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Lloyd, 321 N.C. 301, 319, 364 S.E.2d 316, 328, sentence vacated on other grounds, 488 U.S. 807 (1988)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571564 ], "year": 1998, "pin_cites": [ { "page": "270", "parenthetical": "quoting State v. Lloyd, 321 N.C. 301, 319, 364 S.E.2d 316, 328, sentence vacated on other grounds, 488 U.S. 807 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0264-01" ] }, { "cite": "558 S.E.2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "135-36" } ], "opinion_index": 0 }, { "cite": "355 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219986 ], "year": 2002, "pin_cites": [ { "page": "38-40" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0001-01" ] }, { "cite": "595 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "426-27" } ], "opinion_index": 0 }, { "cite": "358 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987693 ], "year": 2004, "pin_cites": [ { "page": "314-15" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0243-01" ] }, { "cite": "501 U.S. 808", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108176 ], "year": 1991, "pin_cites": [ { "page": "825" } ], "opinion_index": 0, "case_paths": [ "/us/501/0808-01" ] }, { "cite": "540 U.S. 988", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8985632, 8985474, 8985763, 8985508, 8985542, 8985736, 8985609, 8985484, 8985710, 8985582, 8985520, 8985683, 8985653, 8985495, 8985561 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/540/0988-10", "/us/540/0988-01", "/us/540/0988-15", "/us/540/0988-04", "/us/540/0988-06", "/us/540/0988-14", "/us/540/0988-09", "/us/540/0988-02", "/us/540/0988-13", "/us/540/0988-08", "/us/540/0988-05", "/us/540/0988-12", "/us/540/0988-11", "/us/540/0988-03", "/us/540/0988-07" ] }, { "cite": "528 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "12" } ], "opinion_index": 0 }, { "cite": "351 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155711 ], "year": 2000, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0536-01" ] }, { "cite": "426 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "697" } ], "opinion_index": 0 }, { "cite": "333 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546948 ], "year": 1993, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0431-01" ] }, { "cite": "577 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "357 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491879 ], "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0001-01" ] }, { "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": "459 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "725" } ], "opinion_index": 0 }, { "cite": "340 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790147 ], "year": 1995, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0573-01" ] }, { "cite": "119 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "169", "parenthetical": "\" 'No one can seriously doubt that a conviction is legal, though it proceed upon the evidence of an accomplice only.' \"" } ], "opinion_index": 0 }, { "cite": "254 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626399 ], "year": 1961, "pin_cites": [ { "page": "385", "parenthetical": "\" 'No one can seriously doubt that a conviction is legal, though it proceed upon the evidence of an accomplice only.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0380-01" ] }, { "cite": "161 L. 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SCOTT DAVID ALLEN" ], "opinions": [ { "text": "BRADY, Justice.\nOn 9 July 1999, defendant Scott David Allen, his girlfriend Vanessa Smith, and Christopher Gailey entered the Uwharrie National Forest on their way to a cabin located deep therein. While in the forest, defendant shot Christopher Gailey twice, once in the back and once in the knee, with a twelve-gauge shotgun. Christopher Gailey died as a result of these wounds. On 24 January 2000, defendant was indicted by the grand jury of Montgomery County for the murder of Christopher Gailey, felonious larceny, and felonious possession of stolen goods. On 13 November 2003, a jury found defendant guilty of all charges. On 18 November 2003, the same jury returned a binding recommendation of death, and the trial court sentenced defendant accordingly. The trial court consolidated the two remaining offenses for judgment and sentenced defendant in the presumptive range to an active term of incarceration of ten to twelve months. Defendant appealed his convictions and sentence of death to this Court pursuant to N.C.G.S. \u00a7 7A-27(a). We find no error in defendant\u2019s conviction or his sentence.\nFACTUAL BACKGROUND\nBefore his 1998 escape from a North Carolina Department of Corrections work release program in which he was serving a sentence for numerous felony breaking or entering and felony larceny convictions, defendant met Vanessa Smith and they became romantically involved. Immediately following defendant\u2019s escape from the work release program, he met Smith in a parking lot, and the couple began moving around from hotel to hotel in this state, which Smith paid for with proceeds from a large settlement arising from her father\u2019s death. The couple also traveled to and resided sporadically in Chicago, Illinois; Spokane, Washington; San Diego, California; and Denver, Colorado, continuing to live primarily from the proceeds of Smith\u2019s settlement and spending large amounts of money on illegal drugs. Notably, while in Spokane, Smith paid a friend, Byron Johnson, five hundred dollars for a copy of his birth certificate and another identifying document. Defendant subsequently obtained a driver\u2019s license from the State of Washington in the name of Byron Johnson.\nDefendant\u2019s travels eventually brought him back to North Carolina, and in the summer of 1999, defendant, identifying himself as Byron Johnson, moved into a mobile home near Badin Lake, and Smith soon moved in with him. This mobile home was owned by Robert Johnson. In addition to defendant and Smith, Robert Johnson, Christopher Gailey, and Danny Lanier and his family resided in the mobile home. Christopher Gailey and defendant were long-time friends, but Smith never considered Gailey a friend. Life at the mobile home consisted of heavy partying, drinking, and drug abuse. Much of the drugs were provided by Gailey.\nOn 9 July 1999, the day of the murder, defendant told Smith and Gailey he had stashed some firearms in a cabin in the Uwharrie Forest, and they should retrieve them to sell the firearms for drugs. Robert Johnson testified he saw the three leave in Danny Lanier\u2019s truck, while Smith testified they left in Gailey\u2019s vehicle, a GMC pickup truck valued at $16,000. The three arrived that evening at the Uwharrie Forest, after which they entered the forest and walked for what Smith described as at least an hour. Smith smoked marijuana while defendant and Gailey used cocaine. Gailey carried a .45 caliber handgun, while defendant carried Gailey\u2019s twelve-gauge shotgun with a black pistol grip.\nAs they walked single file down a very narrow trail, defendant pushed Smith to the' ground. He then fired the shotgun twice, first delivering a heavy buckshot blast into Gailey\u2019s back, and then firing lighter birdshot into Gailey\u2019s knee. Smith testified- that she and defendant then went to the nearby cabin to sit and wait for Gailey to die. According to Smith\u2019s testimony, for seven to eight hours after defendant shot Gailey, he would creep over on his stomach to Gailey\u2019s body to throw rocks at him to discover if he would make a noise. During this waiting period, defendant told Smith that Gailey would never call her a \u201cbitch\u201d again and that he could not believe Gailey turned on him and was going to \u201crat him off\u2019 by reporting his location to the authorities. Eventually, defendant and Smith left the forest. On their way out, defendant told Smith that their story would be someone in the forest shot Gailey, and that a guy named Dustin had reason to want to harm Gailey. Smith testified that she heard Gailey fire his handgun numerous times as the couple left the forest.\nNext, at defendant\u2019s direction Smith drove back to the trailer to get their belongings and to steal Gailey\u2019s wallet which included Gailey\u2019s automated teller machine (ATM) card. Smith ingested eight Xanax pills and then, driving Gailey\u2019s truck picked up defendant near the Uwharrie Forest, where he had previously hid the shotgun used in the murder. The couple then drove to Shallotte, North Carolina, to see Smith\u2019s friend, Jeff Brantley. Apparently Smith and defendant talked to some of the partygoers at Brantley\u2019s residence, one of whom was Jeffrey Page. Defendant wanted to sell Gailey\u2019s truck to Page for eight hundred dollars, and he explained to Page that the truck was owned by a \u201cfellow\u201d he shot in the forest. Smith testified she did not remember much that occurred in Shallotte, save a few times when defendant forced her to use Gailey\u2019s ATM card, until she woke up two days later at her former lesbian lover Lilly Efird\u2019s home.\nPage decided to purchase the truck, and on 12 July 1999, drove to Albemarle, North Carolina along with Brantley, and two other men, to acquire the funds for the purchase. Upon their return to Shallotte, Page purchased the truck from defendant. Page subsequently sold the truck to a junk dealer in South Carolina.\nDefendant, eight hundred dollars in hand, left for Denver once again. Smith and Efird traveled to Shallotte, and Smith borrowed, or according to Efird stole, Efird\u2019s money and car in order to travel to Denver to see defendant, believing she was pregnant with defendant\u2019s baby. After she arrived in Denver, she argued with defendant and became afraid he was going to kill her. Therefore, she returned to North Carolina and turned herself into the CharlotteMecklenburg Police, recounting the facts of the murder. Defendant was soon arrested in Denver. He made no incriminating statements and continually denied committing the murder during his post-arrest interrogation.\nGailey\u2019s body was discovered on 11 July 1999 when Wesley Hopkins drove by it during an all-terrain vehicle expedition in the Uwharrie National Forest. John Butts, M.D., the State\u2019s Chief Medical Examiner, stated the autopsy of Galley showed a shotgun wound to the back that exited in five different locations on the victim\u2019s right chest. This wound caused extensive bleeding and damage to his lung, ribs, and large blood vessels. According to Dr. Butts, this wound would have rendered the victim unconscious in a matter of minutes, and death would have followed relatively quickly. Additionally, the shot to the knee incapacitated Gailey such that he would have been unable to move or seek medical assistance. Dr. Butts was of the opinion it would have been extremely unlikely, considering the amount of blood lost, a person with those wounds would have survived even one or two hours.\nLaw enforcement found at the scene of the crime five spent shotgun shells, numerous live .45 caliber cartridges in a pouch attached to Gailey\u2019s belt loop, a full magazine for a .45 caliber handgun, and a .45 caliber handgun with one expended .45 caliber round casing still chambered. A yellow container found on or near Gailey\u2019s body contained $1,944.05 in currency.\nDefendant presented no evidence during the guilt-innocence proceeding of the trial. The jury returned verdicts of guilty of first degree murder based on a theory of malice, premeditation, and deliberation; larceny; and felonious possession of stolen goods.\nIn the penalty proceeding, the State presented victim impact evidence by way of Gailey\u2019s mother, father, and sister. Defendant presented testimony of family members, a former teacher\u2019s assistant, and an expert who opined defendant would adapt well to prison life. The statutory aggravating circumstances submitted to the jury for consideration were: (1) The murder was committed for the purpose of avoiding or preventing a lawful arrest; (2) the murder was committed for pecuniary gain; and (3) the murder was especially heinous, atrocious, or cruel. The jury answered all of these aggravating factors in the affirmative. The jury also found two nonstatutory mitigating factors: (1) Scott Allen was deeply affected by the death of his grandfather; and (2) Scott Allen\u2019s death would have a detrimental impact on his mother, father, daughter, and other family members. The jury found unanimously and beyond a reasonable doubt that the mitigating circumstances were insufficient to outweigh the aggravating circumstances and that the aggravating circumstances were sufficiently substantial to impose a sentence of death. The jury therefore returned a binding recommendation of death.\nANALYSIS\nGIJILT-INNOCENCE PROCEEDING ISSUES\nDefendant alleges the prosecution violated his right to a fair trial by the knowing use of false testimony. This Court has previously stated:\n[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. Further, with regard to the knowing use of perjured testimony, the Supreme Court has established a standard of materiality under which the knowing use of perjured testimony requires a conviction to be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. Thus, [w]hen a defendant shows that testimony was in fact false, material, and knowingly and intentionally used by the [S]tate to obtain his conviction, he is entitled to a new trial.\nState v. Williams, 341 N.C. 1, 16, 459 S.E.2d 208, 217 (1995) (alterations in original) (quotation marks and citations omitted), cert. denied, 516 U.S. 1128 (1996). We note today there is a difference between the knowing presentation of false testimony and knowing that testimony conflicts in some manner. It is for the jury to decide issues of fact when conflicting information is elicited by either party. See, e.g., State v. Boykin, 298 N.C. 687, 694, 259 S.E.2d 883, 888 (1979), cert. denied, 442 U.S. 911 (1980). In fact, if inconsistent information is elicited from a witness, the party who called that witness may impeach him or her. See N.C.G.S. \u00a7 8C-1 Rule 607 (2005).\nHere, defendant argues the prosecution violated defendant\u2019s constitutional rights by offering two portions of Smith\u2019s testimony. First, defendant contends Smith\u2019s testimony she and defendant waited seven to eight hours in the Uwharrie Forest for the victim to die and they left the scene while he was still alive was demonstrably false testimony and known to be so by the prosecution. Second, defendant contends Smith\u2019s testimony that she \u201cheard, I\u2019m assuming it was Chris empty his gun out\u201d was also demonstrably false and known to be so by the prosecution.\nAs to defendant\u2019s first contention, we note the length of time it took the victim to die in this case is not easily proved. While the State Medical Examiner, Dr. John Butts, testified Gailey would not have survived as long as seven to eight hours, that testimony was his medical opinion. It cannot be said either Smith\u2019s statement or the opinion of Dr. Butts is verifiably false, much less that Smith\u2019s statement was knowingly false when elicited. In fact, during closing arguments, the prosecution admitted that Smith\u2019s perception of time \u201cmay not have been correct.\u201d Merely because inconsistent testimony is presented, it does not follow that such testimony is knowingly and demonstrably false.\nSimilarly, the testimony about the \u201cemptying\u201d of the victim\u2019s handgun, while unlikely to be accurate, cannot be said to have been known as false by the prosecution. Smith was a confessed drug addict and under the influence of drugs at the time of the murder. This, along with her prior convictions and other circumstances of her lifestyle revealed at defendant\u2019s trial, made her a witness with less-than-perfect credibility.\nHowever, the prosecution did not violate defendant\u2019s constitutional rights by submitting conflicting testimony when nothing in the record tends to show the prosecution knew the testimony was false. The prosecution could have truly believed Smith was simply mistaken and did not hear as many shots as she. thought due to her drug abuse or just plain fear. Because we are unpersuaded the prosecution knew Smith intended to make false statements, we overrule defendant\u2019s assignment of error.\nCLOSING ARGUMENT ISSUES\nDefendant claims the prosecution\u2019s closing arguments in both the guilt-innocence and penalty proceedings violated notions of fundamental fairness because the prosecution \u201cplugged a crucial hole\u201d by mentioning evidence outside the record. Defendant notes five, instances in which he alleges the prosecution\u2019s argument contained facts outside the evidence presented: (1) Defendant devised a plan to lure Gailey into the woods in order to murder him; (2) a cache of firearms was never discovered in the woods; (3) the weather was hot on 9 July 1999 in the Uwharrie forest, which purportedly explained why Gailey\u2019s shirt was found lying on the ground; (4) that it would be impossible for Smith to inflict the deadly wounds upon Gailey due to the height differential between them; and (5) Gailey fired his .45 caliber handgun once, after which the handgun jammed.\nIn a hotly contested trial, such as a capital case, \u201c[t]he scope of jury arguments is left largely to the control and discretion of the trial court, and trial counsel will be granted wide latitude.\u201d State v. Call, 349 N.C. 382, 419, 508 S.E.2d 496, 519 (1998). Counsel may argue any facts in the record and any reasonable inference that may be drawn from any facts in the record. See id. Here, defendant did not object to any statements now complained of during the arguments before the trial court and now argues the trial court should have intervened ex mero mo tu. However, we will not find error in a trial court\u2019s failure to intervene in closing arguments ex mero mo tu unless the remarks were so grossly improper they rendered the trial and conviction fundamentally unfair. Id. at 419-20, 508 S.E.2d at 519. We disagree with defendant\u2019s contentions, and we find no error in the trial court\u2019s decision concerning this argument.\nDefendant\u2019s first contention that no evidence supported the statement made by the prosecution that defendant devised a plan to lure the victim into the forest is without merit. Defendant concedes in his brief that some evidence existed in the record to draw this inference \u2014 namely Smith\u2019s testimony that the victim did not usually hike in the woods, the victim did not want to go into the woods, and defendant talked the victim into entering the woods. It is a reasonable inference both the prosecution and the jury could make that defendant previously contrived a plan to lure his long-time friend into the forest for the purpose of ending his friend\u2019s life. Therefore, the prosecution\u2019s argument was consistent with N.C.G.S. \u00a7 15A-1230(a), which allows argument of any conclusion based on counsel\u2019s analysis if the conclusion is consistent with the evidence.\nSimilarly, a reasonable inference could be made that no firearms existed at the site where the body was found. As stated earlier, defendant allegedly told his victim he had stashed firearms in a cabin in the forest and they should retrieve the firearms to sell them. Smith testified that while they were walking in the forest, defendant changed his story about where the firearms were located. In addition, the only testimony concerning a weapon found at the scene of the crime was testimony about the victim\u2019s .45 caliber handgun. Because of the testimony establishing the only weapon at the scene of the crime was the handgun, it is reasonable to infer that in fact no firearms existed and thus the assertion made by defendant about the firearms constituted nothing more than a ploy to lure the victim into the forest for his execution.\nA reasonable inference could also be drawn that the victim removed his own shirt during the hike into the woods. This matter is relevant because a photograph of the crime scene showed a large rock atop Gailey\u2019s shirt. Smith testified \u201c[i]t was hot\u201d on the day of the shooting, and a crime scene photograph of the victim\u2019s body clearly shows his shirt removed. It is reasonable to infer that the victim removed his shirt before he was shot and before the rocks were thrown at him.\nDefendant also takes issue with the prosecution\u2019s argument asserting it \u201cwould be hard to imagine\u201d Smith shooting the victim because of her size. The jury had the opportunity to observe Smith\u2019s physical characteristics when she testified. See State v. Brown, 320 N.C. 179, 199, 358 S.E.2d 1, 15 (discussing how \u201cevidence is not only what [jurors] hear on the stand but what they witness in the courtroom.\u201d), cert. denied, 484 U.S. 970 (1987). The jury also heard testimony from Dr. John Butts, the State Medical Examiner, which confirmed the wounds traveled in such a manner that one could reasonably infer the shotgun pellets traveled slightly downward. Because the jury could see Smith\u2019s height, and could infer the pellets from the shotgun blast to the back traveled in a downward motion, it is a reasonable inference that it is unlikely Smith inflicted the wound.\nDefendant posits no evidence existed in the record tending to show the victim fired a firearm during the altercation. However, Smith testified she heard Gailey fire his handgun multiple times. Likewise, the crime scene technician testified a spent casing remained in Galley\u2019s .45 caliber handgun. The prosecution needed to present no further evidence on this point in order to support a reasonable inference that Gailey fired his handgun during the time frame surrounding the murder. Similarly, we find it unnecessary for the State to present expert testimony on exactly what it means for a spent casing to be found inside a semiautomatic .45 caliber handgun, as it is a reasonable inference the handgun simply jammed. Therefore, the assignments of error are overruled.\nPENALTY PHASE ISSUES\nDefendant claims the prosecution abused its discretion by proceeding capitally in this case after enactment of N.C.G.S. \u00a7 15A-2004(a) (2005). We note first that defendant did not make this argument at trial, and we generally will not consider a theory on appeal that differs from the constitutional theory argued at the trial court. See State v. Benson, 323 N.C. 318, 321-22, 372 S.E.2d 517, 519 (1988). Nonetheless, defendant\u2019s argument before this Court lacks merit. Defendant claims because the prosecution decided to proceed capitally, based in large part upon the testimony of two accomplices, it abused the discretion granted by section 15A-2004(a). As prosecutors have often realized, \u201cto try the devil, you have to go to hell to get your witnesses.\u201d See e.g., State v. Bell, 359 N.C. 1, 21, 603 S.E.2d 93, 107 (2004), cert. denied, - U.S. \u2014 , 125 S. Ct. 2299, 161 L. Ed. 2d 1094 (2005). This Court has long held the testimony of an accomplice is sufficient to uphold a criminal conviction. See State v. Bailey, 254 N.C. 380, 385, 119 S.E.2d 165, 169 (1961) (\u201c \u2018No one can seriously doubt that a conviction is legal, though it proceed upon the evidence of an accomplice only.\u2019 \u201d) (quoting Rex v. Jones, 2 Camp. 131, 132 (1809) reprinted in 170 Eng. Rep. 1105 (1927)). Here the prosecution could reasonably believe the story told by the accomplices to be true and believable. While eyewitness testimony is often contradictory, the record in this case establishes the witnesses were consistent as to the basic facts. Also, the collective testimony and the evidence presented at trial supported the three aggravating circumstances found by the jury, as discussed elsewhere in this opinion.\nAdditionally, to prevail on a claim of prosecutorial abuse of discretion, defendant must show a discriminatory purpose and a discriminatory effect. See State v. Gamer, 340 N.C. 573, 588, 459 S.E.2d 718, 725 (1995), cert. denied, 516 U.S. 1129 (1996). Here there is no evidence of either. The only assertion made by defendant is that because the evidence for a conviction rested heavily on the testimony of two accomplices whose criminal charges were reduced or dismissed in exchange for their testimony, this somehow makes the decision to prosecute the case capitally an abuse of discretion. We decline to find an abuse of discretion in this case and overrule defendant\u2019s assignment of error.\nDefendant alleges the trial court erred by failing to intervene, without objection from defendant, during allegedly inflammatory victim impact testimony from the victim\u2019s sister. The prosecution asked: \u201cMs. Overstreet, would you tell us how the death of your brother has impacted your life?\u201d She answered:\nI\u2019m a mom of four. One being my stepchild, two my daughters, and one son. I had my life going. I was a manager for a restaurant. I always served people with pride, left them with a smile. I felt things happening that night that nobody could ever experience, and I knew that my little brother, I know that he had been shot. I had dreamed the dream or reality. They became \u2014 I couldn\u2019t handle my job. I couldn\u2019t handle being around people. I suffered such severe panic attacks that I withdrew. I sought help for four and half years [sic] to be able to stand just this little bit of strength. My brother was my sidekick. I looked at him for happiness and joy because he made me complete. . ..\nMs. Overstreet continued testifying that defendant\u2019s act \u201cdestroyed my children\u2019s life because they see their mother in so much pain that words cannot describe.\u201d She also testified her world was \u201cdevastated\u201d and that she lost her mind and ability to function.\nBecause defendant did not object to the testimony when given during the penalty proceeding, we review the statements only for plain error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). In order to prevail on a theory of plain error, \u201c \u2018defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.\u2019 \u201d State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602 (quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993), quoted in State v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12, cert. denied, 531 U.S. 1019 (2000)), cert. denied, 540 U.S. 988 (2003). Therefore, in this case defendant must convince this Court that Ms. Overstreet\u2019s testimony was error and but for that error the jury probably would have recommended a sentence of life without parole. Defendant has failed to meet this burden.\nVictim impact statements are relevant and admissible to aid the jury in its decision whether to recommend a sentence of death. See Payne v. Tennessee, 501 U.S. 808, 825 (1991). North Carolina law allows victim impact testimony by statute. See N.C.G.S. \u00a7 15A-833 (2005); State v. Roache, 358 N.C. 243, 314-15, 595 S.E.2d 381, 426-27 (2004). The admissibility of victim-impact testimony is limited by the requirement that the evidence not be so prejudicial it renders the proceeding fundamentally unfair. See State v. Nicholson, 355 N.C. 1, 38-40, 558 S.E.2d 109, 135-36, cert. denied, 537 U.S. 845 (2002).\nDefendant asserts Ms. Overstreet gave testimony as a \u201cpsychic\u201d eyewitness to the event, entering into \u201cthe realm of the fantastic.\u201d We disagree. The witness was describing the emotional and psychological effect of the victim\u2019s death on her own life. Although she \u201cdreamed the dream or the reality\u201d and \u201cknew\u201d her brother \u201chad been shot\u201d there is nothing in the testimony to indicate she was describing some sort of supernatural experience in which she witnessed the event. She could just as easily have been describing what happened to her after discovering her brother\u2019s untimely death. Regardless, even if this testimony were error, defendant has presented nothing which would suggest the jury was unduly swayed by this testimony. Considering the three aggravating circumstances found, we cannot say that in the absence of this testimony the jury probably would have recommended a sentence of life without parole. Defendant\u2019s assignment of error is overruled.\nDefendant argues the State presented insufficient evidence to support submission of the especially heinous, atrocious, or cruel aggravating circumstance (HAC) to the jury. N.C.G.S. \u00a7 15A-2000(e)(9) (2005). \u201cIn determining whether the evidence is sufficient to support the trial court\u2019s submission of the especially heinous, atrocious, or cruel aggravator, we must consider the evidence \u2018in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom.\u2019 \u201d State v. Flippen, 349 N.C. 264, 270, .506 S.E.2d 702, 706 (1998) (quoting State v. Lloyd, 321 N.C. 301, 319, 364 S.E.2d 316, 328, sentence vacated on other grounds, 488 U.S. 807 (1988)), cert. denied, 526 U.S. 1135 (1999). We have previously characterized three types of murders for which submission of HAC may be proper:\nOne type includes killings physically agonizing or otherwise dehumanizing to the victim. A second type inclhdes killings less violent but \u201cconscienceless, pitiless, or unnecessarily torturous to the victim,\u201d including those which leave the victim in her \u201clast moments aware of but helpless to prevent impending death.\u201d A third type exists where \u201cthe killing demonstrates an unusual depravity of mind on the part of the defendant beyond that normally present in first-degree murder.\u201d\nState v. Gibbs, 335 N.C. 1, 61-62, 436 S.E.2d 321, 356 (1993) (citations omitted), cert. denied, 512 U.S. 1246 (1994).\nDefendant argues his case is more like two cases in which this Court found evidence of HAC to be insufficient. See State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001); State v. Stanley, 310 N.C. 332, 312 S.E.2d 393 (1984). Both Lloyd and Stanley involved murders committed by multiple gunshots occurring in rapid succession, resulting in the victim\u2019s quick incapacitation and loss of consciousness. However, the evidence in the case sub judice substantially supports a finding the murder was the second type of murder described above, one \u201cless violent but \u2018conscienceless, pitiless, or unnecessarily torturous to the victim,\u2019 including those [murders] which leave the victim in [his] \u2018last moments aware of but helpless to prevent impending death.\u2019 \u201d State v. Gibbs, 335 N.C. at 61-62, 436 S.E.2d at 356 (citations omitted).\nAlthough there was evidence presented at trial through Dr. Butts that the victim would likely have been rendered unconscious within a number of minutes, there was also evidence presented at trial through eyewitness testimony of Vanessa Smith that the victim was not immediately rendered unconscious. Defendant\u2019s first shot with buckshot was from close range with a twelve-gauge shotgun. The blast would have likely been fatal. Yet defendant shot his victim again, this time in the knee. In doing so, defendant left the victim totally incapacitated, guaranteeing he would be unable to seek medical assistance or defend himself. Additionally, at numerous times defendant would \u201ccreep\u201d on his stomach to the victim, throwing rocks to see if the victim was dead. According to eyewitness testimony, the victim was not dead. As defendant threw the rocks at his victim\u2019s body, the victim cried out in pain. As the victim lay incapacitated on the ground, he was aware of his impending death, but unable to change the outcome. Defendant\u2019s throwing of the rocks and the corresponding groaning by the victim demonstrate the unnecessary torture inflicted by defendant. When viewing the evidence in the light most favorable to the State, we cannot say there was insufficient evidence to support the jury\u2019s consideration of HAC. Defendant\u2019s assignment of error is overruled.\nDefendant argues the prosecution presented insufficient evidence to submit the (e)(6) pecuniary gain aggravating circumstance to the jury. N.C.G.S. \u00a7 15A-2000(e)(6) (2005). As with the (e)(9) circumstance discussed above, in determining whether there was sufficient evidence for submission of the pecuniary gain aggravating circumstance, we consider \u201c \u2018the evidence ... in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom.\u2019 \u201d State v. White, 355 N.C. 696, 710, 565 S.E.2d 55, 64 (2002) (quoting State v. Moore, 335 N.C. 567, 611, 440 S.E.2d 797, 822, cert. denied, 513 U.S. 898 (1994)), cert. denied, 537 U.S. 1163 (2003). If there is substantial evidence defendant\u2019s motive in the killing was the gain of something of pecuniary value, although not necessarily his only or primary motive, the circumstance is properly submitted. See id.; see also State v. Bell, 359 N.C. at 32, 603 S.E.2d at 114.\nHere, the evidence tended to show that defendant, after murdering his victim, stole the victim\u2019s truck, directed his girlfriend to return to the victim\u2019s residence to take the victim\u2019s wallet, directed use of the victim\u2019s ATM card to obtain cash primarily for drug purchases, and then sold the victim\u2019s truck to finance his escape to Colorado. Defendant argues because he did not take the nearly $2,000 the victim had in his possession, the murder could not have been for pecuniary gain. However, considering the victim had a firearm, which he tried to fire at least once, and, according to eyewitness testimony, was still conscious, the jury could have reasonably believed defendant did not take the money because of fear of his victim. We find submission of the pecuniary gain circumstance was supported by substantial evidence, and therefore overrule defendant\u2019s assignment of error.\nDefendant also argues submission of the pecuniary gain aggravating circumstance violated the bar against double jeopardy because the jury did not find defendant guilty under the felony murder rule, and both the felony murder allegation and pecuniary gain aggravator were based on the same evidence. Thus, according to defendant, as the jury did not return a verdict of guilty on a theory of felony murder, the trial court was prohibited from submitting pecuniary gain as an aggravating circumstance. We note at the outset defendant did not make this argument at trial and as a general rule this Court will not consider constitutional arguments raised for the first time on appeal. See State v. Benson, 323 N.C. at 322, 372 S.E.2d at 519. However, even if defendant had properly preserved this argument, it is without merit.\nDefendant\u2019s theory that the jury\u2019s silence is tantamount to an acquittal is not supported by the jurisprudence of this Court. Contrary to the instructions given it by the trial court, the jury did not mark anything on the verdict form concerning felony murder under either a robbery with a dangerous weapon or attempted robbery with a dangerous weapon theory; however, the jury did find defendant, guilty of first-degree murder on a theory of malice, premeditation, and deliberation. We have held numerous times that the jury\u2019s failure to follow the instructions of the trial court does not amount to an acquittal when the defendant was also convicted of first-degree murder on another theory. See State v. Guevara, 349 N.C. 243, 259, 506 S.E.2d 711, 721-22 (1998), cert. denied, 526 U.S. 1133 (1999); State v. McCollum, 334 N.C. 208, 220-22, 433 S.E.2d 144, 150-51 (1993), cert. denied, 512 U.S. 1254 (1994). While in some circumstances jury silence can be taken as an acquittal for double jeopardy purposes, \u201c[t]he failure to return a verdict does not have collateral estoppel effect, however, unless the record establishes that the issue was actually and necessarily decided in the defendant\u2019s favor.\u201d Schiro v. Farley, 510 U.S. 222, 236 (1994). The record in this case does not establish the jury actually and necessarily decided this issue in defendant\u2019s favor. In fact the record shows defendant \u201cwas convicted of first-degree murder and has not been acquitted of anything.\u201d McCollum, 334 N.C. at 221, 433 S.E.2d at 151. Therefore, we overrule defendant\u2019s assignment of error.\nDefendant argues the trial court committed reversible error when it instructed the jury: \u201cOur law identifies the aggravating circumstances which must justify a sentence of death. Or which might justify a sentence of death.\u201d Citing several cases in support of his argument, defendant contends this assignment of error was properly preserved as the trial court gave an instruction which was not agreed upon by the parties. See State v. Keel, 333 N.C. 52, 56-57, 423 S.E.2d 458, 461 (1992); State v. Montgomery, 331 N.C. 559, 570, 417 S.E.2d 742, 748 (1992); State v. Ross, 322 N.C. 261, 264-65, 367 S.E.2d 889, 891 (1988); State v. Pakulski, 319 N.C. 562, 574-75, 356 S.E.2d 319, 327 (1987). In Keel, the trial court added language to a first-degree murder instruction from a footnote to the pattern jury instructions which concerned the intent required to convict a defendant of second-degree murder or voluntary manslaughter. See Keel, 333 N.C. at 56-57, 423 S.E.2d at 461-62. In Montgomery, the trial court deviated completely from the tendered instruction. 331 N.C. at 570-73, 417 S.E.2d at 748-50. In Ross and Pakulski, the trial court did not give the agreed-upon instruction, omitting it entirely. See Ross, 322 N.C. at 263-65, 367 S.E.2d at 890-91; Pakulski, 319 N.C. at 574-75, 356 S.E.2d at 327.\nWhile the instruction given by the trial court here did not deviate from the agreed upon instruction to the extent of the cases cited above, the issue of the trial court\u2019s deviation was still properly preserved by defendant. Even so, when the jury charge is considered as a whole, no prejudice to defendant occurred by the trial court\u2019s quickly corrected slip of the tongue. While the original statement by the trial court indicated that death was mandated upon the finding of certain aggravating circumstances, the trial court quickly corrected the charge by stating, \u201c[o]r which might justify a sentence of death.\u201d The trial court later instructed the jury it must weigh the aggravating circumstances found against the mitigating circumstances found, that it must consider whether the aggravating circumstances are \u201csufficiently substantial to call for the imposition of the death penalty,\u201d and that it was to do so considering the aggravating circumstances \u201cin connection with any mitigating circumstances found by one or more of you.\u201d There is absolutely no merit in the argument that the jury could have been confused or believed it would be required to recommend a sentence of death based solely upon the finding of an aggravating circumstance. This lapsus linguae of the trial court did not prejudice defendant, and therefore defendant\u2019s assignment of error is overruled.\nRESIDUAL DOUBT\nDefendant asserts the trial court erred in denying his request to have a residual doubt instruction submitted to the jury. We have previously considered this issue and held a trial court is not required to give an instruction to a sentencing jury concerning residual doubt. See State v. Fletcher, 354 N.C. 455, 469-75, 555 S.E.2d 534, 543-46 (2001), cert. denied, 537 U.S. 846 (2002). As the Supreme Court of the United States recently noted, one justification for such a rule is that \u201csentencing traditionally concerns how, not whether, a defendant committed the crime.\u201d Oregon v. Guzek, 546 U.S. \u2014 , 2006 U.S. LEXIS 1818, at *17 (2006) (holding the State of Oregon was not constitutionally required to allow a defendant to submit new alibi evidence during a penalty proceeding).\nThe Supreme Court of the United States has also rejected the argument that a defendant is entitled to jury instruction on residual doubt. See Franklin v. Lynaugh, 487 U.S. 164 (1988) (plurality); see also id. at 187-88 (O\u2019Connor, J., concurring). Even though defendant has cited two Supreme Court cases, Florida v. Nixon and Wiggins v. Smith, which he claims have implicitly overruled Franklin, we disagree, because in neither case was residual doubt the issue before the Court. See Florida v. Nixon, 543 U.S. 175, 178 (2004) (\u201cThis capital case concerns defense counsel\u2019s strategic decision to concede, at the guilt phase of the trial, the defendant\u2019s commission of murder, and to concentrate the defense on establishing, at the penalty phase, cause for sparing the defendant\u2019s life.\u201d); Wiggins v. Smith, 539 U.S. at 514 (\u201cPetitioner . . . argues that his attorneys\u2019 failure to investigate his background and present mitigating evidence of his unfortunate life history at his capital sentencing proceedings violated his Sixth Amendment right to counsel.\u201d). We therefore overrule defendant\u2019s assignment of error.\nINEFFECTIVE ASSISTANCE OF COUNSEL\nDefendant argues his counsel\u2019s representation was ineffective and deprived him of his Sixth Amendment right to counsel, along with rights guaranteed under the North Carolina Constitution. Defendant asserts his counsel was ineffective by: (1) Failing to elicit from the witness who discovered the victim\u2019s body that his driving of a four-wheel all-terrain vehicle could have altered the position of the rocks at the crime scene; (2) failing to object during the prosecution\u2019s guilt and penalty phase closing arguments; and (3) failing to take appropriate steps when prosecutors allegedly elicited and relied on false evidence.\nTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Poindexter, 359 N.C. 287, 290-91, 608 S.E.2d 761, 764 (2005). Deficient performance may be established by showing that \u201ccounsel\u2019s representation \u2018fell below an objective standard of reasonableness.\u2019 \u201d Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688). Generally, \u201cto establish prejudice, a \u2018defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u2019 \u201d Id. at 534 (quoting Strickland, 466 U.S. at 694).\nUnder State v. Fair, 354 N.C. 131, 166-67, 557 S.E.2d 500, 524-25 (2001), cert. denied, 535 U.S. 1114 (2002), a defendant must raise ineffective assistance of counsel claims when those claims are apparent on the face of the record. However, when it appears to the appellate court further development of the facts would be required before application of the Strickland test, the proper course is for the Court to dismiss the defendant\u2019s assignments of error without prejudice. See State v. Long, 354 N.C. 534, 539-40, 557 S.E.2d 89, 93 (2001). Here, we believe further factual inquiry is required into these allegations of ineffective assistance of counsel. Therefore, we dismiss defendant\u2019s assignments of error without prejudice.\nPRESERVATION ISSUES\nDefendant contends his short-form indictment was insufficient because it failed to allege all the elements of first-degree murder. We disagree. We have consistently ruled short-form indictments for first-degree murder are permissible under N.C.G.S. \u00a7 15-144 (2005) and the North Carolina and United States Constitutions. See State v. Mitchell, 353 N.C. 309, 328-29, 543 S.E.2d 830, 842, cert. denied, 534 U.S. 1000 (2001); State v. Davis, 353 N.C. 1, 44-45, 539 S.E.2d 243, 271 (2000), cert. denied, 534 U.S. 839 (2001); State v. Braxton, 352 N.C. 158, 173-75, 531 S.E.2d 428, 436-38 (2000), cert. denied, 531 U.S. 1130 (2001); State v. Wallace, 351 N.C. 481, 504-08, 528 S.E.2d 326, 341-43, cert. denied, 531 U.S. 1018 (2000). We see no compelling reason to depart from our prior precedent on this issue. Here the indictment read: \u201cThe jurors for the State upon their oath present that on or about the 8th day of July, 1999, and in the county named above the defendant named above unlawfully, willfully and feloniously and of malice aforethought did kill and murder Christopher Conrad Gailey. Offense in violation of G.S. 14-17.\u201d As this indictment meets the requirements of N.C.G.S. \u00a7 15-144, we overrule defendant\u2019s assignment of error.\nAdditionally, defendant argues the trial court lacked jurisdiction to enter a death sentence because the indictment did not list the aggravating circumstances to be proven by the State during the penalty phase. This Court has rejected this argument in the past. See State v. Hunt, 357 N.C. 257, 268-78, 582 S.E.2d 593, 600-07, cert. denied, 539 U.S. 985 (2003). We see no reason to depart from our holding in Hunt and therefore overrule defendant\u2019s assignment of error.\nDefendant argues the jury instruction regarding the especially heinous, atrocious, or cruel aggravating circumstance is unconstitutionally vague and overbroad and cannot, consistent with Ring v. Arizona, 536 U.S. 584 (2002), be cured by appellate narrowing. We recently discussed this issue at length in State v. Duke, 360 N.C. 110, 623 S.E.2d 11 (2005), and found the argument to lack merit. We are not inclined to change our recently decided precedent and therefore overrule defendant\u2019s assignment of error.\nDefendant argues the trial court erred in instructing the jury on the burden of proof required to find a mitigating circumstance by using the word \u201csatisfied\u201d instead of the more detailed instruction proposed by defendant. Defendant claims the term \u201csatisfy\u201d is subjective in nature, is vague, and means something beyond a preponderance of the evidence. We disagree. The term \u201csatisfy\u201d does not create this standardless standard defendant claims. See State v. Payne, 337 N.C. 505, 531-33, 448 S.E.2d 93, 108-09 (1994), cert. denied, 514 U.S. 1038 (1995). \u201c \u2018[Satisfies\u2019 denotes a burden of proof consistent with a preponderance of the evidence.\u201d Id. at 533, 448 S.E.2d at 109; see also State v. Bell, 359 N.C. at 46, 603 S.E.2d at 122 (treating issue as preservation issue). We overrule defendant\u2019s assignment of error.\nDefendant contends the death penalty violates international law as it runs afoul of Article VII of the International Covenant on Civil and Political Rights (ICCPR) as that treaty prohibits the arbitrary deprivation of life. Defendant specifically argues that the length of time and the conditions under which defendant can expect to be detained while appealing his conviction and sentence violate the ICCPR. See International Covenant on Civil and Political Rights, art. VII, Dec. 16, 1966, S. Treaty Doc. No. 95-2, 999 U.N.T.S. 171. This Court has considered this argument in the past and rejected it.\n[W]e cannot see how any defendant\u2019s right to appeal errors alleged in his capital case, which necessarily delays his execution, or our own mandate to ascertain on appeal that the death penalty rests firmly on the law and is in no way arbitrary or in any other way \u201ccruel or degrading\u201d violates this treaty\u2019s provisions.\nState v. Smith, 352 N.C. 531, 566, 532 S.E.2d 773, 795 (2000), cert. denied, 532 U.S. 949 (2001). Article VII of the ICCPR condemns torture, and we do not believe it is torturous to allow defendant to appeal his conviction and sentence. It is a basic tenant of our jurisprudence that a defendant has the right to exhaust all legal remedies, but nothing requires him to do so if he knowingly and intelligently decides to forgo those opportunities. See, e.g., Matthew Eisley, Killer Had Asked for Execution, News & Observer (Raleigh, N.C.), 22 October 2004, at B1 (detailing Charles Wesley Roache\u2019s decision to forgo additional review of his first-degree murder conviction and sentence of death). We simply cannot find a violation of defendant\u2019s rights merely because he chooses to subject himself to the rigors of judicial review. Additionally, the United States deposited a reservation to the ICCPR stating, \u201c[t]he United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment . . . .\u201d S. Rep. No. 103-35, at 8 (1993). We decline to overrule our prior law on this issue. Defendant\u2019s assignment of error is overruled.\nPROPORTIONALITY\nPursuant to N.C.G.S. \u00a7 15A-2000(d)(2), this Court has the statutory duty to determine if:\n[T]he record does not support the jury\u2019s findings of any aggravating circumstance or circumstances upon which the sentencing court based its sentence of death . . . [whether] the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, or... [whether] the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\nN.C.G.S. \u00a7 15A-2000(d)(2) (2005).\nThe jury found the statutory aggravating circumstances of: (1) The murder was committed for the purpose of avoiding or preventing a lawful arrest, (e)(4); (2) defendant committed the murder for pecuniary gain, (e)(6); and (3) the murder was especially heinous, atrocious, or cruel, (e)(9). The trial court also submitted the N.C.G.S. \u00a7 15A-2000(f)(6) mitigating circumstance which the jury did not find, along with thirteen nonstatutory mitigating circumstances of which the jury found two: (1) Defendant was deeply affected by the death of his grandfather, and (2) defendant\u2019s death would have a detrimental impact on his mother, father, daughter, and other family members.\nAfter a thorough review of the record, transcripts, briefs, and oral arguments on appeal, we conclude the jury\u2019s finding of the three aggravating circumstances is supported by the evidence. Additionally, we conclude nothing in the record, transcripts, briefs, or oral arguments suggests the sentence given defendant was imposed under the influence of passion, prejudice, or any other arbitrary factor. We will not disturb the jury\u2019s weighing of the mitigating and aggravating circumstances.\nFinally, we must determine whether capital punishment is proportionate in this case. The decision whether the death sentence is disproportionate \u201cultimately 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 (citation omitted), cert. denied, 513 U.S. 1046 (1994). Proportionality review is intended to \u201c \u2018eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury.\u2019 \u201d State v. Smith, 357 N.C. 604, 621, 588 S.E.2d 453, 464 (2003) (citation omitted), cert. denied, 542 U.S. 941 (2004); see also State v. McNeill, 360 N.C. 231, 624 S.E.2d at 344.\nIn our proportionality review, we compare the case at bar to cases in which this Court has found imposition of the death penalty to be disproportionate. This Court previously determined capital punishment was disproportionate in eight cases. State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002); State v. 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 in part on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900 (1997), and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); and State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).\nIn no case in which we found capital punishment disproportionate did the jury find the three aggravating circumstances the jury found in defendant\u2019s case. In fact, when the jury has found as an aggravating circumstance the murder was especially heinous, atrocious, or cruel, we have only found the death sentence disproportionate twice. See State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983). Stokes and Bondurant are easily distinguishable from this case. In Stokes, the defendant was only seventeen years old at the time of the killing, and the only one of four assailants to receive capital punishment as a sentence. 319 N.C. at 3-4, 21, 352 S.E.2d at 654-55, 664. In Bondurant, the defendant expressed remorse immediately after the murder and even aided the victim in traveling for treatment by directing the victim\u2019s transport to the hospital. 309 N.C. at 694, 309 S.E.2d at 182-83. However, in this case defendant is the sole defendant; he alone committed this murder. Additionally, defendant was twenty-six years old at the time he brutally murdered his victim. Moreover, defendant did not show the type of remorse present in Bondurant-, instead defendant threw rocks at his victim\u2019s body to make sure he was dead and then left the body in the woods. In fact, defendant has shown no remorse at all for his actions.\n\u201cAlthough we \u2018compare this case with the cases in which we have found the death penalty to be proportionate .... we will not undertake to discuss or cite all of those cases each time we carry out that duty.\u2019 \u201d State v. Garcia, 358 N.C. 382, 429, 597 S.E.2d 724, 756 (2004) (quoting State v. McCollum, 334 N.C. at 244, 433 S.E.2d at 164) cert. denied, 543 U.S. 1156 (2005). The imposition of death for this murder is proportionate when compared with our other cases. Therefore, we hold defendant\u2019s sentence is neither disproportionate nor excessive considering the nature of defendant and the crime he committed.\nDefendant received a fair trial free of reversible error in both the guilt-innocence proceeding and the penalty proceeding. Defendant\u2019s sentence of death is not disproportionate. Accordingly, we find no error.\nNO ERROR.\nJustice TIMMONS-GOODSON did not participate in the consideration or decision of this case.\n. The General Assembly enacted this subsection, effective in 2001, to grant prosecutors discretion in determining whether to pursue the death penalty against a defendant even if substantial evidence supporting an aggravating circumstance exists.\n. \u201cThe capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired.\u201d N.C.G.S. \u00a7 15A-2000(f)(6) (2005).\n. Additionally the (f)(9) \u201ccatchall\u201d mitigating circumstance was submitted to the jury but was not found to exist.", "type": "majority", "author": "BRADY, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by Robert C. Montgomery and Daniel R O\u2019Brien, Assistant Attorneys General, for the State.", "Staples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SCOTT DAVID ALLEN\nNo. 115A04\n(Filed 3 March 2006)\n1. Constitutional Law\u2014 fair trial \u2014 rknowing use of false testimony\nThere was no violation of defendant\u2019s right to a fair trial through the knowing use of false testimony where the evidence was not verifiably false or known to be false by the prosecution. There is a difference between the knowing presentation of false testimony and knowing that testimony conflicts in some manner.\n2. Criminal Law\u2014 prosecutor\u2019s closing argument \u2014 inferences\nThere was no plain error in a closing argument in which the prosecutor\u2019s inferences from the evidence were reasonable.\n3. Criminal Law\u2014 prosecutor\u2019s argument \u2014 jury\u2019s observations \u2014 size of witness\nIt was reasonable for a prosecutor to argue that it would be hard to imagine an accomplice shooting the victim because of the angle of the shooting and the size of the accomplice. The jury had the opportunity to observe the accomplice\u2019s characteristics when she testified; the evidence is not only what jurors hear from the stand, but what they witness in the courtroom.\n4. Criminal Law\u2014 prosecutor\u2019s argument \u2014 victim firing weapon\nThere was sufficient evidence in a first-degree murder prosecution to support the prosecutor\u2019s argument that the victim had fired his handgun around the time of the murder. Moreover, it was a reasonable inference that the victim\u2019s handgun simply jammed.\n5. Sentencing\u2014 discretion to proceed capitally \u2014 reliance on testimony of accomplice\nThe testimony of an accomplice is sufficient to uphold a criminal conviction, and the prosecution here did not abuse its discretion by proceeding capitally based on the testimony of accomplices after enactment of N.C.G.S. \u00a7 15A-2004(a) (2005) (which granted prosecutors discretion in determining whether to pursue the death penalty when an aggravating circumstance exists).\n6. Sentencing\u2014 capital \u2014 victim impact statement \u2014 dream of victim\u2019s death\nThe trial court did not err by not intervening ex mero motu during a victim impact statement in a capital sentencing proceeding. Although the witness testified that she \u201cdreamed the dream or the reality\u201d and \u201cknew\u201d her brother \u201chad been shot,\u201d there is nothing in the testimony to indicate that she was describing a supernatural experience in which she witnessed the event. Regardless, defendant presented nothing to indicate that the jury was unduly swayed by this testimony.\n7. Sentencing\u2014 capital \u2014 aggravating circumstance \u2014 especially heinous, atrocious or cruel \u2014 sufficiency of evidence\nThere was sufficient evidence for submission of the especially heinous, atrocious, or cruel aggravating circumstance in a capital sentencing proceding where defendant first fired with buckshot from close range with a twelve-gauge shotgun; that blast would likely have been fatal, but defendant shot his victim again, in the knee, with birdshot, leaving him incapacitated and guaranteeing that he would be unable to seek assistance or defend himself; although the medical examiner testified that the victim would likely have been rendered unconscious within minutes, eyewitness testimony was that the victim was not immediately rendered unconscious; defendant crept to the victim on his stomach, throwing rocks to see if the victim was dead; the victim cried out in pain from the rocks; and the victim was aware of his impending death as he lay on the ground, unable to change the outcome.\n8. Sentencing\u2014 capital \u2014 aggravating circumstance \u2014 pecuniary gain \u2014 sufficiency of evidence\nThere was sufficient evidence to submit the pecuniary gain aggravating circumstance in a capital sentencing proceeding where the evidence tended to show that defendant first murdered the victim and stole his truck, then sent his girlfriend to the victim\u2019s house for the victim\u2019s wallet; he directed use of the victim\u2019s ATM card to obtain cash for drugs, and finally sold the truck to finance his escape. Although he did not take nearly $2,000 which the victim had in his possession at the shooting, the victim had a firearm which he tried to fire at least once and the jury could reasonably have believed that defendant did not take the money because of fear.\n9.Constitutional Law\u2014 double jeopardy \u2014 pecuniary gain aggravating circumstance \u2014 felony murder\nThe submission of the pecuniary gain aggravating circumstance in a capital sentencing proceeding did not violate the bar against double jeopardy where the jury had not found defendant guilty of felony murder and defendant argued that both the felony murder allegation and the pecuniary gain aggravator were based on the same evidence. Contrary to its instructions, the jury did not mark anything on the verdict form concerning felony murder; the jury\u2019s failure to follow instructions does not amount to an acquittal where the defendant was also convicted of first-degree murder on another theory.\n10. Sentencing\u2014 capital \u2014 aggravating circumstances \u2014 instructions\nThe trial court did not err in a capital sentencing proceeding when it instructed the jury that \u201cour law identifies the aggravating circumstances which must justify a sentence of death. Or which might justify a sentence of death.\u201d No prejudice to defendant occurred by the court\u2019s quickly corrected slip of the tongue.\n11. Sentencing\u2014 capital \u2014 residual doubt instruction \u2014 refused\nThe trial court did not err in a capital sentencing proceeding by not giving a requested residual doubt instruction. As the U.S. Supreme Court has said, sentencing concerns how rather than whether defendant committed the crime.\n12. Constitutional Law\u2014 effective assistance of counsel \u2014 further factual inquiry\nA first-degree murder defendant\u2019s contentions regarding ineffective assistance of counsel were dismissed without prejudice where further factual inquiry was required.\n13. Homicide\u2014 first-degree murder \u2014 short-form indictment\u2014 constitutional\nA short-form indictment for first-degree murder was sufficient.\n14. Homicide\u2014 first-degree murder \u2014 indictment\u2014aggravating circumstances not listed\nThe trial court had jurisdiction to enter a death sentence where the indictment did not list the aggravating circumstances to be proven by the State during the penalty phase.\n15. Sentencing\u2014 capital \u2014 aggravating circumstances \u2014 especially heinous, atrocious, or cruel \u2014 not unconstitutionally vague\nThe jury instruction on the especially heinous, atrocious, or cruel aggravating circumstance is not unconstitutionally vague and overbroad.\n16. Sentencing\u2014 capital \u2014 mitigating circumstances \u2014 instruction \u2014 burden of proof\nUsing the word \u201csatisfy\u201d in an instruction on burden of proof in mitigating circumstances was not vague and subjective, and did not create a standardless standard.\n17. Sentencing\u2014 capital \u2014 time for appeal \u2014 not torturous\nThe time for appeals in capital cases and the conditions of detention while awaiting appeal do not violate Article VII of the International Covenant on Civil and Political Rights. Article VII condemns torture; it is not torturous to allow a defendant to appeal his conviction and sentence. A defendant\u2019s rights are not violated merely because he chooses to subject himself to the rigors of judicial review. Moreover, the United States deposited a reservation to the ICCPR concerning capital punishment.\n18. Sentencing\u2014 death \u2014 proportionate\nA death penalty was not disproportionate when compared with other cases.\nJustice Timmons-Goodson did not participate in the consideration or decision of this case.\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 Anderson D. Cromer on 18 November 2003 in Superior Court, Montgomery County, upon a jury verdict finding defendant guilty of first-degree murder. On 6 December 2004, the Supreme Court allowed defendant\u2019s motion to bypass the Court of Appeals as to his appeal of an additional judgment. Heard in the Supreme Court 14 September 2005.\nRoy Cooper, Attorney General, by Robert C. Montgomery and Daniel R O\u2019Brien, Assistant Attorneys General, for the State.\nStaples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellant.\n. While defendant assigns error to all his convictions, he has presented no argument in his brief concerning these convictions other than his conviction of first-degree murder and the death sentence which arose from that conviction. \u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d N.C. R. App. P. 28(b)(6) (2005); See State v. McNeill, 360 N.C. 231, 624 S.E.2d 329, 336 (2006); State v. Augustine, 359 N.C. 709, 731 n.1, 616 S.E.2d 515, 531 n.1 (2005). Accordingly, the assignments of error related to defendant\u2019s non-capital convictions are taken as abandoned and dismissed." }, "file_name": "0297-01", "first_page_order": 369, "last_page_order": 393 }