{ "id": 2985125, "name": "STATE OF NORTH CAROLINA v. MICHAEL ERIC MASKE", "name_abbreviation": "State v. Maske", "decision_date": "2004-02-06", "docket_number": "No. 497A02", "first_page": "40", "last_page": "63", "citations": [ { "type": "official", "cite": "358 N.C. 40" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "516 U.S. 832", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 328571, 327557, 323846, 324361, 324778, 325787, 323667, 324371, 325527, 325720, 327611, 324060, 327645, 326782 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/516/0832-07", "/us/516/0832-08", "/us/516/0832-11", "/us/516/0832-06", "/us/516/0832-12", "/us/516/0832-04", "/us/516/0832-14", "/us/516/0832-10", "/us/516/0832-13", "/us/516/0832-03", "/us/516/0832-01", "/us/516/0832-05", "/us/516/0832-02", "/us/516/0832-09" ] }, { "cite": "534 U.S. 839", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9117856, 9117795, 9118021, 9117990, 9117833, 9118126, 9117934, 9117905, 9117970, 9118098, 9118071, 9117879, 9117950, 9118047 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/534/0839-03", "/us/534/0839-01", "/us/534/0839-10", "/us/534/0839-09", "/us/534/0839-02", "/us/534/0839-14", "/us/534/0839-06", "/us/534/0839-05", "/us/534/0839-08", "/us/534/0839-13", "/us/534/0839-12", "/us/534/0839-04", "/us/534/0839-07", "/us/534/0839-11" ] }, { "cite": "519 U.S. 1097", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11765921, 11765538, 11765698, 11765284, 11765993, 11765769, 11765836, 11765390, 11765618, 11765330, 11765078, 11765464, 11765147, 11765212 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/519/1097-13", "/us/519/1097-08", "/us/519/1097-10", "/us/519/1097-04", "/us/519/1097-14", "/us/519/1097-11", "/us/519/1097-12", "/us/519/1097-06", "/us/519/1097-09", "/us/519/1097-05", "/us/519/1097-01", "/us/519/1097-07", "/us/519/1097-02", "/us/519/1097-03" ] }, { "cite": "510 U.S. 1028", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 230913, 231489, 231364, 234554, 234438, 232878, 230190, 234126, 232495, 230450, 231636, 235834, 230556 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/us/510/1028-11", "/us/510/1028-01", "/us/510/1028-08", "/us/510/1028-06", "/us/510/1028-02", "/us/510/1028-10", "/us/510/1028-12", "/us/510/1028-13", "/us/510/1028-04", "/us/510/1028-05", "/us/510/1028-07", "/us/510/1028-03", "/us/510/1028-09" ] }, { "cite": "522 U.S. 973", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11558593, 11558556, 11558276, 11558437, 11558308, 11558406, 11558377, 11558345, 11558475, 11558515, 11558711, 11558681, 11558650, 11558620 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/522/0973-10", "/us/522/0973-09", "/us/522/0973-01", "/us/522/0973-06", "/us/522/0973-02", "/us/522/0973-05", "/us/522/0973-04", "/us/522/0973-03", "/us/522/0973-07", "/us/522/0973-08", "/us/522/0973-14", "/us/522/0973-13", "/us/522/0973-12", "/us/522/0973-11" ] }, { "cite": "90 L. Ed. 2d 672", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "476 U.S. 1123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12995, 12899, 12492, 12429, 13010, 12883, 12756, 12661, 13047, 12568, 13049, 12828, 12351 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/1123-12", "/us/476/1123-01", "/us/476/1123-10", "/us/476/1123-08", "/us/476/1123-13", "/us/476/1123-11", "/us/476/1123-03", "/us/476/1123-07", "/us/476/1123-02", "/us/476/1123-06", "/us/476/1123-05", "/us/476/1123-09", "/us/476/1123-04" ] }, { "cite": "337 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "507" } ], "opinion_index": 0 }, { "cite": "315 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716847 ], "year": 1985, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0175-01" ] }, { "cite": "310 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "614" } ], "opinion_index": 0 }, { "cite": "310 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2399372 ], "year": 1984, "pin_cites": [ { "page": "147-48" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0142-01" ] }, { "cite": "573 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "894" } ], "opinion_index": 0 }, { "cite": "356 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511417 ], "year": 2002, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0446-01" ] }, { "cite": "562 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220022 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0420-01" ] }, { "cite": "558 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219899 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0117-01" ] }, { "cite": "133 L. Ed. 2d 60", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "105" } ], "opinion_index": 0 }, { "cite": "451 S.E.2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "339 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556750 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/339/0059-01" ] }, { "cite": "584 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "758" }, { "page": "758-59" } ], "opinion_index": 0 }, { "cite": "357 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491773 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0409-01" ] }, { "cite": "155 L. Ed. 2d 1074", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "572 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "150" } ], "opinion_index": 0 }, { "cite": "356 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511176 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0316-01" ] }, { "cite": "151 L. Ed. 2d 55", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "539 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "266" }, { "page": "266" }, { "page": "267" } ], "opinion_index": 0 }, { "cite": "353 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135705 ], "year": 2000, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0001-01" ] }, { "cite": "136 L. Ed. 2d 723", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "472 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "862" }, { "page": "863" } ], "opinion_index": 0 }, { "cite": "343 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798778 ], "year": 1996, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0518-01" ] }, { "cite": "126 L. Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "430 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "209" } ], "opinion_index": 0 }, { "cite": "333 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545734 ], "year": 1993, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0579-01" ] }, { "cite": "373 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "416" } ], "opinion_index": 0 }, { "cite": "323 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565178 ], "year": 1988, "pin_cites": [ { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0407-01" ] }, { "cite": "130 L. Ed. 2d 174", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "pin_cites": [ { "parenthetical": "\"This aggravating circumstance considers defendant's motive and is appropriate where the impetus for the murder was the expectation of pecuniary gain.\"" } ], "opinion_index": 0 }, { "cite": "513 U.S. 898", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1334272, 1335811, 1333315, 1332005, 1332907, 1332812, 1335468, 1330575, 1331985, 1334771, 1331603, 1334073, 1331453, 1334366 ], "year": 1994, "pin_cites": [ { "parenthetical": "\"This aggravating circumstance considers defendant's motive and is appropriate where the impetus for the murder was the expectation of pecuniary gain.\"" } ], "opinion_index": 0, "case_paths": [ "/us/513/0898-10", "/us/513/0898-08", "/us/513/0898-03", "/us/513/0898-11", "/us/513/0898-14", "/us/513/0898-05", "/us/513/0898-09", "/us/513/0898-02", "/us/513/0898-04", "/us/513/0898-07", "/us/513/0898-01", "/us/513/0898-13", "/us/513/0898-12", "/us/513/0898-06" ] }, { "cite": "440 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "822", "parenthetical": "\"This aggravating circumstance considers defendant's motive and is appropriate where the impetus for the murder was the expectation of pecuniary gain.\"" } ], "opinion_index": 0 }, { "cite": "335 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527903 ], "year": 1994, "pin_cites": [ { "page": "610", "parenthetical": "\"This aggravating circumstance considers defendant's motive and is appropriate where the impetus for the murder was the expectation of pecuniary gain.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0567-01" ] }, { "cite": "221 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "347" } ], "opinion_index": 0 }, { "cite": "289 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567952 ], "year": 1976, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0275-01" ] }, { "cite": "223 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "344" } ], "opinion_index": 0 }, { "cite": "289 N.C. 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571077 ], "year": 1976, "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0540-01" ] }, { "cite": "367 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "891", "parenthetical": "\"[A] request for an instruction at the charge conference is sufficient compliance with . . . [R]ule [10(b)(2)] to warrant. . . full review on appeal where the requested instruction is . . . promised but not given.\"" } ], "opinion_index": 0 }, { "cite": "322 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517806 ], "year": 1988, "pin_cites": [ { "page": "265", "parenthetical": "\"[A] request for an instruction at the charge conference is sufficient compliance with . . . [R]ule [10(b)(2)] to warrant. . . full review on appeal where the requested instruction is . . . promised but not given.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0261-01" ] }, { "cite": "271 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "pin_cites": [ { "page": "101" } ], "opinion_index": 0 }, { "cite": "132 Ill. App. 2d 1095", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2531100 ], "year": 1971, "pin_cites": [ { "page": "1096" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/1095-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "156 L. Ed. 2d 702", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "582 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491439 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0257-01" ] }, { "cite": "307 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "326" } ], "opinion_index": 0 }, { "cite": "309 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760257 ], "year": 1983, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0326-01" ] }, { "cite": "451 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "151" } ], "opinion_index": 0 }, { "cite": "338 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518881 ], "year": 1994, "pin_cites": [ { "page": "352-53" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0315-01" ] }, { "cite": "352 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "660" } ], "opinion_index": 0 }, { "cite": "319 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741422 ], "year": 1987, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0001-01" ] }, { "cite": "515 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "891" } ], "opinion_index": 0 }, { "cite": "350 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131924 ], "year": 1999, "pin_cites": [ { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0483-01" ] }, { "cite": "108 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4836, 5158, 4882, 5207, 5176 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1023-04", "/us/494/1023-03", "/us/494/1023-05", "/us/494/1023-02", "/us/494/1023-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "226 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "365" }, { "page": "380" } ], "opinion_index": 0 }, { "cite": "290 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561482 ], "year": 1976, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0349-01" ] }, { "cite": "139 L. Ed. 2d 326", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "485 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "126 N.C. App. 368", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710799 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/126/0368-01" ] }, { "cite": "464 U.S. 548", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6201349 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "556" }, { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/us/464/0548-01" ] }, { "cite": "485 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139641 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0253-01" ] } ], "analysis": { "cardinality": 1804, "char_count": 58770, "ocr_confidence": 0.725, "pagerank": { "raw": 1.550906507936263e-07, "percentile": 0.6746223428470154 }, "sha256": "bf9d913910e4873b605f6727516b70c2598f47f1ab641091178d5ec242ca355c", "simhash": "1:8b6fe834562e8cde", "word_count": 9553 }, "last_updated": "2023-07-14T22:12:52.416221+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL ERIC MASKE" ], "opinions": [ { "text": "EDMUNDS, Justice.\nThe victim in this murder case, Geneva Yarbrough (Yarbrough), lived in an apartment on Avera Avenue in Winston-Salem. She was a full-time employee of Bank of America and also worked part-time as a waitress at Darryl\u2019s Restaurant. After taking a day off from her bank job on Tuesday, 30 January 2001, for a doctor\u2019s appointment, she never returned to work.\nAt about 10:00 p.m. on the evening of Wednesday, 31 January 2001, Jamelle Witherspoon (Jamelle), a sixteen-year-old boy whose family lived above Yarbrough\u2019s apartment, knocked on Yarbrough\u2019s door to warn her that the headlights of her parked automobile were illuminated. When no one answered, Jamelle went home, but when he returned from school the next afternoon, he saw that the headlights still had not been turned off. He again knocked on Yarbrough\u2019s door, and the door opened slightly. Jamelle stepped inside and saw Yarbrough lying on a hallway floor with a towel covering her face. Jamelle\u2019s grandmother and aunt called 911.\nThe responding officers observed that Yarbrough\u2019s body was bloody and exhibiting rigor mortis. Her eyes and mouth were open, and the blood patterns on her face and a rumpled rug under her body suggested that she had been moved at some point. Several of her fingernails were broken, and the apartment was in disarray. Although neither of the two doors into the apartment showed signs of forced entry, investigators found a chair outside that had been placed directly below a kitchen window. The screen was missing from the window and a boot print was found in the interior sink that was under the window. A screen that fit the window was later discovered about sixty to seventy-five feet away, and the State\u2019s fingerprint witness identified defendant\u2019s palm print on the screen.\nPolice determined that Yarbrough owned a cellular telephone. Initially, they were unable to locate the telephone itself, but records of its use maintained by the telephone company led investigators to an apartment in a neighboring building on Avera Avenue. This apartment was rented by Stephanie Wilson (Wilson), defendant Michael Eric Maske\u2019s girlfriend. Defendant had been staying with Wilson for several months. Police found Yarbrough\u2019s telephone in a dresser drawer in Wilson\u2019s apartment and seized from a closet a pair of boots that appeared to be consistent in size and tread pattern with the print found in Yarbrough\u2019s sink.\nOfficers went to defendant\u2019s place of employment and asked if he would voluntarily come to the police station. Defendant agreed. During his interview there, defendant first told officers that he found the cellular telephone at the apartment complex. When officers asked defendant why he kept covering his face, he said that he had been scratched by a cat. However, as the questioning continued, defendant advised the officers that he wanted to tell them something bad. He said that he and Wilson were broke and on the verge of being evicted. When he realized that most of the neighbors were gone during the day, he went to Yarbrough\u2019s' apartment. After knocking to make sure that no one was home, he put a chair under a window and climbed into the apartment. While there, he heard the door being unlocked and tried unsuccessfully to hide in the bedroom. Yarbrough came in and confronted defendant, then scratched his face with her fingernails. Defendant ran to Yarbrough\u2019s kitchen and grabbed a knife. He claimed that Yarbrough ran into the knife as they struggled through the apartment. Finally, Yarbrough fell and defendant put a towel from the bathroom over her face. He then left the apartment, taking approximately sixty compact discs, about $200 from Yarbrough\u2019s purse, some of her jewelry, and a set of keys.\nDefendant said that he returned the next day and opened Yarbrough\u2019s car with the keys he had taken the day before. He took her cellular telephone from the car and used it to call several of his friends. He stated that he sold some of the compact discs for money and threw the knife into a dumpster. Other evidence presented by the State indicated that the stolen jewelry was pawned on Monday, 29 January 2001; that defendant\u2019s name had been signed on the pawn ticket; and that the Record Exchange purchased ten of the stolen compact discs on Tuesday, 30 January 2001.\nAn autopsy of Yarbrough revealed that she had been stabbed sixteen times in her chest, abdomen, and back. Any one of three wounds to her liver, heart, and right lung was potentially fatal. The cause of death was multiple stab wounds. Defendant presented no evidence during the guilt-innocence portion of the trial. The jury found him guilty of first-degree murder, both on the theory of premeditation and deliberation, and on the theory of felony murder.\nDefendant took the stand during the sentencing proceeding. He began his testimony by describing his upbringing. He had not known his father, had been brought up in a filthy and crime-infested housing project, and had been abused by his stepfather and his mother\u2019s boyfriend. As to the offense at bar, defendant testified that he entered Yarbrough\u2019s apartment several times. The first time, he climbed through the window about 8:00 a.m., took some food, and left through the front door, leaving it unlocked. He said he returned about 11:00 the same morning and stole some compact discs, which he sold. During his third entry, about 5:30 p.m., Yarbrough came home. He stated that she scratched his face and they fought. He grabbed a knife from the kitchen and held it out as she came toward him. He did not know how many times she hit the knife, but she grappled with defendant until she fell in the hallway. He could not tell if Yarbrough was dead or alive when he left. Defendant said that he returned for a fourth time the next day and took Yarbrough\u2019s cellular telephone from her car.\nIn addition, defendant presented evidence that noHormal disciplinary actions had been instituted against him while he had been in custody pending trial. Dr. James Hilkey was qualified as an expert in the field of forensic psychology and testified as to the results of his examination of defendant. He found that defendant\u2019s full range IQ score is 78 and it was his opinion that defendant \u201cdid suffer from a mental disorder, specifically a personality disorder not otherwise specified. And those three that I\u2019ve identified have been the borderline personality disorder, a dependent personality disorder and also antisocial personality disorder.\u201d In Dr. Hilkey\u2019s opinion, defendant had the mental age of between ten and thirteen years. Dr. Hilkey testified that while defendant knew the difference between right and wrong and was capable of forming the intent to commit a crime, he believed defendant suffered from an impaired capacity to appreciate fully the consequences of his actions.\nOf the three submitted aggravating circumstances, the jury found that defendant had committed the murder for pecuniary gain, N.C.G.S. \u00a7 15A-2000(e)(6) (2003), and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. \u00a7 15A-2000(e)(9). The jury did not find that defendant had been convicted of a previous felony involving the threat of violence to the person, N.C.G.S. \u00a7 15A-2000(e)(3). The jury also found eight of eleven submitted mitigating circumstances. It found that defendant had no significant prior criminal history, that the murder was committed while defendant was under the influence of a mental or emotional disturbance, that defendant had accepted responsibility for his conduct, that he expressed remorse for the killing, that he had shown the ability to conform his behavior to a custodial setting, that he was physically abused as a child, and that he did not have a stable home environment. The jury did not find that defendant\u2019s ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired, that defendant\u2019s age constituted a mitigating circumstance, or that defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer. The jury also did not find the catchall mitigating circumstance. The jury then determined that the mitigating circumstances were insufficient to outweigh the aggravating circumstances and recommended a sentence of death.\nGUILT-INNOCENCE ISSUES\nDefendant argues that the trial court erred in denying his motion for a mistrial, which was based on a claim of juror misconduct. Prior to the jury voir dire, each potential juror filled out a questionnaire that asked, among other things, whether the juror had been a victim of or a witness to a crime. Juror Walker gave a negative response. Although juror Walker was not directly asked during voir dire if she had been a victim of a crime, the jurors were asked collectively by defense counsel whether the alleged facts of defendant\u2019s case would make it difficult for any of them to deliberate impartially. Juror Walker did not respond. However, during deliberations in the guilt phase of the trial, juror Walker described a robbery that had occurred in her home. The foreperson advised the judge, who in turn told the attorneys what had happened. The judge then brought the foreperson into the courtroom, asked her to describe for counsel and defendant what had happened, and allowed the attorneys to ask the foreperson questions. After excusing the foreperson, the judge consulted with counsel. The parties agreed that juror Walker could not be replaced by an alternate because deliberations had already begun. See State v. Bunning, 346 N.C. 253, 485 S.E.2d 290 (1997). Defendant moved for a mistrial.\nBefore ruling on defendant\u2019s motion, the trial judge brought the entire jury into the courtroom. Juror Walker acknowledged that she had told the other jurors of the break-in at her home, reported to the court that the event had happened forty years earlier, and stated that she could not remember if she had reported the incident. When asked, she said that the break-in would not influence her deliberations in defendant\u2019s case in any way. The judge then made individual inquiry of each juror, all of whom affirmatively indicated that juror Walker\u2019s' comments would not affect their deliberations. At defendant\u2019s request, the trial judge asked juror Walker why she had not disclosed this information earlier. She responded that she had not even thought of it. The trial judge then excused the jurors from the courtroom, and defendant renewed his motion for a mistrial. After observing that the event had happened decades before and that all the jurors had affirmed that the incident would have no impact on their deliberations, the judge denied the motion. Once the jury returned its verdict in the guilt phase of the trial, the judge excused juror Walker and seated an alternate juror for the sentencing proceeding.\nDefendant argues that he was deprived of a trial by twelve jurors because juror Walker was not qualified to participate in his trial. He contends that her failure to reveal her pertinent experiences prior to trial and her sharing of these experiences with other jurors constituted misconduct that disqualified her as a juror. Defendant asserts that as a result he was denied his rights under both the United States Constitution and the North Carolina Constitution to confrontation, to effective assistance of counsel, to due process, to a jury trial, and to be free from cruel and unusual punishment.\nDefendant\u2019s efforts to cast this issue in constitutional terms are unavailing. The effect of a juror\u2019s failure to disclose on voir dire information potentially important to the case has been considered both by the United States Supreme Court and the North Carolina Court of Appeals. In McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 78 L. Ed. 2d 663 (1984), a juror in a products liability case was asked during voir dire whether he or any member of his family had sustained any severe injury that resulted in disability or prolonged pain or suffering. The juror did not disclose that his son had been injured by an exploding tire, explaining later that he did not believe this injury was the type of incident covered by the voir dire question. The Supreme Court noted that the juror\u2019s failure to respond to the question was as likely to be honest error as it was to be intentional dissembling and held that \u201cto obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.\u201d Id. at 556, 78 L. Ed. 2d at 671. Our Court of Appeals later considered a similar issue in State v. Buckom, 126 N.C. App. 368, 485 S.E.2d 319, cert. denied, 522 U.S. 973, 139 L. Ed. 2d 326 (1997), where the jury foreperson incorrectly advised counsel during voir dire that he did not know any witnesses. The defendant claimed that he had a right \u201cto an intelligent exercise of peremptory challenges\u201d and that the juror\u2019s inaccurate response had denied him that right. Id. at 378, 485 S.E.2d at 325. After reviewing McDonough, the Court of Appeals rejected \u201cdefendant\u2019s assertion in his motion that the right \u2018to the intelligent exercise of peremptory challenges\u2019 is guaranteed by Art. I, \u00a7\u00a719 and 24 (right to jury trial in criminal cases) of our North Carolina Constitution.\u201d Id. at 379, 485 S.E.2d at 326 (quoting State v. Tolley, 290 N.C. 349, 364, 226 S.E.2d 353, 365 (1976)). The Court of Appeals considered the two concurring opinions filed in McDonough and observed that both included language to the effect that \u201cdishonesty of a juror was a factor to be weighed in determining whether the juror demonstrated bias.\u201d Id. at 380, 485 S.E.2d at 327. The Court of Appeals agreed with the concurring Justices and set out a test that differed somewhat from the formula enunciated by the Supreme Court majority, holding that\na party moving for a new trial grounded upon misrepresentation by a juror during voir dire must show: (1) the juror concealed material information during voir dire-, (2) the moving party exercised due diligence during voir dire to uncover the information; and (3) the juror demonstrated actual bias or bias implied as a matter of law that prejudiced the moving party.\nId. at 380-81, 485 S.E.2d at 327. The United States Supreme Court denied certiorari.\nWe agree with and now adopt the test set out by the Court of Appeals. Not only is an honest mistake by a potential juror less likely to undermine the fairness of a trial than a deliberate evasion, but an intentional misrepresentation is more likely to be a symptom of juror bias. The Court of Appeals\u2019 test appropriately accounts for these factors. Applying this test to the case at bar, we find no error in the trial court\u2019s denial of defendant\u2019s motion for mistrial. Juror Walker\u2019s inadvertent failure to disclose four-decade-old information that she had forgotten does not amount to \u201cconcealment,\u201d and the juror demonstrated no bias. This assignment of error is overruled.\nDefendant\u2019s next assignment of error arises from the inquiry into juror Walker\u2019s behavior. The juror\u2019s comments came to light when the jury foreperson advised the trial judge that juror Walker was discussing a potentially pertinent matter that she had not revealed during voir dire. Defendant argues that, because he has an unwaivable right to be present at every phase of his trial, the trial judge committed error by speaking with the foreperson out of the presence of defendant, defense counsel, and the court reporter. See State v. Artis, 325 N.C. 278, 384 S.E.2d 470 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). The State effectively concedes that such a conversation constitutes error, but points out that the transcript of the proceedings may establish that any error is harmless. State v. Nobles, 350 N.C. 483, 493, 515 S.E.2d 885, 891 (1999). The transcript here reveals that the trial judge promptly advised the parties of his contact with the foreperson:\nTHE COURT: ... As I was going back to my office to put my robe up and get my coat so I could go to lunch \u2014 of course you walk down the hall because the courtroom\u2019s locked up. And Ms. Sears, the foreperson of the jury, was in the jury room and when she saw me walking by she came to the door of the jury room and asked to speak to me about something and I said I can\u2019t talk to you about anything. She said well, I need a bailiff. Of course the bailiffs were gone at that moment so I finally asked her what was it about. She said that during the course of deliberations one of the jurors had related a personal anecdote that she thought should have been brought out during jury selection. And I said well, we\u2019ll have to get it on the record and that\u2019s where I left it.\nWith the consent of the parties, the judge then invited the foreperson into the courtroom and asked her to explain to everyone her concern. Her recitation was consistent with the trial judge\u2019s description. It is apparent that any error here was harmless beyond a reasonable doubt. The trial judge was confronted with a juror who expressed concern about an undefined problem. No bailiffs were available, and the juror\u2019s inquiry might well have involved an issue as innocuous as a parking space. The trial judge\u2019s initial inquiry and subsequent handling of this matter was entirely reasonable. This assignment of error is overruled.\nDefendant argues that the trial court improperly admitted evidence during the guilt-innocence portion of the trial as to the victim\u2019s good character. Robin Mays, who apparently was Yarbrough\u2019s supervisor at Bank of America, testified that Yarbrough was a good employee who was punctual and did her work well. Mays also testified that Yarbrough ran her own catering company, and one of Yarbrough\u2019s business cards was introduced into evidence. Robert Boston, Yarbrough\u2019s supervisor at Darryl\u2019s Restaurant, testified that she was a conscientious employee who would call if she was going to be late. Because defendant did not object to the testimony of either of these witnesses, we review admission of this evidence for plain error. State v. Stokes, 319 N.C. 1, 14, 352 S.E.2d 653, 660 (1987). Here, there was no such error. Because Yarbrough was usually on time for work at Bank of America and routinely advised her employer at Darryl\u2019s when she would be late or absent, this evidence was relevant to establish the time of the offense. Similarly, Mays\u2019 testimony about Yarbrough\u2019s catering business was relevant because the telephone number on the card was the same as that for the cellular telephone recovered from Wilson\u2019s apartment. Because all this evidence was admissible, defendant\u2019s claim that his counsel was ineffective for not objecting also fails.\nThe State also called Patricia Clark-Harris (Clark-Harris), Yarbrough\u2019s sister, as a witness during this portion of the trial. In response to the prosecutor\u2019s question, Clark-Harris testified that she and Yarbrough had been close, that Yarbrough\u2019s murder affected her deeply, and that Clark-Harris\u2019 children had been devastated by the loss. She added that Yarbrough had been a good person who \u201cwould do anything for you.\u201d Defendant\u2019s timely objection to this testimony was overruled.\nWe have observed that, unless admissible under Rule 404(a)(2), N.C.G.S. \u00a7 8C-1, Rule 404(a)(2) (2003), character evidence of a victim is usually irrelevant during the guilt-innocence portion of a capital trial, State v. Abraham, 338 N.C. 315, 352-53, 451 S.E.2d 131, 151 (1994), as is victim-impact evidence, State v. Oliver, 309 N.C. 326, 360, 307 S.E.2d 304, 326 (1983). However, even assuming that admission of this testimony was error, defendant was prejudiced only if there was \u201ca reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C.G.S. \u00a7 15A-1443(a) (2003). As detailed above, there is ample evidence of defendant\u2019s guilt, including his confession. We do not perceive any possibility that the jury would have returned a different verdict had the trial court sustained defendant\u2019s objection. Defendant also claims that admission of Clark-Harris\u2019 testimony deprived defendant of his constitutional rights to a fair trial and due process of law. Although we are not persuaded that admission of this evidence rose to the level of a constitutional error, even if it were, we conclude that the error was harmless beyond a reasonable doubt. N.C.G.S. \u00a7 15A-1443(b). This assignment of error is overruled.\nDefendant argues that the short-form indictment used in this case charged only second-degree murder and, therefore, a fatal variance existed between the charge and the conviction. However, this Court has consistently held that the statutorily authorized short-form indictment is sufficient to charge first-degree murder. State v. Hunt, 357 N.C. 257, 582 S.E.2d 593, cert. denied, - U.S. -, 156 L. Ed. 2d 702 (2003). The indictment in the case at bar, which expressly alleges murder in the first-degree, met the requirements of sections 15-144 and 15-155. N.C.G.S. \u00a7\u00a7 15-144, -155 (2003). This assignment of error is overruled.\nSENTENCING ISSUES\nDefendant assigns error to several of the trial court\u2019s instructions at the sentencing proceeding. These issues are related because they arose in the same context and under similar circumstances, so we will address them together. Defendant\u2019s first argument relates to the instruction pertaining to the pecuniary gain aggravating circumstance, N.C.G.S. \u00a7 15A-2000(e)(6). After conducting the charge conference with the attorneys for defendant and with the attorney for the State, the court prepared overnight a set of proposed written instructions for the sentencing jury. The next day, defendant objected to the portion of the proposed instruction that stated: \u201cIf you find from the evidence beyond a reasonable doubt that when the defendant killed the victim, the defendant took $20\u20190 from the victim\u2019s purse you would find this aggravating circumstance . . . .\u201d Defendant argued that this instruction amounted to a peremptory instruction and was incorrect because defendant\u2019s intent at the time of the murder controlled whether or not this aggravating circumstance was applicable. According to defendant, the instruction allowed the jury to find the aggravating circumstance even if defendant had decided to take the money only after the victim died. The court suggested as substitute wording \u201cthat when the defendant did kill the victim, the defendant did so for the purpose of taking something of value.\u201d Both defendant and the prosecutor agreed to this amendment.\nDefendant\u2019s next argument relates to several nonstatutory mitigating circumstances. At the initial instruction consultation, defendant orally requested peremptory instructions for each nonstatutory mitigating circumstance. The prosecutor objected, arguing that the evidence was contested as to some of the circumstances requested by defendant. The trial court finally advised the parties that it would give peremptory instructions as to five nonstatutory mitigating circumstances, namely, that defendant voluntarily acknowledged wrongdoing prior to his arrest, that defendant accepted responsibility for his conduct, that defendant expressed remorse for the killing, that defendant was abused as a child, and that defendant did not have a stable home environment.\nIn his brief, defendant states that he presented a written list of proposed statutory and nonstatutory mitigating \u25a0 circumstances. Although the parties do not refer to such a list in the trial transcript and no list is included in the record on appeal, the court\u2019s proposed written instructions pertaining to each of these five mitigating circumstances included the following peremptory language: \u201c[A]s to this mitigating circumstance, I charge you that if one or more of you find the facts to be as all the evidence tends to show that this circumstance exists and also is deemed mitigating, you would so indicate . . . .\u201d\nDefendant\u2019s third argument relates to the instruction as to whether he committed the offense while under the influence of a mental or emotional disturbance, N.C.G.S. \u00a7 15A-2000(f)(2). Defendant had requested such an instruction, and the proposed written instruction provided by the court included the following sentence: \u201cYou would find this mitigating circumstance if you find that the defendant suffered from Borderline Personality Disorder, Dependent Personality and Antisocial Personality Disorder and that, as a result, the defendant was under the influence of mental or emotional disturbance when he killed the victim.\u201d\nAs a result of the charge conference, the court\u2019s provision of proposed written instructions, the discussions over these instructions, and the court\u2019s final rulings, the parties all apparently believed they understood what instructions would be given. However, the instructions the court actually gave differed significantly from the instructions the parties expected. When the judge instructed as to the pecuniary gain aggravating circumstance, he used the language to which defense counsel had successfully- objected, telling the jury: \u201cIf you find from the evidence beyond a reasonable doubt that when the defendant killed the victim, the defendant took $200 from the victim\u2019s purse, you would find this aggravating circumstance . ...\u201d As to the five nonstatutory mitigating circumstances listed above, the judge omitted the language that all the evidence tended to show that the circumstance existed. As to the instruction pertaining to mental or emotional disturbance, the court omitted the sentence quoted above. After concluding the instructions, the trial court excused the alternate jurors and allowed the jury to begin deliberating. The court also provided to the jury written instructions that included both the peremptory language requested by defendant as to the nonstatutory mitigating circumstances and the sentence quoted in the preceding paragraph pertaining to particular mental or emotional disturbances. The court did not inquire whether either defendant or the prosecutor had any objections to the instructions, nor did defendant raise any objections.\nDefendant assigns error to these discrepancies in the instructions. The State responds that defendant failed to preserve these issues by not objecting after the instructions were given and before the jury began its deliberations. Rule 10(b)(2) of the Rules of Appellate Procedure states, in pertinent part, that \u201c[a] party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict.\u201d N.C. R. App. P. 10(b)(2). Rule 21 of the General Rules of Practice for Superior and District Courts is more specific, requiring:\nAt the conclusion of the charge and before the jury begins its deliberations, and out of the hearing, or upon request, out of the presence of the jury, counsel shall be given the opportunity to object on the record to any portion of the charge, or omission therefrom, stating distinctly that to which he objects and the grounds of his objection.\nGen. R. Pract. Super, and Dist. Ct. 21, para. 2, 2004 Ann. R. N.C. 18 (emphasis added). The purpose of these rules is to allow the trial court to correct any mistakes it has made before the jury begins its deliberations. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). However, this case is not one where defendant sat back and hoped weeds might grow in the garden. People v. Ross, 132 Ill. App. 2d 1095, 1096, 271 N.E.2d 100, 101 (1971). He identified to the court the specific areas he believed the court should address, and the court acknowledged defendant\u2019s concern. Defendant satisfied Rule of Appellate Procedure 10(b)(2) by making his objections and requests at the charge conference before the jury retired. State v. Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988) (\u201c[A] request for an instruction at the charge conference is sufficient compliance with . . . [R]ule [10(b)(2)] to warrant. . . full review on appeal where the requested instruction is . . . promised but not given.\u201d). As to Practice Rule 21, the transcript reveals that the trial court did not provide counsel an opportunity to object to the charge after the charge was given. Ideally, counsel who have perceived an error in the instructions should nevertheless raise an objection sua sponte. However, under the circumstances of this case, where not only was the opportunity not given but the court had already sustained defendant\u2019s objections at the charge conference to portions of the charge and advised defendant that it would instruct in a particular way, we believe that defendant\u2019s actions at the charge conference sufficiently satisfied the purposes of Practice Rule 21, and that these issues have been preserved. In reaching this conclusion, it is apparent to us that the discrepancies between the promised instructions and those actually given by the highly experienced trial court were the result of inadvertence. Even so, this case vividly illustrates the importance of monitoring the instructions by all parties.\nThe presentation to the jury of written instructions that were consistent with the parties\u2019 understanding does not cure error in the oral instructions. We have held that error arises where a court\u2019s oral instructions are correct at one point and incorrect at another. State v. Cousins, 289 N.C. 540, 549, 223 S.E.2d 338, 344 (1976). Because we cannot tell which version of the instructions guided the jury, we must assume that it was influenced by any portions of either instruction that were erroneous. State v. Harris, 289 N.C. 275, 280, 221 S.E.2d 343, 347 (1976).\nWe now consider whether the instructions were erroneous. We begin with the instruction pertaining to pecuniary gain. Defendant argues that the oral instruction relieved the State of its burden of proving all the elements of N.C.G.S. \u00a7 15A-2000(e)(6) and amounted to a peremptory instruction to the jury to find the aggravating circumstance. He contends that the statutory aggravating circumstance focuses on a criminal\u2019s intent at the time of the killing and applies only if the State establishes that the defendant killed for the purpose of pecuniary gain. Defendant claims that, in contrast, the instruction as given presumes that purpose existed by virtue of the fact that he took money from the victim when he killed her. N.C.G.S. \u00a7 15A-2000(e) states, in pertinent part: \u201cAggravating circumstances which may be considered shall be limited to the following: ... (6) The capital felony was committed for pecuniary gain.\u201d N.C.G.S. \u00a7 15A-2000(e)(6). We agree with defendant\u2019s contention that, for this aggravating circumstance to apply, there must be some causal connection between the murder and the pecuniary gain at the time the killing occurs. State v. Moore, 335 N.C. 567, 610, 440 S.E.2d 797, 822, cert. denied, 513 U.S. 898, 130 L. Ed. 2d 174 (1994) (\u201cThis aggravating circumstance considers defendant\u2019s motive and is appropriate where the impetus for the murder was the expectation of pecuniary gain.\u201d). The circumstance is not applicable where the jury finds that the taking was a mere act of opportunism committed after a murder was perpetrated for another reason.\nSeveral of this Court\u2019s opinions have dealt with the pecuniary gain instruction. In State v. Hunt, 323 N.C. 407, 432, 373 S.E.2d 400, 416 (1988), we did not discuss the text of the (e)(6) instruction and found only that there was sufficient evidence to support its being given. In State v. Jennings, 333 N.C. 579, 620, 430 S.E.2d 188, 209, cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993), we held that the aggravating circumstance was not unconstitutionally overbroad. In State v. Bishop, 343 N.C. 518, 556, 472 S.E.2d 842, 862 (1996), cert. denied, 519 U.S. 1097, 136 L. Ed. 2d 723 (1997), the trial court instructed that if the jury found that the defendant took jewelry from the victim when he killed her, the jury would find the (e)(6) aggravating circumstance. Because the defendant did not raise a contemporaneous objection, we found no plain error, even \u201c[assuming arguendo that the trial court\u2019s instructions did not clearly state that the jury must find that murder was committed for the purpose of pecuniary gain in order to find the circumstance existed.\u201d Id. at 557, 472 S.E.2d at 863.\nIn State v. Davis, 353 N.C. 1, 35, 539 S.E.2d 243, 266 (2000), cert. denied, 534 U.S. 839, 151 L. Ed. 2d 55 (2001), the defendant argued that the trial court\u2019s (e)(6) instruction allowed the jury to find the aggravating circumstance without determining that pecuniary gain was the motive for the murder. The text of the (e)(6) instruction in Davis was as follows:\nA murder is committed for pecuniary gain if the defendant, when he commits it, has obtained or intends to obtain money or other things that can be valued in money as a result of the death of the victim. In order to find that this murder was committed for pecuniary gain, you do not have to find that the primary motive of the defendant was financial gain. If you find, from the evidence beyond a reasonable doubt, that when the defendant killed the victim, that the defendant took personal property or other items belonging to [the victim] and that he intended or expected to obtain money or property or any other thing that can be valued in money, you would find this aggravating circumstance ....\nId. at 36, 539 S.E.2d at 266. We noted that the statement in the instruction that financial gain did not have to be the primary motive for the murder \u201cimplicitly communicated that financial gain must have been a motive,\u201d id. at 37, 539 S.E.2d at 267, and held that the instruction was correct as a matter of law. In State v. Barden, 356 N.C. 316, 572 S.E.2d 108 (2002), cert. denied, - U.S. \u2014, 155 L. Ed. 2d 1074 (2003), the defendant was convicted of murder for beating the victim to death. The defendant gave a statement in which he said that he hit the victim after the victim had insulted and slapped him. Once the victim was incapacitated, he took $180 from the victim\u2019s wallet. The trial court\u2019s instruction as to the (e)(6) aggravating circumstance included the following language: \u201cIf you find from the evidence beyond a reasonable doubt[] that when the defendant killed the victim, the defendant took money from the victim, you would find this aggravating circumstance . . . .\u201d Id. at 383, 572 S.E.2d at 150. Because defendant did not object to the instruction, we determined that the instruction did not constitute plain error. Finally, this Court did find an (e)(6) instruction to be plain error in State v. Jones, 357 N.C. 409, 584 S.E.2d 751, mandamus denied sub nom. Jones v. Polk, \u2014 U.S. -, - L. Ed. 2d -, 2003 N.C. LEXIS 1146 (Oct. 1, 2003), where the murder occurred during an armed robbery. The trial court\u2019s instruction stated that \u201c[i]f you find from the evidence beyond a reasonable doubt in either or both cases, that when the defendant killed the victim, the defendant was in the commission of robbery with a dangerous weapon, you would find this aggravating circumstance.\u201d Id. at 419, 584 S.E.2d at 758. Because the jury had already convicted the defendant of armed robbery by this point in Jones\u2019 trial, we held that the instruction gave the jury no discretion to determine whether to find the existence of the aggravating circumstance. Citing Barden with approval, we went on to observe that the trial court should describe the behavior that constituted the alleged pecuniary gain. Id. at 420-21, 584 S.E.2d at 758-59.\nIn the case at bar, the instruction that was given stated, in pertinent part:\nA murder is committed for pecuniary gain if the defendant, when he commits it, has obtained, or intends or expects to obtain, money or some other thing which can be valued in money, either as compensation for committing it, or as a result of the death of the victim. If you find from the evidence beyond a reasonable doubt that when the defendant killed the victim, the defendant took $200 from the victim\u2019s purse, you would find this aggravating circumstance ....\nBecause defendant here raised a timely objection, Bishop and Barden\u2019s reliance on plain error analysis makes them inapplicable. The most similar case is Davis, where we approved the instruction that was given. We believe that instruction is distinguishable from the one given here. Both the instruction in Davis and in the case at bar began with a sentence taken directly from the pattern jury instructions. \u201cA murder is committed for pecuniary gain if the defendant, when he commits it, has obtained, or intends or expects to obtain, money or some other thing which can be valued in money, either as compensation for committing it, or as a result of the death of the victim.\u201d 1 N.C.P.I. \u2014 Crim. 150.10 (2003). The trial court in Davis went on to explain this instruction in the context of that case by reiterating to the jury the dual requirements that it would apply this circumstance if it found that the defendant at the time of the killing both took something of value from the victim and intended to obtain something of value. By contrast, the second sentence of the instruction in the case at bar omits the requirement that defendant have the intent to obtain something of value at the time of the killing. While the general instruction contained in the first sentence is a correct statement of the law, the specific instruction in the second sentence here removed from the jury the requirement that it make a finding whether there was a connection between the killing and the taking of something of value. Because the instruction allowed the jury to apply the aggravating circumstance even if the taking had no causal relationship to the killing, the instruction was erroneous. The trial court surely realized this deficiency in the instruction when it agreed to change it once defendant called the problem to the court\u2019s attention.\nHaving determined that the (e)(6) instruction was erroneous, we must now consider whether that error was prejudicial. A non-constitutional error is prejudicial \u201cwhen there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C.G.S. \u00a7 15A-1443(a). Defendant testified that the killing had been unintentional and that he took the victim\u2019s purse as he was fleeing her apartment. Although the jury obviously did not accept defendant\u2019s view of the stabbing, given a proper (e)(6) instruction, it may have concluded that defendant did not stab the victim for the purpose of taking her purse. While the jury was also instructed as to the aggravating circumstance that defendant had a prior violent felony, N.C.G.S. \u00a7 15A-2000(e)(3), the jury did not find this circumstance. Therefore, if the jury had not found the (e)(6) aggravating circumstance, the only aggravating circumstance would have been that the murder was especially heinous, atrocious, and cruel. N.C.G.S. \u00a7 15A-2000(e)(9). Under these circumstances, we believe that there is a reasonable probability that, had the error not been committed, the jury might have reached a different result. N.C.G.S. \u00a7 15A-1442(4)(d) (2003). Accordingly, this case must be remanded for a new sentencing proceeding.\nWe next turn to the court\u2019s instructions as to the nonstatutory mitigating circumstances. Although the court agreed to give peremptory instructions to the five circumstances listed above, the oral instructions actually given did not include language to the effect that all the evidence supported the circumstance. The issues and recommendation form returned by the sentencing jury indicated that while at least one juror had found four of the five nonstatutory mitigating circumstances existed and had mitigating value, no juror found that defendant had voluntarily acknowledged wrongdoing prior to his arrest. The relationship between the absence of the peremptory lan-. guage and the failure of any juror to find this circumstance that was supported by all the evidence is uncertain because the jurors may have found the circumstance existed but had no mitigating value. Our finding of prejudicial error as to the (e)(6) instruction means that the case will be remanded for resentencing and, therefore, we do not have to determine formally the effect of the court\u2019s failure to give peremptory instructions here. Because we cannot foresee what evidence may be presented at the new sentencing proceeding, we express no opinion as to whether peremptory instructions on these issues will then be appropriate.\nFinally, we consider the court\u2019s omission of a sentence in its instruction as to the statutory mitigating circumstance that the offense was committed while defendant was under the influence of a mental or emotional disturbance. N.C.G.S. \u00a7 15A-2000(f)(2). The trial court\u2019s proposed written instructions were consistent with the pattern instruction in that the proposed instruction contained a sentence both detailing the specific disorders from which defendant claimed to suffer and requiring that, for it to apply, the jury must find that defendant was under the influence of these disorders when he committed the offense. 1 N.C.P.I \u2014 Crim. 150.10. This sentence was omitted from the oral instructions. Again, we do not need to undertake a full-blown analysis as to whether this omission constituted prejudicial error, but we note that the peremptory nature of the omitted language was potentially beneficial to defendant, especially in light of the expert testimony that he suffered from these disorders. The omission of this language could have affected the jury\u2019s verdict.\nWe now consider additional issues that may arise at the new sentencing proceeding. Defendant argues that the trial court\u2019s instruction as to N.C.G.S. \u00a7 15A-2000(f)(7) was erroneous. The court instructed that the jury should \u201cconsider whether the age of the defendant at the time of this murder is a mitigating factor. The mitigating effect of the age of the defendant is for you to determine from all of the facts and circumstances which you find from the evidence.\u201d Defendant argues that this instruction improperly allowed the jury to find that the (f)(7) circumstance existed only if defendant\u2019s age had mitigating value, and that the instruction had the effect of making the (f)(7) circumstance equivalent to a nonstatutory mitigating circumstance. Defendant also properly acknowledges that we addressed this issue in State v. Rouse, 339 N.C. 59, 451 S.E.2d 543 (1994), cert. denied, 516 U.S. 832, 133 L. Ed. 2d 60 (1995). In Rouse, this Court held that \u201c[u]nless a defendant\u2019s age has mitigating value as a matter of law, a juror need consider the defendant\u2019s age as mitigating only if that juror finds by a preponderance of the evidence that his age has mitigating value.\u201d Id. at 105, 451 S.E.2d at 569. The instruction given by the trial court was consistent with this holding. Accordingly, this assignment of error is overruled.\nDefendant objects to various arguments made by the prosecuting attorney to the sentencing jury. Although we doubt that identical arguments will be made at the new sentencing proceeding, we think it appropriate to comment on several of the issues raised by defendant. First, defendant claims that the trial court erred by denying his motion for a mistrial when the prosecutor allegedly referred to defendant as an \u201cSOB.\u201d The comment arose as the prosecutor addressed Dr. Hilkey\u2019s expert testimony that defendant suffered from Antisocial Personality Disorder. The prosecutor characterized this condition in layman\u2019s terms as meaning, \u201cHe\u2019s an SOB. He\u2019s mean. That\u2019s what antisocial means and that\u2019s what he is.\u201d At the conclusion of the State\u2019s argument, defendant moved for a mistrial and a curative instruction. The court denied the mistrial motion but correctly instructed the jury that, \u201cLadies and gentlemen, during closing argument, [the prosecutor] referred to the defendant as an SOB. Insults or name calling is not permitted in a closing argument. It\u2019s inappropriate so therefore you are not to consider that in any way whatsoever.\u201d Second, defendant claims that the prosecutor improperly argued that Dr. Hilkey\u2019s expert testimony had been shaped by the fact that he was paid. The record reveals that, during Dr. Hilkey\u2019s cross-examination, he testified that he was being paid an hourly rate by the State for his work. Dr. Hilkey testified that he had made an error in computing the score for defendant\u2019s IQ test, but that the error was unlikely to have made a difference in the final determination of defendant\u2019s result. He also admitted making errors in scoring defendant\u2019s Personality Assessment Screening test. During the prosecutor\u2019s sentencing argument related to Dr. Hilkey\u2019s testimony, he argued, speaking as Dr. Hilkey, \u201cYes, I made a mistake but I\u2019m still right. I\u2019m not changing my opinion because I\u2019m getting paid $150 an hour to please these people over here.\u201d Because this case is being remanded for a new sentencing proceeding, we need not determine whether these arguments constituted prejudicial error. However, when that sentencing proceeding occurs, we encourage counsel to review this Court\u2019s holdings in State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002) and State v. Rogers, 355 N.C. 420, 562 S.E.2d 859 (2002).\nDefendant argues that the prosecutor improperly referred to defendant\u2019s exercise of his right to- a jury trial both in his cross-examination of defendant during the sentencing proceeding and during the sentencing proceeding closing argument. Although defendant did not testify during the guilt-innocence portion of the trial, he took the stand during the sentencing proceeding and testified that he regretted killing Yarbrough. The following exchange occurred during defendant\u2019s cross-examination:\n[Prosecutor]: Well, what is your view of this crime, Mr. Maske?\n[Defense Counsel]: Objection.\nThe Court: Overruled.\nA. This crime is something that I shouldn\u2019t have even done.\nQ. But last week you wanted to go home, didn\u2019t you?\n[Defense Counsel]: Object.\nA. Last week?\nThe Court: Overruled.\nQ. Yes, sir. Last week when you pled not guilty you wanted to go home, didn\u2019t you?\n[Defense Counsel]: Object.\nThe Court: Sustained..\n[Prosecutor]: Well, you didn\u2019t plead guilty, did you, Mr. Maske?\n[Defense Counsel]: Objection.\nThe Court: Sustained.\n[Prosecutor]: You wanted this jury to turn you loose, didn\u2019t you, Mr. Maske?\n[Defense Counsel]: Objection.\nThe Court: Overruled.\nA. Did I want them to turn me loose?\nQ. Yes, sir.\nA. No, because I deserved to be punished for what I did and I deserve to do my time. I did something wrong and I\u2019m here to be judged for it.\nDuring his closing argument, the prosecutor sought to argue that the jury should not find the nonstatutory mitigating circumstance that defendant had accepted responsibility for his conduct, but the court sustained defendant\u2019s objection and instructed the jury that defendant had a right not to testify during the first portion of the trial and the jury could not hold that decision against him.\nA defendant has a constitutional right to plead not guilty to a criminal offense, U.S. Const. amend. VI; N.C. Const. art. I, \u00a7 24; State v. Kemmerlin, 356 N.C. 446, 482, 573 S.E.2d 870, 894 (2002), and cannot be penalized for exercising this right, State v. Edwards, 310 N.C. 142, 147-48, 310 S.E.2d 610, 614 (1984). Under North Carolina law, there is no such thing as a plea of \u201cinnocent.\u201d A criminal defendant may plead not guilty, guilty, or no contest. N.C.G.S. \u00a7 15A-1011(a) (2003). A plea of not guilty is the method by which a defendant requires the State to prove its case beyond a reasonable doubt. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986). Such a plea is not necessarily a claim by defendant that he did not commit the alleged offense, nor is it equivalent to testimony that the defendant hopes the jury will acquit him. On the other hand, a defendant\u2019s plea is a matter of public record and a proper subject for both questioning and argument that does not run afoul of a defendant\u2019s rights. Because the circumstances of each case are different, we will not attempt to fashion any general rule pertaining to use of a defendant\u2019s plea, but we advise counsel to be advertent to the legal effect of a not guilty plea.\nIn conclusion, we find no prejudicial error in the guilt-innocence phase of defendant\u2019s capital trial, but we vacate the death sentence and remand for a new capital sentencing proceeding.\nNO ERROR IN GUILT-INNOCENCE PHASE; DEATH SENTENCE VACATED; REMANDED FOR A NEW CAPITAL SENTENCING PROCEEDING.\n. The differences between the oral and written instructions here are more than mere slips of the tongue and go beyond those set out in the assignments of error. For instance, the court\u2019s proposed instruction as to the mitigating circumstance that defendant had no significant criminal history referred to \u201ctwo prior convictions for robbery.\u201d After discussion with defendant and the prosecutor, the court agreed to change this language to the more general \u201cprior criminal activity.\u201d However, the instruction that was actually given used the original language of \u201ctwo prior convictions for robbery,\u201d as did the written instruction provided the jury.", "type": "majority", "author": "EDMUNDS, Justice." }, { "text": "Justice BRADY\nconcurring.\nI agree with the majority that defendant\u2019s sentence of death should be reversed and that his case should be remanded to the trial court for a new sentencing proceeding. I write separately to emphasize that this Court has, in the present case, been confronted with and remedied what I believe to be a serious error in a capital proceeding. This Court guards fair play and the integrity of our justice system, even amid a furor of criticism regarding purported problems with our system of capital punishment. Our decision today reflects that our judicial system is capable of correcting itself and will, in fact, do so. Even so, it is my belief that criticism regarding capital punishment, including calls for a death penalty moratorium, should not be directed to the judiciary. Rather, those discussions should be directed to the legislature, the branch of government that this Court has consistently maintained is charged with the responsibility and is better equipped to explore changes in our laws based upon evolving social norms.\nNonetheless, inadvertent mistakes requiring this Court to reverse a defendant\u2019s death sentence should rarely occur. In this case, all relevant parties literally \u201cdropped the ball.\u201d The trial judge neither gave the requested instructions to the jury panel nor allowed the parties an opportunity to object. The State was clearly not attentive to the contents of the instructions when they were presented in open court, and the defense attorney did not, as he ideally should have, contemporaneously object to the instructions. These critical omissions are unacceptable given the gravity of the setting, the dwindling resources available to our judiciary, and the expanding caseload of the judiciary. See Chief Justice I. Beverly Lake, Jr., 2003 State of the Judiciary to the North Carolina General Assembly at 2 (delivered in print to the North Carolina General Assembly, Raleigh, N.C., 7 April 2003) (noting that our judicial system is \u201cvery severely[] underfunded\u201d).\nThis case clearly demonstrates how avoidable mistakes place a substantial strain on our judicial resources. When this case is remanded to the superior court, the parties will select, and the trial court will empanel, a new jury. This process takes weeks to accomplish as the jury panel must be \u201cdeath qualified.\u201d This second sentencing phase will require the court to conduct, in essence, an entirely new capital trial. Furthermore, there are a limited number of competent and experienced attorneys who are willing to accept the responsibility of these complex cases. Should the jury recommend and the court impose a sentence of life without parole, the Court of Appeals will then review the propriety of defendant\u2019s sentencing procedure. In the alternative, should a capital sentence be imposed, this Court must conduct an exhaustive review of defendant\u2019s sentence for a second time. Defendant\u2019s retrial has the collateral consequence of imposing further stress and trauma on the victim\u2019s family and friends, as well as those of the defendant.\nAs in every human endeavor, error is sometimes unavoidable, and our system of appeals will continue to provide relief to defendants in the appropriate cases. However, I take this opportunity to encourage trial judges, the State, and defense attorneys to practice self-imposed quality control by becoming more diligent in avoiding costly and unnecessary mistakes at the trial court level.", "type": "concurrence", "author": "Justice BRADY" } ], "attorneys": [ "Roy Cooper, Attorney General, by Amy C. Kunstling, Assistant Attorney General, for the State.", "Staples Hughes, Appellate Defender, by Anne M. Gomez, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL ERIC MASKE\nNo. 497A02\n(Filed 6 February 2004)\n1. Jury\u2014 voir dire \u2014 failure to disclose a crime victim\nThe trial court did not err in a capital first-degree murder case by denying defendant\u2019s motion for a mistrial based on alleged juror misconduct regarding a failure to disclose during voir dire that the juror was a victim of a robbery forty years earlier but thereafter sharing this experience with the other jurors, because: (1) the juror\u2019s inadvertent failure to disclose the four-decade-old information that she had forgotten did not amount to concealment; and (2) the juror demonstrated no bias.\n2. Constitutional Law\u2014 right to be present at all stages of trial \u2014 juror talking to trial judge out of defendant\u2019s presence\nThe trial court committed harmless error in a capital first-degree murder case when it was confronted with the jury foreperson who expressed concern, out of defendant\u2019s presence, about an undefined problem which turned out to be about a juror with a potentially pertinent matter that she had not revealed during voir dire, because: (1) the trial judge promptly advised the parties of his contact with the foreperson and, with the consent of the parties, invited the foreperson into the courtroom to explain to everyone her concern; (2) no bailiffs were available, and the juror\u2019s inquiry might have involved a trivial matter; and (3) the trial court\u2019s initial inquiry and subsequent handling of the matter were entirely reasonable.\n3. Evidence\u2014 victim\u2019s good character \u2014 harmless error\nThe trial court did not commit plain error in a capital first-degree murder case by allegedly admitting evidence of the victim\u2019s good character, because: (1) the testimony that the victim was a punctual employee who routinely advised her employer whether she would be late or absent was relevant to establish the time of the offense; (2) the testimony about the victim\u2019s catering business was relevant since the telephone number on her business card was the same as that for the cellular phone recovered from the apartment of defendant\u2019s girlfriend; and (3) there was no possibility that the jury would have returned a different verdict had the trial court sustained defendant\u2019s objection to the testimony that the victim was a good person who would do anything for you.\n4. Homicide\u2014 first-degree murder \u2014 short-form indictment\u2014 constitutionality\nThe short-form indictment used to charge defendant with first-degree murder was sufficient and met the requirements of N.C.G.S. \u00a7\u00a7 15-144 and 15-155.\n5. Appeal and Error\u2014 preservation of issues \u2014 actions at charge conference\nDefendant properly preserved for appeal issues concerning alleged errors in the trial court\u2019s capital sentencing instructions pertaining to certain aggravating and mitigating circumstances, although defendant failed to object after the instructions were given and before the jury retired, because: (1) defendant satisfied Rule of Appellate Procedure 10(b)(2) by making his objections and requests at the charge conference; and (2) defendant\u2019s actions at the charge conference sufficiently satisfied Rule 21 of the General Rules of Practice for the Superior and District Courts where the trial court did not provide counsel an opportunity to object to the charge after the charge was given and the court had already sustained defendant\u2019s objections to portions of the charge on these aggravating and mitigating circumstances and informed defendant that it would instruct in a particular way, but the court failed to give the promised instructions.\n6. Sentencing\u2014 aggravating circumstances \u2014 pecuniary gain\u2014 amendment to instruction\nThe trial court erred in a capital sentencing proceeding by its instruction pertaining to the pecuniary gain aggravating circumstance under N.C.G.S. \u00a7 15A-2000(e)(6) and the case is remanded for a new sentencing proceeding, because: (1) the instruction omitted the requirement that defendant have the intent to obtain something of value at the time of the killing; (2) the instruction allowed the jury to apply the aggravating circumstance even if the taking had no causal relationship to the killing; and (3) there is a reasonable probability that, had the error not been committed, the jury might have reached a different result.\n7. Sentencing\u2014 capital \u2014 mitigating circumstances \u2014 defendant\u2019s age \u2014 instructions\u2014mitigating value\nThe trial court did not err by instructing the jury in a capital sentencing proceeding on the N.C.G.S. \u00a7 15A-2000(f)(7) mitigating circumstance that it should \u201cconsider whether the age of the defendant at the time of this murder is a mitigating factor. The mitigating effect of the age of the defendant is for you to determine from all of the facts and circumstances which you find from the evidence.\u201d\n8. Criminal Law\u2014 effect of not guilty plea\nAlthough a defendant\u2019s plea is a matter of public record and a proper subject for both questioning and argument that does not run afoul of a defendant\u2019s rights, a defendant\u2019s plea of not guilty is not necessarily a claim by defendant that he did not commit the alleged offense nor is it equivalent to testimony that defendant hopes the jury will acquit him.\nJustice Brady concurring.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Judge William Z. Wood, Jr., on 10 May 2002 in Superior Court, Forsyth County, upon a jury verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 18 November 2003.\nRoy Cooper, Attorney General, by Amy C. Kunstling, Assistant Attorney General, for the State.\nStaples Hughes, Appellate Defender, by Anne M. Gomez, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0040-01", "first_page_order": 72, "last_page_order": 95 }