merit.\nII. PRESERVATION ISSUES\nDefendant raises four additional arguments that he concedes have been previously decided contrary to his position, but asks this Court to reconsider those decisions: (1) the trial court committed reversible constitutional error by refusing to instruct jurors that they \u201cmust\u201d rather than \u201cmay\u201d consider mitigating circumstances when deciding Issues Three and Four during their jury deliberations, (2) the trial court committed reversible constitutional error by placing the burden of proof on defendant to satisfy the jury with respect to mitigating circumstances and refusing to instruct jurors that proof by a preponderance of the evidence is proof which indicates that it is more likely than not that a mitigating circumstance exists, (3) the trial court committed reversible constitutional error by erroneously instructing the jurors that they could find that a mitigating circumstance exists and simultaneously find that the mitigating circumstance has no mitigating value, and (4) the trial court committed reversible constitutional error by denying defendant\u2019s motion in limine to prohibit submission of the (e)(9) aggravating circumstance and subsequently instructing the jury on this factor.\nAfter carefully considering defendant\u2019s arguments on these issues, we find no compelling reason to depart from our prior holdings. Accordingly, we reject these arguments.\nIII. PROPORTIONALITY\nHaving concluded that defendant\u2019s capital sentencing proceeding was free of prejudicial error, we turn now to duties reserved exclusively for this Court in capital cases. It is our duty under N.C.G.S. \u00a7 15A-2000(d)(2) to ascertain: (1) whether the record supports the jury\u2019s finding of the aggravating circumstances on which the sentence of death was based; (2) whether the death sentence was entered under the influence of passion, prejudice, or other arbitrary consideration; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\nIn the Miller murder, the following aggravating circumstances were submitted to and found by the jury: (1) the murder was committed while defendant was engaged in the commission of armed robbery, N.C.G.S. \u00a7 15A-2000(e)(5); (2) the murder was committed for pecuniary gain, N.C.G.S. \u00a7 15A-2000(e)(6); (3) the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9); and (4) the murder was part of a course of conduct in which defendant engaged and which included the commission by defendant of other crimes of violence against other persons, N.C.G.S. \u00a7 15A-2000(e)(ll). After thoroughly examining the record, transcripts, and briefs in the instant case, we conclude that the record fully supports the aggravating circumstances submitted to and found by the jury. Additionally, we find no indication that the sentence of death in this case was imposed under the influence of passion, prejudice, or any other arbitrary consideration. We now turn to our final statutory duty of proportionality review.\nIt is proper in our proportionality review to compare the present case with other cases in which this Court has concluded that the death penalty was disproportionate. State v. McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162 (1993), cert. denied, 512 U.S. 1254, 129 L. Ed. 2d 895 (1994). We have found the death penalty disproportionate in seven cases. State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997), and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373; 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).\nWe conclude that this case is not substantially similar to any of the aforementioned cases where this Court has held that the death penalty was disproportionate. Some distinguishing characteristics of this case include: (1) defendant prevented the victim from calling for help by pulling the phone cord from the receptacle and hacking her to death; and (2) the jury found four aggravating circumstances, in a combination that this Court has never ruled to be disproportionate. However, it is not the number of aggravating circumstances found by one jury that controls the proportionality review. Rather, \u201c \u2018we will consider the totality of the circumstances presented in each individual case and the presence or absence of a particular [aggravating circumstance] will not necessarily be controlling.\u2019 \u201d Stokes, 319 N.C. at 23-24, 352 S.E.2d at 666 (quoting Bondurant, 309 N.C. at 694 n.1, 309 S.E.2d at 183 n.1). There is no question regarding specific intent to kill in the instant case, as there sometimes is in felony murder cases. Here, defendant shot the victim and then made it impossible for her to call for help or leave. Moreover, Miller was shot at close range in her own home. This Court has emphasized that a murder committed in the home particularly \u201cshocks the conscience, not only because a life was senselessly taken, but because it was taken by the surreptitious invasion of an especially private place, one in which a person has a right to feel secure.\u201d Brown, 320 N.C. at 231, 358 S.E.2d at 34, quoted in State v. Adams, 347 N.C. 48, 77, 490 S.E.2d 220, 236 (1997), cert. denied, 522 U.S. 1096, 139 L. Ed. 2d 878 (1998).\nIt is also proper to compare this case to those where the death sentence was found proportionate. McCollum, 334 N.C. at 244, 433 S.E.2d at 164. However, it is unnecessary to cite every case used for comparison. Id.) State v. Syriani, 333 N.C. 350, 400, 428 S.E.2d 118, 146, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993). Whether the death penalty is disproportionate \u201cin a particular case ultimately 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).\nIn the instant case, defendant, after being taken into Miller\u2019s home, stole from her and then, without adequate provocation, furtively waited in her home for her to return so that he could shoot her. While she was attempting to call for help, defendant hacked her to death with a meat cleaver, in the presence of her two foster children.\nAfter comparing this case to other roughly similar cases as to the crime and defendant, we cannot conclude as a matter of law that the death penalty for the murder of Miller was excessive or disproportionate. Accordingly, the judgment of the trial court sentencing defendant to death must be left undisturbed.\nNO ERROR.\n. Issue Four reads, in pertinent part, as follows: \u201cDo you unanimously find, beyond a reasonable doubt, the aggravating circumstance or circumstances you\u2019ve found is or are sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstance or circumstances found by one or more of you?\u201d", "type": "majority", "author": "FRYE, Chief Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by G. Patrick Murphy, Special Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Daniel R. Pollitt and Danielle M. Carman, Assistant Appellate Defenders, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PHILLIP ANTWAN DAVIS\nNo. 109A98\n(Filed 21 December 2000)\n1. Constitutional Law\u2014 right to be present at trial \u2014 capital sentencing \u2014 communications from jury\nThe trial court in a capital sentencing proceeding did not violate defendant\u2019s constitutional rights to be present at his trial in its handling of a note from the jury inquiring about the result of an inability to agree and a note from one juror asking to be removed. Defendant was present when the proceeding took place, the court promptly and adequately summarized the jury\u2019s question and the note from the juror, and the court heard from counsel and responded in open court to each of the communications.\n2. Constitutional Law\u2014 effective assistance of counsel \u2014 capital sentencing \u2014 notes from jury \u2014 disclosure of content\nA first-degree murder defendant was not deprived of his constitutional rights to effective assistance of counsel at his capital sentencing hearing by the court\u2019s refusal to disclose the exact content of a note from the jury inquiring into the result of an inability to reach a decision and a note from a juror asking to be replaced. The fair and accurate disclosure of the content of the note was sufficient to render counsel the full opportunity to represent defendant and defense counsel had the opportunity to object to the proposed instruction on replacing a juror.\n3. Criminal Law\u2014 capital sentencing \u2014 notes from jury \u2014 ex parte communications\nThe trial court\u2019s handling of notes from the jury in a capital sentencing proceeding did not violate N.C.G.S. \u00a7 15A-1234(a)(l) or a canon of the Code of Judicial conduct regarding ex parte communications.\n4. Evidence\u2014 capital sentencing \u2014 defendant\u2019s character\u2014 admissible\nThe trial court did not err in a capital sentencing proceeding by admitting testimony regarding defendant\u2019s temperament, a fight with his girlfriend at work, an alleged statement by defendant that he smoked marijuana, and a high school homework assignment that showed defendant\u2019s knowledge of drugs.\n5. Evidence\u2014 capital sentencing \u2014 statement by a child to an officer\nThere was no plain error in a capital sentencing proceeding in the admission of testimony that a foster child in the victim\u2019s home had told an officer that the person who shot the victim had pointed a gun at her.\n6. Sentencing\u2014 capital \u2014 aggravating circumstance \u2014 especially heinous, atrocious, or cruel \u2014 victim\u2019s good character\nThe trial court did not err in a capital sentencing proceeding by admitting evidence of the good character of one of the victims. Evidence that defendant had murdered a blood relative who had opened her home to him, offered him a stable environment, and been especially caring, patient, and loving supported the aggravating circumstance that the killing was especially heinous, atrocious, or cruel and did not \u201cgo too far\u201d within the meaning of State v. Reeves, 337 N.C. 700.\n7. Evidence\u2014 cross-examination \u2014 character evidence\nThe trial court did not abuse its discretion in a capital sentencing proceeding by allowing prosecutors to cross-examine defense witnesses regarding defendant\u2019s bad character in rebuttal of defendant\u2019s evidence of good character.\n8. Evidence\u2014 capital sentencing \u2014 cross-examination\u2014hearsay\nThe trial court did not abuse its discretion and there was no plain error in a capital sentencing proceeding in permitting the State on cross-examination to elicit testimony that the witness had been told by a teacher that the teacher had heard that defendant had been in trouble and had been aggressive towards another teacher. The evidence served to rebut evidence that defendant was not a behavior problem at school and there was no error so fundamental that justice could not have been done.\n9.Evidence\u2014 capital sentencing \u2014 food eaten by defendant in jail\nThere was no plain error in a capital sentencing proceeding in the admission of testimony on cross-examination regarding the food defendant ate in jail, including numerous candy bars, soft drinks, and snacks.\n10. Evidence\u2014 capital sentencing \u2014 defendant dangerous in future\nThere was no plain error in a capital sentencing proceeding in the admission of testimony that defendant could be dangerous in the future under certain circumstances and that prison inmates make and use knives while many prison employees are unarmed.\n11. Evidence\u2014 capital sentencing \u2014 victim\u2019s good character\nEvidence in a capital sentencing proceeding of the good character traits of the victim did not go too far for purposes of State v. Reeves, 337 N.C. 700, nor did it violate defendant\u2019s constitutional right to a fundamentally fair trial.\n12. Evidence\u2014 capital sentencing \u2014 victim impact evidence\nLimited victim impact evidence introduced in a capital sentencing proceeding did not go too far and was not so unduly prejudicial that it rendered the trial fundamentally unfair.\n13. Evidence\u2014 capital sentencing \u2014 prosecutor\u2019s questions\u2014 no plain error \u2014 previously admitted\nThere was no error in a capital sentencing proceeding where defendant contended that the trial court erred by allowing the prosecutors to ask badgering and impertinent questions, but there was no plain error regarding many of the questions (the failure to object or to move to strike following a sustained objection limits review to plain error) and there was no error as to the remaining questions because defendant had previously injected the evidence into the proceeding or allowed it to be admitted earlier without objection.\n14. Evidence\u2014 capital sentencing \u2014 defendant\u2019s letters to his mother\nThere was no prejudicial error in a capital sentencing proceeding where the court excluded letters and cards written from defendant to his mother after his incarceration. Defendant was allowed to present evidence of remorse and a loving relationship with his mother and the letters would have offered substantially the same evidence. In any event, the letters were unreliable in that they were written by a defendant facing a capital sentencing proceeding to a likely witness in the proceeding.\n15. Evidence\u2014 capital sentencing \u2014 positive impact by defendant\nThe trial court did not err in a capital sentencing proceeding by excluding testimony that defendant would make a positive impact on society in prison where the testimony was purely speculative and where the court admitted evidence that defendant was a leader to a young friend and had a positive impact on people on and off the football field.\n16. Criminal Law\u2014 prosecutor\u2019s argument \u2014 capital sentencing \u2014 biblical\nThe prosecutor\u2019s biblical arguments in a capital sentencing proceeding were not so improper as to require intervention ex mero motu where the prosecutor counseled jurors that they should base their sentencing decision on the secular argument.\n17. Criminal Law\u2014 prosecutor\u2019s argument \u2014 capital sentencing \u2014 jury as conscience of community\nThere was no prejudicial error in a capital sentencing proceeding in the prosecutor\u2019s argument that the jurors must not lend an ear to the community but may act as the voice and conscience of the community. Although defendant contended that the prosecution instructed the jury to disregard defense testimony, and the prosecutor\u2019s statement was not clear, any confusion was cured by the court\u2019s instruction on the jury\u2019s duty to consider mitigating circumstances.\n18. Criminal Law\u2014 prosecutor\u2019s argument \u2014 capital sentencing \u2014 traveling outside the record\nA prosecutor\u2019s argument in a capital sentencing proceeding was not so improper as to require intervention ex mero motu where defendant contended that the prosecutor traveled outside the evidentiary record.\n19. Criminal Law\u2014 prosecutor\u2019s argument \u2014 capital sentencing \u2014 defendant\u2019s mannerisms\nA prosecutor\u2019s comments about defendant\u2019s mannerisms in the courtroom during a capital sentencing proceeding did not constitute references to the defendant\u2019s constitutional right to remain silent.\n20. Sentencing\u2014 capital \u2014 aggravating circumstance \u2014 murder during robbery \u2014 instruction\u2014timing\nThere was no prejudicial error in a capital sentencing hearing in the trial court\u2019s instruction on the N.C.G.S. \u00a7 15A-2000(e)(5) aggravating circumstance (that the capital felony was committed while defendant was engaged in the commission of robbery) where the trial court failed to charge the jury with sufficient clarity that the State had the burden to show that the criminal conduct took place during the same transaction as the murder. However, all of the evidence tended to show that the murder and armed robbery were part of a continuous series of events, the trial court properly instructed the jury that it could find this aggravating circumstance if it determined that the armed robbery occurred during a continuous series of events surrounding the victim\u2019s death, and the issues and recommendation form asked whether the murder was committed by defendant while defendant was engaged in the commission of armed robbery; thus, the instructions and the issues and recommendation form, considered in light of the evidence, communicated to the jury that the murder had to occur while defendant was engaged in the commission of armed robbery. There is no reasonable likelihood that the jury applied the challenged instruction in a manner that violated the Constitution.\n21. Sentencing\u2014 capital \u2014 aggravating circumstance \u2014 pecuniary gain \u2014 not required to be primary motive\nThe trial court did not err in a capital sentencing proceeding in its instruction on the pecuniary gain aggravating circumstance, N.C.G.S. \u00a7 15A-2000(e)(6), by charging the jury that it did not have to find that the primary motive was financial gain.\n22. Sentencing\u2014 capital \u2014 mitigating circumstance \u2014 no significant history of prior criminal activity \u2014 instructions\nThere was no plain error in a capital sentencing proceeding in the court\u2019s instruction on the mitigating circumstance of no significant history of prior criminal activity, N.C.G.S. \u00a7 15A-2000(f)(l). Even if the instructions assumed that defendant engaged in prior criminal activity, overwhelming evidence was presented that defendant had engaged in the listed criminal activity and the trial court did not assume the jury\u2019s duty to determine whether defendant\u2019s history was significant.\n23. Sentencing\u2014 capital \u2014 mitigating circumstances \u2014 peremptory instructions \u2014 evidence controverted\nThe trial court did not err in a capital sentencing proceeding by refusing to give peremptory instructions on four mitigating circumstances where the evidence of the circumstances was controverted.\n24. Sentencing\u2014 capital \u2014 life imprisonment \u2014 instruction\nThe trial court in a capital sentencing proceeding did not err in its instructions by not using the phrase \u201clife imprisonment without parole\u201d rather than \u201clife imprisonment\u201d every time it referred to the alternative to death. The judge instructed the jury that a sentence of life imprisonment means a sentence of life without parole; nothing in N.C.G.S. \u00a7 15A-2002 requires the judge to state \u201clife imprisonment without parole\u201d every time he alludes to or mentions the alternative sentence.\n25. Criminal Law\u2014 reference to \u201cour\u201d district attorney \u2014 not an expression of opinion by judge\nThe trial judge in a capital sentencing proceeding did not violate N.C.G.S. \u00a7 15A-1222, which prohibits the expression of an opinion by the judge on any question of fact to be decided by the jury, in referring to the district attorney\u2019s office and the district attorney with \u201cour\u201d and \u201cyour\u201d during jury selection. Whether the prosecutor is \u201cour\u201d or \u201cyour\u201d district attorney is not a question of fact to be decided by the jury.\n26. Sentencing\u2014 capital \u2014 aggravating circumstances \u2014 pecuniary gain \u2014 murder during armed robbery \u2014 not double counted\nThe trial judge did not err in a capital sentencing proceeding by submitting both the pecuniary gain aggravating circumstance and the aggravating circumstance that the murder was committed while defendant was engaged in an armed robbery where both circumstances were supported by sufficient, independent evidence and the trial court properly instructed the jury that it could not use the same evidence as the basis for both circumstances.\n27. Appeal and Error\u2014 prosecutor\u2019s statements \u2014 failure to object \u2014 no plain error analysis\nThe defendant in a capital sentencing proceeding waived appellate review of the prosecutor\u2019s statements during jury selection regarding the State\u2019s burden of proof by failing to object. Plain error analysis has been applied only to instructions to the jury and to evidentiary matters.\n28. Constitutional Law\u2014 capital sentencing \u2014 right to testify \u2014 examination of defendant by court \u2014 right to cross-examination\nThe trial court in a capital sentencing proceeding did not impermissibly chill defendant\u2019s right to testify with its reference to cross-examination in its inquiry into whether defendant had discussed testifying with his lawyers.\n29. Homicide\u2014 first-degree murder \u2014 short-form indictment\nThe short-form indictments used to charge defendant with first-degree murder were constitutional.\n30. Discovery\u2014 capital sentencing \u2014 written statement and copies of notes by defense expert\nThe trial court did not err in a capital sentencing proceeding by ordering defendant\u2019s mental health expert to prepare a written report of his findings and to produce handwritten notes for the State\u2019s perusal pursuant to N.C.G.S. \u00a7 l5A-905(b) where defendant was given access to the State\u2019s files.\n31. Discovery\u2014 attorney-client privilege \u2014 self-incrimination \u2014 notes and report from defense expert\nA trial court order in a capital sentencing proceeding requiring defendant\u2019s mental health expert to prepare a written report of his findings and to produce for the State handwritten notes did not violate defendant\u2019s attorney-client privilege and privilege against self-incrimination. Nothing indicates that the expert examined or communicated with defendant in the course of seeking or giving legal advice and, even if the expert was an agent of defendant\u2019s attorneys, he clearly lost that privilege once he was placed on the witness stand. Moreover, the court is always at liberty to compel disclosure of privileged communications if necessary to a proper administration of justice.\n32. Sentencing\u2014 capital \u2014 death sentence \u2014 not imposed arbitrarily\nThe record in a capital sentencing proceeding fully supports the aggravating circumstances submitted to and found by the jury and there was no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary consideration.\n33. Sentencing\u2014 capital \u2014 death sentence \u2014 not disproportionate\nA sentence of death was not disproportionate where defendant stole from the victim after being taken into her home; without adequate provocation, he furtively waited in her home for her to return so that he could shoot her; and, while she was attempting to call for help, he hacked her to death with a meat cleaver in the presence of her two foster children. The case is not substantially similar to any of the cases where the death penalty was found disproportionate, there is no question of the specific intent to kill, and the victim was killed in her own home.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Payne Ronald K, J., on 21 August 1997 in Superior Court, Buncombe County, following a plea of guilty of first-degree murder. On 24 September 1999, the Supreme Court allowed defendant\u2019s motion to bypass the Court of Appeals as to his appeal of an additional judgment imposing a sentence of life imprisonment without parole following a second plea of guilty of first-degree murder. Heard in the Supreme Court 16 May 2000.\nMichael F. Easley, Attorney General, by G. Patrick Murphy, Special Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Daniel R. Pollitt and Danielle M. Carman, Assistant Appellate Defenders, for defendant-appellant." }, "file_name": "0001-01", "first_page_order": 49, "last_page_order": 97 }