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Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "516 U.S. 1079", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 328513, 326369, 325636, 325094, 324199, 328102, 326410, 328174, 328339, 325622, 328409, 325979, 327804, 326687 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/516/1079-08", "/us/516/1079-10", "/us/516/1079-02", "/us/516/1079-04", "/us/516/1079-03", "/us/516/1079-01", "/us/516/1079-05", "/us/516/1079-06", "/us/516/1079-12", "/us/516/1079-14", "/us/516/1079-09", "/us/516/1079-11", "/us/516/1079-07", "/us/516/1079-13" ] }, { "cite": "459 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "762" } ], "opinion_index": 0 }, { "cite": "340 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790245 ], "year": 1995, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0488-01" ] }, { "cite": "146 L. Ed. 2d 223", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "529 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9511302, 9511370, 9511339, 9511050, 9511184, 9511155, 9511412, 9511220, 9511127, 9511032, 9511482, 9511259, 9511454, 9511096 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/529/1006-09", "/us/529/1006-11", "/us/529/1006-10", "/us/529/1006-02", "/us/529/1006-06", "/us/529/1006-05", "/us/529/1006-12", "/us/529/1006-07", "/us/529/1006-04", "/us/529/1006-01", "/us/529/1006-14", "/us/529/1006-08", "/us/529/1006-13", "/us/529/1006-03" ] }, { "cite": "517 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "610" } ], "opinion_index": 0 }, { "cite": "350 N.C. 776", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131962 ], "year": 1999, "pin_cites": [ { "page": "784" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0776-01" ] }, { "cite": "151 L. Ed. 2d 1002", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "546 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "591" }, { "page": "591" } ], "opinion_index": 0 }, { "cite": "353 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135653 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "477" }, { "page": "477-78" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0457-01" ] }, { "cite": "389 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "74", "parenthetical": "the victim's statements regarding the defendant's threats relevant to the issue of her relationship with the defendant" } ], "opinion_index": 0 }, { "cite": "326 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306390 ], "year": 1990, "pin_cites": [ { "page": "313", "parenthetical": "the victim's statements regarding the defendant's threats relevant to the issue of her relationship with the defendant" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0298-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "819", "parenthetical": "the defendant's threats to the victim shortly before the murder admissible to show the victim's then-existing state of mind" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "224", "parenthetical": "the defendant's threats to the victim shortly before the murder admissible to show the victim's then-existing state of mind" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "128 L. Ed. 2d 220", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "511 U.S. 1046", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147849, 1147210, 1147863, 1146680, 1147006 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/511/1046-04", "/us/511/1046-02", "/us/511/1046-03", "/us/511/1046-05", "/us/511/1046-01" ] }, { "cite": "435 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "301-02", "parenthetical": "state of mind relevant to show a stormy relationship between the victim and the defendant prior to the murder" } ], "opinion_index": 0 }, { "cite": "334 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531078 ], "year": 1993, "pin_cites": [ { "page": "637", "parenthetical": "state of mind relevant to show a stormy relationship between the victim and the defendant prior to the murder" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0627-01" ] }, { "cite": "470 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "5" }, { "page": "5" } ], "opinion_index": 0 }, { "cite": "343 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798943 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "246" }, { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0240-01" ] }, { "cite": "488 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "776" }, { "page": "776" } ], "opinion_index": 0 }, { "cite": "346 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139608 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "379" }, { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0365-01" ] }, { "cite": "149 L. Ed. 2d 305", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2001, "opinion_index": 0 }, { "cite": "533 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "219" } ], "opinion_index": 0 }, { "cite": "352 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684963 ], "year": 2000, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0364-01" ] }, { "cite": "286 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "539" } ], "opinion_index": 0 }, { "cite": "305 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566171 ], "year": 1982, "pin_cites": [ { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0106-01" ] }, { "cite": "372 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "519", "parenthetical": "quoting State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982)" } ], "opinion_index": 0 }, { "cite": "323 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566216 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "322", "parenthetical": "quoting State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982)" }, { "page": "322" }, { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0318-01" ] }, { "cite": "372 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "535" } ], "opinion_index": 0 }, { "cite": "323 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564377 ], "year": 1988, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0339-01" ] }, { "cite": "99 L. Ed. 2d 912", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "485 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13312, 13445, 13287, 13545, 13740, 13965, 13233, 14131, 13397, 13238, 13399, 13750, 13849, 13725 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/485/1036-05", "/us/485/1036-12", "/us/485/1036-11", "/us/485/1036-04", "/us/485/1036-06", "/us/485/1036-14", "/us/485/1036-08", "/us/485/1036-10", "/us/485/1036-01", "/us/485/1036-02", "/us/485/1036-13", "/us/485/1036-03", "/us/485/1036-09", "/us/485/1036-07" ] }, { "cite": "362 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "251" } ], "opinion_index": 0 }, { "cite": "321 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569839 ], "year": 1987, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0201-01" ] }, { "cite": "347 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "793", "parenthetical": "holding that the defendant waived the right to complain of jury instructions on appeal where he specifically objected to several portions of the instructions but not the portions complained of upon appeal" } ], "opinion_index": 0 }, { "cite": "318 N.C. 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738200 ], "year": 1986, "pin_cites": [ { "page": "47", "parenthetical": "holding that the defendant waived the right to complain of jury instructions on appeal where he specifically objected to several portions of the instructions but not the portions complained of upon appeal" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0030-01" ] }, { "cite": "144 L. Ed. 2d 779", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "527 U.S. 1026", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248035, 1248550, 1248169, 1248458, 1248586, 1248015, 1248113, 1248500, 1248309, 1248056, 1248409, 1248252, 1248413, 1248223 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/527/1026-05", "/us/527/1026-08", "/us/527/1026-13", "/us/527/1026-01", "/us/527/1026-04", "/us/527/1026-07", "/us/527/1026-03", "/us/527/1026-14", "/us/527/1026-12", "/us/527/1026-11", "/us/527/1026-06", "/us/527/1026-02", "/us/527/1026-10", "/us/527/1026-09" ] }, { "cite": "508 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "275", "parenthetical": "finding no error where defense counsel did not object when given the opportunity at the charge conference or after the charge was given and noting that defense counsel approved the instructions during the charge conference" } ], "opinion_index": 0 }, { "cite": "349 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571619 ], "year": 1998, "pin_cites": [ { "page": "570", "parenthetical": "finding no error where defense counsel did not object when given the opportunity at the charge conference or after the charge was given and noting that defense counsel approved the instructions during the charge conference" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0535-01" ] }, { "cite": "132 L. Ed. 2d 818", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "451 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "229" } ], "opinion_index": 0 }, { "cite": "339 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556681 ], "year": 1994, "pin_cites": [ { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0172-01" ] }, { "cite": "49 L. Ed. 2d 1205", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 902", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180680, 6180492, 6180844, 6180302, 6181071, 6180146 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0902-04", "/us/428/0902-03", "/us/428/0902-05", "/us/428/0902-02", "/us/428/0902-06", "/us/428/0902-01" ] }, { "cite": "213 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "286 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570035 ], "year": 1975, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0638-01" ] }, { "cite": "259 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "761" }, { "page": "761" } ], "opinion_index": 0 }, { "cite": "298 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572408 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "368-69" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0355-01" ] }, { "cite": "562 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "885", "parenthetical": "quoting State v. Johnson, 298 N.C. 355, 368-69, 259 S.E.2d 752, 761 (1979)" } ], "opinion_index": 0 }, { "cite": "355 N.C. 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220022 ], "year": 2002, "pin_cites": [ { "page": "462", "parenthetical": "quoting State v. Johnson, 298 N.C. 355, 368-69, 259 S.E.2d 752, 761 (1979)" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0420-01" ] }, { "cite": "130 L. Ed. 2d 650", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "443 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "331-32" } ], "opinion_index": 0 }, { "cite": "336 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535633 ], "year": 1994, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0078-01" ] }, { "cite": "442 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "42" } ], "opinion_index": 0 }, { "cite": "336 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534822 ], "year": 1994, "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0001-01" ] }, { "cite": "538 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135783 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0159-01" ] }, { "cite": "451 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518881 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0315-01" ] } ], "analysis": { "cardinality": 1973, "char_count": 68752, "ocr_confidence": 0.745, "pagerank": { "raw": 3.312004170303566e-07, "percentile": 0.8725126445595863 }, "sha256": "c8d27b550d4eb75f4b61952aa1ac15b2d668a790fc5bb3b21a7fa1d926c9ff3b", "simhash": "1:4b6ac82376685472", "word_count": 11173 }, "last_updated": "2023-07-14T16:17:54.672071+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE MALCOLM CARROLL" ], "opinions": [ { "text": "WAINWRIGHT, Justice.\nOn 26 March 2000, George Malcolm Carroll (defendant) was charged in a superseding indictment with one count of first-degree arson and with the first-degree murder of his live-in girlfriend, Debra Whitted; this indictment was further amended on 8 May 2001 in open court. Defendant was also indicted on 26 March 2001 as an habitual felon. Defendant was tried capitally before a jury at the 14 May 2001 session of Superior Court, Cumberland County. At the conclusion of the State\u2019s evidence, the trial court dismissed the charges of first-degree arson and for habitual felon status. The jury found defendant guilty of first-degree murder based on malice, premeditation and deliberation and under the felony murder rule. Following a capital sentencing proceeding, the jury recommended a sentence of death. The trial court entered judgment in accordance with that recommendation.\nEvidence presented at trial showed that Whitted was retired from the military and lived on disability. She and defendant had been living together on and off for about a year and a half in a trailer at 239 Eleanor Avenue in Fayetteville, North Carolina. Whitted\u2019s best friend, Amanda McNeil, visited her regularly. On Monday, 15 November 1999, Whitted told McNeil that she wanted defendant out of her trailer. Whitted also complained of back problems to McNeil, and McNeil agreed to take her to the hospital the next morning.\nMcNeil arrived at Whitted\u2019s trailer the next morning, Tuesday, 16 November 1999, but found the door locked. After knocking on the door and getting no response, McNeil left. McNeil returned to the trailer at a later time and saw defendant walking out the door. She asked defendant where Whitted was, and defendant told her that she had gone to the hospital. Defendant never looked directly at McNeil when answering her and appeared to be \u201chigh\u201d and acting \u201clike a wild man.\u201d\nAround 10:00 a.m. on 17 November 1999, defendant purchased seventy-seven cents\u2019 worth of gas from the Clinton Road Amoco. He told the attendant that he needed gas to cut the grass.\nWhitted\u2019s niece, Tanisha Whitted, stopped by Whitted\u2019s trailer on Wednesday morning, 17 November 1999, but was unable to get anyone to come to the door. Tanisha returned to the trailer again after 11:00 a.m. and discovered that the trailer was on fire. Tanisha called 911 from a neighbor\u2019s house. Several neighbors tried to determine if Whitted was inside the trailer. However, because the front door was blocked by a stereo cabinet and the smoke from the fire was too heavy, they made it only a few steps inside before having to retreat.\nThe Fayetteville Fire Department responded to the call and discovered that two separate fires were burning, one small fire in the den and a second, larger fire in the bedroom. Whitted\u2019s partially charred body was discovered on the bed. Evidence at the scene indicated that an accelerant had been used to start the fires. A machete was found on the living room floor.\nInvestigator Ralph Clinkscales of the Fayetteville Police Department arrived at the scene and began trying to locate defendant. At approximately 7:30 p.m. on 17 November, Clinkscales received a page from defendant\u2019s mother, indicating that defendant would turn himself in at a church on the corner of Monagan and Cumberland Streets. Clinkscales met with defendant at the church. Defendant told police, \u201cHere I am. Please don\u2019t hurt me. I did not mean to hurt her. I know I\u2019m in a lot of trouble for what I did.\u201d Defendant then began crying uncontrollably. Officers arrested defendant and took him to the Police Department.\nClinkscales and his partner read defendant his Miranda rights. Defendant signed a waiver of his rights and voluntarily began telling the officers what had happened.\nAccording to defendant, on Monday, 15 November 1999, defendant and Whitted were drinking gin and beer when they got into an argument around 11:30 p.m. Defendant slapped Whitted with his hand and she began fighting him. Defendant picked up a machete, slapped Whitted on her leg with the flat side of the machete, and hit her in the face. Whitted moved to avoid another strike and the machete, struck her in the back of the head. Defendant stated that \u201c[bjlood poured out in a steady stream.\u201d Defendant placed Whitted on the couch, and Whitted asked him not to leave her. Blood started to flow from Whitted\u2019s nose and mouth and she started to scream. Defendant put his hand over Whitted\u2019s mouth and told her to be quiet.\nDefendant carried Whitted into the bedroom and tried to quiet her screams by putting his hand on her neck and by putting a sheet around her neck. After a long time, Whitted became quiet and still. Defendant placed her in the bed and covered her with a blanket. Defendant began to think about how to get Whitted some help without being there, but he fell asleep. When defendant awoke, he realized that Whitted was dead.\nDefendant cleaned himself up and left the trailer. He returned that evening and fell asleep on the couch. When he woke up, he decided to bum the trailer with Whitted\u2019s body in it. Defendant purchased gasoline and poured it over the victim, throughout the bedroom, and in the living room. After first changing his clothes, defendant lit a piece of newspaper and set fire to the bedroom and then the living room. Defendant exited through the front door.\nAssociate Chief Medical Examiner Robert Thompson performed an autopsy on Whitted\u2019s body on 19 November 1999. Dr. Thompson opined that the cause of death was ligature strangulation, or strangulation using a rope or sheet wrapped around the neck and pulled taut. The victim also had a cut on the back of her head that pierced the scalp and cut into the bone. Dr. Thompson determined that this wound was not fatal. A toxicology report showed less than five percent saturation of carbon monoxide, an indication that Whitted was not alive at the time of the fire. The report also indicated no trace of alcohol, cocaine, or morphine.\nGUILT-INNOCENCE PHASE\nIn his first assignment of error, defendant contends that the trial court erred by concluding that defendant had waived his right to testify. Defendant asserts he did not knowingly waive his right to testify because the trial court\u2019s inquiry of him regarding his right to testify was inadequate.\nFollowing closing arguments at the guilt-innocence phase of the trial, the trial court took a brief recess before instructing the jury. At the end of the recess, the trial court questioned defendant as follows:\nThe Court: Before the jurors come back in, I need to make an inquiry of your client. Madam Clerk, would you swear the defendant.\nGeorge Malcolm Carroll, having been first duly sworn, was examined and testified as follows:\nThe Court: Mr. Carroll, I need to ask you a couple questions and you can consult with your attorneys before you answer them if you desire.\nThe Defendant: Yes.\nThe Court: First of all, how old are you?\nThe Defendant: 40.\nThe Court: How much education have you had?\nThe Defendant: 14 years education.\nThe Court: Have you consulted with your attorneys concerning your right to testify in your own behalf?\nThe Defendant: Yes.\nThe Court: And have you decided not to testify in your own behalf?\nThe Defendant: Yeah, I think we came to that agreement, sir.\nThe Court: Do you feel that it is in your best interest not to testify in your own behalf?\nThe Defendant: I don\u2019t know, sir.\nThe Court: Based on your conversations with your attorneys, do you feel like it is in your best interest not to testify?\nThe Defendant: Well, I \u2014 well, at this point, no, sir, it\u2019s not to my best interest.\nThe Court: Okay. And you understand your full right to testify in any procedure?\nThe Defendant: Yes, I do, sir.\nThe Court: Thank you very much. You may have a seat. The Court finds the defendant knowingly, voluntarily, understandingly waived his right to testify on his own behalf at this stage in the proceedings, feels that it\u2019s in his best interest not to testify.\nDefendant contends that his responses to the trial court\u2019s questions demonstrate he was unsure that it was in his best interest not to testify. Defendant therefore contends that the trial court was required to offer defendant the- opportunity to testify or, at a minimum, to question him further. Defendant concedes that we have never required trial courts to inform a defendant of his right not to testify and to make an inquiry on the record indicating that any waiver of this right was knowing and voluntary. Nonetheless, defendant cites numerous cases from other jurisdictions as persuasive authority for us to adopt such a rule.\nIn the present case, the trial court exercised an abundance of caution in determining that defendant was aware of his right to testify. The court\u2019s inquiry sufficiently determined that defendant was intellectually capable of understanding his right to testify, had communicated with his attorneys, and had agreed with his attorneys that it was not in his best interest to testify. Defendant\u2019s later decision not to testify during the sentencing phase further supports the trial court\u2019s conclusion that defendant waived his right to testify on his own behalf. We therefore conclude that defendant waived his right to testify. We find no error in the trial court\u2019s actions.\nThis assignment of error is overruled.\nIn his next two assignments of error, defendant argues that the trial court erred by submitting first-degree felony murder to the jury based on felonious assault as the underlying felony. According to defendant, because the assault on the victim was actually part of a continuous assault leading to her death, the assault was an integral part of the homicide and therefore merged with the killing. Defendant thus argues that the trial court erred in overruling defense counsel\u2019s objections to the submission of felony murder.\nThe trial court instructed the jurors as follows:\nI further charge that for you to find the defendant guilty of first degree murder under the first degree felony murder rule, the state must prove three things beyond a reasonable doubt. First, that the defendant committed assault with a deadly weapon inflicting serious injury. Assault with a deadly weapon inflicting serious injury is the intentional assaulting of a person by striking the person with a deadly weapon, a machete, which is a deadly weapon, inflicting serious injury upon that person.\nSecond, that while committing assault with a deadly weapon inflicting serious injury the defendant killed the victim. A killing is committed in the perpetration or attempted perpetration for the purposes of the felony murder rule where there is no break in the chain of events leading from the initial felony to the act causing death so that the homicide is part of [a] series of incidents which form one continuous transaction.\nAnd third, that the defendant\u2019s act was a proximate cause of the victim\u2019s death. A proximate cause is a real cause, a cause without which the victim\u2019s death would not have occurred.\nDefendant argues that the use of felonious assault as the underlying felony for his felony murder conviction is prohibited by the felony murder \u201cmerger doctrine\u201d and results in an unjust application of the felony murder statute, N.C.G.S. \u00a7 14-17 (2001). Defendant contends that where a felonious assault culminates in or is an integral part of the homicide, the assault necessarily merges with the homicide and cannot constitute the underlying felony for a felony murder conviction. In support of his position, defendant cites the following footnote from State v. Jones:\nAlthough this Court has expressly disavowed the so-called \u201cmerger doctrine\u201d in felony murder cases involving a felonious assault on one victim that results in the death of another victim, see, e.g., State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994), cases involving a single assault victim who dies of his injuries have never been similarly constrained. In such cases, the assault on the victim cannot be used as an underlying felony for purposes of the felony murder rule. Otherwise, virtually all felonious assaults on a single victim that result in his or her death would be first-degree murders via felony murder, thereby negating lesser homicide charges such as second-degree murder and manslaughter.\n353 N.C. 159, 170 n.3, 538 S.E.2d 917, 926 n.3 (2000).\nDefendant argues that he engaged in one continuous assault on the victim that culminated in her death because the defendant\u2019s initial act of striking the victim with a machete cannot exist separately and independently from the acts causing Whitted\u2019s death. Defendant therefore contends that under State v. Jones, the merger doctrine would operate to prohibit a conviction for felony murder.\nDefendant has misconstrued the language of State v. Jones. Jones precluded the use of assault as the underlying felony for a felony murder conviction only when there is a single assault victim who dies as a result of the injuries incurred during the assault. See id. The victim in defendant\u2019s case, however, did not die as a result of the assault with the machete. The blow to her head was not fatal. Rather, the cause of death was strangulation. As such, the assault was a separate offense from the murder. Accordingly, the trial court did not err in submitting a felony murder instruction to the jury because the felonious assault did not merge into the homicide.\nThese assignments of error are overruled.\nIn his next assignment of error, defendant argues that the trial court erred by failing to censure the prosecutor\u2019s gross misconduct during closing argument. We find no such error.\nIn a capital case, counsel is allowed wide latitude in its arguments to the jury and may argue facts in evidence as well as all reasonable inferences therefrom. State v. Sanderson, 336 N.C. 1, 15, 442 S.E.2d 33, 42 (1994). \u201cA jury argument is proper as long as it is consistent with the record and not based on conjecture or personal opinion.\u201d State v. Robinson, 336 N.C. 78, 129, 443 S.E.2d 306, 331-32 (1994), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 650 (1995). The scope and control of arguments lies largely within the discretion of the trial court, and \u201c \u2018the appellate courts ordinarily will not review the exercise of the trial judge\u2019s discretion in this regard unless the impropriety of counsel\u2019s remarks is extreme and is clearly calculated to prejudice the jury in its deliberations.\u2019 \u201d State v. Rogers, 355 N.C. 420, 462, 562 S.E.2d 859, 885 (2002) (quoting State v. Johnson, 298 N.C. 355, 368-69, 259 S.E.2d 752, 761 (1979)). While this Court will review a prosecutor\u2019s argument in a capital case where the defendant raised no objection at trial, \u201cthe impropriety of the argument must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero mo tu an argument which defense counsel apparently did not believe was prejudicial when he heard it.\u201d Johnson, 298 N.C. at 369, 259 S.E.2d at 761.\nIn the present case, defendant objects to the following statements made by the prosecutor in closing arguments:\nProcess of the mind, let\u2019s talk about his mind briefly. You don\u2019t need to rebut something that doesn\u2019t need to be rebutted. Dr. Harbin said that that man was capable at the time to form the intent to kill in a simple method, simple plan. You don\u2019t have to plan it from here to here, just there (pointing at diagram of house). And he said strangulation is a simple plan. That man had the mental ability to do it and he did it.\nHis only problem was a limited cognitive dysfunction because he was a little slow to react. His I.Q. wouldn\u2019t let him get into Harvard Medical School and he was mildly affected in his thinking. Well, he can pull off big cons and stuff and do all that and function in society doing what he chose to do. To keep her quiet through his thoughtful trial and error problem solving method, to use the words of the doctor, this man deliberately and thoughtfully in an intentional act, which is obvious by the means of which he killed her, committed premeditated murder.\nDefendant argues that the prosecutor\u2019s comments were designed to prejudice the jury toward a finding that defendant\u2019s own expert said he was capable of premeditated and deliberate murder. According to defendant, his expert in fact testified he was not capable of premeditated and deliberate murder. Defendant also argues that the prosecutor mischaracterized the evidence to persuade the jury that defendant was capable of premeditated and deliberate murder because defendant was capable of making a simple plan.\nDefendant\u2019s expert, Dr. Harbin, testified that it was \u201cunlikely\u201d that defendant could premeditate and deliberate and that defendant\u2019s ability to form a fixed design to kill was \u201cimpaired.\u201d Dr. Harbin further testified that defendant was capable of forming a simple plan to kill and upon cross examination stated that strangulation \u201cis not all that complex.\u201d This testimony leaves open the possibility that defendant\u2019s judgment, while impaired, left him capable of premeditation and deliberation. Additionally, Dr. Harbin testified on direct examination that defendant\u2019s IQ scores placed him in the \u201cmildly impaired range or the low range of normal.\u201d According to Dr. Harbin, this intelligence level would make it difficult for defendant to attend any kind of graduate school. Regarding cognitive dysfunction in defendant, Dr. Harbin testified that \u201cit was limited pretty much to mild impairment of memory, some significant impairments of what we call psychomotor speed.\u201d He further testified that defendant exhibited active trial-and-error solutions to most problems and was disinclined to plan ahead or think problems through before acting. On cross-examination, however, Dr. Harbin acknowledged that defendant was able to think about taking a shower after killing Whitted, changing his clothes after the murder, burning the clothes in the fire he set, and covering up his actions by telling Whitted\u2019s friend she had already gone to the doctor.\nWe conclude that the evidence in the record abundantly supports the arguments made by the prosecutor during his closing statements. The prosecutor merely fulfilled his duty \u201cto present the State\u2019s case with earnestness and vigor and to use every legitimate means to bring about a just conviction.\u201d State v. Stegmann, 286 N.C. 638, 654, 213 S.E.2d 262, 274 (1975), death sentence vacated, 428 U.S. 902, 49 L. Ed. 2d 1205 (1976). Defendant has failed to show how the prosecutor\u2019s comments infected the trial with unfairness and thus rendered the conviction fundamentally unfair. See State v. Rose, 339 N.C. 172, 202, 451 S.E.2d 211, 229 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).\nThis assignment of error is without merit.\nIn his next assignment of error, defendant argues that the trial court\u2019s instructions to the jury regarding diminished capacity were erroneous and prejudicial because they contained an inaccurate and misleading statement of law. Defendant contends that these instructions intimated an opinion of the court that defendant should be found guilty of felony murder and that they denied defendant the full benefit of his defense.\nThe trial court instructed the jury regarding diminished capacity as follows:\nYou may find there is evidence which tends to show that the defendant was intoxicated, drugged or lacked mental capacity at the time of the acts alleged in this case. Generally, voluntary intoxication or a voluntary drug condition is not a legal excuse for crime. However, if you find that the defendant was intoxicated, drugged or lacked mental capacity, you should consider whether this condition affected his ability to formulate the specific intent to kill which is required for conviction of first degree murder on the basis of premeditation and deliberation.\nIn order for you to find the defendant guilty of first degree murder on the basis of premeditation and deliberation, you must find beyond a reasonable doubt that he killed the deceased with malice and in the execution of an actual specific intent to kill formed after premeditation and deliberation. If as a result of intoxication, a drug condition or lack of mental capacity the defendant did not have the specific intent to kill the deceased formed after premeditation and deliberation, he is guilty of first degree murder \u2014 excuse me, he is not guilty of first degree murder on the basis of premeditation and deliberation.\nThe law does not require any specific intent to kill for the defendant to be guilty of the crime of first degree murder on the basis of felony murder or second degree murder. Thus, the defendant\u2019s intoxication or drug condition can have no bearing upon your determination of his guilt or innocence of these crimes.\nTherefore, I charge that if upon considering the evidence with respect to the defendant\u2019s intoxication, drug condition or lack of mental capacity you have a reasonable doubt as to whether the defendant formulated the specific intent to kill required for conviction of first degree murder on the basis of premeditation and deliberation, you will not return a verdict of guilty of first degree murder on the basis of premeditation and deliberation.\nDefendant contends this instruction was flawed in three respects: (1) the trial court diminished the importance of the evidence regarding defendant\u2019s intoxication, drug use, and impaired mental capacity by giving only a single instruction; (2) the usage of the language \u201clack of capacity\u201d rather than \u201cimpaired capacity\u201d or \u201cdiminished capacity\u201d improperly suggested that the jury must find defendant entirely without capacity to premeditate or deliberate in order to consider this evidence; and (3) the third paragraph of the instructions intimates an opinion of the trial judge that the jury should find defendant guilty of felony murder.\nWith regard to defendant\u2019s first two objections, we note that defendant did not challenge the instruction on these grounds at trial. The trial court thus did not have the opportunity to consider or rule on these issues. See N.C. R. App. P. 10(b)(1). Indeed, defendant agreed with the trial court that such an instruction was proper. Defendant will not be allowed to complain on appeal absent a showing of plain error. See N.C. R. App. P. 10(c)(4); see also State v. White, 349 N.C. 535, 570, 508 S.E.2d 253, 275 (1998) (finding no error where defense counsel did not object when given the opportunity at the charge conference or after the charge was given and noting that defense counsel approved the instructions during the charge conference), cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999); State v. Penley, 318 N.C. 30, 47, 347 S.E.2d 783, 793 (1986) (holding that the defendant waived the right to complain of jury instructions on appeal where he specifically objected to several portions of the instructions but not the portions complained of upon appeal).\nA plain error is one \u201cso fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u201d State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). Our review of the trial court\u2019s instruction reveals no plain error regarding defendant\u2019s mental capacity. The trial court delivered the appropriate pattern jury instruction on this issue, which groups intoxication, drug use, and lack of mental capacity together. N.C.P.I \u2014 Crim. 305.11 (1989). By including intoxication, drug use, and lack of mental capacity in the instruction, the trial court provided defendant the benefit of all his evidence. We disagree with defendant\u2019s contention that a single instruction diminished the significance of the evidence, as the instruction made it more likely that the jury could have found all of the evidence sufficient to show diminished capacity. The State\u2019s overwhelming evidence of premeditation and deliberation, however, could not have been overcome by defendant\u2019s evidence of diminished capacity regardless of whether the evidence was considered under a single instruction or under multiple instructions.\nSimilarly, we cannot say that the trial court committed plain error in its use of the words \u201clack of capacity\u201d rather than \u201cimpaired capacity\u201d or \u201cdiminished capacity.\u201d The language \u201clack of capacity\u201d appears in the pattern jury instructions that this Court approved in State v. Mash, 323 N.C. 339, 344, 372 S.E.2d 532, 535 (1988). Moreover, defendant referred to \u201clack of mental capacity\u201d in his closing argument. We fail to see any error in the trial court\u2019s choice of the phrase \u201clack of capacity.\u201d\nFinally, defendant objects to the third paragraph of the jury instructions:\nThe law does not require any specific intent to kill for the defendant to be guilty of the crime of first degree murder on the basis of felony murder or second degree murder. Thus, the defendant\u2019s intoxication or drug condition can have no bearing upon your determination of his guilt or innocence of these crimes.\nDefendant contends that this paragraph intimates an opinion of the trial judge that the jury should find defendant guilty of felony murder. At the charge conference, defendant objected to the placement of this paragraph within the instruction concerning voluntary intoxication and lack of premeditation, preferring instead that the instruction be given earlier with the instructions for first-degree murder by premeditation and deliberation and felony murder. Defendant failed to raise the particular objection he now brings before us on appeal. \u201c \u2018The theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions.\u2019 \u201d State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988) (quoting State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982)). Defendant cannot raise this issue for the first time on appeal.\nNonetheless, we again review defendant\u2019s contention based on plain error. We note that the trial court expressly referred to the jury\u2019s determination of \u201cguilt or innocence\u201d in its instruction and informed the jury on the effect of intoxication on both felony murder and second-degree murder. The trial court did nothing more than inform the jurors that defendant\u2019s intoxication was irrelevant to their determination of guilt or innocence of felony murder or second-degree murder. Moreover, the court instructed the jurors as follows:\nThe law, as indeed it should, requires the presiding judge to be impartial. You are not to draw any inference from any ruling that I have made or any inflection in my voice or expression on my face or any question I have asked any witness or anything else that I may have said or done during this trial that I have an opinion or have intimated an opinion as to whether any part of the evidence should be believed or disbelieved, as to whether any fact has or has not been proved or as to what your findings ought to be. It is your exclusive province to find the true facts of the case and to render a verdict reflecting the truth as you find it.\nWe therefore reject defendant\u2019s contention that the jury may have misconstrued the trial court\u2019s instructions as requiring them to convict defendant of felony murder or to discount the evidence of impaired capacity.\nThis assignment of error is overruled.\nIn his next assignment of error, defendant argues the trial court erred by admitting the victim\u2019s hearsay statements in violation of the Rules of Evidence and defendant\u2019s state and federal constitutional rights to confront the witnesses against him. Defendant further argues that the testimony was inadmissible regardless of its hearsay character because it was irrelevant and unfairly prejudicial evidence of defendant\u2019s bad character. See N.C.G.S. \u00a7 8C-1, Rules 401-04 (2001). We are not required to respond to defendant\u2019s constitutional objections because they were not raised at trial. See Benson, 323 N.C. at 322, 372 S.E.2d at 519.\nFollowing a voir dire, the prosecutor was permitted to ask the victim\u2019s best friend, Amanda McNeill, about statements the victim made within a few days before the victim\u2019s death. McNeill testified that on 10 November 1999, Whitted told her, \u201c[M]y man\u2019s a crack head and I wish he would leave.\u201d McNeill further testified, \u201c[Y]ou could just look at her and tell that she was going through something.\u201d Whitted told McNeill that she had asked defendant to leave. Later, on 15 November 1999, one day before the murder, Whitted told McNeill that she was tired of defendant taking her money to buy drugs and that she \u201cwanted him gone.\u201d\nHearsay is \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C.G.S. \u00a7 8C-1, Rule 801(c). However, \u201c[o]ut-of-court statements offered for purposes other than to prove the truth of the matter asserted are not considered hearsay.\u201d State v. Golphin, 352 N.C. 364, 440, 533 S.E.2d 168, 219 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). In this instance, McNeill\u2019s testimony is admissible under the state-of-mind exception to the general prohibition on hearsay. See N.C.G.S. \u00a7 8C-1, Rule 803(3) (2001). Under this exception, a statement is admissible if it applies to a \u201cdeclarant\u2019s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health).\u201d Id. This Court recently reviewed the law regarding this exception ta the hearsay rule:\n\u201cThe victim\u2019s state of mind is relevant if it bears directly on the victim\u2019s relationship with the defendant at the time the victim was killed.\u201d State v. Bishop, 346 N.C. 365, 379, 488 S.E.2d 769, 776 (1997); accord [State v.] Westbrooks, 345 N.C. [43,] 59, 478 S.E.2d [483,] 493 [(1996)]. Moreover, we have also stated that \u201ca victim\u2019s state of mind is relevant if it relates directly to circumstances giving rise to a potential confrontation with the defendant.\u201d State v. McLemore, 343 N.C. 240, 246, 470 S.E.2d 2, 5 (1996); see also State v. McHone, 334 N.C. 627, 637, 435 S.E.2d 296, 301-02 (1993) (state of mind relevant to show a stormy relationship between the victim and the defendant prior to the murder), cert. denied, 511 U.S. 1046, 128 L. Ed. 2d 220 (1994); State v. Lynch, 327 N.C. 210, 224, 393 S.E.2d 811, 819 (1990) (the defendant\u2019s threats to the victim shortly before the murder admissible to show the victim\u2019s then-existing state of mind); State v. Cummings, 326 N.C. 298, 313, 389 S.E.2d 66, 74 (1990) (the victim\u2019s statements regarding the defendant\u2019s threats relevant to the issue of her relationship with the defendant).\nState v. King, 353 N.C. 457, 477, 546 S.E.2d 575, 591 (2001), cert. denied, 534 U.S. 1147, 151 L. Ed. 2d 1002 (2002).\nThe testimony in issue directly related to \u201c \u2018circumstances giving rise to a potential confrontation with the defendant.\u2019 \u201d Bishop, 346 N.C. at 379, 488 S.E.2d at 776 (quoting McLemore, 343 N.C. at 246, 470 S.E.2d at 5), quoted in King, 353 N.C. at 477-78, 546 S.E.2d at 591. Defendant and Whitted were living together in her trailer. The statements demonstrated that Whitted was upset and wanted defendant to leave because Whitted was tired of defendant taking her money to buy drugs. Although she had asked him to leave, defendant remained. One day after Whitted\u2019s second statement to McNeill and six days after her first statement to McNeill, defendant beat and strangled Whitted in her home. Viewed in this context, the statements clearly indicate difficulties in the relationship prior to the murder. Accordingly, the statements are admissible not as a recitation of facts but to show the victim\u2019s state of mind.\nAdditionally, we find no prejudice in the admission of the statements. The trial court instructed the jury that the evidence was admissible \u201cto prove [only] a certain state of mind of the deceased at the time\u201d and not \u201cto prove the truth of the conduct described in the statement.\u201d This limiting instruction was sufficient to prevent the jury from viewing the evidence as proof of defendant\u2019s bad character.\nDefendant\u2019s assignment of error is without merit.\nIn his next assignment of error, defendant argues the trial court committed plain error and structural error by failing to poll each juror individually to determine if the verdict was unanimous as to each distinct theory of first-degree murder.\nPrior to the jury beginning deliberations, the trial court fully instructed the jury on both the premeditation and deliberation theory of first-degree murder and the felony murder rule. The trial court instructed the jury as follows:\nI instruct you that a verdict is not a verdict until all 12 jurors agree unanimously as to what your decision shall be. You may not render a verdict by majority vote.\nThe verdict form sets out first degree murder both on the basis of malice, premeditation and deliberation and first degree murder under the felony murder rule and second degree murder on the basis of malice without premeditation and deliberation. In the event you should find the defendant guilty of first degree murder, please have your foreman indicate whether you do so on the basis of malice, premeditation and deliberation or under the felony murder rule.\nThe trial court sent the verdict sheet to the jury room with the jury. The verdict sheet provided, in pertinent part:\nWe, the jury, return as our unanimous verdict that the defendant, George Malcolm Carroll, is:\n_1. Guilty of First Degree Murder\nIF YOU FIND THE DEFENDANT GUILTY OF FIRST-DEGREE MURDER, IS IT\n_A. On the basis of malice, premeditation and deliberation?\n_B. Under the first degree felony murder rule?\nThe jury marked the verdict sheet in each appropriate place to unanimously find defendant guilty of first-degree murder on the basis of malice, premeditation and deliberation and under the first-degree felony murder rule.\nAdditionally, following jury deliberations and after the jury returned to the courtroom, the clerk stated, \u201cThe jury has returned as its unanimous verdict that the defendant, George Malcolm Carroll, as to file number 99 CRS 70909 is guilty of first degree murder on the basis of malice, premeditation and deliberation and under the first degree felony murder rule. Is this your unanimous verdict?\u201d The jury foreman answered, \u201cYes, it is.\u201d The trial court then stated, \u201cSo say you all.\u201d All the jurors responded, \u201cYes.\u201d\nThe trial court then instructed the clerk to poll the jury. The clerk first asked the foreman:\nThe Clerk: Robert Golden, the jury has returned as its unanimous verdict that the defendant, George Malcolm Carroll, is guilty of first degree murder. Is this your verdict?\nJuror Nine [Golden]: Yes, it is.\nThe Clerk: Do you still assent thereto?\nJuror Nine: Yes.\nThe clerk inquired of the remaining jurors in the same manner and each juror affirmed the unanimity of the verdict.\nDefendant contends the clerk should have further inquired whether each juror individually found defendant guilty of first-degree murder both on the basis of malice, premeditation and deliberation and under the first-degree felony murder rule. At trial, defendant failed to object to the form of the poll.\nOur extensive review of the record reveals that the trial court made the jury thoroughly aware of the requirement of a unanimous verdict on each theory of first-degree murder. The transcript unquestionably indicates that the jury unanimously found defendant guilty based on both malice, premeditation and deliberation and under the first-degree felony murder rule.\nThe jury\u2019s unanimous verdict based on both theories of first-degree murder was clearly represented on the verdict sheet. Moreover, following the clerk\u2019s announcement that the jury unanimously found defendant \u201cguilty of first degree murder on the basis of malice, premeditation and deliberation and under the first degree felony murder rule,\u201d each juror individually affirmed that this was indeed his verdict. It would strain reason to conclude that the jury\u2019s verdict was not unanimously based on both theories of first-degree murder. Accordingly, the trial court properly polled the jury to ensure that the announced verdict was unanimous. See N.C.G.S. \u00a7 15A-1238 (2001) (\u201cThe poll may be conducted by the judge or by the clerk by asking each juror individually whether the verdict announced is his verdict.\u201d). Nothing more was required.\nThis assignment of error is overruled.\nCAPITAL SENTENCING PROCEEDING\nIn his next three assignments of error, defendant argues the trial comb erred by allowing the jury to consider and find the aggravating circumstance that defendant had been previously convicted of another felony involving the use or threat of violence to another person. See N.C.G.S. \u00a7 15A-2000(e)(3) (2001). According to defendant, this aggravating circumstance was based solely on irrelevant and unreliable hearsay.\nDuring the sentencing proceeding, the State called Diane Hix, a deputy clerk in Cumberland County, who identified several documents as certified copies of Florida Circuit Court records. Following defendant\u2019s objection, the trial court excused the jury and heard the following arguments:\n[Defense Counsel]: Your Honor, Ms. Hix is a clerk of our superior court and she is familiar with documents generated by courts, but I\u2019m not sure if she is the person who received this document or even that our clerk\u2019s office did. And I know that it\u2019s got st\u00e1mping which represents to be from the State of Florida and it\u2019s got Janet Reno\u2019s name on it and file stamps and everything. But I would object, Your Honor, based on the fact that there\u2019s no showing of where this came from. She is not the person who\u2019s received this document. And I\u2019m not sure under what authority this is being requested to be admitted, Your Honor.\nThe Court: Mr. Hicks.\nMr. Hicks [The State]: Pretty straightforward under 902 of our rules of evidence which actually do not apply to a sentencing hearing. These are certified true copies. They are self-authenticating. The purpose of the clerk being up here is to show that\u2019s a standard procedure in the clerk\u2019s office to have true copy seals, and at this point, that\u2019s about all the questions I have for her. Frankly, I could have offered this without any testimony.\nThe Court: Let me look at it just a minute. I believe that\u2019s a correct statement of the law. Objection is overruled. Bring the jury back.\nHix then testified that the Florida records identified \u201cRobert Fulton\u201d as the defendant and that the documents included a set of fingerprints made pursuant to the judgment.\nThe State next called Kathleen Farrell, who was accepted by the trial court without objection as an expert in fingerprint identification. Farrell testified that she had compared the fingerprints in the Florida record to a set of defendant\u2019s prints. Farrell said defendant\u2019s prints were on a fingerprint card on permanent file in the Cumberland County Sheriff\u2019s Department. The card included defendant\u2019s name, the charges of first-degree murder and first-degree arson, a street address, and the date \u201c11/17/1999.\u201d Farrell testified that fingerprint cards are kept in the ordinary course of business. The trial court allowed the fingerprint card to be admitted, with no objection from defendant.\nAlso without objection, Farrell testified that the fingerprints in the Florida record and the prints on the Cumberland County fingerprint card were made by the same person. Farrell then stated, again without objection, that the Florida judgment showed a robbery conviction for the defendant in that case. Farrell also read the summary paragraph from the Florida judgment, which indicated the defendant had punched the victim in the nose, knocked him to the ground, and continued to kick him repeatedly, and had then removed the victim\u2019s wallet before fleeing.\nWe conclude that the foregoing evidence was properly admitted to support the State\u2019s submission of the (e)(3) aggravating circumstance. The North Carolina Rules of Evidence do not apply in capital sentencing proceedings. N.C.G.S. \u00a7 8C-1, Rule 1101(b)(3) (2001); State v. Hedgepeth, 350 N.C. 776, 784, 517 S.E.2d 605, 610 (1999), cert. denied, 529 U.S. 1006, 146 L. Ed. 2d 223 (2000); State v. Daughtry, 340 N.C. 488, 517, 459 S.E.2d 747, 762 (1995), cert. denied, 516 U.S. 1079, 133 L. Ed. 2d 739 (1996). Instead, the trial court has discretion to admit any evidence relevant to sentencing. N.C.G.S. \u00a7 15A-2000(a)(3) (2001); State v. Thomas, 350 N.C. 315, 359, 514 S.E.2d 486, 513, cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999). Accordingly, the State is allowed to admit any evidence that substantially supports the death penalty. State v. Brown, 315 N.C. 40, 61, 337 S.E.2d 808, 824 (1985), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 733 (1986), and overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988).\nIn the present case, a court clerk testified that the Florida documents were signed and certified in a manner verifying their authenticity. The documents were thus shown to be reliable. Moreover, even if the Rules of Evidence were applied here, the documents could have been properly admitted. See N.C.G.S. \u00a7 8C-1, Rule 902 (2001) (providing the rules concerning self-authenticating documents).\nAdditionally, defendant did not object to Kathleen Farrell\u2019s expert testimony that defendant\u2019s fingerprints matched the fingerprints of the defendant in the Florida case. In our review of the record, we conclude the State fully established the reliability of the fingerprint card Farrell used to conduct her fingerprint comparison. Further, had the Rules of Evidence been applied here, the fingerprint card would have been clearly admissible. See N.C.G.S. \u00a7 8C-1, Rule 803(6) (the business records exception to the hearsay rule). Farrell\u2019s testimony was thus properly admitted to show that defendant had been previously convicted of another felony involving the use or threat of violence to another person under an assumed name.\nWe conclude that the trial court properly admitted the Florida records, in conjunction with Farrell\u2019s expert opinion, as reliable evidence relevant to the State\u2019s duty to prove its aggravating circumstances. Accordingly, the evidence was sufficient to support the trial court\u2019s submission of the (e)(3) aggravating circumstance to the jury.\nThese assignments of error are overruled.\nIn his next assignment of error, defendant argues the trial court erred by refusing to allow defendant to offer evidence of the non-statutory mitigating circumstance that defendant had accepted responsibility for the killing by offering to plead guilty to second-degree murder.\nDuring the sentencing proceeding, defendant\u2019s attorney made a motion that the trial court allow defendant to present evidence that he was \u201cwilling to accept responsibility and take a plea ... of 391 to 479 months and that he made that offer.\u201d Defendant\u2019s attorney conceded that this \u201cwould be considered part of a settlement conference and those kinds of issues are not normally accepted and are precluded from the case in chief.\u201d The trial court ruled, \u201cI\u2019m going to deny your motion to present that evidence. I do not think it\u2019s relevant, particularly in view of the fact that it is relative to pretrial negotiations concerning a case. I will let you make whatever proffer you want to make relative to that.\u201d\nDefendant\u2019s attorney then acknowledged that the State had never made a plea offer, although plea negotiations had been ongoing throughout the case. Defendant\u2019s attorney further informed the court that defendant was willing to plead guilty to second-degree murder. The State countered that while the defense had made several suggestions concerning what the State should offer defendant, no one ever made clear whether \u201cdefendant ha[d] himself offered to take any time.\u201d After the trial court instructed the jury on sentencing, defendant\u2019s attorney reasserted his earlier motion. The trial court again denied the motion.\n\u201cIn order for defendant to succeed on this assignment [of error], he must establish that (1) the nonstatutory mitigating circumstance is one which the jury could reasonably find had mitigating value, and (2) there is sufficient evidence of the existence of the circumstance to require it to be submitted to the jury.\u201d Benson, 323 N.C. at 325, 372 S.E.2d at 521. A trial court must submit a mitigating circumstance only if it is supported by substantial evidence. State v. Laws, 325 N.C. 81, 109, 381 S.E.2d 609, 626 (1989), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990). Substantial evidence is enough relevant evidence that a reasonable person would accept it as adequate to support a conclusion. State v. Fullwood, 329 N.C. 233, 236, 404 S.E.2d 842, 844 (1991).\nIn the present case, the evidence is at best conflicting as to defendant\u2019s willingness to plead guilty to second-degree murder. From our review of the record, we can conclusively determine only that defendant\u2019s attorney tried repeatedly to obtain a plea offer from the State. Because the State never made an offer, we cannot know with certainty whether defendant would have indeed pled guilty to second-degree murder and accepted a plea agreement.\nAssuming arguendo that defendant was willing to plead guilty to second-degree murder, this is evidence only of defendant\u2019s willingness to lessen his exposure to the death penalty or a life sentence upon a first-degree murder conviction. Defendant\u2019s willingness to accept a second-degree murder plea would be more likely a result of his assessment of the risk of trial than his willingness to accept responsibility for his actions. Indeed, defendant admitted to police that he was likely to get the death penalty for his crime. Moreover, defendant chose to plead not guilty and proceed to trial rather than enter a guilty plea and accept responsibility for the killing. Having made this choice, defendant cannot now complain that he should have been allowed to reveal during sentencing his hypothetical willingness to enter a guilty plea to a lesser crime.\nFinally, the trial court did submit to the jury the nonstatutory mitigating circumstances that \u201c[defendant at an early stage in the proceedings admitted his involvement in the capital felony to law enforcement officers,\u201d \u201c[defendant's cooperation and the information he provided were valuable to law enforcement,\u201d \u201c[defendant has expressed remorse for the murder,\u201d \u201c[defendant told the officers through his mother where to find him and peacefully surrendered.\u201d The trial court also submitted to the jury the catchall mitigating circumstance. See N.C.G.S. \u00a7 15A-2000 (f)(9). Accordingly, the jury was given ample means to determine whether defendant had accepted responsibility for his actions.\nIn sum, the trial court properly refused to submit as a nonstatutory mitigating circumstance defendant\u2019s willingness to accept responsibility for his actions through a plea bargain.\nThis assignment of error is overruled.\nIn his next assignment of error, defendant argues the trial court failed to adequately poll the jury foreman as to whether he personally voted to impose a death sentence.\nThe following portion of the sentencing hearing appears relevant:\nThe Court: Mr. Foreman, again I would ask if you would stand and for the record state your name, please.\nJuror Nine [Foreman]: Robert Golden.\nThe Court: Mr. Golden, has the jury reached a unanimous recommendation?\nJuror Nine: Yes, Your Honor, we have.\nThe Court: Okay. Would you send the envelope to the officer, please.\n(Juror nine hands the envelope to the bailiff who hands it to the Court.)\nThe Court: You may have a seat. Thank you.\nJuror Nine: Thank you.\nThe Court: Madam Clerk, would you take the verdict or the recommendation.\nThe Clerk: Will the foreman please stand. Mr. Foreman, the jury has returned as its answers to the issues and recommendation as to punishment as to the defendant, George Malcolm Carroll, in file number 99 CRS 70909 the following: As to issue one, yes; as to issue two, yes; as to issue three, yes; as to issue four, yes. The jury has returned as its recommendation that the defendant be sentenced to death. Is this the unanimous recommendation of the jury?\nJuror Nine: Yes, it is.\nThe Court: So say you all?\n(Jurors say \u201cyes.\u201d)\nThe -Court: Would you poll the jury.\nThe Clerk: Will the foreman please stand. Mr. Foreman, you have returned as to the answers to the issues and recommendation as to punishment as to the defendant, George Malcolm Carroll, in file number 99 CRS 70909 the following: As to issue one, yes; as to issue two, yes; as to issue three, yes; as to issue four, yes. Is this your recommendation? Do you still assent thereto?\nJuror Nine: Yes, I do.\nThe Court: You may have a seat.\nThe Clerk: You may have a seat. Juror number one, Maurice Dinkins. The foreman \u2014 -juror number one, the foreman, Maurice Dinkins, the foreman has returned as its answers to the issues and recommendation as to punishment as to the defendant, George Malcolm Carroll, in file number 99 CRS 70909 the following: As to issue one, yes; as to issue two, yes; as to issue three, yes; as to issue four, yes. The foreman has returned as its recommendation that the defendant be sentenced to death. Is this your recommendation?\nJuror One: Yes.\nThe Clerk: Do you still assent thereto?\nJuror One: Yes.\nThe clerk then individually polled each remaining jury member in this same manner.\nIndividual polling of a jury is done to ensure that each juror agrees to the sentence recommended. N.C.G.S. \u00a7 15A-2000(b); State v. Richmond, 347 N.C. 412, 447, 495 S.E.2d 677, 697, cert. denied, 525 U.S. 843, 142 L. Ed. 2d 88 (1998). No specific polling method is required to establish this purpose. State v. Spruill, 320 N.C. 688, 697, 360 S.E.2d 667, 672 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 934 (1988).\nIn the present case, the jury poll completely established that every juror agreed with the imposition of the death penalty. The foreman signed the sentencing recommendation form, which indicated the jury\u2019s \u201cyes\u201d answers to Issues One, Two, Three and Four, as well as the recommendation of a death sentence. After the clerk read the answers to Issues One through Four and the death recommendation, the clerk asked the foreman if this was the unanimous recommendation of the jury. The foreman affirmed that it was. The clerk then asked the foreman if the recommendation was his own and the foreman affirmed that it was. Although the clerk\u2019s questioning of the foreman did not include a reference to the death sentence recommendation, Issue Four asks if the aggravating circumstances are sufficient to warrant the death penalty. Accordingly, we conclude the trial court sufficiently polled the jury foreman to ascertain whether he agreed with the death sentence.\nThis assignment of error is overruled.\nPRESERVATION ISSUES\nDefendant raises fourteen additional issues that he concedes have been previously decided contrary to his position by this Court: (1) the murder indictment unconstitutionally failed to allege all the elements of first-degree murder; (2) the trial court erred by submitting the N.C.G.S. \u00a7 15A-2000 (e)(9) aggravating circumstance to the jury under instructions that were unconstitutionally vague; (3) the trial court erred in its jury instructions by limiting consideration of the N.C.G.S. \u00a7 15A-2000 (f)(2) and (f)(6) mitigating circumstances to findings of certain specified causes and omitting other possible underlying causes, thereby unconstitutionally precluding the jury from considering the full scope of those mitigating circumstances; (4) the trial court erred in its jury instructions by conditioning the jury\u2019s consideration of the N.C.G.S. \u00a7 15A-2000 (f)(2) mitigating circumstance, thereby precluding the jury from considering the full mitigating scope of that circumstance; (5) the trial court erred by telling the sentencing jury that it must be unanimous to answer \u201cno\u201d at Issues One, Three, and Four on the issues and recommendation sheet; (6) the trial court erred in its instructions defining the burden of proof applicable to mitigating circumstances by using the terms \u201csatisfaction\u201d and \u201csatisfy,\u201d thus permitting jurors to establish for themselves the applicable legal standard; (7) the trial court erred by instructing the jury to decide whether all nonstatutory mitigating circumstances have mitigating value; (8) the trial court erred by instructing the jury on a definition of mitigation that was unconstitutionally narrow; (9) the trial court erred by using the term \u201cmay\u201d instead of \u201cmust\u201d in sentencing Issues Three and Four; (10) the trial court erred in its penalty phase instructions which allowed each juror in deciding Issues Three and Four to consider only the mitigation found by that juror at Issue Two; (11) the trial court erred in allowing death-qualification of the jury by excusing for cause certain jurors who expressed an unwillingness to impose the death penalty; (12) the trial court erred in its jury instructions on Issue Three that allowed the jury to answer that issue \u201cyes\u201d and recommend a death sentence if it found that the aggravating and mitigating circumstances were of equal weight; (13) the trial court erred by submitting to the jury all of defendant\u2019s non-statutory mitigating circumstances as a single list and by failing to instruct separately on each mitigating circumstance; and (14) the trial court erred by denying defendant\u2019s motions to preclude consideration of the death penalty and by sentencing defendant to death because the death penalty is cruel and unusual; the North Carolina capital sentencing scheme is imposed in a discriminatory manner, is vague and overbroad, and involves subjective discretion; and the death sentence in this case was not supported by the evidence, was disproportionate, and was imposed under the influence of passion, prejudice, and other arbitrary factors.\nWe have considered defendant\u2019s contentions on these issues and find no reason to depart from our prior holdings. Therefore, we reject these arguments.\nPROPORTIONALITY REVIEW\nHaving concluded that defendant\u2019s trial and capital sentencing proceeding were free from prejudicial error, we are required to review and determine: (1) whether the evidence supports the jury\u2019s finding of the aggravating circumstances upon which the sentence of death was based; (2) whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. N.C.G.S. \u00a7 15A-2000(d)(2).\nIn the present case, the jury convicted defendant of first-degree murder based on malice, premeditation and deliberation and under the first-degree felony murder rule. Following a capital sentencing proceeding, the jury found two aggravating circumstances: defendant had been previously convicted of another felony involving the use or threat of violence to another person, N.C.G.S. \u00a7 15A-2000(e)(3), and the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9).\nThe jury found all three statutory mitigating circumstances submitted for consideration: (1) the murder was committed while defendant was under the influence of mental or emotional disturbance, N.C.G.S. \u00a7 15A-2000(f)(2); (2) the capacity of defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, N.C.G.S. \u00a7 15A-2000(f)(6); and (3) the catchall mitigating circumstance that there existed any other circumstance arising from the evidence that any juror deems to have mitigating value, N.C.G.S. \u00a7 15A-2000(f)(9). Of the seventeen nonstatutory mitigating circumstances submitted by the trial court, the jury found four to exist: (1) defendant did not have a positive male role model in his home while growing up, (2) defendant\u2019s stepfather introduced defendant to criminal activity at an early age, (3) defendant has a history of drug and alcohol abuse and has suffered cognitive defects as a result of the drug and alcohol abuse, and (4) defendant\u2019s cooperation and the information he provided were valuable to law enforcement.\nAfter thoroughly examining the record, transcript, briefs, and oral arguments, we conclude that the evidence fully supports the aggravating circumstances found by the jury. Further, we find no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. We turn then to our final statutory duty of proportionality review.\nThe purpose of proportionality review is to \u201celiminate the possibility that a person will be sentenced to die by the action of an aberrant jury.\u201d State v. Holden, 321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). Proportionality review also acts \u201c[a]s a check against the capricious or random imposition of the death penalty.\u201d State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980). In conducting proportionality review, we compare the present case with other cases in which this Court concluded that the death penalty was disproportionate. State v. McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162 (1993), cert. denied, 512 U.S. 1254, 129 L. Ed. 2d 895 (1994).\nWe have found the death sentence disproportionate in eight cases. State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002); Benson, 323 N.C. 318, 372 S.E.2d 517; 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 Vandiver, 321 N.C. 570, 364 S.E.2d 373; State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).\nWe conclude that this case is not substantially similar to any case in which this Court has found the death penalty disproportionate. Defendant was convicted on the basis of malice, premeditation, and deliberation and under the first-degree felony murder rule. \u201cThe finding of premeditation and deliberation indicates a more cold-blooded and calculated crime.\u201d State v. Artis, 325 N.C. 278, 341, 384 S.E.2d 470, 506 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). Further, this Court has repeatedly noted that \u201ca finding of first-degree murder based on theories of premeditation and deliberation and of felony murder is significant.\u201d State v. Bone, 354 N.C. 1, 22, 550 S.E.2d 482, 495 (2001), cert. denied, - U.S. \u2014, 152 L. Ed. 2d 231 (2002).\nIn the present case, following an argument, defendant slapped the victim and struck the victim on the leg and face with a machete. The machete cut the back of the victim\u2019s head and caused her to bleed uncontrollably. When the victim screamed, defendant carried her to her bed, where he put the bedsheet in the victim\u2019s mouth and put his hands on her throat to keep her quiet. After the victim died, defendant attempted to bum the victim\u2019s body and the home. We note here this Court\u2019s oft-cited proviso that \u201c[a] murder in the home \u2018shocks the conscience, not only because a life was senselessly taken, but because it was taken [at] an especially private place, one [where] a person has a right to feel secure.\u2019 \u201d State v. Adams, 347 N.C. 48, 77, 490 S.E.2d 220, 236 (1997) (quoting State v. Brown, 320 N.C. 179, 231, 358 S.E.2d 1, 34, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987)) (alterations in original), cert. denied, 522 U.S. 1096, 139 L. Ed. 2d 878 (1998). In sum, the facts of the present case clearly distinguish this case from those in which this Court has held a death sentence disproportionate.\nWe also compare this case with the cases in which this Court has found the death penalty to be proportionate. McCollum, 334 N.C. at 244, 433 S.E.2d at 164. Although we review all cases in the pool of \u201csimilar cases\u201d when engaging in our statutorily mandated duty of proportionality review, \u201cwe will not undertake to discuss or cite all of those cases each time we carry out that duty.\u201d Id.; accord State v. Gregory, 348 N.C. 203, 213, 499 S.E.2d 753, 760, cert. denied, 525 U.S. 952, 142 L. Ed. 2d 315 (1998). After thoroughly analyzing the present case, we conclude this case is more similar to cases in which we have found the sentence of death proportionate than to those in which we have found it disproportionate.\nWhether a sentence of death is \u201cdisproportionate in a particular case ultimately rest[s] upon the \u2018experienced judgments\u2019 of the members of this Court.\u201d 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). Therefore, based upon the characteristics of this defendant and the crime he committed, we are convinced the sentence of death recommended by the jury and ordered by the trial court in the instant case is not disproportionate or excessive.\nAccordingly, we conclude that defendant received a fair trial and capital sentencing proceeding, free from prejudicial error. The judgment and sentence entered by the trial court must therefore be left undisturbed.\nNO ERROR.", "type": "majority", "author": "WAINWRIGHT, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by Gail E. Dawson, Special Deputy Attorney General, for the State.", "Staples Hughes, Appellate Defender, by Constance E. Widenhouse, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE MALCOLM CARROLL\nNo. 587A01\n(Filed 20 December 2002)\n1. Criminal Law\u2014 defendant\u2019s decision not to testify \u2014 court\u2019s inquiry\nA capital first-degree murder defendant waived his right to testify, and the trial court\u2019s inquiry was adequate, where the court\u2019s inquiry sufficiently determined that defendant was intellectually capable of understanding his right to testify, had communicated with his attorneys, and had agreed with his attorneys that it was not in his best interest to testify.\n2. Homicide\u2014 felony murder \u2014 underlying assault \u2014 death resulting from separate strangulation \u2014 no merger\nThe trial court did not err by submitting felony murder to the jury based on a felonious assault where defendant contended that the assault merged with the killing, but the victim died from a separate strangulation and not as a result of the assault.\n3. Criminal Law\u2014 prosecutor\u2019s argument \u2014 defendant\u2019s expert testimony \u2014 ability to form intent\nThe trial court did not abuse its discretion in a capital first-degree murder prosecution by not censuring the prosecutor\u2019s closing arguments about an expert opinion as to whether defendant was capable of premeditation and deliberation. The evidence in the record supports the arguments and the prosecutor merely fulfilled his duty to present the State\u2019s case with vigor.\n4. Criminal Law\u2014 diminished capacity \u2014 instructions\nThere was no plain error in a capital first-degree murder prosecution where defendant contended that the court\u2019s instructions on diminished capacity were inaccurate and misleading in that the instructions grouped intoxication, drug use, and lack of mental capacity together and used the term \u201clack of capacity\u201d rather than \u201cimpaired capacity\u201d or \u201cdiminished capacity.\u201d The pattern jury instruction given by the court made a finding of diminished capacity more likely in a single instruction and the phrase \u201clack of mental capacity\u201d has been approved in a prior opinion and was used by defendant in his closing argument. Moreover, the State\u2019s evidence of premeditation and deliberation was overwhelming.\n5. Criminal Law\u2014 voluntary intoxication \u2014 instructions\u2014 irrelevant to felony murder\nThere was no error in a capital first-degree murder prosecution where defendant contended that the trial court intimated an /opinion during its instruction on voluntary intoxication by instructing the jury that a specific intent to kill is not required for felony murder or second-degree murder.\n6. Evidence\u2014 hearsay \u2014 murder victim\u2019s statements to friend \u2014 state of mind\nA murder victim\u2019s statements to a friend a few days before the murder about difficulties in her relationship with defendant were admissible to show the victim\u2019s state of mind rather than as a recitation of facts. Also, the limiting instruction was sufficient to prevent the jury from viewing the evidence as proof of defendant\u2019s bad character.\n7. Jury\u2014 polling \u2014 two theories of first-degree murder\nThe trial court did not err by failing to poll each juror individually in the guilt phase of a first-degree murder prosecution to determine if the verdict was unanimous as to each distinct theory of first-degree murder where the trial court\u2019s instructions made the jury fully aware of the requirement of a unanimous verdict on each theory of first-degree murder; the transcript unquestionably indicates that the jury unanimously found defendant guilty based on both malice, premeditation and deliberation and under the felony murder rule; the verdict sheet clearly represented the unanimous verdict based on both theories of first-degree murder; and, following the clerk\u2019s announcement that the jury unanimously found defendant guilty of first-degree murder on the basis of malice, premeditation and deliberation and under the felony murder rule, each juror individually affirmed that this was his or her verdict. It would strain reason to conclude that the jury\u2019s verdict was not unanimously based on both theories of first-degree murder. v\n8. Sentencing\u2014 capital \u2014 aggravating circumstances \u2014 prior violent felonies \u2014 Florida records\nThe trial court in a capital sentencing hearing prop\u00e9rly admitted Florida records of a prior violent felony, and the evidence was sufficient for submission of the prior violent felony aggravating circumstance, where a court clerk testified that the Florida documents were signed and verified in a manner verifying their authenticity, and an expert testified that defendant\u2019s fingerprints matched the fingerprints of the defendant in the Florida case. N.C.G.S. \u00a7 15A-200(e)(3).\n9. Sentencing\u2014 capital \u2014 nonstatutory mitigating circumstances \u2014 offer to plead guilty\nThe trial court did not err in a capital sentencing proceeding by not allowing defendant to offer evidence of the non-statutory mitigating circumstance that he had accepted responsibility for the killing by offering to plead guilty to second-degree murder. The evidence was conflicting as to defendant\u2019s willingness to plead guilty to second-degree murder; assuming his willingness to plead guilty, this is evidence only of defendant\u2019s willingness to lessen his exposure to the death penalty or a life sentence. Finally, the court submitted the circumstances that defendant admitted involvement to law enforcement officers, provided valuable information, and expressed remorse.\n10. Jury\u2014 polling of foreman on death penalty \u2014 sufficient\nThe trial court sufficiently polled the jury foreman to ascertain whether he agreed with a death sentence where the foreman signed the sentencing recommendation form; the clerk read the answers to the issues and asked the foreman if this was the unanimous recommendation of the jury; the clerk then asked the foreman if the recommendation was his own; and, although the clerk\u2019s questioning did not include a reference to the death penalty, Issue Four asks if the aggravating circumstances are sufficient to warrant the death penalty.\n11. Sentencing\u2014 capital \u2014 death penalty proportionate\nA death sentence was not disproportionate where the evidence fully supported the aggravating circumstances, there was no indication that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and this case was not substantially similar to any case in which the death penalty was found disproportionate. Defendant slapped the victim and struck her on the leg and face with a machete, which cut her head and caused her to bleed uncontrollably; the victim screamed and defendant carried her to a bed, where he put a bed-sheet in her mouth and put his hands on her throat; and he attempted to burn the body and the home after she died.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Thompson, J., on 29 May 2001 in Superior Court, Cumberland County, upon a jury verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 16 October 2002.\nRoy Cooper, Attorney General, by Gail E. Dawson, Special Deputy Attorney General, for the State.\nStaples Hughes, Appellate Defender, by Constance E. Widenhouse, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0526-01", "first_page_order": 576, "last_page_order": 606 }