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Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "452 S.E.2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "305" }, { "page": "305" } ], "opinion_index": 0 }, { "cite": "338 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518476 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "660" }, { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0612-01" ] }, { "cite": "346 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "624" }, { "page": "624" } ], "opinion_index": 0 }, { "cite": "317 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772976 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "393" }, { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0343-01" ] }, { "cite": "84 L. Ed. 2d 369", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "469 U.S. 1230", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12108826, 12108839 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/469/1230-01", "/us/469/1230-02" ] }, { "cite": "320 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "654" } ], "opinion_index": 0 }, { "cite": "312 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758280 ], "year": 1984, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0001-01" ] }, { "cite": "146 L. Ed. 2d 223", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "136 L. Ed. 2d 723", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 } ], "analysis": { "cardinality": 2153, "char_count": 78740, "ocr_confidence": 0.763, "pagerank": { "raw": 3.954782148607669e-07, "percentile": 0.9039633198692278 }, "sha256": "ceae03cf3d927f6c0b70cc238beea2c48e89bcaf7adbd8e4420fb6bf8bf6789b", "simhash": "1:8723d132364adc78", "word_count": 12823 }, "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. ERIC LAWRENCE CALL" ], "opinions": [ { "text": "WAINWRIGHT, Justice.\nOn 9 October 1995, defendant was indicted for the first-degree murder of Macedonio Hernandez Gervacio (the victim). On 18 March 1996, defendant was indicted for robbery with a dangerous weapon, first-degree kidnapping, and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant was tried capitally before a jury at the 15 July 1996 Criminal Session of Superior Court, Ashe County. The jury found defendant guilty of all charges, specifically finding defendant guilty of first-degree murder both on the basis of premeditation and deliberation and under the felony murder rule. Following a capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder, and the trial court entered judgment in accordance with that recommendation. The trial court also sentenced defendant to a concurrent sentence of sixty-three to eighty-five months\u2019 imprisonment for the kidnapping conviction and to consecutive sentences of fifty-five to seventy-five months\u2019 imprisonment for the robbery conviction and twenty-five to thirty-nine months\u2019 imprisonment for the assault conviction.\nOn appeal, this Court found no error in the guilt phase of defendant\u2019s trial with regard to his convictions for first-degree murder, first-degree kidnapping, and robbery with a dangerous weapon. State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998). However, we arrested judgment as to defendant\u2019s conviction for assault with a deadly weapon with intent to kill inflicting serious injury based on a fatal variance in the indictment. Id. at 424, 508 S.E.2d at 522. We also vacated defendant\u2019s sentence of death and remanded for resentencing because, during the capital sentencing proceeding, the prosecution was allowed to impeach defendant with evidence of his post-Miranda silence. Id. at 425-26, 508 S.E.2d at 523.\nOn 23 April 1999, the trial court entered an order transferring venue from Ashe County, North Carolina, to Wilkes County, North Carolina. Defendant\u2019s new capital sentencing proceeding was held at the 17 May 1999 Special Criminal Session of Superior Court, Wilkes County. On 21 May 1999, the jury once again recommended a sentence of death, and the trial court entered judgment in accordance with that recommendation. Defendant appeals his sentence of death to this Court.\nThe State\u2019s evidence at defendant\u2019s capital sentencing proceeding tended to show as follows: At around 9:30 p.m. on 24 August 1995, defendant visited the victim and offered him twenty-five dollars to help him move some things. The victim told his nephew, Gabriel Gonzalez (Gabriel), that he would \u201cbe right back,\u201d then departed the trailer with defendant.\nAt approximately 11:00 p.m., Gabriel heard a knock on the door and assumed that the victim had returned. When he opened the door, however, he saw that defendant had returned alone. Defendant offered Gabriel twenty dollars to help him move a refrigerator. Gabriel accepted defendant\u2019s offer and departed with defendant in defendant\u2019s pickup truck. Defendant took Gabriel to a cornfield several miles away and parked his pickup truck. Thereafter, defendant lured Gabriel outside of the vehicle by telling him the pickup truck was stuck. As Gabriel pushed the bumper of the pickup, defendant picked up an aluminum bat and, after pretending to use the bat to lift the tire, struck Gabriel on the head. Gabriel recovered, stood up, and ran to the edge of a nearby river. Defendant ran after him briefly, then returned to the pickup truck and departed the area. Gabriel then ran into the cornfield and lay on the ground all night.\nThe next morning, Gabriel swam across the river and sought assistance at area homes. Eventually, Gabriel received a ride home. At approximately 7:00 p.m. on 25 August 1995, Gabriel, through an interpreter, told the trailer park owner, David Shatley, what had happened the previous night. Thereafter, law enforcement officers were contacted, and Gabriel led a search team back to the cornfield to search for the victim. When the search party arrived at the cornfield, Gabriel excitedly told the same interpreter that defendant had brought him to that location and assaulted him. After walking six to eight rows into the cornfield, law enforcement officers found a baseball cap on the ground and noticed several broken com stalks. As they continued their search, the officers noticed a plaid shirt near the edge of the cornfield. After walking toward the shirt, the officers discovered that the shirt was on the victim\u2019s body. The victim\u2019s body was partially covered by com stalks. The officers noted that the victim had suffered severe head injuries. The victim\u2019s right foot was tied up to his shoulder area with a yellow rope, and the victim\u2019s hands were tied behind his back with a white rope. Shatley identified the victim\u2019s body, and Gabriel identified the baseball cap as the one the victim was wearing when he left the trailer with defendant. The officers also discovered a broken stick, similar to a shovel handle, at the scene.\nAfter the victim\u2019s body was found, the authorities immediately began to search for defendant. Defendant was not found at his residence. However, based on information obtained at defendant\u2019s residence, a warrant was issued for his arrest. Defendant was arrested on 27 August 1995 in a motel room in Monroe, North Carolina. Defendant and his pickup truck were brought back to Ashe County, where officers inventoried the contents of defendant\u2019s pickup truck. Among items inventoried, officers found a bag of clothes and a steel rod that appeared to have blood and hair embedded in it. In addition, officers recovered a motel registration form in the name of \u201cRick N. Finley.\u201d A handwriting expert later determined that the registration form was written by defendant.\nOn 28 August 1995, Alan Varden, defendant\u2019s friend and associate, gave a statement to Steve Cabe, a special agent with the North Carolina State Bureau of Investigation. According to Varden, defendant repeatedly suggested robbing the victim in the weeks leading up to the murder and tried to obtain Varden\u2019s assistance. Defendant told Varden that the victim carried a large amount of cash that he was saving to purchase an automobile. On one occasion, defendant showed Varden a shovel handle that was in defendant\u2019s pickup truck and stated that he would like to use it to \u201cwhack\u201d the victim in the head. On another occasion, defendant took Varden out to the cornfield where the victim\u2019s body was later found and told Varden that the cornfield, because it was desolate, would be a good place to rob the victim and dispose of the body. Defendant also offered to share the victim\u2019s money with Varden if he would help defendant take care of Gabriel because Gabriel was much bigger than defendant. Varden refused to help defendant.\nAt approximately 8:00 p.m. on the day of the murder, defendant told Varden he was going to help Shatley move some furniture out of a trailer and asked Varden to help. Varden refused to go but did give defendant a piece of yellow plastic rope to help tie the furniture down. At approximately 10:30 p.m., defendant returned home, where Varden and defendant\u2019s wife, Virginia Call (Jennie), were playing Nintendo. Defendant asked Varden to help him move a dresser, and Varden and defendant departed, each in his own pickup truck. On the way to Varden\u2019s trailer, defendant and Varden stopped at a church and used the rest room. While at the church, defendant handed Varden a one hundred dollar bill, stating that it was for the camper shell he had obtained from Varden. After leaving the church, defendant and Varden stopped at a service station, and defendant gave Varden a ten dollar bill and another one hundred dollar bill.\nUpon arriving at Varden\u2019s trailer, defendant told Varden that he had hit the victim over the head, had broken a shovel handle, and had hit the victim with a tire iron. Defendant also described how he had tied the victim\u2019s right leg and hands behind the victim\u2019s back. Defendant told Varden he needed to go back and check the victim\u2019s pulse and that he also needed to get Gabriel. Once again, defendant sought Varden\u2019s assistance, stating that Varden\u2019s pickup truck had a quieter muffler. After Varden declined to help defendant, defendant put Varden\u2019s baseball bat in his pickup truck and departed in the direction of the victim\u2019s trailer. Varden returned to defendant\u2019s trailer.\nApproximately thirty minutes later, defendant sped down his driveway and ran into his trailer, repeatedly telling Varden and Jennie that he had \u201cf\u2014 ed up.\u201d Defendant told Varden that he had hit Gabriel with the bat but that Gabriel had gotten away. Defendant then gathered some clothes and said he was \u201cleaving the country.\u201d Defendant, Varden, and Jennie went to Varden\u2019s trailer, where defendant showered and shaved off his mustache. Defendant also returned Varden\u2019s baseball bat to him. Varden went to defendant\u2019s trailer to get defendant\u2019s wallet and pants, as well as shoes for Jennie. When Varden returned to his trailer, defendant told him he had written a note and left it on Varden\u2019s coffee table. The note, which was recovered during the investigation, read as follows: \u201cI Eric Call hereby declare that my wife Virginia Cox Call had absolutely no knowledge of what might have taken place. Signed Eric L. Call.\u201d\nSometime after midnight, defendant departed in his pickup truck, and Jennie and Varden followed defendant in Varden\u2019s pickup truck. After traveling some distance, defendant stopped and said goodbye to Jennie, then departed the area. Varden and Jennie returned home.\nPrior to testifying at defendant\u2019s capital sentencing proceeding, forensic pathologist Dr. Thomas A. Sporn reviewed the autopsy report prepared by Dr. Robert Thompson, as well as the autopsy photographs and a transcript of Dr. Thompson\u2019s prior testimony. Dr. Sporn testified that the victim\u2019s body showed a pattern of blunt-force injuries to the head and facial area that could have been caused by a baseball bat, a shovel handle, or a tire iron. Dr. Sporn noted the splitting of the victim\u2019s skin and fracturing of the victim\u2019s skull at the forehead and beneath the left eye, as well as splitting and tearing of the skin and fracturing of the skull above the victim\u2019s ear. Dr. Sporn also opined that the victim\u2019s injuries were caused by \u201cclearly several, more than two,\u201d blows. Dr. Spom\u2019s opinion with regard to the number of blows the victim received was based, in part, on Dr. Thompson\u2019s assessment that the victim had suffered at least eleven blows to the head.\nIn his first assignment of error, defendant contends the trial court erred by sustaining the prosecutor\u2019s objection to a question posed by defendant during jury selection. We disagree.\n\u201cThe primary goal of the jury selection process is to ensure selection of a jury comprised only of persons who will render a fair and impartial verdict.\u201d State v. Locklear, 331 N.C. 239, 247, 415 S.E.2d 726, 731 (1992), quoted in State v. Larry, 345 N.C. 497, 509, 481 S.E.2d 907, 914, cert. denied, 522 U.S. 917, 139 L. Ed. 2d 234 (1997). \u201c \u2018Regulation of the manner and the extent of inquiries on voir dire rests largely in the trial court\u2019s discretion.\u2019 \u201d State v. Elliott, 344 N.C. 242, 261, 475 S.E.2d 202, 209 (1996) (quoting State v. Green, 336 N.C. 142, 164, 443 S.E.2d 14, 27, cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547 (1994)), cert. denied, 520 U.S. 1106, 137 L. Ed. 2d 312 (1997). \u201cIn order for the defendant to show reversible error, he must show that the trial court abused its discretion and that he was prejudiced thereby.\u201d State v. Jones, 339 N.C. 114, 134, 451 S.E.2d 826, 835 (1994), cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995).\nIn the present case, the trial court sustained the prosecutor\u2019s objection to the form of the following question posed by defense counsel:\nMs. Mathis, I\u2019m just going to pick on you for one second. If, if you personally do not think the State has proved something beyond a reasonable doubt and the other eleven have [sic], could you maintain the courage of your convictions and say \u201cThey\u2019ve not proved that\u201d?\nThis Court has held that \u201c \u2018[c]ounsel may not pose hypothetical questions designed to elicit in advance what the juror\u2019s decision will be under a certain state of the evidence or upon a given state of facts.\u2019 \u201d Elliott, 344 N.C. at 262, 475 S.E.2d at 209 (quoting State v. Vinson, 287 N.C. 326, 336, 215 S.E.2d 60, 68 (1975), death sentence vacated, 428 U.S. 902, 49 L. Ed. 2d 1206 (1976)). \u201c \u2018[S]uch questions tend to \u201cstake out\u201d the juror and cause him to pledge himself to a future course of action.\u2019 \u201d State v. Richmond, 347 N.C. 412, 425, 495 S.E.2d 677, 683 (quoting Vinson, 287 N.C. at 336, 215 S.E.2d at 68), cert. denied, 525 U.S. 843, 142 L. Ed. 2d 88 (1998). Moreover, we have held that \u201c[a] question which is designed to determine how well a prospective juror would stand up to other jurors in the event of a split decision amounts to an impermissible \u2018stake out.\u2019 \u201d Elliott, 344 N.C. at 262, 475 S.E.2d at 209; accord State v. Bracey, 303 N.C. 112, 118-19, 277 S.E.2d 390, 395 (1981).\nAs in Elliott, the question excluded by the trial court in the present case was improper as it \u201cseems to be designed to determine how well prospective jurors would stand up to other jurors in the event of a split decision.\u201d 344 N.C. at 262, 475 S.E.2d at 209. The challenged question also appears to be an \u201c \u2018incorrect or inadequate statement[] of the law.\u2019 \u201d Id. (quoting Vinson, 287 N.C. at 336, 215 S.E.2d at 68). Although jurors are required to make individual decisions about a case, \u201ceach juror also has a duty to deliberate with other jurors with a view to reaching an agreement.\u201d Id.-, see also N.C.G.S. \u00a7 15A-1235(b) (1999). Here, the question excluded by the trial court \u201cmay have had the tendency to suggest that jurors should make decisions without considering the opinions of other jurors.\u201d Elliott, 344 N.C. at 262-63, 475 S.E.2d at 209. For these reasons, the trial court did not abuse its discretion by sustaining the prosecutor\u2019s objection to the form of defendant\u2019s question. Moreover, assuming error arguendo, defendant has failed to demonstrate that he was prejudiced by the trial court\u2019s ruling. See Jones, 339 N.C. at 134, 451 S.E.2d at 835. This assignment of error is overruled.\nBy assignment of error, defendant contends the trial court erred in refusing to peremptorily instruct the jury on the following three statutory mitigating circumstances: (1) the murder was committed while the defendant was under the influence of mental or emotional disturbance, N.C.G.S. \u00a7 15A-2000(f)(2) (1999); (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, N.C.G.S. \u00a7 15A-2000(f)(6); and (3) the age of the defendant at the time of the crime, N.C.G.S. \u00a7 15A-2000(f)(7). None of the jurors found any of these requested statutory mitigating circumstances to exist.\n\u201cA defendant is entitled, upon request, to a peremptory instruction on a statutory mitigating circumstance when the evidence supporting the circumstance is uncontroverted.\u201d State v. Roseboro, 351 N.C. 536, 547, 528 S.E.2d 1, 8, cert. denied, - U.S. -, 148 L. Ed. 2d 498 (2000); accord 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). However, \u201c \u2018[i]f the evidence supporting the circumstance is controverted or is not manifestly credible, the trial court should not give the peremptory instruction.\u2019 \u201d State v. Hedgepeth, 350 N.C. 776, 787, 517 S.E.2d 605, 612 (1999) (quoting State v. Bishop, 343 N.C. 518, 557, 472 S.E.2d 842, 863 (1996), cert. denied, 519 U.S. 1097, 136 L. Ed. 2d 723 (1997)), cert. denied, 529 U.S. 1006, 146 L. Ed. 2d 223 (2000).\nAt the outset, we note defendant\u2019s assertion that the trial court failed to peremptorily instruct the jury on the (f)(2) mitigating circumstance is not supported by the record. To the contrary, the record reveals the trial court informed the prosecution and defense counsel that it would instruct the jury peremptorily on the (f)(2) mitigating circumstance. During its charge to the jury, the trial court did in fact instruct the jury in accordance with defendant\u2019s request. Therefore, defendant\u2019s argument regarding the (f)(2) mitigating circumstance is rejected.\nWith regard to the trial court\u2019s refusal to peremptorily instruct the jury on the (f)(6) and (f)(7) mitigating circumstances, the record reveals defendant\u2019s evidence supporting these circumstances was in fact controverted. Dr. Ron Hood, a psychologist, evaluated defendant one month before the sentencing proceeding. During the sentencing proceeding, Dr. Hood testified that defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired on the date of the murder due to personality and substance-abuse disorders. Dr. Hood also testified that defendant\u2019s IQ was \u201cwithin a normal range.\u201d On cross-examination, Dr. Hood testified there was no evidence that defendant suffered from organic brain damage or mental retardation. Regarding defendant\u2019s substance-abuse impairment, Dr. Hood testified that he relied solely on defendant\u2019s statements to him about marijuana usage and that he had no independent medical evidence. In addition, Dr. Hood stated that he did not question defendant about his drug usage on the day of the murder.\nThe State\u2019s evidence tended to show that defendant carefully planned to kidnap, rob, and murder the victim, and that defendant carried out his plan in a calm and calculated manner. Defendant discussed his plan on several occasions with his friend, Varden, and repeatedly tried to obtain Varden\u2019s assistance. On one occasion, defendant showed Varden a shovel handle and stated that he would like to use it to \u201cwhack\u201d the victim in the head. On another occasion, defendant took Varden to the cornfield where the victim\u2019s body was ultimately found and told Varden that the cornfield would be a good place to rob the victim and dispose of the body. On the night of the murder, defendant left the victim\u2019s body in the cornfield, then returned home and described to Varden how he had beaten and tied up the victim. He then explained to Varden that he needed to get Gabriel because defendant knew that Gabriel would be a witness to the fact that the victim had left home with defendant earlier that night.\nThe record therefore reveals conflicting evidence regarding whether defendant\u2019s ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired. \u201c \u2018[A] peremptory instruction is inappropriate when the evidence surrounding that issue is conflicting.\u2019 \u201d Roseboro, 351 N.C. at 548, 528 S.E.2d at 9 (quoting State v. Noland, 312 N.C. 1, 20, 320 S.E.2d 642, 654 (1984), cert. denied, 469 U.S. 1230, 84 L. Ed. 2d 369 (1985)) (alteration in original). Thus, the trial court did not err by denying defendant\u2019s motion for a peremptory instruction on the (f)(6) mitigating circumstance.\nWe likewise reject defendant\u2019s argument that the trial court erred by refusing to peremptorily instruct the jury on the statutory mitigating circumstance of the age of defendant at the time of the crime. N.C.G.S. \u00a7 15A-2000(f)(7). This Court has characterized \u201cage\u201d as a \u201cflexible and relative concept.\u201d State v. Johnson, 317 N.C. 343, 393, 346 S.E.2d 596, 624 (1986); accord State v. Spruill, 338 N.C. 612, 660, 452 S.E.2d 279, 305 (1994), cert. denied, 516 U.S. 834, 133 L. Ed. 2d 63 (1995). We have also held that chronological age is not the determinative factor with regard to submission of the (f)(7) mitigating circumstance. State v. Peterson, 350 N.C. 518, 528, 516 S.E.2d 131, 138 (1999), cert. denied, 528 U.S. 1164, 145 L. Ed. 2d 1087 (2000). Rather, the trial court must consider other varying conditions and circumstances. Id.\nIn the present case, defendant was twenty-six when he murdered the victim. During his capital sentencing proceeding, however, Dr. Hood testified that, based on his psychological evaluation, defendant\u2019s emotional age \u201ccould have been around the eighteen to nineteen year old range\u201d at the time of the murder. Although evidence demonstrating emotional immaturity is relevant, such evidence \u201cis not viewed in isolation, particularly where other evidence shows \u2018more mature qualities and characteristics.\u2019 \u201d Spruill, 338 N.C. at 660, 452 S.E.2d at 305 (quoting Johnson, 317 N.C. at 393, 346 S.E.2d at 624).\nThe evidence presented in this case showed that defendant\u2019s IQ is within the normal range, that he had significant work experience, that defendant was a good employee and a good mechanic, that defendant completed his GED, and that defendant had attended Anson Tech to become a mechanic and had received good grades. The foregoing evidence controverted Dr. Hood\u2019s testimony regarding defendant\u2019s emotional age or immaturity. Therefore, the trial court did not err by denying defendant\u2019s request for a peremptory instruction on the (f)(7) mitigating circumstance. This assignment of error is overruled.\nBy assignment of error, defendant contends the trial court erred by permitting only one of his attorneys to object during the prosecutor\u2019s direct examination of a witness. As the prosecutor questioned Shatley, both defense attorneys objected at different times. After the second attorney objected to a question directed to the same witness, the trial court overruled the objection, then stated, \u201cwhoever is going to do each witness, one at a time. You understand?\u201d Shortly thereafter, the jury was released for lunch break, and the following exchange occurred out of the presence of the jury:\nThe Court: I only ask whoever is going to do the examination of each witness that one of you do it at a time.\n[Defense Counsel]: Yes, sir.\nThe Court: It\u2019s hard for me to keep up with everything.\nDefendant argues that the trial court\u2019s ruling in this regard impermissibly infringed on his statutory right to the assistance of two attorneys in a capital trial and his constitutional right to the assistance of counsel. We disagree.\nThe governing statute provides in pertinent part:\nAn indigent person indicted for murder may not be tried where the State is seeking the death penalty without an assistant counsel being appointed in a timely manner. If the indigent person is represented by the public defender\u2019s office, the requirement of an assistant counsel may be satisfied by the assignment to the case of an additional attorney from the public defender\u2019s staff.\nN.C.G.S. \u00a7 7A-450(bl) (1999).\nIn State v. Frye, 341 N.C. 470, 461 S.E.2d 664 (1995), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526 (1996), this Court held that the trial court did not violate the defendant\u2019s statutory right to two attorneys by not allowing both attorneys to object during voir dire. We reasoned that because the trial court \u201cdid not deny defendant the assistance of a second attorney or so drastically circumscribe the second attorney\u2019s role as to render the appointment of two attorneys meaningless,\u201d section 7A-450(bl) was not violated. Id. at 493, 461 S.E.2d at 675.\nIn the present case, as in Frye, we conclude the trial court\u2019s ruling did not violate defendant\u2019s statutory entitlement to two attorneys. Here, defendant had two court-appointed attorneys as required by section 7A-450(bl). The trial court ruled merely that only one of defendant\u2019s attorneys could make objections during the testimony of each witness. The trial court\u2019s ruling did not \u201cprohibit[] or prevent[] defendant\u2019s attorneys from communicating, prompting, or consulting one another.\u201d State v. Fullwood, 343 N.C. 725, 733, 472 S.E.2d 883, 887 (1996), cert. denied, 520 U.S. 1122, 137 L. Ed. 2d 339 (1997); see also Frye, 341 N.C. at 493, 461 S.E.2d at 675. In short, the trial court \u201cdid not deny defendant the assistance of a second attorney or so drastically circumscribe the second attorney\u2019s role as to render the appointment of two attorneys meaningless.\u201d Frye, 341 N.C. at 493, 461 S.E.2d at 675. Therefore, defendant\u2019s argument is without merit.\nDefendant also contends the trial court\u2019s ruling in this regard violated his right to the assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 23 of the North Carolina Constitution. Because defendant did not raise this constitutional issue at trial, he has failed to preserve it for our review. State v. Gibbs, 335 N.C. 1, 42, 436 S.E.2d 321, 344 (1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994). Even if defendant had properly preserved this constitutional issue for appeal, his argument would fail because \u201c \u2018[a]n indigent defendant\u2019s right to the appointment of additional counsel in capital cases is statutory, not constitutional.\u2019 \u201d Frye, 341 N.C. at 493, 461 S.E.2d at 675 (quoting State v. Locklear, 322 N.C. 349, 357, 368 S.E.2d 377, 382 (1988)) (alteration in original). Accordingly, this assignment of error is overruled.\nBy assignment of error, defendant contends the trial court committed reversible error by failing to exercise its discretion when it declined to continue defendant\u2019s capital sentencing proceeding. We disagree.\nThis Court has held that \u201c[w]hen a motion addressed to the discretion of the trial court is denied upon the ground that the trial court has no power to grant the motion in its discretion, the ruling is reviewable.\u201d State v. Johnson, 346 N.C. 119, 124, 484 S.E.2d 372, 375 (1997). A motion for a continuance is ordinarily addressed to the sound discretion of the trial court, and the ruling will not be disturbed absent a showing of abuse of discretion. State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755 (1997); State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335, 341 (1982). When a motion to continue raises a constitutional issue, however, the trial court\u2019s ruling thereon involves a question of law that is fully reviewable on appeal by examination of the particular circumstances presented in the record. State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982); State v. Jones, 342 N.C. 523, 530-31, 467 S.E.2d 12, 17 (1996). Even when the motion raises a constitutional issue, denial of the motion is grounds for a new trial only upon a showing that \u201cthe denial was erroneous and also that [defendant\u2019s] case was prejudiced as a result of the error.\u201d Branch, 306 N.C. at 104, 291 S.E.2d at 656.\nIn the present case, we need not address whether the trial court failed to exercise its discretion because the record reveals that defendant never made a motion for a continuance. Prior to the prosecution\u2019s presentation of evidence at trial, defendant made a motion for recordation of any testimony given in a foreign language. In response, the prosecutor informed the trial court that there would be no Spanish-speaking witnesses. The prosecutor explained that Gabriel had failed to obtain his temporary visa and board the airplane out of Mexico. The prosecutor also told the trial court that he intended to read Gabriel\u2019s prior recorded testimony into the record and provided the trial court with a copy of the transcript. Defendant did not make a motion for a continuance at that time. After the prosecutor presented the testimony of two witnesses, he announced his intention to read Gabriel\u2019s prior recorded testimony into evidence. Although defense counsel challenged the admissibility of the prior recorded testimony, the record reveals that defense counsel did not seek a continuance. After defense counsel concluded their argument against the admission of the prior recorded testimony, the trial court asked the prosecutor if he wanted to respond. The prosecutor responded as follows:\n[Prosecutor]: Well, Yes, Your Honor. I mean, it sounds like Mr. Wiley really wants the, Mr. Hernandez (sic) ... Gonzalez here, and the State\u2019s done everything we could to get him here. We\u2019d like to have the victim\u2019s father here to tell the jury about his loss, so maybe a proper, a proper solution would be to recess this hearing until June 1st criminal term of court and that [sic] we can have everybody here and let the jury hear all about the actual events. But, we\u2019ve made a very good faith attempt to get them here. But, if you feel like it\u2019s prejudicing their client in some way, we\u2019d be happy to recess this matter, if the Court pleases, until June 1st criminal session of court and pick it back up then where we can have them here.\nDefendant did not request a continuance at that time. Thereafter, the following exchange occurred:\nThe Court: We have a jury sitting in that jury room right back there. It\u2019s not going to [be] possible to recess this case until June 1st.\n[Prosecutor]: All right.\n[Defense Counsel]: Nothing further.\n(Emphasis added.)\nThe record therefore demonstrates that defendant neither requested a continuance nor objected to the trial court\u2019s response to the prosecutor\u2019s suggested course of action. Thus, the trial court was never called upon by defendant to exercise its discretion, and defendant has failed to preserve this issue for appellate review. See N.C. R. App. P. 10(b)(1); State v. Smith, 352 N.C. 531, 557-58, 532 S.E.2d 773, 790 (2000), cert. denied, - U.S. -, - L. Ed. 2d -, 69 U.S.L.W. 3629 (2001). Accordingly, this assignment of error is rejected.\nBy assignments of error, defendant contends the trial court erred by failing to intervene ex mero motu to prevent improper argument by the prosecutor during closing arguments. We disagree.\nWhen, as here, a defendant fails to object during closing argument, the standard of review is whether the argument was so grossly improper that the trial court erred in failing to intervene ex mero motu. State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999); State v. Sexton, 336 N.C. 321, 348-49, 444 S.E.2d 879, 895, cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994). \u201c \u2018[0]nly 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.\u2019 \u201d State v. Davis, 353 N.C. 1, 31, 539 S.E.2d 243, 263 (2000) (quoting 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)).\nWe have recognized that \u201c \u2018[t]rial counsel is allowed wide latitude in argument to the jury and may argue all of the evidence which has been presented as well as reasonable inferences which arise therefrom.\u2019 \u201d State v. Hyde, 352 N.C. 37, 56, 530 S.E.2d 281, 294 (2000) (quoting State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999)), cert. denied, \u2014 U.S. \u2014, 148 L. Ed. 2d 775 (2001). Moreover, \u201cthe prosecutor in a capital case has a duty to strenuously pursue the goal of persuading the jury that the facts of the particular case at hand warrant imposition of the death penalty.\u201d Green, 336 N.C. at 188, 443 S.E.2d at 41. The trial court\u2019s exercise of discretion over the latitude of counsel\u2019s argument will not be disturbed absent any gross impropriety in the argument that would likely influence the jury\u2019s verdict. State v. McNeil, 350 N.C. 657, 685, 518 S.E.2d 486, 503 (1999), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d 321 (2000). We also emphasize that \u201c \u2018statements contained in closing arguments to the jury are not to be placed in isolation or taken out of context on appeal. Instead, on appeal we must give consideration to the context in which the remarks were made and the overall factual circumstances to which they referred.\u2019 \u201d Guevara, 349 N.C. at 257, 506 S.E.2d at 721 (quoting Green, 336 N.C. at 188, 443 S.E.2d at 41).\nDefendant first argues the prosecutor falsely represented to the jurors that they had promised him they would decide defendant\u2019s case without sympathy. The prosecutor argued, in context, as follows:\nOne more thing I want to point out. Don\u2019t forget your duty as a juror in this case. Your duty is, ladies and gentlemen of the jury, to set a punishment. We\u2019re here to punish [defendant] for the crimes he\u2019s committed. We\u2019re not here to reward anybody. We\u2019re not here to avenge anybody\u2019s debt. We\u2019re here to select a proper punishment, and there\u2019s only two options, and you all know that.\nBut, don\u2019t forget, ladies and gentlemen, because there\u2019s a lot of emotion came up in this trial. There was a lot of emotion. And, you could let that emotion override your duty as a juror, because your duty is to apply the facts that you heard in this case to the law that the Judge is going to give you. And, if the facts fit the law and show that you ought to recommend the death penalty, you cannot let your emotions override your duty.\nYes, it\u2019s hard. There\u2019s nothing easy about this case for anybody involved. There\u2019s nothing easy in anybody\u2019s case when it comes down to saying whether a man ought to live or die. Nobody said it was easy. But, you have to go by the law. Not only that, you gave your oath to this Court that you would hear this case fairly, impartially, you would follow the law even if you disregarded it, and you would decide this case, this verdict without sympathy and without prejudice for anyone.\n\u25a0 And, if you didn\u2019t do that, and if you don\u2019t do that, there's nothing we can do about it. But, one day you\u2019ll have to answer to somebody higher than this court.\n(Emphasis added.)\nContrary to defendant\u2019s contention, the above-emphasized argument reveals that the prosecutor did not claim that the jurors had promised him they would decide defendant\u2019s case without sympathy. Rather, the prosecutor stated that the jurors had promised to decide the case without sympathy in their oath to the trial court. The record reveals that the trial court required the jurors to give an oath to decide the case based on the evidence presented, and without prejudice or partiality. In addition, the trial court told the jurors that they \u201cmust be as free as humanly possible from bias, prejudice, or sympathy, and must not be influenced by preconceived ideas either as to the facts or as to the law.\u201d\nViewed in context, the prosecutor properly argued to the jurors that they should follow the law and render a verdict without prejudice or sympathy for either side. The prosecutor did not, as defendant suggests, argue that the jurors should reject all mitigating circumstances. Moreover, the trial court properly instructed the jury how mitigating circumstances should be considered. The trial court also instructed the jury on the catchall mitigating circumstance, which permits jurors to consider anything in mitigation. See State v. Conner, 345 N.C. 319, 332-33, 480 S.E.2d 626, 632, cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134 (1997). Finally, we have held that prosecutors \u201cmay properly argue to the sentencing jury that its decision should be based not on sympathy, mercy, or whether it wants to kill the defendant, but on the law.\u201d Frye, 341 N.C. at 506, 461 S.E.2d at 683; accord State v. Rouse, 339 N.C. 59, 93, 451 S.E.2d 543, 561-62 (1994), cert. denied, 516 U.S. 832, 133 L. Ed. 2d 60 (1995). Accordingly, the trial court did not err in failing to intervene ex mero motu.\nDefendant next argues the trial court should have intervened ex mero motu when, as noted above, the prosecutor argued that the jurors \u201cwould have to answer to somebody higher than this court\u201d if they failed to follow the law and decide this case \u201cwithout sympathy and without prejudice for anyone.\u201d\nThis Court has disapproved \u201c \u2018arguments to the effect that the law enforcement powers of the State come from God and that to resist those powers is to resist God.\u2019 \u201d State v. Cummings, 352 N.C. 600, 628, 536 S.E.2d 36, 56 (2000) (quoting State v. Geddie, 345 N.C. 73, 100, 478 S.E.2d 146, 160 (1996), cert. denied, 522 U.S. 825, 139 L. Ed. 2d 43 (1997)). We have also repeatedly cautioned counsel \u201c \u2018that they should base their jury arguments solely upon the secular law and the facts.\u2019 \u201d Davis, 353 N.C. at 28, 539 S.E.2d at 262 (quoting State v. Williams, 350 N.C. 1, 27, 510 S.E.2d 626, 643, cert. denied, 528 U.S. 880, 145 L. Ed. 2d 162 (1999)). As we have previously recognized, \u201c[j]ury arguments based on any of the religions of the world inevitably pose a danger of distracting the jury from its sole and exclusive duty of applying secular law and unnecessarily risk reversal of otherwise error-free trials.\u201d Williams, 350 N.C. at 27, 510 S.E.2d at 643.\nIn the instant case, the prosecutor did not contend that the State\u2019s law enforcement powers were ordained by God. See Geddie, 345 N.C. at 100, 478 S.E.2d at 160. We also note that, as in Williams, the prosecutor in the present case told the jury that it should make its sentencing decision based on the law and the evidence presented in this case. Williams, 350 N.C. at 26-27, 510 S.E.2d at 643; accord Davis, 353 N.C. at 29, 539 S.E.2d at 262. Accordingly, the prosecutor\u2019s argument was not so grossly improper as to warrant ex mero motu intervention.\nDefendant next argues the prosecutor improperly argued that the jurors should accept without question that defendant assaulted Gabriel because defendant had been previously convicted of that offense. Defendant contends that, based on this improper argument, the jury may have accepted without question the State\u2019s evidence regarding defendant\u2019s assault of Gabriel when it found the (e)(ll) aggravating circumstance, that \u201cthe murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons.\u201d N.C.G.S. \u00a7 15A-2000(e)(ll). The prosecutor argued in context as follows:\n[T]his man who had no previous criminal history, this man who had a character of peacefulness and respect towards others, this man who had been a kind and considerate person[] to individuals with disabilities, beat the brains out of an innocent victim, and was convicted, ladies and gentlemen, of first degree murder, both on the basis of the felony murder rule and premeditation and deliberation.\nThis man . . . who was a courteous, respectful and obedient student, this man who carried his cousin on his back for a mile and a half to get him help, was convicted, ladies and gentlemen of the jury, of tricking an innocent victim into a desolate area so that he could rob and kill him. He was convicted of first degree kidnapping.\nThis[] man, ladies and gentlemen of the jury, who shows mechanical aptitude and work skills and a willingness to use these skills to benefit others, this man, who had a reputation for being industrious, hardworking, patient among his co-workers, this man who showed initiative by getting his GED and attending community college, instead of using those skills, took a man out to a desolate area where he could rob him. He took a man out there and then took money from either a dead person or a person that was dying, and he was convicted of armed robbery.\nLadies and gentlemen of the jury, when you go back to your deliberations, you consider him to be guilty of these charges. You consider that he did everything that the State\u2019s evidence shows in the hearing in this case. And, don\u2019t forge[t] that if you don\u2019t remember anything else.\nNow, that matter has been decided for you. And, it really doesn\u2019t matter what you think about the facts. It doesn\u2019t matter what Mr. and Mrs. Call think. It doesn\u2019t matter what [defense counsel] and myself think about the facts. Those facts have been decided. It\u2019s not for you to determine facts about August the 24th, of 1995.\n. . . Your duty is, ladies and gentlemen of the jury, to set a punishment.\nAfter reviewing the challenged argument in context, we conclude the prosecutor\u2019s argument was not improper. Contrary to defendant\u2019s argument, the prosecutor never informed the jury that defendant had previously been convicted of assaulting Gabriel. Rather, the prosecutor informed the jury only that defendant had been previously convicted of first-degree murder, first-degree kidnapping, and armed robbery. Therefore, the trial court did not err by failing to intervene ex mero motu.\nWe likewise reject defendant\u2019s related argument that the trial court violated his constitutional rights by sustaining the prosecutor\u2019s objection to defendant\u2019s attempt to inform the jury that defendant\u2019s conviction for assaulting Gabriel had been vacated by this Court. During defendant\u2019s closing argument, the following exchange occurred:\n[Defense Counsel]: . . . One other thing as to this last aggravating circumstance, that the State did not tell you is that, that charge, that the charge of conviction for assault against this individual. We never saw Gabriel Gonzalez. It was in fact vacated by... .\n[Prosecutor Lyle]: ... OBJECTION.\n[Prosecutor Green]: . .. OBJECTION. I\u2019d like to be heard.\nAt the outset, we note defendant made no constitutional argument at trial in this regard. Constitutional questions not raised and passed upon at trial will not be considered on appeal. Gibbs, 335 N.C. at 42, 436 S.E.2d at 344. Assuming, without deciding, that the trial court abused its discretion by improperly limiting the scope of defendant\u2019s argument, we nonetheless conclude that defendant suffered no prejudice. The trial court specifically instructed the jurors that they could find the existence of the (e)(ll) aggravating circumstance only if they found\nfrom the evidence beyond a reasonable doubt that in addition to killing the victim, Defendant . . . engaged [in] conduct which involved the commission of another crime of violence against another person....\n(Emphasis added).\nMoreover, the record reveals that after sustaining the prosecutor\u2019s objection to defendant\u2019s proposed argument, the trial court permitted defense counsel to inform the jury that \u201c[defendant] has never been convicted of an assault on Gabriel Gonzales.\u201d Accordingly, this argument is rejected.\nDefendant next contends the prosecutor improperly argued that the jury should sentence defendant to death based solely upon the number of aggravating circumstances submitted to it. Defendant contends the prosecutor\u2019s argument negated the need for the jury to weigh the aggravating circumstances against the mitigating circumstances. The record reveals that after arguing the evidence supporting aggravating circumstances, the prosecutor argued as follows:\nAre all four of these, when you only need one to call for the death penalty, are four of them enough? Sure. Absolutely.\nIs it true what we heard about the Defendant\u2019s past? See, because that\u2019s what they call mitigating circumstances. That\u2019s what the lawyers are going to want you to consider as mitigating the crime down so as not to recommend the death penalty.\nAre they true, what we heard about his past? Sure. We don\u2019t contest anything about how he grew up and what the family said. That\u2019s all true.\nBut, did that outweigh what he did on August the 24th of 1995? Do those mitigating circumstances about his life, which I told you that I was talking about here at first [sic]. Those are all mitigating factors. I read them right off the sheet you\u2019ll get. Do those outweigh these four? No.\nAnd, if they don\u2019t outweigh these four, you can\u2019t recommend life.\nRead in context, the prosecutor did not suggest to the jury that it should make its sentencing decision \u201cby means of mathematical calculations.\u201d Rather, the prosecutor properly argued to the jury that the four aggravating circumstances outweighed, rather than outnumbered, the mitigating circumstances. Moreover, the record reveals that the trial court instructed the jurors as follows:\nIn so doing, you\u2019re the sole judges of the weight to be given to any individual circumstance which you find[,] whether aggravating or mitigating. You should not merely add up the number of aggravating circumstances and mitigating circumstances. Rather, you must decide from all the evidence what value to give to each circumstance and then weigh the aggravating circumstances so valued against the mitigating circumstances so valued, and finally determine whether the mitigating circumstances are insufficient to outweigh the aggravating circumstances.\nThe trial court\u2019s instruction properly explained to the jury the manner in which it should consider the aggravating and mitigating circumstances. Accordingly, the trial court did not err in failing to intervene ex mero motu.\nFinally, defendant contends the prosecutor improperly argued that four of the five aggravating circumstances submitted to the jury had already been determined to exist. The prosecutor argued as follows:\nThe law says, in North Carolina, that you have to do certain specific things in the course of a murder before you can even be subjected to the death penalty. And, there\u2019s only eleven of them.\nThey\u2019re set out in the law books as to what you can do. If you didn\u2019t do any of those things in a murder case, then you can\u2019t get the death penalty.\nIn this case, ladies and gentlemen of the jury, out of those eleven, the Judge is going to submit four to you. They\u2019re going to be on the first page of the sheet that you get that\u2019s called Issue I. What it says is: Do you unanimously find from the evidence beyond a reasonable doubt the existence of one or more of the following aggravating circumstances? That\u2019s what they\u2019re called.\nAt the outset, we note that, contrary to defendant\u2019s argument, only four aggravating circumstances were submitted to the jury. Moreover, we fail to see how the challenged argument could have left jurors with the impression that the four submitted aggravating circumstances had already been determined to exist. When read in context, the prosecutor\u2019s argument informed the jurors that they would have to determine beyond a reasonable doubt whether any of the submitted aggravating circumstances existed. This argument is without merit.\nThese assignments of error are overruled.\nBy assignments of error, defendant contends the trial court erred by submitting to the jury the aggravating circumstance that the victim\u2019s murder was especially heinous, atrocious, or cruel. N.C.G.S. \u00a7 15A-2000(e)(9). Defendant argues that the (e)(9) aggravating circumstance is unconstitutionally vague and overbroad and that, based on the evidence presented during the sentencing proceeding, its submission was error. We disagree.\nWith regard to defendant\u2019s first contention, we have repeatedly rejected the argument that the (e)(9) aggravating circumstance is unconstitutionally vague and overbroad, State v. Fleming, 350 N.C. 109, 119, 512 S.E.2d 720, 728, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999); State v. Lee, 335 N.C. 244, 285, 439 S.E.2d 547, 568-69, cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994), and we decline defendant\u2019s invitation to reconsider our prior holdings.\nFurther, \u201c[i]n determining whether the evidence is sufficient to support the trial court\u2019s submission of the especially heinous, atrocious, or cruel aggravator, we must consider the evidence \u2018in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom.\u2019 \u201d State v. Flippen, 349 N.C. 264, 270, 506 S.E.2d 702, 706 (1998) (quoting State v. Lloyd, 321 N.C. 301, 319, 364 S.E.2d 316, 328, sentence vacated on other grounds, 488 U.S. 807, 102 L. Ed. 2d 18 (1988)), cert. denied, 526 U.S. 1135, 143 L. Ed. 2d 1015 (1999). \u201c \u2018[Contradictions and discrepancies are for the jury to resolve; and all evidence admitted that is favorable to the State is to be considered.\u2019 \u201d McNeil, 350 N.C. at 693, 518 S.E.2d at 508 (quoting State v. Robinson, 342 N.C. 74, 86, 463 S.E.2d 218, 225 (1995), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 793 (1996)) (alteration in original). Finally, determination of whether submission of the (e)(9) aggravating circumstance is warranted depends on the particular facts of each case. State v. Brewington, 352 N.C. 489, 525, 532 S.E.2d 496, 517 (2000), cert. denied, - U.S. -, 148 L. Ed. 2d 992 (2001); McNeil, 350 N.C. at 693-94, 518 S.E.2d at 508.\nWe have previously held the following types of murders to warrant submission of the (e)(9) aggravating circumstance:\nOne type includes killings physically agonizing or otherwise dehumanizing to the victim. State v. Lloyd, 321 N.C. 301, 319, 364 S.E.2d 316, 328 (1988). A second type includes killings less violent but \u201cconscienceless, pitiless, or unnecessarily torturous to the victim,\u201d State v. Brown, 315 N.C. 40, 65, 337 S.E.2d 808, 826-27 (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)], including those which leave the victim in her \u201clast moments aware of but helpless to prevent impending death,\u201d State v. Hamlet, 312 N.C. 162, 175, 321 S.E.2d 837, 846 (1984). A third type exists where \u201cthe killing demonstrates an unusual depravity of mind on the part of the defendant beyond that normally present in first-degree murder.\u201d Brown, 315 N.C. at 65, 337 S.E.2d at 827.\nGibbs, 335 N.C. at 61-62, 436 S.E.2d at 356.\nIn the present case, the State\u2019s evidence tended to show that defendant lured the victim to a rural location where he knew they would be alone. See Lloyd, 321 N.C. at 319, 364 S.E.2d at 328 (defendant killed victim at a time he knew victim would be alone). Without provocation, defendant then beat the victim to death with a shovel handle and a tire iron, supporting an inference that the murder was conscienceless and pitiless. See State v. Ingle, 336 N.C. 617, 641-42, 445 S.E.2d 880, 893 (1994), cert. denied, 514 U.S. 1020, 131 L. Ed. 2d 222 (1995). Defendant inflicted several blunt-force injuries to the victim\u2019s head, causing the victim\u2019s skin to split and leaving jagged fractures of bone underneath the victim\u2019s forehead, beneath his left eye, and across the bridge of his nose. Defendant also caused the skin to split and the bone to fracture above the victim\u2019s ear. The force of the blows inflicted upon the victim by the defendant caused the shovel handle to break in half. The record also reveals that defendant tied the victim\u2019s hands behind his back and tied his right foot up to his shoulder area. This evidence supports an inference that the victim was left in his \u201c \u2018last moments aware of but helpless to prevent impending death.\u2019 \u201d Gibbs, 335 N.C. at 61-62, 436 S.E.2d at 356 (quoting Hamlet, 312 N.C. at 175, 321 S.E.2d at 846). This inference is buttressed by evidence that, upon returning to his residence, defendant told Varden he needed to return to the cornfield to see if the victim was alive because he had not checked his pulse. Defendant\u2019s statement to Varden indicates defendant\u2019s personal belief that the victim might have lived through the severe beating as he lay tied up on the ground. Viewed in the light most favorable to the State, the evidence in this case supports the trial court\u2019s submission of the (e)(9) aggravating circumstance that the murder was especially heinous, atrocious, or cruel. This assignment of error is overruled.\nBy assignment of error, defendant contends the trial court erred when it allowed the State\u2019s expert witness to give inherently unreliable opinion testimony. At the sentencing proceeding, Dr. Sporn was qualified as an expert in forensic pathology. During direct examination, Dr. Sporn explained that he did not perform the autopsy on the victim\u2019s body but that he did review Dr. Thompson\u2019s autopsy report, a transcript of Dr. Thompson\u2019s prior testimony, and the autopsy photographs. As Dr. Sporn testified concerning his observations of the autopsy photographs, defense counsel requested an opportunity to question Dr. Sporn outside the presence of the jury. After extensive questioning by both the prosecution and defense counsel outside the presence of the jury, the trial court allowed Dr. Sporn to describe to the jury the nature of the victim\u2019s injuries. Dr. Sporn testified, among other things, that the victim received \u201cclearly several, more than two,\u201d blunt-force injuries and that the injuries could have been caused by a baseball bat, a shovel handle, or a tire iron.\nDefendant contends that Dr. Sporn\u2019s testimony was inherently unreliable and that its admission violated his constitutional rights. Pursuant to Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure, however, \u201ca party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make\u201d in order to preserve a question for appellate review. N.C. R. App. P. 10(b)(1). During defense counsel\u2019s voir dire of Dr. Sporn, the trial court specifically asked defense counsel whether they had any objections to the proposed testimony of Dr. Sporn. One of defendant\u2019s attorneys responded, \u201cIt\u2019s not that I don\u2019t have any objections, I mean, if I could think of a legal basis for it, I\u2019d be making it.\u201d Thereafter, when Dr. Sporn testified before the jury, defense counsel failed to object. Accordingly, defendant has failed to preserve this assignment of error for appellate review. In addition, this Court will not review defendant\u2019s constitutional argument because the issue was not \u201c \u2018raised and determined in the trial court.\u2019 \u201d State v. Nobles, 350 N.C. 483, 495, 515 S.E.2d 885, 893 (1999) (quoting State v. Creason, 313 N.C. 122, 127, 326 S.E.2d 24, 27 (1985)). Finally, defendant has failed to assert plain error on appeal. See N.C. R. App. P. 10(c)(4). Therefore, this assignment of error is overruled.\nIn a related assignment of error, defendant contends the trial court erred when it overruled defendant\u2019s objections to the prosecutor\u2019s improper cross-examination of Dr. Spom outside the presence of the jury. Specifically, defendant argues the prosecutor improperly led Dr. Sporn during cross-examination in such a manner that the prosecutor testified for the witness. Defendant contends the challenged cross-examination violated his due process rights.\nThe record reveals that defendant objected twice during the prosecutor\u2019s cross-examination of Dr. Spom, as follows:\n[Prosecutor]: All right. Now, did you, now this examination that you did, based on the evidence ... now, Mr. Lynch asked you some questions and you gave some answers. Certainly your opinion might be ... .\n[Defense Counsel]: . . . OBJECTION to his testifying, now, this is voir dire. That\u2019s when he\u2019s (Unintelligible) testify (sic).\nThe Court: OVERRULED.\n[Prosecutor]: Certainly your opinion would be, in other words, it would be better if you had actually examined the body, is that correct?\n[Dr. Sporn]: Well, for, for giving an opinion as to the precise number of blows, yes.\n[Prosecutor]: Yes. But, the fact that you did not actually examine the body does not prevent you from forming an opinion to a reasonable degree or medical certainty as to the questions I asked you about the nature of the wounds, the number of wounds, and whether these objects which have been previously introduced could have caused those wounds, is that correct?\n[Defense Counsel]: OBJECTION. May I be heard on the objection?\nThe Court: Yes.\n[Defense Counsel]: Here\u2019s my objection. We have a, a, an expert who has said himself that his opinion could be inherently unreliable. We have a lawyer[] who is not a doctor or a pathologist making such leading questions that he is suggesting to him how to get to where he couldn\u2019t get to on his own knowledge, and I OBJECT to that.\nThe Court: Well, I SUSTAIN the question.\n[Defense Counsel]: You sustained the question?\nThe Court: I\u2019m going to SUSTAIN the ....\n[Defense Counsel]: ... yes, sir ....\nThe Court: .. . the question that you just asked.\nBased on this record, the precise nature of defendant\u2019s first objection is unclear. In any event, the prosecutor restated the same question and the trial court ultimately sustained defendant\u2019s second objection to the manner in which the prosecutor was leading Dr. Sporn. \u201cWhere the trial court sustains a defendant\u2019s objection, he has no grounds to except.\u201d State v. Woods, 345 N.C. 294, 311-12, 480 S.E.2d 647, 655, cert. denied, 522 U.S. 875, 139 L. Ed. 2d 132 (1997); accord State v. Quick, 329 N.C. 1, 29, 405 S.E.2d 179, 196 (1991). In addition, we note that, both during voir dire and before the jury, defendant similarly asked Dr. Sporn whether his opinions would have been better formed if he had personally examined the victim\u2019s body. \u201c \u2018Where evidence is admitted over objection and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.\u2019 \u201d Trull, 349 N.C. at 446, 509 S.E.2d at 191 (quoting State v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995)). Therefore, defendant has waived his right to raise this objection on appeal. Even assuming arguendo that this issue was properly preserved and that the trial court committed error, we nonetheless conclude that the challenged cross-examination did not prejudice defendant, as it occurred outside the presence of the jury. Moreover, defendant did not object to Dr. Sporn\u2019s testimony before the jury. This assignment of error is overruled.\nBy assignment of error, defendant contends the short-form murder indictment violated his federal constitutional rights as it failed to allege all the elements of first-degree murder. At the outset, we note defendant did not challenge the murder indictment in the trial court. Constitutional questions \u201cnot raised and passed upon in the trial court will not ordinarily be considered on appeal.\u201d State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). As a general rule, a defendant waives an attack on the indictment when the indictment is not challenged at trial. State v. Robinson, 327 N.C. 346, 361, 395 S.E.2d 402, 411 (1990). However, when an indictment is alleged to be facially invalid, thereby depriving the trial court of its jurisdiction, it may be challenged at any time, notwithstanding a defendant\u2019s failure to contest its validity in the trial court. State v. Braxton, 352 N.C. 158, 173, 531 S.E.2d 428, 436-37 (2000), cert. denied, - U.S. -, 148 L. Ed. 2d 797 (2001). Thus, this issue is properly before this Court.\nIn support of his challenge to the validity of the murder indictment, defendant cites the United State Supreme Court\u2019s decision in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999). We have repeatedly addressed and rejected defendant\u2019s argument. See, e.g., Braxton, 352 N.C. 158, 531 S.E.2d 428. In Braxton, this Court examined the validity of short-form indictments in light of the United States Supreme Court\u2019s decisions in 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 concluded 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. Defendant has presented no compelling basis for this Court to revisit the issue in the present case. Accordingly, this assignment of error is overruled.\nPRESERVATION ISSUES\nDefendant raises four additional issues that he concedes this Court has previously decided contrary to his position: (1) the trial court committed prejudicial error when it failed to direct jurors to consider and give appropriate effect to mitigating evidence; (2) the trial court\u2019s instruction to the jury that defendant\u2019s evidence of mitigating circumstances simply had to \u201csatisfy\u201d the jury was so inherently ambiguous and vague that it violated defendant\u2019s constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; (3) the North Carolina death penalty statute is unconstitutional; and (4) the trial court committed reversible error when it instructed the jury to decide whether non-statutory mitigating circumstances have mitigating value. Defendant makes these arguments in order to allow this Court to reexamine its prior holdings and to preserve these issues for any possible further judicial review. We have thoroughly considered defendant\u2019s arguments on these issues and find no compelling reason to depart from our prior holdings. Therefore, these assignments of error are overruled.\nPROPORTIONALITY REVIEW\nHaving concluded that defendant\u2019s capital sentencing proceeding was free from prejudicial error, we are required to review and determine: (1) whether the record supports the jury\u2019s finding of any aggravating circumstances upon which the sentence of death was based; (2) whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. N.C.G.S. \u00a7 15A-2000(d)(2).\nIn the present case, defendant was convicted of first-degree murder on the basis of malice, premeditation, and deliberation and under the felony murder rule. Following a capital sentencing proceeding, the jury found four aggravating circumstances: (1) the murder was committed while defendant was engaged in the commission of kidnapping, 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 another person or persons, N.C.G.S. \u00a7 15A-2000(e)(ll).\nFive statutory mitigating circumstances were submitted for the jury\u2019s consideration: (1) the defendant has no significant history of prior criminal activity, N.C.G.S. \u00a7 15A-2000(f)(l); (2) the murder was committed while the defendant was under the influence of mental or emotional disturbance, N.C.G.S. \u00a7 15A-2000(f)(2); (3) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, N.C.G.S. \u00a7 15A-2000(f)(6); (4) the age of the defendant at the time of the crime, N.C.G.S. \u00a7 15A-2000(f)(7); and (5) the catchall mitigating circumstance that there existed any other circumstance arising from the evidence which the jury deems to have mitigating value, N.C.G.S. \u00a7 15A-2000(f)(9). Of these statutory mitigating circumstances, the jury found only (f)(1) and (f)(9) to exist. Of the eighteen nonstatutory mitigating circumstances submitted by the trial court, one or more jurors found the following: (1) defendant has shown a character of peacefulness and respect toward others throughout his life prior to the date of the murder, (2) defendant has shown his ability to adjust to prison life throughout his period of incarceration, (3) defendant is ideally suited by temperament to a highly structured environment, and (4) defendant has difficulties in maintaining close interpersonal relationships.\nAfter thoroughly examining the record, transcript, and briefs in this case, we conclude the evidence fully supports the aggravating circumstances found by the jury. Further, there is no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. We turn now to our final statutory duty of proportionality review.\nThe purpose of proportionality review is to \u201celiminate the possibility that a person will be sentenced to die by the action of an aberrant jury.\u201d State v. Holden, 321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). Proportionality review also acts \u201c[a]s a check against the capricious or random imposition of the death penalty.\u201d State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980). In conducting our proportionality review, we 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).\nWe have found the death sentence 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 this case is not substantially similar to any case in which this Court has found the death penalty disproportionate. Defendant was convicted of first-degree murder on the basis of malice, premeditation, and deliberation and under the felony murder rule. We have recognized that \u201ca finding of premeditation and deliberation indicates \u2018a more calculated and cold-blooded crime.\u2019 \u201d State v. Harris, 338 N.C. 129, 161, 449 S.E.2d 371, 387 (1994) (quoting Lee, 335 N.C. at 297, 439 S.E.2d at 575), cert. denied, 514 U.S. 1100, 131 L. Ed. 2d 752 (1995). Moreover, in none of the cases held disproportionate by this Court did the jury find the existence of four aggravating circumstances. In the present case, however, the jury found that the (e)(5), (e)(6), (e)(9), and (e)(ll) aggravating circumstances existed.\nWe also compare the present case with cases in which this Court has found the death penalty to be proportionate. McCollum, 334 N.C. at 244, 433 S.E.2d at 164. Although we review all of the cases in the pool of \u201csimilar cases\u201d when engaging in our statutorily mandated duty of proportionality review, \u201cwe will not undertake to discuss or cite all of those cases each time we carry out the duty.\u201d Id.) accord State v. Gregory, 348 N.C. 203, 213, 499 S.E.2d 753, 760, cert. denied, 525 U.S. 952, 142 L. Ed. 2d 315 (1998).\nThere are four statutory aggravating circumstances which, standing alone, this Court has held sufficient to support a sentence of death. See State v. Warren, 347 N.C. 309, 328, 492 S.E.2d 609, 619 (1997), cert. denied, 523 U.S. 1109, 140 L. Ed. 2d 818 (1998). The (e)(5), (e)(9), and (e)(ll) statutory aggravating circumstances, which the jury found here, are among those four. State v. Bacon, 337 N.C. 66, 110 n.8, 446 S.E.2d 542, 566 n.8 (1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995). Therefore, we conclude that the present case is more similar to cases in which we have found the sentence of death proportionate than to those in which we have found it disproportionate.\nWhether a sentence of death is \u201cdisproportionate in a particular case ultimately rest[s] upon the \u2018experienced judgments\u2019 of the members of this Court.\u201d Green, 336 N.C. at 198, 443 S.E.2d at 47. Therefore, based upon the characteristics of this defendant and the crimes he committed, we are convinced that the sentence of death recommended by the jury and ordered by the trial court in the instant case is not disproportionate.\nAccordingly, we conclude defendant received a fair capital sentencing proceeding, free from prejudicial error. The sentence of death recommended by the jury and entered by the trial court must therefore be left undisturbed.\nNO ERROR.", "type": "majority", "author": "WAINWRIGHT, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Gail E. Weis, Special Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERIC LAWRENCE CALL\nNo. 341A96-2\n(Filed 4 May 2001)\n1. Jury\u2014 selection \u2014 capital sentencing \u2014 stake-out question\nThe trial court did not err during jury selection in a capital sentencing proceeding by sustaining the prosecutor\u2019s objection to defendant\u2019s question about whether a juror could maintain the courage of her convictions if she did not think that the State had proved its case and the other eleven jurors felt that it had. Counsel may not pose hypothetical questions designed to elicit in advance what a juror\u2019s decision will be under a given state of facts; moreover, the question also appeared to be an incorrect statement of the law in that jurors have a duty to deliberate with the other jurors with a view to reaching an agreement.\n2. Sentencing\u2014 capital \u2014 mitigating circumstance \u2014 peremptory instruction \u2014 jury instructed in accord with request\nThere was no error in a capital sentencing proceeding where defendant contended that the court failed to peremptorily instruct the jury on a mitigating circumstance, but the court instructed the jury in accordance with defendant\u2019s request.\n3. Sentencing\u2014 capital \u2014 mitigating circumstances \u2014 peremptory instructions\nThe trial court did not err in a capital sentencing proceeding by failing to peremptorily instruct the jury on the mitigating circumstances of impaired capacity to appreciate the criminality of the offense and the age of the defendant where defendant\u2019s evidence supporting these two circumstances was controverted.\n4. Indigent Defendants\u2014 capital sentencing \u2014 right to two attorneys \u2014 only one permitted to object\nThe trial court did not err during a capital sentencing proceeding by permitting only one of defendant\u2019s attorneys to object during the prosecutor\u2019s direct examination of a witness. Defendant had two court-appointed attorneys as required by N.C.G.S. \u00a7 7A-450(bl) and the court\u2019s ruling did not prevent them from communicating, prompting, or consulting one another or so drastically circumscribe the second attorney\u2019s role as to render the appointment of two attorneys meaningless.\n5. Constitutional Law\u2014 capital sentencing \u2014 right to two attorneys \u2014 no constitutional requirement\nThere was no constitutional error in a capital sentencing proceeding where the trial court permitted only one defense attorney to object during the prosecutor\u2019s direct examination of a witness. Defendant did not raise the issue at trial and so did not preserve it for review; even if he had, the right to the appointment of additional attorneys in a capital trial is statutory rather than constitutional.\n6. Sentencing\u2014 capital \u2014 continuance\u2014not requested\nThe trial court did not fail to exercise its discretion in declining to continue a capital sentencing proceeding where defendant challenged the admissibility of prior recorded testimony of a witness then in Mexico and there was a discussion by the prosecutor of recessing the hearing until the witness could return, but defendant never made a motion for a continuance or objected to the trial court\u2019s negative response to the prosecutor\u2019s suggestion.\n7. Criminal Law\u2014 prosecutor\u2019s argument \u2014 decision without prejudice or sympathy\nThe trial court did not err by not intervening ex mero motu in the prosecutor\u2019s argument in a capital sentencing proceeding where defendant contended on appeal that the prosecutor falsely represented to the jurors that they had promised to decide defendant\u2019s case without sympathy, but the court had told the jurors that they must be as free from bias, prejudice, or sympathy as humanly possible and the prosecutor properly argued that the jury should follow the law and render a verdict without prejudice or sympathy for either side.\n8. Criminal Law\u2014 prosecutor\u2019s argument \u2014 jurors answering to higher power\nThe trial court did not err by not intervening ex mero motu in a capital sentencing proceeding where the prosecutor argued that the jurors would have to answer to someone higher than the court if they failed to follow the law and decided the case without sympathy or prejudice. The prosecutor did not contend that the State\u2019s law enforcement powers were ordained by God.\n9.Sentencing\u2014 capital \u2014 prosecutor\u2019s argument \u2014 aggravating circumstances \u2014 course of conduct\nThe trial court did not err by not intervening ex mero motu in a capital sentencing proceeding where defendant contended on appeal that the prosecutor improperly argued that defendant had been convicted of assaulting the victim\u2019s nephew and that the jury may have accepted without question the State\u2019s evidence regarding the assault when it found the course of conduct aggravating circumstance, but, in context, the prosecutor informed the jury only that defendant had been convicted of first-degree murder, first-degree kidnapping, and armed robbery, and did not inform the jury that defendant had been convicted of assaulting the nephew.\n10. Sentencing\u2014 capital \u2014 defendant\u2019s argument \u2014 aggravating circumstance \u2014 course of conduct \u2014 assault on victim\u2019s nephew\nThere was no prejudice in a capital sentencing proceeding where defendant argued that the court violated his constitutional rights by sustaining the prosecutor\u2019s objection to defendant\u2019s attempt to inform the jury that defendant\u2019s related conviction for assaulting the victim\u2019s nephew had been vacated, but defendant did not object at trial, and, assuming that the court abused its discretion by improperly limiting the scope of defendant\u2019s argument, there was no prejudice because the court specifically instructed the jurors that they could find the course of conduct aggravating circumstance only if defendant engaged in conduct which involved another crime of violence, and the court permitted defense counsel to inform the jury that defendant had never been convicted of an assault on the nephew.\n11. Sentencing\u2014 capital \u2014 prosecutor\u2019s argument \u2014 number of aggravating circumstances\nThe trial court did not err by failing to intervene ex mero motu in a capital sentencing proceeding where defendant contended that the prosecutor improperly argued that the jury should sentence defendant to death based solely upon the number of aggravating circumstances, but, in context, the prosecutor properly argued that the four aggravating circumstances outweighed (rather than outnumbered) the mitigating circumstances.\n12. Sentencing\u2014 capital \u2014 prosecutor\u2019s argument \u2014 existence of aggravating circumstances\nThe trial court did not err by failing to intervene ex mero motu in a capital sentencing proceeding where defendant contended that the prosecutor argued that the aggravating circumstances had already been determined to exist, but, in context, the argument informed the jurors that they would have to determine beyond a reasonable doubt whether any of the aggravating circumstances existed.\n13. Sentencing\u2014 capital \u2014 aggravating circumstance \u2014 especially heinous, atrocious, or cruel murder \u2014 not overbroad\nThe aggravating circumstance that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9), is not unconstitutionally vague and overbroad.\n14. Sentencing\u2014 capital \u2014 aggravating circumstance \u2014 especially heinous, atrocious or cruel murder \u2014 evidence sufficient\nThe evidence in a capital sentencing proceeding was sufficient to support submission of the aggravating circumstance that the murder was especially heinous, atrocious, or cruel where defendant lured the victim to a rural location where he knew they would be alone, he beat the victim to death with a shovel and tire iron without provocation, inflicting several blunt-force injuries to the victim\u2019s head, causing the victim\u2019s skin to split and leaving jagged fractures underneath the victim\u2019s forehead, beneath his left eye, across the bridge of his nose, and above his ear, the force of the blows caused the shovel handle to break in half, the victim\u2019s hands were tied behind his back and his right foot was tied up to the shoulder area, and defendant later said that he needed to return to the cornfield to see if the victim was alive, indicating defendant\u2019s personal belief that the victim might have lived through the beating.\n15. Appeal and Error\u2014 preservation of issues \u2014 capital resentencing \u2014 expert testimony \u2014 failure to object\nDefendant did not object and did not preserve for review the question of whether the trial court erred in a capital resentencing proceeding by allowing an expert forensic pathologist to give opinion testimony where he described the nature of the victim\u2019s injuries even though he had not performed the autopsy.\n16. Evidence\u2014 capital sentencing \u2014 leading questions \u2014 no prejudice\nThere was no error in a capital sentencing proceeding where defendant contended that the court erred by overruling his objection to the prosecutor\u2019s improper cross-examination of a pathologist by leading questions, but the precise nature of defendant\u2019s first objection is not clear, the prosecutor restated the question and the court sustained defendant\u2019s second objection, defendant waived his right to raise the objection on appeal by asking a similar question, and there was no prejudice because the challenged examination occurred outside the presence of the jury and defendant did not object to the pathologist\u2019s testimony before the jury.\n17. Indictment and Information\u2014 facially invalid indictment\u2014 challenged at any time\nWhile as a general rule a defendant waives an attack on an indictment when the indictment is not challenged at trial, an indictment alleged to be facially invalid may be challenged at any time notwithstanding failure to contest its validity at trial because it would deprive the trial court of jurisdiction.\n18. Homicide\u2014 short-form murder indictment \u2014 constitutional\nA short-form indictment for first-degree murder was valid under Jones v. United States, 526 U.S. 227.\n19. Sentencing\u2014 capital \u2014 death sentence proportionate\nA death sentence was proportionate where the record supported the aggravating circumstances found by the jury; there was no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and the case was more similar to cases in which the death sentence was found proportionate than to those in which it was found disproportionate. Defendant was convicted based in part on premeditation and deliberation, the jury found four aggravating circumstances which have not been found in any of the cases held disproportionate, and three of the aggravating circumstances found here are among those which have been held sufficient to support a sentence of death standing alone.\nAppeal as of right by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from a 21 May 1999 judgment imposing a sentence of death entered by Doughton, J., at a resentencing proceeding held in Superior Court, Wilkes County, upon defendant\u2019s conviction of first-degree murder. Heard in the Supreme Court 18 October 2000.\nMichael F. Easley, Attorney General, by Gail E. Weis, Special Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0400-01", "first_page_order": 448, "last_page_order": 480 }