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        28110
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    {
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          "page": "276"
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        {
          "page": "276"
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        {
          "page": "276"
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    {
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        8566430
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          "page": "386"
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        6183056
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          "page": "496"
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        {
          "page": "497-98"
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    {
      "cite": "345 N.C. 43",
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    {
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        6185062
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          "page": "408",
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        {
          "page": "226",
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          "page": "408"
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      "cite": "384 U.S. 436",
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        12046400
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    {
      "cite": "133 L. Ed. 2d 60",
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    {
      "cite": "451 S.E.2d 543",
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          "page": "563",
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        },
        {
          "page": "563"
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    {
      "cite": "339 N.C. 59",
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        2556750
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          "page": "95",
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        },
        {
          "page": "95"
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    {
      "cite": "426 U.S. 610",
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        6181032
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          "page": "619",
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          "page": "98"
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      "cite": "386 U.S. 1",
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        {
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        "text": "MARTIN, Justice.\nOn 12 May 1999, a jury found Nathaniel Fair, Jr. (defendant) guilty of robbery with a dangerous weapon and the first-degree murder of Reubin McNeill (victim) on the basis of malice, premeditation, and deliberation, and under the felony murder rule. On 18 May 1999, the jury recommended a sentence of death, and the trial court entered judgment in accordance with that recommendation. The trial court also sentenced defendant to 94-122 months in prison for the robbery conviction.\nThe victim\u2019s body was found near a vacant lot off Wilcox Road in Wake County, North Carolina, on 6 August 1998. The victim, a middle school principal within the Wake County Public School System, had not been seen alive since 4 August 1998, when he left his residence around 6:00 p.m. to attend a church meeting. He had been carrying a wallet with credit cards in his back left pocket, wearing a silver class ring with a burgundy stone, and driving a green Ford Explorer. After the church meeting ended between 8:15 and 8:30 p.m., the victim spoke briefly with some choir members and then left. When the victim had not arrived home by 11:00 p.m., his wife began to call his cell phone. Early the next morning, she called the police.\nOn 6 August 1998, around 1:30 p.m., a Carolina Power and Light employee found the victim\u2019s body and called 911. Law enforcement officers and paramedics who responded to the scene described the victim\u2019s clothing as extremely bloody. The victim was wearing a watch but no other jewelry. The authorities found no wallet or money on the victim. The inner lining of the victim\u2019s left rear pocket was flipped over the top of his pants, with a bloodstain appearing on the pocket lining.\nAround 9:30 p.m. on 6 August 1998, police located the victim\u2019s car at Crabtree Valley Mall. They found a stained gauze bandage inside the truck, and the City-County Bureau of Investigation (CCBI) noted blood on the driver\u2019s door, steering wheel, and console area. CCBI found defendant\u2019s prints on the truck\u2019s left front door, rear hatch, and the cell phone on the console.\nOn 5 August, around 1:00 a.m., defendant approached the home of Tony Lucas in a green Ford Explorer. Defendant had a deep cut on his hand and blood on his clothes. Defendant refused to go to the doctor and instead bandaged the cut himself with duct tape. Lucas testified that when defendant cut the tape for the bandage, defendant produced a knife with blood on it. Defendant stated that his hand had been cut when he was jumped by three men.\nDefendant changed clothes while at the Lucas residence and then went to buy beer with Lucas and another individual. During the drive Lucas noticed blood on the Explorer\u2019s steering wheel. An employee from Handy Hugo convenience store testified defendant had purchased gas that night for a green Explorer. Defendant paid for the gas with a credit card and signed the credit card slip as \u201cReubin McNeill.\u201d The Handy Hugo employee recalled that defendant was wearing a class ring with a stone which may have been reddish in color. At some point during the evening, defendant told Lucas\u2019 sister, Carolyn, that he was in trouble and that she would not see him again.\nSeveral employees at Crabtree Valley Mall testified that on 5 August, a man fitting defendant\u2019s general description had purchased items with credit cards bearing the name Reubin McNeill. At least two of these employees, Ted Murphy from Brookstone and Penny Franklin from Sharon Luggage and Gifts, identified defendant as the man who made the purchases on 5 August.\nHaywood McCoy testified that defendant had asked him to retrieve luggage from an Explorer parked in the Crabtree Valley Mall parking lot. Defendant told McCoy he had left the vehicle there because he had the feeling the police were watching him when he left the mall after shopping. Defendant also told McCoy the items in the Explorer were the only evidence that could tie him to a crime in which \u201che had cut somebody up.\u201d McCoy testified he could not locate the Explorer in the parking lot.\nDefendant was arrested on 13 August 1998 at an apartment in Durham, North Carolina. As police approached, defendant raised his hands in the air, dropping some cards in the process. Police found a driver\u2019s license and various credit cards bearing Reubin McNeill\u2019s name near defendant. At that time, defendant told the police, \u201cthose aren\u2019t mine.\u201d Police also found a purple card bearing the name \u201cTank\u201d and a pager number.\nThe state presented DNA evidence at trial via State Bureau of Investigation (SBI) Special Agent Brenda Bissette. Bissette testified that a DNA profile taken from three samples of the victim\u2019s pants matched defendant\u2019s DNA. On a piece taken from the inside of the victim\u2019s pocket, defendant\u2019s DNA was dominant. Finally, Bissette testified that the DNA of both the victim and defendant appeared in samples taken from the Explorer.\nDr. Thomas Clark, a pathologist, performed an autopsy on the victim\u2019s body. In addition to multiple superficial wounds, the autopsy revealed a stab wound that entered the victim\u2019s lung and caused bleeding in the chest cavity. The autopsy also identified a group of wounds that entered the heart. According to Dr. Clark, the cause of death was multiple stab wounds.\nDefendant testified on his own behalf. He stated that after graduating from high school, he had pled guilty to a rape charge, received a life sentence, and served prison time in South Carolina. Defendant was paroled in 1993 and eventually attended Fayetteville State and North Carolina State Universities. According to defendant, in November 1997, he began using crack cocaine and never stopped. Defendant testified he purchased crack cocaine from people known on the street as \u201cTank\u201d and \u201cT-Bone.\u201d In one transaction, defendant obtained $600.00 of cocaine from T-Bone and never paid for it. Defendant testified T-Bone had once shot out defendant\u2019s car windshield and tried to attack him because defendant owed him money. Defendant reported this incident to the police.\nDefendant testified he first met the victim in 1996 at Snap Shot Video, an adult video establishment. Defendant also testified he had encountered the victim on 4 August 1998 in an adult-oriented establishment where defendant was smoking crack cocaine. Defendant and the victim left in the victim\u2019s car. The two men drank a beer together at a restaurant and discussed engaging in some sort of sexual conduct with each other. Defendant decided, \u201cI wasn\u2019t going to have any sex with him or get with him or anything like that unless I got some drugs.\u201d Defendant and the victim drove to Shepherd Street, where defendant bought three rocks of cocaine from \u201cTank.\u201d Tank made a phone call to obtain more cocaine for defendant, and directed defendant to drive to the spot where the victim\u2019s body was eventually found. Defendant testified that Tank told him to wait there about fifteen minutes for more drugs.\nAccording to defendant, after they arrived at the spot, a car pulled up, and defendant and the victim exited the Explorer. Defendant recognized the man in the other car as T-Bone. Defendant testified that T-Bone demanded the money defendant owed him and brandished a knife in front of defendant\u2019s face. Defendant grabbed the knife and T-Bone shoved defendant into the front of the victim\u2019s truck. Defendant then grabbed T-Bone\u2019s knife by the blade. After continued brawling, the victim eventually pulled T-Bone off of defendant. According to defendant, T-Bone stabbed the victim, and they fell down. Defendant then fled in the victim\u2019s Ford Explorer to Carol and Tony Lucas\u2019 house.\nDefendant denied bringing a knife to the Lucas home but admitted using the victim\u2019s credit cards. Defendant stated he left the Explorer at Crabtree Valley Mall because when he left the mall, he saw a police officer in an unmarked car with a radio in his hand. Defendant also admitted he asked McCoy to try to retrieve items from the Explorer but denied telling McCoy he had \u201ccut anybody up real bad.\u201d\nJURY SELECTION\nDefendant first argues that the trial court, by allowing the state to use peremptory strikes against three African-American jurors, violated his right to equal protection under the state and federal Constitutions, U.S. Const, amend. XIV, N.C. Const, art. I, \u00a7 26; his right to fair and equal jury selection under the North Carolina Constitution, N.C. Const, art. I, \u00a7\u00a7 19, 26; and his Sixth Amendment right to a representative jury from a cross-section of the community, U.S. Const, amend. VI.\nThe use of peremptory challenges for racially discriminatory reasons violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 83 (1986), as well as Article I, Section 26 of the North Carolina Constitution, State v. Fletcher, 348 N.C. 292, 312, 500 S.E.2d 668, 680 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 113 (1999).\nIn Batson, the U.S. Supreme Court established a three-part test to determine whether the state had impermissibly discriminated on the basis of race when selecting jurors. 476 U.S. at 96-98, 90 L. Ed. 2d at 87-89. Our courts have adopted the Batson test for review of peremptory challenges under the North Carolina Constitution. State v. Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807, 815 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001); State v. Mitchell, 321 N.C. 650, 365 S.E.2d 554 (1988). First, the defendant must make a prima facie showing that the state exercised a peremptory challenge on the basis of race. Lawrence, 352 N.C. at 14, 530 S.E.2d at 815. If this showing is made, the court advances to the second step, where the burden shifts to the state to offer a facially valid, race-neutral rationale for its peremptory challenge. Id. The state\u2019s explanation must be clear and reasonably specific, although it \u201cneed not rise to the level justifying exercise of a challenge for cause.\u201d Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, quoted in Lawrence, 352 N.C. at 14, 530 S.E.2d at 815. Moreover, the state\u2019s proffered rationale need not be persuasive or even plausible. Lawrence, 352 N.C. at 14, 530 S.E.2d at 816. As long as the state\u2019s reason appears facially valid and betrays no inherent discriminatory intent, the reason is deemed race-neutral. Id. Our courts allow the defendant to submit evidence to show that the state\u2019s proffered reason is merely a pretext for discrimination. Id.\nIn the third and final step, the trial court must decide whether the defendant has proven purposeful discrimination. Id. This involves weighing various factors such as \u201c \u2018susceptibility of the particular case to racial discrimination, whether the State used all of its peremptory challenges, the race of witnesses in the case, questions and statements by the prosecutor during jury selection which tend to support or refute an inference of discrimination, and whether the State has accepted any African-American jurors.\u2019 \u201d State v. Golphin, 352 N.C. 364, 427, 533 S.E.2d 168, 211 (2000) (quoting State v. White, 349 N.C. 535, 548-49, 508 S.E.2d 253, 262 (1998), cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999)), cert, denied,-U.S. -, 149 L. Ed. 2d 305 (2001).\nUpon review, the trial court\u2019s determination is given great deference because it is based primarily on evaluations of credibility. Id. Such determinations will be upheld as long as the decision is not clearly erroneous. Lawrence, 352 N.C. at 14, 530 S.E.2d at 816.\nWhere the trial court fails to rule on a peremptory challenge, \u201cthe question of whether the defendant established a prima facie case becomes moot.\u201d Golphin, 352 N.C. at 426, 533 S.E.2d at 211. In the absence of an express ruling, \u201c \u2018we need not address the question of whether defendant met his initial burden of showing discrimination[,] and [we] may proceed as if aprima facie case had been established.\u2019 \u201d State v. Bonnett, 348 N.C. 417, 434, 502 S.E.2d 563, 575 (1998) (quoting State v. Harden, 344 N.C. 542, 557, 476 S.E.2d 658, 665 (1996), cert. denied, 520 U.S. 1147, 137 L. Ed. 2d 483 (1997)), cert. denied, 525 U.S. 1124, 142 L. Ed. 2d 907 (1999). Similarly, the reviewing court may proceed with its analysis under Batson and its progeny where the state presents reasons for its challenges despite the defendant\u2019s failure to establish a prima facie case. State v. Smith, 352 N.C. 531, 532 S.E.2d 773 (2000), cert. denied,-U.S.-, 149 L. Ed. 2d 360 (2001).\nIn the present case, defendant argues that prospective jurors Rotini, Sanders, and Vann were improperly excluded from the jury on the basis of race. The state set forth its reasons for challenging prospective juror Rotini before the trial court ruled on defendant\u2019s objection. The state did the same with prospective juror Sanders. The trial court also did not immediately rule on defendant\u2019s objection to prospective juror Vann but instead asked the state if it wished to give reasons for the challenge. For these reasons, discussion of defendant\u2019s prima facie case is moot. Golphin, 352 N.C. at 426, 533 S.E.2d at 211; Smith, 352 N.C. 531, 532 S.E.2d 773. We therefore move to the second prong of the Batson test and determine whether the state met its burden of providing race-neutral reasons for its peremptory challenges. Lawrence, 352 N.C. at 14, 530 S.E.2d at 815.\nWe first address the state\u2019s proffered rationale for its challenge to prospective juror Rotini. At the time the state challenged that prospective juror, it had already used two peremptory challenges, one on a white male and the second on an Hispanic female. Furthermore, at that point in jury selection, the state had already accepted the first African-American juror it questioned. The state argued that its acceptance of the first African-American juror not excused for cause was proof the state was not engaging in any pattern or practice in exercising its peremptory challenges. Further, the state argued that prospective juror Rotini\u2019s views on the death penalty prompted the state\u2019s peremptory challenge. Our review of prospective juror Rotini\u2019s voir dire reveals the state\u2019s rationale was valid. Prospective juror Rotini clearly stated he had long been opposed to the death penalty and was not capable of taking someone else\u2019s life. Moreover, the juror related an extremely strong predisposition for a life sentence rather than death if he were selected for the jury. Accordingly, the trial court did not err in finding the state had provided a race-neutral reason to challenge prospective juror Rotini.\nTurning to prospective juror Sanders, the state argued that its challenge of Sanders was supported by her eye contact with defendant, her history of visiting prisons, and her close family members having spent time in prison. All these facts, according to the state, indicated Sanders\u2019 potential sympathy for defendant. A thorough review of the transcript reveals the state\u2019s excusal of Sanders was unrelated to race. As the state argued to the trial court, the record of prospective juror Sanders\u2019 voir dire indicates that the juror made a great deal of eye contact with defendant, that she had visited people in prison, and that her father and two uncles had been in prison. Accordingly, the trial court properly concluded that the state had articulated a race-neutral rationale for its peremptory challenge.\nFinally, we consider the state\u2019s peremptory challenge of prospective juror Vann. The state listed the following reasons in support of its peremptory challenge of this prospective juror: his employment with the Department of Correction, which involved counseling inmates on a daily basis; his statements indicating real concerns about the death penalty; his familiarity with a death-row inmate; and his knowledge of a psychiatrist who often testified for the defense in capital sentencing hearings. The record indicates that the state\u2019s reasons for its peremptory challenge are supported by the witness\u2019 voir dire testimony. Moreover, these reasons provide a facially valid and race-neutral rationale for this peremptory challenge. Accordingly, the trial court properly found the state\u2019s rationale for its peremptory challenge of prospective juror Vann to be race-neutral.\nBecause the state provided race-neutral reasons for its peremptory challenges of prospective jurors Rotini, Sanders, and Vann, we now proceed to the third prong of the Batson inquiry. In this inquiry, we evaluate whether defendant proved purposeful discrimination by applying the factors listed in Golphin, 352 N.C. at 427, 533 S.E.2d at 211. First, we note that defendant, the victim, and approximately one-half of the state\u2019s witnesses were African-American. This made the jury selection process less likely to be susceptible to racial discrimination. White, 349 N.C. at 550, 508 S.E.2d at 262. Moreover, the state noted during jury selection that \u201cthis case is not about race.\u201d This statement tends to refute an inference of discrimination. Id. at 548-49, 508 S.E.2d at 262. Additionally, the record indicates that the trial court made no procedural errors but instead thoroughly considered both parties\u2019 arguments concerning the Batson challenges before allowing the state\u2019s peremptory challenges of the three jurors. Finally, the record reveals that the state accepted two African-Americans to serve on defendant\u2019s jury. Id.\nAccording the required level of deference to the trial court in its credibility determinations, Golphin, 352 N.C. at 427, 533 S.E.2d at 211, and noting that a showing of clear error was not made, Lawrence, 352 N.C. at 14, 530 S.E.2d at 816, we hold the record reveals no evidence of purposeful discrimination by the state in exercising its peremptory challenges of prospective jurors Rotini, Sanders, and Vann. Jury selection in this case complied in all respects with Batson. For the same reasons, there is no violation of defendant\u2019s right to fair and equal jury selection under the North Carolina Constitution or of his Sixth Amendment right to a representative jury from a cross-section of the community. Defendant\u2019s assignments of error are without merit.\nDefendant also assigns error to the trial court\u2019s excusal for cause of prospective jurors Neal, Cooke, and Baker because of their views on the death penalty. Defendant argues that the state challenged these three jurors merely because their answers were equivocal and that these dismissals violated the Sixth and Fourteenth Amendments to the United States Constitution.\nThe Sixth and Fourteenth Amendments prohibit exclusion of jurors in capital cases merely because they have reservations about the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 517-18, 20 L. Ed. 2d 776, 782-83 (1968); see also State v. Gregory, 340 N.C. 365, 459 S.E.2d 638 (1995) (finding no error where prospective jurors were excused for cause because they demonstrated they would be unable to put aside their own opinions and follow the law), cert. denied, 517 U.S. 1108, 134 L. Ed. 2d 478 (1996). Capital jurors, however, must be impartial about finding the facts and applying the law. Wainwright v. Witt, 469 U.S. 412, 416, 83 L. Ed. 2d 841, 846-47 (1985). Jurors who are unable to articulate clearly their willingness to set aside their own beliefs on capital punishment and defer to the law may be excused for cause. State v. Blakeney, 352 N.C. 287, 299, 531 S.E.2d 799, 809-10 (2000), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001); State v. Brogden, 334 N.C. 39, 43, 430 S.E.2d 905, 907-08 (1993). The holding in Wainwright established that it was proper to exclude a juror where his or her views on the death penalty would\n\u201cprevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.\u201d [Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980).] We note that . . . this standard . . . does not require that a juror\u2019s bias be proved with \u201cunmistakable clarity.\u201d This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made \u201cunmistakably clear\u201d; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.... [T]his is why deference must be paid to the trial judge who sees and hears the juror.\n469 U.S. at 424-26, 83 L. Ed. 2d at 851-53 (footnotes omitted). Accordingly, in analyzing this issue, we will not disturb the trial court\u2019s decision in the absence of an abuse of discretion. State v. Hill, 347 N.C. 275, 288, 493 S.E.2d 264, 271 (1997), cert. denied, 523 U.S. 1142, 140 L. Ed. 2d 1099 (1998).\nTurning first to prospective juror Neal, the record reveals Neal stated unequivocally that he would not follow the trial court\u2019s instructions on the law if they were inconsistent with his own personal beliefs. Neal indicated he would adhere to a standard of \u201czero doubt\u201d rather than \u201creasonable doubt\u201d and that he would not change his decision-making in accordance with the trial court\u2019s instructions:\n[Q] Okay. Let me talk to you a little bit about the burden of proof. The State is held to a burden of proof beyond a reasonable doubt throughout the trial. Throughout both phases of the trial. Nothing more, nothing less than that. Judge Bullock will define what reasonable doubt is for you, and that is the standard that each and every juror must follow. Again, not any preconceived notions about what reasonable doubt is, and he will continue to refer to it as reasonable doubt, not beyond a shadow of a doubt, not beyond all doubt, or not anything lesser than beyond a reasonable doubt. Given your feelings about this, do you think that you can hold the State to that burden, nothing more and nothing less?\n[A] I would find it very difficult. It would have to be proven in my definition of reasonable doubt. To the point that reasonable was almost to the point of zero, almost.\n[Q] Okay.\n[A] Meaning zero to almost zero doubt. The evidence would have to be so heavily weighted on that there was [sic], in effect, in my mind, be almost no doubt.\n[Q] Okay. In your mind. And that\u2019s what we\u2019re talking about here, what it would be in your mind. So you are saying, then, to me, and correct me if I\u2019m wrong. Okay? Because I am not trying to put words in your mouth, I am just trying to understand here. But what you are saying is that you would have to be one hundred percent certain that it wouldn\u2019t make any difference to you in your mind what the instruction on reasonable doubt is, that you would have to be one hundred percent certain before you could vote or before you could recommend a sentence of death?\n[DEFENSE COUNSEL]:\nObjection.\nBY THE COURT:\nSustained.\n[Q] Let me rephrase that. Would you be able to set aside what your definition of reasonable doubt is and apply the standard that Judge Bullock gives you?\n[A] I\u2019ll have to think about this one just a minute.\n[Q] Please, yes. Take your time.\n[A] Reasonable doubt in my mind is my own feeling, my own principles. And if reasonable doubt is not defined to match my principles in this Court or any Court, then I will not violate my principles to adhere to what the Court says.\nFollowing this discussion, defendant requested, outside the juror\u2019s presence, that the trial court instruct the juror on reasonable doubt. The trial court declined to give such an instruction, stating that it was more interested in whether the juror would \u201cfollow the law that\u2019s given to him and not as what he thinks it is.\u201d When prospective juror Neal was brought back in for further questioning, he reiterated that he would follow his personal beliefs rather than the law if the law differed from his own beliefs.\nThe comments of prospective juror Neal make it abundantly clear he was unwilling \u201c \u2018to temporarily set aside [his] own beliefs in deference to the rule of law.\u2019 \u201d Brogden, 334 N.C. at 43, 430 S.E.2d at 907-08 (quoting Lockhart v. McCree, 476 U.S. 162, 176, 90 L. Ed. 2d 137, 149-50 (1986)). Accordingly, the trial court did not abuse its discretion in allowing the state\u2019s motion to excuse Neal for cause. See id. at 43, 430 S.E.2d at 908; see also Blakeney, 352 N.C. at 299-301, 531 S.E.2d at 810-11 (holding juror excusal was proper where jurors stated that their strong personal beliefs would not allow them to vote for the death penalty under any circumstances).\nWe next consider the excusal for cause of prospective juror Cooke. After extensive voir dire of Cooke, his ability to recommend the death penalty remained unclear. Prospective juror Cooke initially told the state he could impose the death penalty if defendant \u201cdeserved to die.\u201d After further inquiry from the state, he admitted, \u201cI don\u2019t think I can [recommend the death penalty].\u201d When the state asked if his beliefs were so strong he could not vote for the death penalty under any circumstances, prospective juror Cooke stated, \u201cI could give the death penalty if I thought it was right.\u201d Finally, after conceding he was \u201cgoing back and forth,\u201d prospective juror Cooke agreed with the state that, if he served on the jury, he would hold the state to a higher burden of proof concerning the death penalty and that he could not follow the trial court\u2019s instructions on that phase of the proceeding.\nDefendant and the trial court then examined prospective juror Cooke. Cooke continued to vacillate concerning his position on the death penalty and admitted he was confused. He eventually informed the trial court that he could vote for the death penalty under certain circumstances. At this point, the trial court denied the motion to dismiss Cooke for cause.\nUpon further questioning by the state, however, prospective juror Cooke repeated his assertion that he would require a higher burden of proof during the sentencing proceeding than \u201cbeyond a reasonable doubt.\u201d The prospective juror also stated again that he could not recommend defendant be put to death under any circumstances. After the state renewed its challenge to prospective juror Cooke and defendant requested further voir dire, the trial court concluded, \u201c[T]his juror\u2019s views would prevent or substantially impair the performance of his jury duties, as a juror in a Court with his instructions and his oath. The Court, in its discretion, will not allow further questions about the subject and allow[s] the State\u2019s challenge for cause.\u201d\nCooke\u2019s bias for or against the death penalty was by no means illuminated with unmistakable clarity. See State v. Morganherring, 350 N.C. 701, 726, 517 S.E.2d 622, 637 (1999), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d 322 (2000). Cooke repeatedly changed his mind about whether he could recommend a death sentence. In a case such as this, where a juror\u2019s remarks concerning the death penalty are so equivocal that a court, either in voir dire or upon review, cannot discern whether the juror would be able to properly apply the law, deference must be given to the trial court\u2019s decision. Id. at 727, 517 S.E.2d at 637. Moreover, because prospective juror Cooke indicated he would not follow the trial court\u2019s instructions concerning sentencing and would instead apply a higher standard than beyond a reasonable doubt, there is ample evidence to support the trial court\u2019s decision to excuse him for cause.\nFinally, we consider the trial court\u2019s excusal for cause of prospective juror Baker. She agreed during voir dire that she already had set ideas about when the death penalty was appropriate. The state investigated whether these ideas would interfere with Baker\u2019s duties as a juror:\n[Q] I know and, again, I have to talk in such generalities. But as I understood you, you indicated that if you had to say yes or no, that these strong feelings you have, some of them are strong, you could not set them aside?\n[A] True. It depends on evidence and all.\n[Q] When you say that you could not set those strong feelings aside, you can\u2019t say right now that you could set them aside because it would depend on what the evidence would, in fact, show?\n[A] Correct.\n[Q] And that there would be instances where the evidence would be such that you could set them aside, maybe, or there could be some circumstances, based on the evidence, that you couldn\u2019t set them aside; is that fair? Or do you think those strong feelings would always be a part of you and would affect your ability\u2014\n[A] They would always be a part of me and would probably affect (pause)\u2014\n[Q] Okay. And because of those feelings, they would, in fact, affect decisions that you would make. And it would, in fact, affect your making decisions about this Defendant for having committed whatever crime it is the jury decides he committed, whatever kind of first-degree murder. But it would affect your ability to make decisions in the case because of your strong feelings?\nrDEFENSE COUNSEL!:\nObjection.\n[A] Yes.\nBY THE COURT:\nOverruled.\n[Q] And you can answer. And since it would affect the decisions that you would make, does that mean that you might possibly find yourself making a decision[] in this case, based on or influenced by something other than the evidence that\u2019s presented and the law that Judge Bullock gives?\n[A] It could be possible.\nAfter this exchange, the trial court allowed the state\u2019s motion to excuse prospective juror Baker for cause. Prospective juror Baker had indicated that her strong personal feelings about the death penalty would influence her consideration of the case. See Morganherring, 350 N.C. at 727, 517 S.E.2d at 637. Moreover, the prospective juror stated that her decision-making in the case might be based on factors unrelated to the evidence or the trial court\u2019s instructions. Because this prospective juror clearly indicated that her personal feelings would \u201csubstantially impair the performance of h[er] duties as a juror,\u201d Wainwright, 469 U.S. at 424, 83 L. Ed. 2d at 851, she was properly dismissed for cause. The trial court did not abuse its discretion in excluding the challenged prospective jurors. This argument is without merit.\nGUILT-INNOCENCE PHASE\nDefendant next assigns error to the trial court\u2019s exclusion of the testimony of the managers of two adult-oriented establishments. Glenn Moore, store manager of Our Place Video, testified on voir dire that the victim visited his establishment two to three times per month. Catherine Keith testified on voir dire that the victim would come to Snap Shot Video, where she worked, twice a month. Defendant argued for the admission of this evidence at trial on the theory that it bolstered his credibility by corroborating his assertion that he met the victim at Our Place Video on the night of the victim\u2019s death.\nDefendant argued on voir dire that the testimony was admissible as relevant evidence of habit. The state asserted that the witnesses\u2019 statements were irrelevant because the witnesses could not testily they saw defendant and the victim together at Our Place Video on the night in question. The trial court stated that it would have allowed defendant\u2019s evidence for corroborative purposes had either of the witnesses been able to testify to seeing defendant and the victim together on the night in question. The trial court excluded the evidence on relevancy grounds, however, finding that the frequency with which the victim visited these establishments was immaterial to the issues for trial.\nDefendant alleges that the exclusion of this evidence violated his constitutional right to present a defense. Specifically, defendant asserts that his due process right to present evidence under both the state and federal Constitutions, as well as the North Carolina Rules of Evidence, was violated by the trial court\u2019s exclusion of the challenged testimony. On appeal, defendant characterizes the testimony of these two witnesses as relevant and admissible to show the habitual practices of, as well as the character of, the victim.\nThe right to present evidence in one\u2019s own defense is protected under both the United States and North Carolina Constitutions. As noted by the United States Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297 (1973), \u201c[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State\u2019s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one\u2019s own behalf have long been recognized as essential to due process.\u201d Id. at 294, 35 L. Ed. 2d at 308.\nLike all evidence offered at trial, however, evidence offered to support a defense must be relevant to be admissible. N.C.G.S. \u00a7 8C-1, Rule 402 (1999). Evidence is relevant if it has a \u201ctendency 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). The jury should not be prohibited from hearing evidence that is \u201cin any way connected with the matter in issue\u201d or evidence \u201cfrom which any inference of the disputed fact can reasonably be drawn.\u201d State v. McCraw, 300 N.C. 610, 618-19, 268 S.E.2d 173, 178 (1980); see also State v. York, 347 N.C. 79, 95, 489 S.E.2d 380, 389 (1997) (holding that testimony regarding letter written by the defendant\u2019s cellmate allegedly illustrating the codefendant\u2019s \u201cmanipulative hold\u201d over the defendant was not relevant because it did not go to \u201cprove the existence of any fact... of consequence in the determination of the charge of murder for which defendant was found guilty\u201d). Relevant evidence may be excluded, however, when \u201cits probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 403 (1999).\nIn Chambers, the defendant\u2019s conviction was reversed because the trial court erroneously excluded testimony of three witnesses that would have corroborated self-incriminating statements made by another suspect. 410 U.S. at 292-93, 35 L. Ed. 2d at 307-08. In the instant case, however, the excluded testimony was not offered to challenge the identity of defendant as the true perpetrator. See id. Rather, it was offered to corroborate defendant\u2019s statement that he met the victim at an adult-oriented establishment on 4 August 1998. Whether defendant was with the victim on the night the victim was killed, however, was not a matter at issue in this case. See McCraw, 300 N.C. at 618-19, 268 S.E.2d at 179. That issue was effectively mooted by defendant\u2019s own admission that he spent time with the victim on the night of 4 August. Similarly, where and at what time defendant met the victim was not a disputed fact at trial. See id. Even if it had been a disputed fact, neither of the witnesses could have shed light on that issue because neither of them could testify to seeing defendant and the victim together on the night of 4 August 1998. In any event, the evidence offered by the two witnesses was collateral, or immaterial, to any disputed issue in the case. See York, 347 N.C. at 95, 489 S.E.2d at 389; 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 3 n.22 (5th ed. 1998) (noting that in prior editions Dean Brandis defined immateriality as follows: \u201dImmaterial is properly used to describe evidence which, though relevant in some degree, is of such slight probative value that to exclude it is not error.\u201d); see also N.C.G.S. \u00a7 8C-1, Rule 403. Accordingly, the trial court did not err in excluding the challenged evidence on relevancy grounds.\nDefendant\u2019s arguments pertaining to habit evidence deserve mention, as habit evidence is a subcategory of the relevance inquiry. Evidence of habit is relevant to prove that \u201cthe conduct of the person ... on a particular occasion was in conformity\u201d therewith. N.C.G.S. \u00a7 8C-1, Rule 406 (1999). In determining whether a practice constitutes habit, a court must weigh, on a case-by-case basis, the number of specific instances of the behavior, the regularity of the behavior, and the similarity of the behavior. Crawford v. Fayez, 112 N.C. App. 328, 335, 435 S.E.2d 545, 550 (1993), disc. rev. denied, 335 N.C. 553, 441 S.E.2d 113 (1994). To rise to the level of habit, the instances of specific conduct must be \u201csufficiently numerous to warrant an inference of systematic conduct and to establish one\u2019s regular response to a repeated specific situation.\u201d Id.-, see also State v. Palmer, 334 N.C. 104, 112, 431 S.E.2d 172, 176 (1993) (holding that the custom of always having money on one\u2019s person constituted a regular response to a repeated specific situation and was therefore habit). The trial court\u2019s ruling on the admissibility of habit evidence may be disturbed only for an abuse of discretion. Crawford, 112 N.C. App. at 335, 435 S.E.2d at 550.\nDefendant contends the testimony excluded in this case tended to show the victim had a habit of frequenting adult-oriented establishments. The two witnesses who testified on voir dire indicated that the victim visited each of their stores two or three times each month. Occasional visits to a store do not rise to the level of regular and systematic conduct. Id. The trial court therefore did not abuse its discretion in determining that the challenged testimony did not constitute relevant evidence of habit. See id.\nDefendant also characterizes the excluded testimony as admissible character evidence. At trial, however, defendant\u2019s counsel did not argue that this testimony was character evidence. In fact, the defense stated on voir dire, \u201c[W]e have asked no questions and have elicited no evidence, and intend not to elicit any evidence from either of these witnesses as to any trait of [the victim\u2019s] character.\u201d Nonetheless, in the instant appeal, defendant argues that the testimony of Moore and Keith should have been allowed as relevant evidence of the character of the victim.\nRule 10 of the North Carolina Rules of Appellate Procedure requires that, \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired.\u201d N.C. R. App. P. 10(b)(1). Rule 10 has been interpreted by this Court to stand for the proposition that \u201c[w]here ... a defendant withdraws challenged questions, we do not find that the court\u2019s ruling on those questions has been preserved for review. The defendant abandoned his position at trial and cannot now resume the battle in this forum.\u201d State v. Larrimore, 340 N.C. 119, 149, 456 S.E.2d 789, 805 (1995); see also Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (noting that \u201c[a]n examination of the record discloses that the cause was not tried upon [the defendant\u2019s] theory, and the law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court\u201d).\nWhile defendant stated in no uncertain terms at trial that the evidence proffered was not character evidence, he now seeks to establish error on appeal by asserting that the evidence was indeed character evidence. Defendant\u2019s change in position runs afoul of the specificity required by Rule 10 for preservation of error. N.C. R. App. P. 10; Larrimore, 340 N.C. at 149, 456 S.E.2d at 805. Accordingly, this question is not before us for review.\nIn his next argument, defendant contends the trial court erred by failing to intervene ex mero mo tu during the state\u2019s closing argument to prevent the state from challenging defendant\u2019s account of his meeting with the victim in the adult video store. On voir dire, the state had objected to the testimony of witnesses Moore and Keith, arguing that it was not relevant. As further basis for its objection, the state argued that it had not cross-examined defendant about that issue and that there was \u201cno contest\u201d about when and where defendant met the victim. The trial court heard further argument by defendant for admission of the testimony as habit evidence, but finally ruled that the testimony of Moore and Keith was irrelevant and therefore inadmissible. The state in closing argument challenged defendant\u2019s credibility, stating:\nThere will certainly be questions in your mind as to how all of this came about. How did Reubin McNeill come to be with the Defendant that night? We don\u2019t know enough of the evidence, because the only living person who can tell us about that simply isn\u2019t telling the truth about so many other things. How they met that night is only uncontroverted, if you believe the Defendant.\nDefendant did not object, and the trial court did not intervene. Defendant now argues that the trial court\u2019s failure to intervene ex mero motu violated his due process right to a fair trial.\nTrial counsel are allowed wide latitude in their arguments to the jury in capital proceedings. State v. Smith, 351 N.C. 251, 268, 524 S.E.2d 28, 41, cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000); State v. Robinson, 346 N.C. 586, 606, 488 S.E.2d 174, 187 (1997). Counsel may argue the facts in evidence as well as all reasonable inferences that may be drawn therefrom. 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). In the absence of an objection by the opposing party, the trial court is obligated to intervene to prevent a closing argument only where the argument is so grossly improper that it impedes the defendant\u2019s right to a fair trial. Golphin, 352 N.C. at 452, 533 S.E.2d at 226; State v. Roseboro, 351 N.C. 536, 546, 528 S.E.2d 1, 8, cert. denied, 531 U.S. 1019, 148 L. Ed. 2d 498 (2000). Grossly improper argument is defined as conduct so extreme that it renders a trial fundamentally unfair and denies the defendant due process. See, e.g., Taylor v. Kentucky, 436 U.S. 478, 487, 56 L. Ed. 2d 468, 477 (1978) (holding that defendant\u2019s right to due process was violated where court refused to give jury instructions on presumption of innocence after state\u2019s closing argument implied that all defendants are guilty); Miller v. Pate, 386 U.S. 1, 6-7, 17 L. Ed. 2d 690, 694 (1967) (holding that the defendant\u2019s due process rights were violated where prosecutor\u2019s argument intentionally misrepresented the evidence).\nIn the instant case, the state asserted on voir dire that it did not contest how or where defendant met the victim. Contrary to this representation, however, the state later attacked defendant\u2019s credibility in its closing argument by questioning whether defendant\u2019s account of how he met the victim was true. Even so, the state\u2019s argument was not so grossly improper as to warrant a new trial. See Golphin, 352 N.C. at 452, 533 S.E.2d at 226. Accordingly, this argument is without merit.\nDefendant next argues the trial court erred by allowing the state to cross-examine defendant concerning three instances of his postarrest silence. According to defendant, this violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 23 of the North Carolina Constitution.\nDefendant first cites a line of questions asked by the state while cross-examining defendant:\nQ ... [Y]ou knew that Tank could back you up on your story; did-n\u2019t you?\nA No, I didn\u2019t. I didn\u2019t know that Tank could back me up on my story.\nQ Well, he could have told the police that he sent T-Bone there to meet you that night?\n[DEFENSE COUNSEL!:\nObjection.\nBY THE COURT:\nSustained.\nDefendant also cites a second set of questions the state asked him on cross-examination:\nQ Now, right before lunch when we broke, I was talking to you about your arrest over in Durham on August the\u2014late night of August the 12th, early morning hours of August the 13th. Do you remember when you were arrested?\nA Yes.\nQ And you were brought over to the police station here in Raleigh; is that correct?\nA That\u2019s correct.\nQ And when you got out of the car, a newsman asked you about commenting. Do you remember that? With news cameras and everything?\nA Yes, I remember that. I remember that.\nQ And you made some comments; didn\u2019t you?\nA Uh-huh. (Affirmative) Yes, ma\u2019am.\nQ When you made some comments to the press that night, did you say anything about T-Bone?\nA No, I didn\u2019t say anything about T-Bone.\nQ Did you say anything about Tony?\nA No.\nQ Did you, when you were interviewed by the press that night, or when you made the comments to the press that night, do you recall making the statement, \u201cI didn\u2019t kill nobody. I hope they find the real killer?\u201d\nA Something to that\u2014yes.\nQ And you hoped they found the real killer?\nA I might have said something to that effect.\nQ And if the videotape shows that you said that\u2014\nA I remember saying that I didn\u2019t kill anybody. I remember that. I might have said I hoped they found who did it.\nQ Okay. Why didn\u2019t you say, \u201cI know who the real killer is\u201d?\nrDEFENSE COUNSEL!:\nObjection.\nBY THE COURT:\nOverruled.\n[A] I don\u2019t know.\nQ Why didn\u2019t you offer some of that information?\nA I don\u2019t know. My thinking at that time, I couldn\u2019t tell you why I even spoke to the news people.\nQ Well, you knew at the time that you testified that somebody named T-bone killed Reuben McNeill, didn\u2019t you?\nA Yeah.\nQ And you didn\u2019t make that offer at that time?\nA No, I didn\u2019t.\nDefendant also attributes error to the state\u2019s cross-examination of him concerning statements he made to a police officer while in a holding cell. Specifically, defendant argues the state improperly asked him if he said the authorities could not \u201cpin this on\u201d him, that he was not \u201ctrying to run from them,\u201d and that \u201cthey were just slow to catch\u201d him. According to defendant, these questions attacked defendant\u2019s alibi by implying that if he was actually innocent and his story was true, defendant would have revealed the identity of the true killer after defendant was arrested. Defendant claims these three instances of cross-examination violated his right to remain silent.\nIt is well established under both the United States and the North Carolina Constitutions that post-Miranda silence may generally not be used to impeach the defendant on cross-examination. Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 98 (1976) (holding that when Miranda warnings are given, \u201cit would be fundamentally unfair and a deprivation of due process to allow the arrested person\u2019s silence to be used to impeach an explanation subsequently offered at trial\u201d); State v. Rouse, 339 N.C. 59, 95, 451 S.E.2d 543, 563 (1994) (\u201cA defendant\u2019s silence after receiving Miranda warnings cannot be used against him as evidence of guilt.\u201d), cert. denied, 516 U.S. 832, 133 L. Ed. 2d 60 (1995). This rule is supported by the assurance, given explicitly in the Miranda warnings, that silence will carry no penalty. Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98; Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966).\nWhen the defendant chooses to speak voluntarily after receiving Miranda warnings, however, the rule in Doyle is not triggered. Anderson v. Charles, 447 U.S. 404, 408, 65 L. Ed. 2d 222, 226 (1980) (per curiam); State v. Westbrooks, 345 N.C. 43, 65, 478 S.E.2d 483, 496-97 (1996). \u201cSuch questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.\u201d Anderson, 447 U.S. at 408, 65 L. Ed. 2d at 226. Once the defendant speaks voluntarily, cross-examination on those statements is permissible if it \u201cmerely inquires into prior inconsistent statements.\u201d Id. Cross-examination can properly be made into why, if the defendant\u2019s trial testimony regarding his alibi is true, he did not include in his earlier statement the relevant information disclosed at trial. Id. at 408-09, 65 L. Ed. 2d at 227. Conversely cross-examination on prior inconsistent statements is improper if it is intended to elicit meaning from, or comment on, the defendant\u2019s exercise of his or her right to remain silent. Id.\nThis Court has adopted the rule of Doyle and Anderson but has added a further analysis. Westbrooks, 345 N.C. at 66, 478 S.E.2d at 497; see also Jenkins v. Anderson, 447 U.S. 231, 239, 65 L. Ed. 2d 86, 95 (1980) (holding that \u201c[e]ach jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative\u201d). Our next step in that analysis is to determine whether the admission of the challenged testimony is consistent with the rules of evidence regarding prior inconsistent statements. Westbrooks, 345 N.C. at 64, 478 S.E.2d at 496.\nUnder the North Carolina Rules of Evidence, a prior statement is considered inconsistent if it fails to mention a material circumstance presently testified to which would have been natural to mention in the prior statement. State v. Lane, 301 N.C. 382, 386, 271 S.E.2d 273, 276 (1980). In Lane, the defendant denied that he sold drugs to an undercover agent, but later testified to a different alibi. Id. This Court held that cross-examination on the earlier denial was improper because it would not have been natural under the circumstances for the defendant to have mentioned his alibi defense at that time. Id. Under the North Carolina Rules of Evidence, even the failure to speak may be considered an inconsistent statement and proper for impeachment. State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972).\nAs a preliminary matter, we note that in the first set of questions cited above, the trial court sustained defendant\u2019s objection to the following: \u201cWell, he could have told the police that he sent T-Bone to meet you there that night?\u201d When the objection is immediately sustained, the use of defendant\u2019s silence for impeachment purposes is avoided and no due process violation occurs. Greer v. Miller, 483 U.S. 756, 764, 97 L. Ed. 2d 618, 629-30 (1987). As to the state\u2019s cross-examination concerning statements defendant made to police while in a holding cell, we have reviewed the portion of the transcript cited by defendant and conclude that the state asked no questions concerning defendant\u2019s silence. After thorough review, we discern no error in this portion of the state\u2019s cross-examination.\nThe sole remaining issue in this assignment of error is whether the trial court properly overruled defendant\u2019s objection to the question, \u201cWhy didn\u2019t you say, T know who the real killer is\u2019?\u201d Turning to this issue, we first note it is unclear from the record whether defendant was advised of his right to remain silent at the time of his arrest. Defendant makes no assertion in his brief that such a warning had in fact been given. Assuming arguendo that defendant was advised of his right to remain silent, we hold that defendant\u2019s constitutional rights were not violated by the cross-examination at issue. Defendant chose not to exercise his right to remain silent, but instead spoke voluntarily to the press, in the presence of the police, after he was arrested. See Anderson, 447 U.S. at 408, 65 L. Ed. 2d at 226; Rouse, 339 N.C. at 95, 451 S.E.2d at 563. Cross-examination focused on defendant\u2019s statements, and the implications thereof, and not on defendant\u2019s silence.\nThe cross-examination that took place in this case is similar to that in Anderson, where the defendant was asked why, if his testimony was true, he did not tell the same story to the police upon his arrest. 447 U.S. at 405-06, 65 L. Ed. 2d at 224-25. In Anderson, as here, the state did not draw meaning from the defendant\u2019s prior silence, but instead used, for purposes of impeachment, the statements of a defendant who had voluntarily chosen not to remain silent. Id. at 408-09, 65 L. Ed. 2d at 227.\nAccordingly, in the instant case, when the state asked defendant why he did not inform someone that he knew who the real killer was, it did not capitalize on any previous assurance made to defendant that he had the right to remain silent. See Doyle, 426 U.S. at 618-19, 49 L. Ed. 2d at 98. Rather, the state permissibly challenged defendant\u2019s voluntary and inconsistent prior statement. See Anderson, 447 U.S. at 408, 65 L. Ed. 2d at 226. The impeachment therefore did not violate defendant\u2019s constitutional rights.\nAfter his arrest, defendant told the press that he did not kill anyone and that he hoped they would find the real killer. Implicit in this statement was the assertion that defendant did not know the identity of the real killer. Defendant\u2019s trial testimony, in which he revealed the alleged identity of the real killer, was clearly inconsistent with this earlier statement to the press. The inquiry under the test set out in Lane becomes: Accepting the defendant\u2019s present alibi\u2014that he was not the killer\u2014as true, would it have been natural for him to have revealed the identity of the killer at the time he commented to the press? 301 N.C. at 386, 271 S.E.2d at 276. We believe that it would have been natural for defendant to have included this information in his voluntary statement to the press if defendant did indeed have information about the identity of the killer. See id. Under the rules of evidence, defendant\u2019s prior inconsistent statement was properly used to impeach his trial testimony. See Jenkins, 447 U.S. at 240, 65 L. Ed. 2d at 96; Westbrooks, 345 N.C. at 65, 478 S.E.2d at 496. Accordingly, this argument is rejected.\nDefendant next assigns error to the trial court\u2019s refusal to instruct the jury to disregard the state\u2019s closing argument that the jury could use defendant\u2019s postarrest silence as a basis for disbelieving defendant\u2019s trial testimony. The state\u2019s closing argument referenced defendant\u2019s failure to mention his alibi on two occasions: when he voluntarily spoke to the media, and when he was arrested. Defendant first cites the following portion of the state\u2019s closing argument:\n[Defendant] never told his story to the police when the trail was hot, so to speak. That he never told the media who the alleged real killer was, but he did say to the media, I hope you catch the real killer. Consider that. An innocent man arrested for murder. An innocent man having in his pocket the names, telephone or pager number of the person who set this all up. The name and the telephone number of the man he said\u2014or he says now, is the person who caused T-bone to make the delivery. An innocent man wouldn\u2019t say to the police, would-n\u2019t say to the media, [\u201c]I didn\u2019t do it, but let me tell you who did.\u201d No, the Defendant did not tell his story back then. The Defendant did not tell us that Tank had anything to do with this case. You heard Sergeant Lynch testify. The name Tank meant nothing to him until it was mentioned by the defense lawyers in opening statement. And it\u2019s then that we began to try to see where the pager number goes to, if anything. Some national account that they would never probably ever be able to trace. Why didn\u2019t the Defendant, if his story were true, why didn\u2019t he tell us way back then so that we could have done something\u2014\n[DEFENSE COUNSEL]:\nObjection.\nBY THE COURT:\nSustained.\n[DEFENSE COUNSEL]:\nWe would ask the jury be instructed to disregard that last paragraph.\nBY THE COURT:\nDenied.\nDefendant argues the trial court\u2019s refusal to instruct the jury to disregard this argument violated defendant\u2019s constitutional rights because the argument exacerbated the prejudice from the state\u2019s improper impeachment during cross-examination.\nAs previously noted, the state\u2019s use of defendant\u2019s prior inconsistent statement to the media for impeachment purposes during cross-examination was proper. In that portion of the state\u2019s closing argument outlined above, the state was again properly using defendant\u2019s voluntary, inconsistent statement to the media for impeachment purposes. See State v. Buckner, 342 N.C. 198, 221, 464 S.E.2d 414, 427 (1995), cert. denied, 519 U.S. 828, 136 L. Ed. 2d 47 (1996). The state\u2019s purpose is made clear in the conclusion to the challenged portion of argument, where the state asked, \u201cWhy didn\u2019t the Defendant, if his story were true, . . . tell us way back then so that we could have done something[?]\u201d The state was properly attempting to impeach defendant\u2019s trial testimony by pointing out that if defendant was indeed innocent and his trial testimony were true, it would have been natural for defendant to have included the killer\u2019s identity in his comments to the media. See Westbrooks, 345 N.C. at 66-67, 478 S.E.2d at 497-98; Lane, 301 N.C. at 386, 271 S.E.2d at 276.\nThe second comment of which defendant complains involves defendant\u2019s conduct at the time he was arrested. Defendant alleges that the following portion of the state\u2019s closing argument violated defendant\u2019s constitutional rights:\n[Defendant] had Tank\u2019s pager number, supposedly, in his pocket when he was arrested. When that was retrieved from his pocket he didn\u2019t mention it then. What does your reason and common sense tell you about that?\nAccording to defendant, because this argument sought to impeach him through his postarrest silence, the trial court should have intervened ex mero motu.\nIf the defendant chooses to testify, he is subject to impeachment when his earlier silence is inconsistent with his testimony on the stand. Portuondo v. Agard, 529 U.S. 61, 69, 146 L. Ed. 2d 47, 56 (2000) (holding no constitutional violation where the prosecutor\u2019s comments concerned the defendant\u2019s credibility as a witness, rather than suggesting that his silence was evidence of guilt); Raffel v. United States, 271 U.S. 494, 497, 70 L. Ed. 1054, 1058 (1926) (holding that where the defendant \u201ctakes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined as to the facts in issue\u201d). Once the defendant takes the stand, \u201chis credibility may be impeached and his testimony assailed like that of any other witness.\u201d Brown v. United States, 356 U.S. 148, 154, 2 L. Ed. 2d 589, 596 (1958). Under our rules of evidence, even an omission constitutes an inconsistent statement subject to impeachment. Mack, 282 N.C. at 340, 193 S.E.2d at 75.\nIn the instant case, defendant elected to take the stand in his own defense. He therefore opened the issue of his credibility for scrutiny on cross-examination. The state referenced defendant\u2019s prior silence in its closing argument, not to draw meaning from it, but rather to impeach defendant\u2019s alibi. A card bearing the name \u201cTank\u201d fell out of defendant\u2019s pocket during his arrest. The state properly pointed out that if Tank had sabotaged defendant as defendant claimed, then it would have been natural for defendant to have related that fact at the time of his arrest.\nFor these reasons, as well as the reasons stated in our discussion of defendant\u2019s prior assignment of error, defendant has shown no violation of his constitutional rights. The trial court thus did not err by failing to intervene ex mero mo tu. This argument is without merit.\nDefendant next argues that the trial court violated his constitutional right to confront the witnesses against him by allowing expert testimony to be predicated on hearsay. During trial, SBI Special Agent Brenda Bissette testified concerning the presence and the physical location of defendant\u2019s DNA on the victim\u2019s flipped-over pants pocket. Bissette\u2019s expert testimony was based in part on the testing of cloth samples cut from the victim\u2019s pants by SBI Special Agent Jenny Elwell. Agent Elwell was unavailable to testify at trial because she had delivered twins less than forty-eight hours before her scheduled testimony. Agent Bissette testified in her stead, noting that she had looked at the victim\u2019s pants herself to determine whether the cuttings were indeed taken from the areas indicated by Agent Elwell in her notes.\nDefendant claims that the exact location of the cutting and the bloodstains was a crucial fact in his case, one upon which he was not allowed to cross-examine Agent Elwell. If the bloodstain was indeed from the victim\u2019s flipped-over pants pocket, the state\u2019s case would be considerably advanced. According to defendant, the location of the bloodstain was substantive evidence and thus was improperly proffered as the basis of an expert witness opinion. Allowing the location of the bloodstain to be proven via inadmissible hearsay, defendant argues, violated his constitutional right to confront the witnesses against him.\nAn expert may properly base his or her opinion on tests performed by another person, if the tests are of the type reasonably relied upon by experts in the field. N.C.G.S. \u00a7 8C-1, Rule 703 (1999); State v. Daughtry, 340 N.C. 488, 459 S.E.2d 747 (1995), cert. denied, 516 U.S. 1079, 133 L. Ed. 2d 739 (1996); State v. Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985). The expert may also base his or her opinion on facts that would otherwise be inadmissible. Huffstetler, 312 N.C. at 106, 322 S.E.2d at 119. It is the expert opinion itself, not its underlying factual basis, that constitutes substantive evidence. State v. Wade, 296 N.C. 454, 251 S.E.2d 407 (1979).\nIn Huffstetler, this Court considered Agent Bissette\u2019s expert testimony concerning the identification of blood samples. 312 N.C. at 105, 322 S.E.2d at 119. Bissette testified on cross-examination that although she had not personally performed the blood tests, she could \u201cinterpret and visually scan\u201d the test results and determine if the tests were properly conducted. Id. at 106, 322 S.E.2d at 119. There, as here, the defendant argued that his right to confrontation was violated because he was denied an opportunity to cross-examine the person who actually conducted the tests. Id. Relying on Rule 703 of the North Carolina Rules of Evidence, we rejected defendant\u2019s contention and determined:\n[i]n such cases the defendant will have the right to fully cross-examine the expert witness who testifies against him. He will be free to vigorously cross-examine the expert witness, as did the defendant in the present case, concerning the procedures followed in gathering information and the reliability of information upon which the expert relies in forming his opinion. The jury will have plenary opportunity, as did the jury in this case, to understand the basis for the expert\u2019s opinion and to determine whether that opinion should be found credible.\nHuffstetler, 312 N.C. at 108, 322 S.E.2d at 121; see also Daughtry, 340 N.C. at 511, 459 S.E.2d at 758-59 (holding that trial court properly allowed expert to testify concerning DNA in blood samples on the defendant\u2019s pants because, although expert did not conduct tests himself, expert reviewed the inherently reliable test report and was subject to vigorous cross-examination about the testing procedures).\nIn the present case, Agent Bissette had Agent Elwell\u2019s completed official report, including drawings, on which to rely. As in Huffstetter, although Agent Bissette had not personally cut the samples from the victim\u2019s clothes, she could \u201cinterpret and visually scan\u201d the SBI report and determine the original location of the samples. 312 N.C. at 106, 322 S.E.2d at 119. Indeed, Bissette testified she not only had reviewed Elwell\u2019s report, but also had personally examined the cuttings along with the victim\u2019s pants and verified that the cuttings came from the locations designated in the report. Defendant was able to cross-examine Agent Bissette fully concerning the original location of the blood samples. Id. at 108, 322 S.E.2d at 121.\nFurthermore, the relevant blood samples, the cuttings, and the victim\u2019s pants were admitted into evidence at trial and were included in the record on appeal. Our examination of these exhibits reveals it was unnecessary for defendant to cross-examine either Bissette or Elwell concerning the location of the blood samples. Defendant was able to use physical evidence\u2014the samples, the cuttings, and the victim\u2019s pants\u2014to argue to the jury that the samples could not have originated from the location urged by the state. Defendant was also free to conduct his own scientific tests on the samples, cuttings, and pants and to present the results to the jury. Moreover, the jury was free to examine this evidence and make its own determination. Accordingly, defendant\u2019s argument that his right to confront witnesses was violated is without merit.\nCAPITAL SENTENCING PROCEEDING\nDefendant next argues the trial court erred in submitting two statutory mitigating circumstances as nonstatutory mitigating circumstances. At trial, defendant requested, and the trial court submitted, nineteen nonstatutory mitigating circumstances and the (f)(9) catchall circumstance. Defendant argues, however, that two of the nonstatutory mitigating circumstances submitted mirror the statutory mitigating circumstances in N.C.G.S. \u00a7 15A-2000(f)(2) and (f)(6). Despite defendant\u2019s request at trial that these mitigating circumstances be submitted in nonstatutory form, defendant now argues the trial court was under an \u201cindependent duty\u201d to submit the statutory mitigators because they were supported by sufficient evidence. Defendant argues that the trial court\u2019s error was prejudicial, in essence, because he was denied the opportunity to have the jury automatically give these circumstances mitigating value.\nThe trial court is required to submit a statutory mitigating circumstance to the jury if it is supported by substantial evidence. N.C.G.S. \u00a7 15A-2000(b) (1999); State v. Hooks, 353 N.C. 629, 639, 548 S.E.2d 501, 509 (2001); State v. Chandler, 342 N.C. 742, 756, 467 S.E.2d 636, 644, cert. denied, 519 U.S. 875, 136 L. Ed. 2d 133 (1996). This is the case even where the defendant objects to submission of the mitigator. State v. Lloyd, 321 N.C. 301, 311-12, 364 S.E.2d 316, 323-24 (1988), sentence vacated on other grounds, 488 U.S. 807, 102 L. Ed. 2d 18 (1988). The defendant carries the burden of producing substantial evidence on a specific mitigating circumstance. Hooks, 353 N.C. at 639, 548 S.E.2d at 509. If a jury finds that a statutory mitigating circumstance exists, it must consider that circumstance in its final sentence determination. State v. Mahaley, 332 N.C. 583, 598, 423 S.E.2d 58, 67 (1992), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 649 (1995). We consider each mitigating circumstance in turn.\nFirst, we consider whether the trial court should have submitted the (f)(2) statutory mitigating circumstance, which provides that \u201c[t]he capital felony was committed while the defendant was under the influence of mental or emotional disturbance.\u201d N.C.G.S. \u00a7 15A-2000(f)(2). \u201cWhile under the influence\u201d has been interpreted to mean that the defendant was mentally or emotionally disturbed at the time the crime took place. Chandler, 342 N.C. at 757, 467 S.E.2d at 644. In the present case, defendant argues that the evidence warranted submission of the (f)(2) factor because he not only was under the influence of drugs at the time of the murder, but also was depressed because of his involvement in a family crisis prior to the murder.\nAs a preliminary matter, we note, and defendant concedes, that voluntary intoxication, standing alone, does not warrant submission of the (f)(2) mitigator. Id. at 757, 467 S.E.2d at 644-45. Accordingly, evidence of defendant\u2019s drug abuse is insufficient to warrant reversal on this issue. As to defendant\u2019s depression and family crisis, the record reveals that defendant received counseling concerning his substance abuse, basic need for shelter, and academic and family problems. Even defendant\u2019s own witnesses, however, did not testify that defendant had been medically diagnosed as suffering from depression. No evidence was presented from any of these witnesses that defendant had been diagnosed as \u201cunder the influence of mental or emotional disturbance\u201d at all, let alone at the time of the killing.\nThis lack of evidence is the critical factor in resolving the instant issue. The (f)(2) mitigating circumstance is properly submitted only if there is evidence to show that a mental or emotional disturbance existed and that it impacted defendant at the time of the murder. See id. (trial court properly failed to submit (f)(2) mitigating circumstance where expert testified defendant suffered from substance abuse and mixed personality disorder, but expert admitted on cross-examination he did not know what effect alcohol mixed with a personality disorder would have had on defendant\u2019s actions). Accordingly, the mere fact that defendant was depressed or suffering a family crisis prior to the murder does not warrant submission of the (f)(2) mitigator when, as here, there was not substantial evidence that defendant was depressed or in crisis at the time he killed the victim. See id. at 757, 467 S.E.2d at 644.\nWe next address defendant\u2019s argument concerning the (f)(6) mitigating circumstance. This mitigating circumstance provides that \u201c[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.\u201d N.C.G.S. \u00a7 15A-2000(f)(6). According to defendant, the evidence of his extensive and continuous drug use required the trial court to submit the (f)(6) mitigating circumstance.\nThis Court has held that evidence of drug use can support submission of the (f)(6) mitigating circumstance. State v. McLaughlin, 330 N.C. 66, 68-70, 408 S.E.2d 732, 733-34 (1991) (evidence that on the day of the murder defendant ingested marijuana, wine, beer, and \u201ctwo hits of acid\u201d supported submission of mitigating circumstance that defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was impaired); State v. Irwin, 304 N.C. 93, 106, 282 S.E.2d 439, 448 (1981) (\u201c[voluntary intoxication, to a degree that it affects defendant\u2019s ability to understand and to control his actions is properly considered under... G.S. 15A-2000(f)(6)\u201d) (citation omitted). Submission of the (f)(6) mitigator is required only if the evidence shows that voluntary intoxication impaired defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law at the time of the murder. State v. Miller, 339 N.C. 663, 687, 455 S.E.2d 137, 150 (despite evidence of defendant\u2019s drug abuse and withdrawal, trial court properly refused to submit (f)(6) because there was \u201cno evidence that [defendant] was impaired by drugs or withdrawal therefrom at the time of the murder, or that any symptoms of withdrawal he may have experienced at that time impaired his capacity.\u201d), cert. denied, 516 U.S. 893, 133 L. Ed. 2d 169 (1995).\nIn the present case, defendant offered evidence of his cocaine habit but did not show a link between his drug use and his allegedly impaired capacity at the time of the murder. See id. At most, the record reveals that defendant\u2019s search for drugs on the night of 4 August 1998 may have been a motive for defendant to kill the victim. This evidence is insufficient to support submission of the (f)(6) mitigator. This assignment of error fails.\nINEFFECTIVE ASSISTANCE OF COUNSEL\nDefendant next alleges he was denied his right to the effective assistance of counsel. He argues that any claim of ineffective assistance of counsel (IAC) should properly be litigated in a motion for appropriate relief (MAR).\nIAC claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing. Compare Blakeney, 352 N.C. at 308-09, 531 S.E.2d at 814-15 (concluding that IAC claim alleging counsel\u2019s ineffectiveness in failing to interpose an objection was appropriately resolved on direct appeal), with State v. House, 340 N.C. 187, 196-97, 456 S.E.2d 292, 297 (1995) (determining that whether defendant consented to argument of his counsel regarding defendant\u2019s guilt was appropriately deferred for consideration in MAR). This rule is consistent with the general principle that, on direct appeal, the reviewing court ordinarily limits its review to material included in \u201cthe record on appeal and the verbatim transcript of proceedings, if one is designated.\u201d N.C. R. App. P. 9(a).\nWe agree with the reasoning in McCarver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000), cert. denied, 531 U.S. 1089, 148 L. Ed. 2d 694 (2001): \u201cN.C.G.S. \u00a7 15A-1419 is not a general rule that any claim not brought on direct appeal is forfeited on state collateral review. Instead, the rule requires North Carolina courts to determine whether the particular claim at issue could have been brought on direct review.\u201d\nAccordingly, should the reviewing court determine that IAC claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant\u2019s right to reassert them during a subsequent MAR proceeding. See State v. Kinch, 314 N.C. 99, 106, 331 S.E.2d 665, 669 (1985) (\u201cWe cannot properly determine this issue on this direct appeal because an evidentiary hearing on this question has not been held. Our decision on this appeal is without prejudice to defendant\u2019s right to file a [MAR] in the superior court based upon an allegation of [IAC].\u201d). It is not the intention of this Court to deprive criminal defendants of their right to have IAC claims fully considered. Indeed, because of the nature of IAC claims, defendants likely will not be in a position to adequately develop many IAC claims on direct appeal. Nonetheless, to avoid procedural default under N.C.G.S. \u00a7 15A-1419(a)(3), defendants should necessarily raise those IAC claims on direct appeal that are apparent from the record. See McCarver, 221 F.3d at 589-90. When an IAC claim is raised on direct appeal, defendants are not required to file a separate MAR in the appellate court during the pendency of that appeal.\nDefendant presents five instances of conduct by his attorney that he argues denied him his right to effective assistance of counsel. These instances may be determined from the record alone, and we therefore decide them on the merits. Appellate counsel is commended for properly raising these claims on direct appeal.\nAttorney conduct that falls below an objective standard of reasonableness and prejudices the defense denies the defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984); State v. Strickland, 346 N.C. 443, 454-55, 488 S.E.2d 194, 200-01 (1997), cert. denied, 522 U.S. 1078, 139 L. Ed. 2d 757 (1998). An IAC claim must establish both that the professional assistance defendant received was unreasonable and that the trial would have had a different outcome in the absence of such assistance. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693.\nDefendant argues that his counsel elicited a damaging admission from him on direct examination regarding defendant\u2019s assault on a convenience store clerk. Our review of the record reveals that counsel elicited this admission as a matter of reasonable trial strategy. The admission corroborated defendant\u2019s defense that his addiction to crack cocaine drove him to commit seemingly inculpatory acts, such as taking the victim\u2019s car and using his credit cards.\nDefendant next points to counsel\u2019s failure to object when defendant was cross-examined about his communications with his attorney. The prosecutor asked, \u201c[W]hen did you first tell anybody at all about \u2018Tank\u2019?\u201d and defendant responded, \u201cWhen I told my lawyers.\u201d Defendant argues that although these communications were protected by the attorney-client privilege, which protects confidential communications made by a client to his attorney, State v. Brown, 327 N.C. 1, 20, 394 S.E.2d 434, 446 (1990), counsel took no action to shield these communications from the jury. The communication at issue here is not protected by the privilege, however, because it was not confidential. Rather, the substance of the communication had already been exposed to the jury as an aspect of defendant\u2019s defense. Moreover, even if the communication had been confidential, defendant waived the attorney-client privilege when he presented the substance of the communication as part of his defense.\nDefendant also argues that counsel failed to object when the state allegedly impeached him with his postarrest silence. As detailed in our previous analysis, the state\u2019s impeachment of defendant was proper. There was no basis for an objection by trial counsel, and thus there was no ineffective assistance of counsel.\nDefendant next asserts that counsel denied him effective assistance by failing to object to the state\u2019s closing argument. The state\u2019s argument challenged the veracity of defendant\u2019s account of the night the victim was killed. For the reasons delineated above, this argument was not so grossly improper as to render the trial fundamentally unfair. Further, defendant has failed to show prejudice under the second prong of Strickland. See Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693.\nFinally, defendant asserts that his counsel was ineffective in requesting submission of the N.C.G.S. \u00a7 15A-2000(f)(2) and (f)(6) statutory mitigating circumstances as nonstatutory mitigating circumstances. Defendant argues that counsel deprived him of the opportunity to have the jury automatically give mitigating value to the (f)(2) and (f)(6) circumstances if the jury found them to exist. As previously discussed, the evidence did not support the submission of these statutory mitigating circumstances. This claim of ineffective assistance therefore fails.\nDefendant has failed to show that his attorney\u2019s conduct rose to the level of unreasonableness or that his attorney\u2019s conduct prejudiced defendant\u2019s trial. See id. Defendant\u2019s ineffective assistance of counsel claims are thus without merit.\nPRESERVATION\nDefendant raises one additional issue to preserve it for later review: the trial court\u2019s refusal to dismiss the short-form murder indictment on constitutional grounds.\nDefendant presents no argument requesting this Court to reconsider its prior holdings on this issue. See, e.g., 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); State v. Wallace, 351 N.C. 481, 503-09, 528 S.E.2d 326, 340-43, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). Accordingly, this assignment of error is without merit.\nPROPORTIONALITY REVIEW\nHaving concluded defendant\u2019s trial and capital sentencing proceeding were free of error, we must next review and determine: (1) whether the record supports the jury\u2019s finding of any aggravating circumstances upon which the death sentence 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. The jury answered \u201cyes\u201d to each of the three aggravating circumstances submitted: (1) defendant had previously been convicted of a felony involving the threat of violence to the person, N.C.G.S. \u00a7 15A-2000(e)(3); (2) defendant committed the murder while engaged in the commission of a robbery, N.C.G.S. \u00a7 15A-2000(e)(5); and (3) the murder was especially heinous, atrocious or cruel, N.C.G.S. \u00a7 15A-2000(e)(9).\nOf the twenty mitigating circumstances submitted, one or more jurors found that: (1) this murder was committed while defendant was under the influence of mental or emotional disturbance caused by his abuse of crack cocaine; (2) the capacity of defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired by his ingestion of crack cocaine on the day and the night of and just before the murder; (3) defendant compiled a good academic record, including being on the dean\u2019s list, while at Fayetteville State University; (4) defendant was accepted as a transfer student and enrolled at North Carolina State University in 1996 and studied civil engineering; (5) defendant maintained a good record on parole until he began using and became addicted to crack cocaine; (6) defendant has acknowledged his addiction to crack cocaine; (7) defendant sought to obtain in-patient treatment for his drug addiction at the Wake Alcohol Treatment Center on 27 July 1998; (8) defendant interviewed at Cornerstone, a division of Wake Mental Health, on 3 August 1998, attempting to get help with his cocaine addiction; and (9) other circumstances arising from the evidence pursuant to N.C.G.S. \u00a7 15A-2000(f)(9).\nAfter thoroughly examining the record, transcript, and briefs in this case, we conclude the evidence fully supports the aggravating circumstances found by the jury. N.C.G.S. \u00a7 15A-2000(d)(2). Further, there is no evidence that defendant\u2019s death sentence was imposed under the influence of passion, prejudice, or any arbitrary factor. Id.\nFinally, we turn to our statutory duty of proportionality review. In our proportionality review, we must determine \u201c \u2018whether the death sentence in this case is excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant.\u2019 \u201d State v. McCollum, 334 N.C. 208, 239, 433 S.E.2d 144, 161 (1993) (quoting State v. Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983)), cert. denied, 512 U.S. 1254, 129 L. Ed. 2d 895 (1994). Proportionality review is intended to \u201c \u2018eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury.\u2019 \u201d State v. Atkins, 349 N.C. 62, 114, 505 S.E.2d 97, 129 (1998) (quoting 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)), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999). We must compare the present case with other cases in which this Court has concluded that the death penalty was disproportionate, as well as those in which the death penalty was held to be proportionate. McCollum, 334 N.C. at 240, 244, 433 S.E.2d at 162, 164. Whether a death sentence is \u201cdisproportionate in a particular case ultimately rest[s] 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).\nThis Court has 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 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).\nAfter thorough comparison, we hold that the present case is not substantially similar to any case in which this Court found a death sentence disproportionate. Defendant in the present case was convicted of first-degree murder on the basis of malice, premeditation, and deliberation, and under the felony murder rule. \u201c[A] finding of premeditation and deliberation indicates \u2018a more calculated and coldblooded crime.\u2019 \u201d State v. Harris, 338 N.C. 129, 161, 449 S.E.2d 371, 387 (1994) (quoting State v. Lee, 335 N.C. 244, 297, 439 S.E.2d 547, 575, cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994)), cert. denied, 514 U.S. 1100, 131 L. Ed. 2d 752 (1995). Moreover, the facts show that defendant repeatedly stabbed a man; stole his wallet, money, jewelry, and car; left the man to die; and went on a shopping spree with the man\u2019s credit cards.\nIn our review of this case, we have also compared it with cases where this Court found the death penalty to be proportionate. See McCollum, 334 N.C. at 244, 433 S.E.2d at 164. Although we consider all the cases in the pool of similar cases during proportionality review, \u201cwe will not undertake to discuss or cite all of those cases each time we carry out that duty.\u201d Id.\nNorth Carolina courts recognize four statutory aggravating circumstances, each of which, standing alone, is sufficient to sustain a death sentence. See 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); see also N.C.G.S. \u00a7 15A-2000(e). In the instant case, the jury found three of the four aggravating circumstances: (e)(3), (e)(5), and (e)(9). Thus, we conclude that the present case bears more similarity to cases in which we have found a death sentence to be proportionate than it does to those cases in which we have found a death sentence to be disproportionate. See McCollum, 334 N.C. at 244, 433 S.E.2d at 164.\nIn the exercise of our experienced judgment, the members of this Court hold that, based on the characteristics of this defendant and the crimes he committed, the death sentence is not disproportionate in this case. See Green, 336 N.C. at 198, 443 S.E.2d at 47. This assignment of error is without merit.\nAccordingly, defendant received a fair trial, free of prejudicial error.\nNO ERROR.\n. If no Miranda warnings were given prior to defendant\u2019s comments to the media, no constitutional violation nonetheless occurred during the cross-examination at issue. See Fletcher v. Weir, 455 U.S. 603, 607, 71 L. Ed. 2d 490, 494 (1982) (holding that where postarrest Miranda warnings were not given, cross-examination as to postarrest silence does not violate due process when defendant chooses to take the stand).",
        "type": "majority",
        "author": "MARTIN, Justice."
      }
    ],
    "attorneys": [
      "Roy A. Cooper, Attorney General, by Jill Ledford Cheek, Special Deputy Attorney General, and Steven F. Bryant, Assistant Attorney General, for the State.",
      "Thomas K. Maher for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. NATHANIEL FAIR JR.\nNo. 506A99\n(Filed 6 October 2001)\n1. Jury\u2014 selection\u2014peremptory challenges\u2014racial discrimination\u2014procedure\nThe U.S. Supreme Court has established a three part test to determine whether the State impermissibly discriminated on the basis of race when selecting jurors. First, the defendant must make a prima facie showing that the State exercised a peremptory challenge on the basis of race; the burden then shifts to the State to offer a facially valid, race-neutral rationale for its peremptory challenge; and the court must then decide whether the defendant has proven purposeful discrimination. In this case, discussion of the prima facie showing was moot because the State set forth its reasons for challenging two of the prospective jurors before the court ruled on defendant\u2019s objections, and the court asked the State if it wished to give reasons for the third challenge before it ruled on the objection.\n2. Jury\u2014 selection\u2014peremptory challenges\u2014race-neutral rationale\nThe trial court did not err in a capital first-degree murder prosecution by allowing the State to use peremptory strikes against three African-American jurors where the first clearly stated that he had long been opposed to the death penalty and related an extremely strong predisposition for a life sentence; the second excused juror made a great deal of eye contact with defendant, had visited people in prison, and her father and two uncles had been in prison; and the third worked with the Department of Correction counseling inmates on a daily basis, was familiar with a death-row inmate, had concerns about the death penalty, and had knowledge of a psychiatrist who often testified for the defense in capital sentencing hearings. These reasons provide race-neutral rationales for the peremptory challenges.\n3. Jury\u2014 selection\u2014peremptory challenges\u2014racial discrimination not shown\nA defendant in a capital first-degree murder prosecution did not prove purposeful discrimination in the State\u2019s exercise of peremptory challenges where the defendant, the victim, and about one-half of the State\u2019s witnesses were African-American, the State noted during jury selection that \u201cthis case is not about race,\u201d and the trial court made no procedural errors and thoroughly considered both parties\u2019 arguments concerning the Batson challenges.\n4. Jury\u2014 selection\u2014death penalty views\nThe trial court did not err in a capital first-degree murder prosecution by excusing for cause three prospective jurors based on their views of the death penalty. The first juror stated unequivocally that he would not follow the trial court\u2019s instructions on the law if they were inconsistent with his own personal beliefs; the second juror repeatedly changed his mind about whether he could recommend a death sentence; and the third indicated that her strong personal feelings about the death penalty would influence her consideration of the case and that her decision might be based on factors unrelated to the evidence or the trial court\u2019s instructions.\n5. Evidence\u2014 corroboration\u2014fact not in issue\nThe trial court did not err in a capital first-degree murder prosecution by excluding testimony from the managers of two adult-oriented establishments that the victim came to their stores two or three times a month where defendant contended that the testimony would have corroborated his assertion that he met the victim in one of the stores on the night of the victim\u2019s death. Neither of the witnesses was able to testify to seeing defendant and the victim together on the night in question; moreover, where and when defendant met the victim was not a disputed fact at trial.\n6. Evidence\u2014 habit\u2014occasional visits to store\nThe trial court did not abuse its discretion in a capital prosecution for first-degree murder by determining that the victim\u2019s visits to adult-oriented businesses did not constitute relevant evidence of habit. Occasional visits to a store do not rise to the level of regular and systematic conduct.\n7. Appeal and Error\u2014 preservation of issues\u2014basis for admission of evidence\u2014change from trial theory\nA defendant in a capital first-degree murder prosecution did not preserve for appeal the issue of whether the victim\u2019s visits to adult-oriented businesses constituted admissible character evidence because he stated in no uncertain terms at trial that the proffered testimony was not character evidence. Defendant\u2019s change in position runs afoul of Appellate Rule 10.\n8. Criminal Law-prosecutors\u2019s argument\u2014 reversal of voir dire assertion\nThe trial court did not err in a capital prosecution for first-degree murder by not intervening ex mero motu during the State\u2019s closing argument regarding defendant\u2019s account of meeting the victim in an adult video store. Even though the State asserted on voir dire that it did not contest how or where defendant met the victim and then attacked defendant\u2019s credibility in its closing argument by questioning defendant\u2019s account of how he met the victim, the State\u2019s argument was not so grossly improper as to warrant a new trial.\n9. Constitutional Law\u2014 defendant\u2019s silence\u2014cross-examination\u2014admissible\nThe trial court did not err in a capital prosecution for first-degree murder by allowing the State to cross-examine defendant about his failure to tell the police about a witness who could have backed up his story, about his failure to tell a journalist about the person who allegedly committed the crime, and about statements made to an officer while in a holding cell. Defendant\u2019s objection to the first set of questions was sustained, the State asked defendant no questions concerning silence during cross-examination about his holding cell statements, and it would have been natural for defendant to reveal the identity of the real killer when he voluntarily spoke to the press.\n10.Criminal Law\u2014 prosecutor\u2019s argument\u2014defendant\u2019s silence\nThe trial court did not err in a capital prosecution for first-degree murder by refusing to instruct the jury to disregard the State\u2019s closing argument that the jury could decide not to believe defendant\u2019s trial testimony based on his silence about evidence that another person committed the crime when he was speaking to the media. A defendant who chooses to testify is subject to impeachment when his earlier silence is inconsistent with his testimony on the stand.\n11. Evidence\u2014 expert testimony\u2014basis\u2014hearsay\nThe trial court did not err in a capital prosecution for first-degree murder by allowing an SBI DNA expert to base her testimony in part on bloodstained cloth samples taken by another agent who was unable to testify where the expert examined the pants from which the samples were taken to determine whether the cuttings were from the areas indicated by the other agent\u2019s notes. The cuttings and the pants were admitted into evidence, so that defendant was able to cross-examine the expert fully concerning the original location of the blood samples and was free to conduct his own tests, and the jury was free to make its own determination.\n12. Sentencing\u2014 capital\u2014statutory mitigating circumstances\nIn a capital sentencing proceeding, the trial court is required to submit statutory mitigating circumstances to the jury if they are supported by the evidence even when defendant objects. If a jury finds that a statutory mitigating circumstance exists, it must consider that circumstance in its final sentence determination.\n13. Sentencing\u2014 capital\u2014mitigating circumstance\u2014emotional disturbance\u2014drug use and depression\u2014evidence insufficient\nEvidence of drug use did not warrant submission of the mental or emotional disturbance mitigating circumstance in a capital sentencing proceeding because voluntary intoxication alone is not sufficient. Although defendant argued that he was depressed, there was no testimony that he had been medically diagnosed as suffering from depression. Moreover, the mere fact that he was depressed or suffering a family crisis prior to the murder does not warrant submission of this mitigator where there is not substantial evidence that he was depressed or in crisis at the time he killed the victim.\n14. Sentencing\u2014 capital\u2014mitigating circumstance\u2014impaired capacity\u2014drug use\u2014insufficient link to crime\nThere was insufficient evidence in a capital sentencing proceeding to support submission of the N.C.G.S. \u00a7 15A-2000(f)(6) mitigating circumstance of impaired capacity to appreciate the criminality of conduct where defendant relied upon his extensive and continuous drug use. Although drug use can support this mitigator, defendant here did not show a link between his drug use and his allegedly impaired capacity at the time of the murder. His search for drugs that night at most reveals a motive.\n15. Constitutional Law\u2014ineffective assistance of counsel\u2014 procedure for raising\nIneffective assistance of counsel (IAC) claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required. LA.C claims prematurely asserted on direct appeals will be dismissed without prejudice to defendant\u2019s right to reassert them during a subsequent motion for appropriate relief (MAR) proceeding. When an IAC claim is raised on direct appeal, defendants are not required to file a separate MAR in the appellate court during the pendency of that appeal.\n16. Constitutional Law\u2014 ineffective assistance of counsel\u2014 attorney conduct not unreasonable\nA capital first-degree murder defendant who alleged ineffective assistance of counsel failed to show that his attorney\u2019s conduct rose to the level of unreasonableness or prejudiced defendant\u2019s trial where defendant pointed to an admission elicited as a matter of reasoned trial strategy, the failure to object to cross-examination about communications with his attorney which were not privileged, the failure to object to the proper impeachment of defendant with his post-arrest silence, the failure to object to closing arguments which were not grossly improper or prejudicial, and the request to submit statutory mitigating circumstances as nonstatutory circumstances when the evidence of the circumstances was not sufficient.\n17. Sentencing\u2014 capital\u2014death penalty\u2014not disproportionate\nA death penalty was not disproportionate where defendant repeatedly stabbed his victim; stole the man\u2019s wallet, money, jewelry, and car; left the man to die; went on a shopping spree with the man\u2019s credit cards; was convicted on the basis of premeditation and deliberation; and the jury found three of the four aggravating circumstances which can sustain a death sentence standing alone.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Bullock, J., on 18 May 1999 in Superior Court, Wake County, upon a jury verdict finding defendant guilty of first-degree murder. On 13 August 2001, the Supreme Court allowed defendant\u2019s motion to bypass the Court of Appeals as to his appeal of an additional judgment. Heard in the Supreme Court 19 April 2001.\nRoy A. Cooper, Attorney General, by Jill Ledford Cheek, Special Deputy Attorney General, and Steven F. Bryant, Assistant Attorney General, for the State.\nThomas K. Maher for defendant-appellant."
  },
  "file_name": "0131-01",
  "first_page_order": 165,
  "last_page_order": 206
}