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    "parties": [
      "STATE OF NORTH CAROLINA v. BYRON LAMAR WARING"
    ],
    "opinions": [
      {
        "text": "EDMUNDS, Justice.\nIn the early morning hours of 8 November 2005, Raleigh police were dispatched to an apartment complex near Walnut Creek Parkway to investigate a report of rape and possible assault. Officer David Naumuk was the first to arrive at the scene, along with members of the Raleigh Fire Department. As Officer Naumuk sought to locate the correct building in the complex, he saw a white male, later identified as Andrew Bennett Pipkin (Pipkin), who was holding a telephone to his ear and running toward the firefighters while calling for help. Officer Naumuk asked Pipkin to direct him to the victim, then followed him through a breezeway and down a set of stairs.\nWhen Officer Naumuk reached the bottom of the stairs, he found Pipkin kneeling beside the victim, who was later identified as Lauren Redman, a twenty-three-year-old white female. Pipkin\u2019s hand was on the victim\u2019s stomach, attempting to hold in her intestines. She was sitting up \u201cIndian style\u201d on the sidewalk, covered in blood, with her arms stretched out over her knees, her head slumped over, and her hair completely covering her face. As EMS and fire personnel began to attend to the victim, Officer Naumuk guarded the door to the victim\u2019s apartment.\nWhen Police Sergeant Munn arrived at the scene, he and Officer Naumuk entered the apartment to conduct a preliminary search. No one was inside, but they observed a large quantity of blood on the floor in the center of the living room. All the windows in the apartment were closed with no signs of forced entry.\nAt defendant\u2019s trial, Pipkin testified that he had been in an apartment above the victim\u2019s apartment, preparing for bed at approximately 2:20 a.m. after watching Monday Night Football. He heard loud classical music coming from the other side of the breezeway, followed a few moments later by knocking on the walls and cries for help. He initially assumed that the noise might be from intoxicated college students in one of the nearby apartments. However, when the noise continued, he dressed and opened his apartment door. He heard a girl crying out for help from the floor below, asking him to come down. When Pipkin went downstairs, he found the victim kneeling in the breezeway in a pool of blood, wearing no panties'and with her nightgown pulled up. She was knocking on the door of Apartment B, the apartment just beneath Pipkin\u2019s. Across the breezeway he could see \u201ca lot of blood\u201d in Apartment A. The victim appeared to be holding a towel to her stomach, but on closer examination, Pipkin realized she was cut open and what he first thought was a towel were her exposed intestines.\nThe victim told him she had just been attacked, so Pipkin immediately ran back to his apartment to call 911. While making that call, Pipkin returned to the victim and asked who had injured her. According to Pipkin, she responded either, \u201c[T]wo black men,\u201d or \u201cheld up two fingers to indicate the number.\u201d Because loud classical music coming from the victim\u2019s apartment was interfering with the call, the 911 dispatcher directed Pipkin to turn off the sound. At the further direction of the 911 dispatcher, Pipkin pressed a towel against the victim\u2019s wound, then held up the victim\u2019s back to relieve her pain. He remained holding her for about ten minutes until Officer Naumuk arrived.\nWhen the paramedics reached the scene, Pipkin was with Officer Naumuk, still holding the towel to the victim\u2019s stomach. A paramedic testified that \u201c[tjhere was quite a bit of blood on the ground\u201d and that the victim \u201cdid not appear to have any signs of life.\u201d After unsuccessfully performing CPR, the paramedics placed her in an ambulance, where they noticed tape and other material wrapped around her neck like a scarf. They also observed what appeared to be at least ten life-threatening wounds. The victim was pronounced dead in the ambulance at 2:42 a.m.\nA state medical examiner later determined the victim\u2019s death resulted from multiple injuries. Grouping those injuries, the examiner found five stab wounds, abrasions, and contusions to the victim\u2019s head and neck; hemorrhages in the whites of her eyes associated with lack of oxygen that could have resulted from her mouth and nose having been covered; twenty-three stab- wounds to her torso, including seventeen superficial wounds or \u201cflecks\u201d that were consistent with having been pricked by the tip of a knife; hemorrhaging in her abdominal cavity; contusions and incised wounds on her upper extremities; contusions of the torso; abrasions of her knees; and an abrasion of the wall of her vagina.\nAs detailed below, police investigators identified Byron Lamar Waring (defendant), a nineteen-year-old African-American male, as a suspect. On 9 November 2005, detectives located defendant at his 5120-A Vann Street residence in West Raleigh. Defendant agreed to accompany detectives to the Raleigh Police Department for an interview, where he made a series of statements on 9 November and 10 November 2005. The last two of these statements, one narrated to jurors by investigators, the other tape-recorded and in defendant\u2019s own voice, were admitted at trial.\nAccording to these statements, sometime during the late evening of Monday, 7 November and the early morning of Tuesday, 8 November 2005, defendant and Joseph Sanderlin (Sanderlin) walked from defendant\u2019s Vann Street apartment to the victim\u2019s apartment complex, taking with them duct tape they had purchased shortly before setting out. Defendant said that the two of them went to the victim\u2019s apartment \u201cto do a favor for a friend of mine,\u201d which was \u201cjust to go get the money.\u201d When they arrived, defendant knocked on the door and told the victim that Brad Sasser had sent him over to retrieve a cord for Sasser\u2019s video game system along with some compact discs. The victim responded that she thought she had already given those things to Sasser, then started looking in the apartment\u2019s living room. As she turned her back, defendant grabbed her from behind, putting her in a bear hug or \u201clock-hold.\u201d\nWhile still holding the victim, defendant unlocked the sliding-glass back door and let Sanderlin in. Defendant and Sanderlin seized the victim\u2019s arms and put them behind her back, and defendant secured them with the tape he and Sanderlin had purchased earlier that evening. However, when defendant used the tape to gag the victim, she freed her hands and pulled the tape off. Defendant grabbed her again, put a towel around her mouth, and rebound her hands.\nAs defendant held the victim down, Sanderlin began pricking the victim in the side with a pocket knife, asking her, \u201cAre you going to give me what I want?\u2019 \u201d and \u201cIf you don\u2019t give me what I want, I will kill you.\u201d Sanderlin then began to rape the victim from behind. As defendant continued to restrain the victim, he noticed that the victim was turning blue and having difficulty breathing, so he removed the towel from her mouth. The rape lasted about five to eight minutes. After Sanderlin finished, stood, and pulled up his pants, the victim \u201cflipped\u201d defendant \u201coff\u2019. Defendant \u201cgot mad\u201d and \u201cpunched her in the face a couple of times,\u201d then \u201cstomped her in the face like one or two times.\u201d\nIn the meantime, Sanderlin had gone to the kitchen and picked up a butcher knife. He slid that knife to defendant, then approached the victim from her blind side and started stabbing her in the neck \u201ca couple of times\u201d with his pocket knife. When that knife lodged in the victim\u2019s neck, she began rolling on the floor. Defendant used his sleeve to cover his hand as he picked up the butcher knife and \u201cpoked her like one or two times on her side.\u201d Defendant next stood over the victim and cut her across the throat, then handed the knife to Sanderlin, who \u201cstarted working on her stomach.\u201d According to defendant, Sanderlin stabbed her to \u201cthe point that her intestines just fell out, it [sic] was just hanging out her stomach.\u201d\nWhile Sanderlin was stabbing the victim, defendant \u201cwas already getting the wallet and stuff.\u201d Around this time, Sanderlin told defendant to \u201cfinish her\u201d and left the apartment with the victim\u2019s keys to get her car. Defendant knelt and picked up the knife, again using his sleeve. The victim looked at him and said, \u201cPlease don\u2019t kill me,\u201d adding that she was about to die anyway. Defendant said, \u201cI got to, Ma.\u201d She asked, \u201cCan I please get some water?\u201d but defendant told her, \u201cNo.\u201d The victim\u2019s \u201chead tilt[ed] to the side a little bit, [and] her eyes done rolled back [in]to her head.\u201d Defendant walked out the back door of the apartment carrying the butcher knife.\nSanderlin drove defendant in the victim\u2019s car to Barringer Street, near defendant\u2019s Vann Street apartment. Defendant threw the knife into a street drain near the car, and then he and Sanderlin walked home. Defendant noticed blood on his clothes, so.he took a shower. Defendant next removed between eighty and one hundred dollars from the victim\u2019s wallet, keeping twenty dollars while Sanderlin took the rest. Defendant put his bloody clothes in a bag and discarded them in a dumpster down the street and threw the victim\u2019s wallet into the woods behind his house. Finally, defendant drove the victim\u2019s car to a gas station to purchase cigarettes, then drove back to Barringer Street and, after using his shirt to wipe away any fingerprints on the car, walked home.\nDefendant did not present evidence during the guilt-innocence portion of his trial, nor did he cross-examine six of the State\u2019s eleven witnesses. He did not dispute that his fingerprints were found at the victim\u2019s apartment and that blood was found on his shoes. He did not contest the manner and cause of the victim\u2019s death or the physical evidence that Sanderlin raped her. The jury found defendant guilty of first-degree murder based upon premeditation and deliberation and under the felony murder rule based upon the underlying offenses of robbery and rape.\nAt the subsequent sentencing proceeding, defendant presented sixteen witnesses. Manish Fozdar, M.D., an expert in neuropsychiatry, testified that defendant suffers from a disorder in the right hemisphere of the brain that affects his intellectual functioning, his ability to process information while under pressure, his ability to express his emotions and to read those of others, his behavior, his self-esteem, and his judgment. Dr. James Hilkey, an expert forensic psychologist, testified that defendant has a cognitive disorder and personality disorder with features of a schizotypal personality disorder and a dependent personality disorder. In addition, he diagnosed defendant with borderline intellectual functioning and added that defendant\u2019s understanding of the charges against him was simultaneously factual and irrational. Both experts testified that defendant was under a mental disturbance at the time of the crime and that his ability to conform his conduct to the requirements of the law was impaired. Various teachers, family members, and social workers testified that. defendant struggled academically, had been slow to develop, and lacked structure and discipline in the home.\nIn rebuttal, the State presented Dr. Mark Hazelrigg, an expert forensic psychologist and Chief of Forensic Sciences at Dorothea Dix Hospital. Dr. Hazelrigg testified that defendant has borderline intellectual functioning but is not mentally retarded. Dr. Hazelrigg diagnosed defendant as having an antisocial personality disorder and saw evidence suggestive of malingering during some of the testing conducted in preparation for trial, although he did not diagnose malingering. He disagreed with defendant\u2019s experts\u2019 assessment that defendant has a mental or emotional condition that woulid interfere with his ability to understand wrongful acts or to conform his conduct to the requirements of the law.\nThe jury unanimously found the three submitted aggravating circumstances: that the murder was committed during the commission of a felony (rape), pursuant to N.C.G.S. \u00a7 15A-2000(e)(5); that the murder was committed for pecuniary gain, pursuant to N.C.G.S. \u00a7 15A-2000(e)(6); and that the murder was especially heinous, atrocious, or cruel, pursuant to N.C.G.S. \u00a7 15A-2000(e)(9). Of the eight statutory mitigating circumstances submitted, one or more jurors found four: that defendant acted under duress, pursuant to N.C.G.S. \u00a7 15A-2000(f)(5); that defendant acted under the domination of another person, also pursuant to N.C.G.S. \u00a7 15A-2000(f)(5); that defendant\u2019s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, pursuant to N.C.G.S. \u00a7 15A-2000(f)(6); and that defendant aided in the apprehension of another capital felon, pursuant to N.C.G.S. \u00a7 15A-2000(f)(8). Of fifty-nine submitted nonstatutory mitigating circumstances, and the catchall, \u00a7 15A-2000(f)(9), one or more jurors found two that had mitigating value: that defendant suffers from borderline intellectual functioning, and that defendant suffers from cognitive functioning impairments. The jury subsequently found the mitigating circumstances insufficient to outweigh the aggravating circumstances and concluded that the aggravating circumstances were sufficiently substantial to call for imposition of the death penalty. Accordingly, the jury unanimously recommended a sentence of death and the trial court imposed a death sentence upon defendant on 9 July 2007. That same day, defendant entered Notice of Appeal to this Court pursuant to N.C.G.S. \u00a7 7A-27(a).\nAdditional facts will be set forth as necessary for the discussion of specific issues.\nPRETRIAL ISSUES\nDefendant\u2019s first set of issues relates to his contention that the trial court erred in denying his pretrial motion to suppress his 9 November and 10 November 2005 statements to law enforcement officers, along with the physical evidence gathered as a result. Defendant argues that the statements were made while he was in custody for purposes of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), but that he was given no Miranda warnings until after he had confessed to murder and been placed under arrest. In addition, because the State did not offer into evidence any statements defendant made before he was advised of his Miranda rights, defendant contends that, pursuant to Missouri v. Seibert, 542 U.S. 600, 159 L. Ed. 2d 643 (2004), any statements he made and any evidence obtained after the Miranda rights were administered were tainted by the prior illegally obtained confession and therefore were inadmissible. Further, defendant contends that officers did not honor his right to re-invoke his right to silence when he refused to give the correct name of the second suspect. Finally, defendant claims his attorneys provided ineffective assistance at the suppression hearing when they failed to present evidence that he was not mentally competent to waive his Miranda rights. The State responds that, except for his claim of ineffective assistance of counsel, defendant has not preserved these issues because he failed to object when this evidence was offered at trial.\nThe trial court conducted a pretrial evidentiary hearing on defendant\u2019s motion to suppress his statements. The State presented evidence that, in the immediate aftermath of the murder, police questioned the victim\u2019s former roommate, Brad Sasser. Sasser had been seen at the victim\u2019s apartment with two black men and a white woman a few hours before the killing. When questioned, Sasser identified the two black men as \u201cJoey\u201d and \u201cBy,\u201d and the white woman as his girlfriend Ashley Hobgood. Sasser identified a photograph of defendant as \u201cBy\u201d and police found defendant\u2019s fingerprint in the victim\u2019s apartment. Accordingly, investigators sought to interview defendant.\nOn the morning of Wednesday, 9 November 2005, Raleigh Police Officer Christopher Robb (Robb) was conducting surveillance of a house at 5120-A Vann Street while attempting to locate defendant. The officer was alone in an unmarked car parked near that address. At about 8:00 a.m., he observed defendant step out from the 5120-A Vann Street residence. Knowing that defendant was a person of interest as a possible suspect, Robb called his sergeant to inform him defendant was on the street. The sergeant instructed Robb to make contact with defendant.\nRobb drove up to defendant and exited his car. The officer was in civilian clothes with his shirt untucked to conceal his weapon. He called out defendant\u2019s name and walked up to defendant, who was standing about twenty to thirty feet away. Robb identified himself as a police officer and told defendant he needed to talk with him. When defendant asked what he wanted to talk about, Robb replied that detectives were on the way to speak with defendant. Robb told defendant that he \u201cwas being detained\u201d and that he \u201cwas not under arrest.\u201d Robb made no attempt to restrict defendant\u2019s movement and later testified that he would have allowed defendant to leave had defendant chosen to do so. Robb added that he was not familiar with all aspects of the case and tries to be a \u201csoft hand\u201d when he locates witnesses or suspects for investigators to avoid having an impact on the investigation.\nWhen Robb asked defendant if he had any weapons on him, defendant responded that he had a knife in his pocket. Robb asked if he could retrieve the weapon and defendant voluntarily consented. Robb then asked defendant to have a seat on the curb until the detectives arrived, and defendant complied.\nLess than ten minutes later, Raleigh Police Detectives Ken Copeland and Jacquie Taylor arrived in an unmarked car and wearing civilian clothes. Defendant was sitting on the curb while Robb stood nearby, looking towards the 5120-A Vann Street residence. Detectives Taylor and Copeland intended to ask defendant to accompany them voluntarily to the Raleigh Police Department for an interview.\nDetective Copeland approached Robb, who directed him to defendant. Detective Copeland introduced himself and Detective Taylor to defendant and shook defendant\u2019s hand. Detective Copeland told defendant he was not under arrest and not in trouble, then asked if he had a few minutes to talk. Defendant responded, \u201cNo problem.\u201d He added that the night before, Sasser had contacted him to report that police were looking for defendant and that he should \u201cget out of town.\u201d According to defendant, he told Sasser he had \u201cnothing to hide.\u201d However, when he asked Sasser for the detectives\u2019 telephone number, Sasser said he had lost it. Defendant told the officers he \u201cwas anxious to talk to the police and answer [their] questions because he had nothing to do with the girl getting hurt.\u201d\nDetective Copeland asked defendant if he would come with them to the police department for an interview, and defendant voluntarily agreed. Detective Copeland received defendant\u2019s permission to pat him down for weapons before defendant entered the officers\u2019 car. With defendant in the front passenger seat and Detective Taylor in the back, Detective Copeland drove to the nearby police station, arriving at approximately 9:00 a.m. Defendant, who had not been handcuffed, walked freely into the building, unassisted by either detective. Detectives Copeland and Taylor escorted defendant through security and up to the Investigative Division on the fourth floor, where he was offered coffee.\nDetective Copeland directed defendant to a well-illuminated interview room furnished with a table and a few chairs. The room was approximately eight feet on each side. Detective Copeland asked defendant to have a seat, then left to go to court on an unrelated matter, leaving defendant unattended in the interview room. Defendant was not handcuffed and no one guarded the door.\nAt approximately 9:15 a.m., Detective Taylor entered the room and began to interview defendant. She was wearing plain clothes and unarmed. After taking down preliminary biographical information, Detective Taylor asked defendant about his relationship with the victim\u2019s roommate Brad Sasser and whether defendant knew the victim. Defendant responded that he had met Sasser, Sasser\u2019s girlfriend Ashley Hobgood, and the victim through a mutual friend, Matt Johnson, at a party thrown by Johnson two or three weeks previously. Since then, he had been hanging out with Sasser somewhat regularly.\nDetective Taylor asked about defendant\u2019s activities on Monday, 7 November 2005, the day before the murder. Defendant responded that at about 10:00 p.m., he had gone with Sasser, Hobgood, and a person named \u201cDominic Copeland\u201d to the victim\u2019s apartment to pick up some of Sasser\u2019s belongings. Defendant stated that he was at the apartment for about ten minutes. Once they left the apartment, Sasser took Dominic and defendant back to defendant\u2019s house on Vann Street, and Dominic caught a cab home. The following day, Matt Johnson told defendant the victim had been killed.\nWhen Detective Taylor asked defendant whether he knew anyone named \u201cJoey,\u201d defendant responded that he had a cousin by that name who lived in New York. The detective asked whether Joey had gone to the victim\u2019s apartment with them. Defendant replied that Joey had not gone there, but that Dominic had. Detective Taylor then asked if Sasser and the victim had been having any problems. Defendant responded that Sasser had been staying at the victim\u2019s apartment for about two weeks. However, the victim had become upset with Sasser for throwing a party at the apartment a few days earlier and told him he had to move out.\nWhen Detective Taylor told defendant she knew the person he had been with was named \u201cJoey\u201d and not \u201cDominic,\u201d defendant stated that his cousin Joey from New York had been with them. Defendant said Joey knew Sasser from the party they had attended at Matt Johnson\u2019s house and that they had all been hanging out since the party. Defendant said Joey\u2019s full name was \u201cJoey Jose\u201d and that Joey had taken the train back to New York the previous morning. When Detective Taylor pointed out that she could check the train records for Joey\u2019s name, defendant suggested that perhaps Joey had gone to Durham to visit family.\nDetective Taylor continued to focus her questions on Joey, defendant, and the period from Monday, 7 November to Tuesday, 8 November 2005. Defendant denied returning to the victim\u2019s apartment after Sasser dropped him off at defendant\u2019s house. Defendant claimed he would not hurt anyone because that \u201cis not what he does,\u201d adding that he \u201cbreaks into houses and cars.\u201d\nDetective Taylor then informed defendant that footprint impressions had been observed at the victim\u2019s apartment and asked defendant if he would mind if they compared them with the shoes he was wearing. Defendant responded that he did not mind, then removed his shoes and handed them to Detective Taylor. She left the interview room with the shoes, closing but not locking the interview room door behind her, and gave them to her superior, Sergeant Clem Perry. No law enforcement officer stood guard or otherwise remained near the door.\nWhile Detective Taylor was away from the interview room, she was informed that the victim\u2019s driver\u2019s license had been recovered from a storm drain in front of defendant\u2019s Vann Street residence. Detective Taylor and Sergeant Perry also noticed what appeared to be traces of blood on defendant\u2019s shoes.\nAt 10:35 a.m., Detective Taylor and Sergeant Perry returned to the interview room and informed defendant that the victim\u2019s driver\u2019s license had been recovered and that blood appeared to be on defendant\u2019s shoes. In response, defendant repeated the narrative he had previously given, adding that Sasser had \u201cflipped out\u201d at the victim\u2019s apartment when she told him to move out. The officers stopped defendant and reminded him that he had already given one statement and that he needed to be truthful. Sergeant Perry asked defendant if he was at the victim\u2019s apartment when she was hurt, and defendant nodded his head affirmatively. Defendant stated that after Sasser had dropped defendant off at his house, defendant called Sasser. Sasser asked defendant to return with him to the victim\u2019s apartment. Defendant declined to go with Sasser and instead walked to the victim\u2019s apartment. He arrived sometime between 11:55 p.m. and 12:30 a.m., after which Sasser and the victim began arguing. Defendant said that when he saw Sasser pick the victim off the couch and throw her on the floor, he went out the back door and sat down. He heard the victim scream, looked inside, and saw her running naked from Sasser. Defendant said he left and returned home. Defendant denied seeing Sasser kill the victim. After making this statement, defendant diagrammed the victim\u2019s apartment for Detective Taylor.\nAt this point they took another break. Detective Taylor asked defendant if he needed to go to the bathroom or if he wanted anything to drink, but defendant declined. For approximately ten minutes, the investigators left defendant unattended in the interview room with the door closed but unlocked.\nAt 11:15 a.m., Detective Taylor returned to the interview room and began to confront defendant with some of the inconsistencies in his statements. Detective Taylor truthfully informed defendant that she had validated Sasser\u2019s alibi the previous evening and thus knew Sasser had not been at the victim\u2019s apartment when she was killed. Defendant responded that at times he did some work for Sasser and that Sasser had sent him to the victim\u2019s apartment because she owed Sasser sixty dollars. Defendant stated that after Sasser dropped him off, he walked back over to the victim\u2019s apartment and told her he was there to pick up some of Sasser\u2019s possessions. When the victim started to look for the items, defendant approached her and demanded the money. He and the victim argued briefly, began fighting, and fell wrestling to the floor. Defendant stated he hit the victim in the face and stomped her in the head before he \u201cblanked out and ran out.\u201d Defendant held out his hand and showed Detective Taylor a fingernail that he said had been broken during the altercation.\nSergeant Perry then entered the interview room and informed defendant \u201cthat detectives had located his jacket over at the Vann Street address and that the jacket had blood on it.\u201d Defendant responded that the blood must have come from the victim\u2019s mouth and lip, which had been injured when he hit her in the face. Detective Taylor and Sergeant Perry left the interview room and requested that defendant\u2019s hands be photographed. Detective Taylor returned and again asked defendant if he needed to go to the bathroom or if he wanted something to eat or drink, and defendant again declined the offers. For about the next ten minutes defendant apparently was left alone in the interview room.\nThe investigators resumed their interview with defendant at approximately noon. They told defendant they knew he was not being completely honest and that \u201csomeone else was with him.\u201d They again asked about \u201cJoey.\u201d Defendant was reluctant to identify Joey and eventually wrote the name \u201cJoey Richardson\u201d on Detective Taylor\u2019s notepad, along with a birthday and age. Defendant said he and Joey went to the victim\u2019s apartment together. WTiile repeating the essence of his previous story, defendant now added that Joey stood outside while defendant went into the apartment to get the money and subsequently fought with the victim. Defendant stated that he and Joey left after the fight. Defendant then changed his story and said that he left the apartment once the victim was on the floor. Then, according to defendant, Joey entered through the sliding-glass back door of the apartment as defendant was on his way out. Defendant denied being present when the victim was stabbed.\nAt around 12:40 p.m., they took another break. Detective Taylor left the interview room while defendant remained unattended with the door closed but not locked. No one stood watch at the door. Detective George Passley brought food to defendant sometime between 12:40 p.m. and 1:00 p.m., then left defendant alone for a short break with the door open. At around 1:00 p.m., Detective Passley walked by the interview room and, when defendant looked up at him, asked defendant if he wanted to talk. Defendant lowered his head and said, \u201cYes.\u201d Detective Passley asked defendant if he was going to tell the truth. Defendant looked up and repeated, \u201cYes.\u201d Detectives Passley and Taylor then discussed defendant\u2019s background with him briefly before returning to the subject of the victim\u2019s apartment. The detectives again encouraged defendant to tell the truth but did not advise him of his Miranda rights. Defendant was asked whether the sliding-glass back door of the victim\u2019s apartment had been locked. Defendant said that it was locked and th\u00e1t he had to release a latch and remove a security pole to open it. In response to a question from Detective Passley, defendant reported that the television\u2019s volume had been turned up.\nWhen the investigators once more asked defendant whether he stabbed the victim, he answered again that he did not touch her after he beat her. He said he had put his clothes in a grocery bag and thrown them in a trash can near some brick apartments, describing the clothes and adding that he would show police where he had discarded them. Asked about the victim\u2019s wallet, defendant provided the new information that he had put it in his pocket. After later removing twenty dollars, he threw the wallet in some woods.\nBecause defendant\u2019s several statements had been inconsistent, the investigators continued to question him and again encouraged him to be truthful. In response, defendant made another statement in which for the first time he implicated himself in the murder. Defendant said he and Joey were sent by Sasser to obtain Sasser\u2019s money from the victim and to \u201cget rid of her.\u201d They walked to the victim\u2019s apartment and, when she opened the door in response to defendant\u2019s knock, he told her Sasser had sent him to get a cord for his game system. Once inside, defendant opened the back door to admit Joey, who grabbed the victim and began to beat her. According to defendant, Joey removed some of the victim\u2019s clothes and defendant held her while Joey raped her. After completing the rape, Joey picked up a knife from the kitchen and handed it to defendant. Defendant took the knife with his sleeve to avoid putting fingerprints on it. Joey said to defendant, \u201cYou know what you have to do.\u201d When the victim looked at defendant and said, \u201cPlease don\u2019t,\u201d defendant related that he \u201ccouldn\u2019t do it\u201d and dropped the knife. Defendant told the investigators that Joey then grabbed the knife and stabbed the victim in the stomach until her intestines came out.\nDetectives asked defendant clarifying questions about whether he had bound the victim with tape, whether he had stabbed her, and the current location of the knife and the victim\u2019s car. Defendant acknowledged that he and Joey bound and gagged the victim with the tape they had purchased that day and brought with them, then admitted that he stabbed the victim once on her throat, once on the chest, and once in the stomach.\nWhile giving this statement defendant became upset, said he did not mean to hurt her, then dropped his head and began to cry. He said that Joey left in the car and took the twenty dollars defendant gave him from the victim\u2019s wallet. When investigators again asked defendant whether Sasser had sent Joey and him to the victim\u2019s apartment, defendant now said Sasser had not sent them but that earlier in the day Sasser had told defendant he needed his money. Finally, defendant was asked if he knew where Joey could be found, and defendant responded that he did not know.\nAt this point, between 2:00 p.m. and 2:15 p.m., Detectives Taylor and Passley left the interview room and closed the door. When the detectives returned to the interview room at approximately 2:20 p.m., they advised defendant that he was under arrest and, at 2:26 p.m., gave him his Miranda rights both orally and in writing. They reviewed the written form with defendant in its entirety, and defendant acknowledged each right by marking \u201cyes\u201d and initialing the form beside each listed right. This form was entered into evidence during the suppression hearing.\nThe detectives then showed defendant a picture of Joseph Sanderlin, an African-American male, but defendant denied that the person depicted was Joey. Detective Passley asked defendant if he would be willing to show where he had thrown the wallet and the clothing he had discarded, and defendant agreed. Detective Passley and Officer B.A. Lindsey left the police station at 3:05 p.m. with defendant to locate various pieces of evidence. Defendant, who was handcuffed and wearing leg irons, was placed in the rear of the car beside Detective Passley. Officer Lindsey drove while defendant gave directions. Defendant told Detective Passley what he had been wearing and where he discarded those clothes. The officers recovered defendant\u2019s baseball cap from one of the dumpsters he identified. Defendant also showed where he had thrown the victim\u2019s purse, which the police recovered.\nAt 4:20 p.m., defendant asked if he could say good-bye to his girlfriend. In response, Detective Passley allowed defendant to talk with his girlfriend as she stood at the vehicle door while defendant remained in the back seat. The two spoke briefly in an encounter that was \u201ca little emotional.\u201d Afterwards, defendant requested to use the bathroom and was taken to a police district station house for that purpose. Detective Passley then asked defendant if he wanted food. Defendant declined, but asked for something to drink, so Officer Lindsey drove to a nearby McDonald\u2019s, where Detective Passley bought him a soft drink.\nOfficer Lindsey began driving towards Apex to look for the victim\u2019s car. As he drove, Officer Lindsey remarked that \u201c[i]t sure would be nice to drive up at the house in Apex and see that car in the driveway.\u201d Detective Passley then said to defendant, \u201cYou know where the car is located. I know you know.\u201d Defendant responded, \u201cMake a right,\u201d and directed Officer Lindsey to Barringer Drive, where, at 5:05 p.m., they located the victim\u2019s vehicle.\nWhile waiting for evidence technicians to arrive and process the vehicle, Detective Passley asked defendant what he had done with the knife. After defendant answered that he had thrown it in a storm drain nearby, Detective Passley was able to recover it. A substance that appeared to be blood was on the knife blade.\nOnce the evidence technicians arrived, Officer Lindsey again began driving towards Apex to locate the second suspect, whom defendant was now identifying as \u201cTony Martinez,\u201d a cousin from New York. Defendant claimed that this person was with him on the night of the murder. However, defendant could not provide any specific information about Tony Martinez, and once they arrived in Apex, defendant admitted no suspect was there. When asked why he had given false information after being truthful about the car and the knife, defendant said that he \u201cjust had to.\u201d Detective Passley told defendant he would have to disclose the real name of the second suspect, but defendant said he \u201cwas not going to snitch on anyone\u201d and that Detective Passley \u201cwould not understand.\u201d Detective Passley told defendant he should not be the only one charged with the death.\nAt about 6:15 p.m., they arrived back at the Raleigh Police Department. Defendant was returned to the interview room, where his handcuffs and leg restraints were removed. Defendant declined Detective Passley\u2019s offer of food or drink. When Detective Passley said he would be back to talk about the second suspect, defendant responded, \u201cOkay.\u201d\nAbout 6:30 p.m., Detective Passley returned to the interview room to discuss the second suspect. He asked defendant to make another statement to \u201cfirm up\u201d some things he had said while on the way to recover the purse and the clothing, and defendant agreed. Defendant then made a statement substantially consistent with his earlier confession to Detective Taylor. In this statement defendant did not mention \u201cJoey,\u201d but continued to implicate \u201cTony\u201d as the second suspect. Detective Passley told defendant that no one named Tony was involved in the case, that he knew it was Joey Sanderlin, and that defendant should tell the truth. Finally, defendant responded: \u201cIt was Joey. He cut her first. He cut her the most. I only cut her, like, three or four times.\u201d Detective Passley asked if Sandlerlin had raped the victim and defendant responded, \u201cYeah.\u201d Defendant, however, denied having sex with the victim and claimed he only held her down. Defendant stated that he only went to the victim\u2019s apartment \u201cto get the green.\u201d When Detective Passley asked defendant why he stabbed the victim, he responded that he did not know and \u201c[i]t all happened so fast, and it all got out of hand.\u201d\nDetective Passley then asked if anyone else was with defendant and the second suspect, and defendant responded, \u201cNo.\u201d At this point, sometime before 8:20 p.m., Detective Passley concluded the interview and left the room. At 8:20 p.m., Detective Passley returned with one of the shoes defendant had been wearing when the police picked him up. Defendant stated that he used soap and water to wash his shoes at Vann Street, but he did not know where Joey had cleaned up.\nNo further questions were asked of defendant on 9 November, and defendant was taken by a uniformed officer to the magistrate\u2019s office for an initial appearance. He was admitted into the Wake County Jail at 11:26 p.m.\nThe next morning, 10 November, Detectives Passley and Montague retrieved defendant from the Wake County Jail and returned him to the same interview room at the Raleigh Police Department. At 10:48 a.m., Detectives' Copeland and Passley re-advised defendant of his Miranda rights both verbally and in writing, again using a standard form. Detective Passley reviewed the form aloud to make sure defendant understood his rights and recorded defendant\u2019s answers to each right by marking \u201cyes\u201d on the form beside the appropriate listing. Defendant added his initials beside each right. Defendant stated that he was willing to speak to detectives without an attorney and signed the waiver of rights form. This second form was also introduced into evidence as an exhibit at the suppression hearing.\nDetective Passley asked defendant about Sunday, 6 November 2005, and defendant provided a statement detailing the prelude to the murder, the murder itself, and the events following the murder. Defendant concluded this statement, which was written down by Detective Copeland, at 12:26 p.m. Detectives Passley and Copeland left the interview room, closing and locking the door behind them.\nWhen the detectives returned, defendant consented to a tape-recorded interview. His recorded confession, which was consistent with his final verbal statement, began at 12:45 p.m. and ended at 1:01 p.m. During his audiotaped confession, defendant stated his accomplice was a cousin named Joey Santiago.\nBased on the evidence presented at this suppression hearing, the trial court entered a written order that recited one hundred and seven findings of fact. Among these findings were that defendant was first placed in custody on 9 November 2005 when, after he admitted in the course of the 1:00 p.m. interview with Detectives Passley and Taylor that he had stabbed the victim, the investigators locked him in the investigation room; that defendant had been polite and cooperative; and that defendant had not refused to answer any questions, did not ask for the interview to terminate, and did not ask to consult an attorney.\nAs to defendant\u2019s 9 November 2005 statement, the trial court found that defendant was coherent, did not appear to be under the influence of any impairing substance, and seemed to be of at least average intelligence; that no law enforcement officer raised his voice while questioning defendant; that defendant was not threatened nor was any promise of reward made to him during the interviews; that defendant was never misled, deceived, or confronted with false accusations or false evidence; that defendant never requested an attorney, never asked to make a telephone call, and never requested to stop answering questions; that the investigators regularly inquired about defendant\u2019s comfort; that defendant never appeared scared or intimidated during the interviews; and that at the time of defendant\u2019s statements, he was familiar with the criminal justice system. The trial court further found no evidence that defendant was impaired or unable fully to understand his rights or his situation. As to defendant\u2019s 10 November 2005 audiotaped statement, the trial court further found as fact that defendant was not subject to coercion, that the tone was conversational, that defendant had not been threatened and no rewards or inducements were promised him, and that defendant\u2019s statements were voluntary.\nBased upon these and other extensive findings of fact, the trial court concluded as a matter of law that at the time Detective Taylor, both individually and with Detective Passley, interviewed defendant at the Raleigh Police Department before 2:20 p.m. on 9 November 2005, defendant was not under arrest or otherwise restricted in his movement to the degree associated with a formal arrest. The trial court further concluded that a reasonable person in defendant\u2019s position would not have believed he was in custody or under formal arrest while being interviewed by Detective Taylor and Detective Passley. Therefore, because statements made by defendant before administration of his Miranda rights were given voluntarily, and because there had been no misconduct or abuse by investigators, none of defendant\u2019s state or federal constitutional rights 'had been violated by the noncustodial interviews. In addition, the trial court concluded that defendant was in custody when he was interviewed after 2:20 p.m. on 9 November 2005 and again on 10 November 2005, and on both occasions, defendant was advised of his Miranda rights and voluntarily and knowingly waived those rights. Accordingly, the trial court denied defendant\u2019s motion to suppress his statements.\nDefendant argues that the trial court made numerous errors in its order. Generally, an appellate court\u2019s review of a trial court\u2019s order on a motion'to suppress is limited to a determination of whether its findings are supported by competent evidence and, in turn, whether the findings support the trial court\u2019s ultimate conclusions of law. E.g., State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). However, here, as noted above, the State argues that defendant failed to preserve the issue because he did not object at trial. Defendant counters that no objection was necessary, distinguishing our recent opinion in State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007) (holding that \u201ca trial court\u2019s evidentiary ruling on a pretrial motion is not sufficient to preserve the issue . . . for appeal unless a defendant renews the objection during trial\u201d). Defendant\u2019s contention is that the judge who heard and denied the motion to suppress specifically ruled that \u201c[s]uch statements may be received into evidence in the trial of this action.\u201d As a result, defendant argues, the judge who presided over defendant\u2019s trial was bound by the hearing judge\u2019s ruling on the suppression motion and no renewed objection at trial was necessary.\nA pretrial ruling on a motion to suppress evidence is preliminary. State v. Hill, 347 N.C. 275, 293, 493 S.E.2d 264, 274 (1997), cert. denied, 523 U.S. 1142, 140 L. Ed. 2d 1099 (1998). Because the evidence may be different when offered at trial, a party has the responsibility of making a contemporaneous objection. Id. This rule sensibly acknowledges the realities of trial practice and we see no reason to change it now. Thus, Oglesby controls here. Therefore, to the extent defendant failed to preserve issues relating to the motion to suppress, we review for plain error. We begin by addressing defendant\u2019s challenges to the trial court\u2019s findings of fact.\nDefendant contests the trial court\u2019s findings that Officer Robb, who made the- first police contact with defendant outside his residence the morning of 9 November 2005, \u201cwould have allowed the Defendant to walk away if the Defendant had chosen to leave,\u201d and that Robb \u201cwas not privy to the details of an investigation.\u201d Defendant claims these findings of fact were not supported by the evidence. At the hearing, Robb described his position with the Fugitive Task Force (FTF) of the Raleigh Police Department, where his duties included assisting the Major Crimes Task Force in locating subjects, giving those subjects a general idea what is going on, and, if no arrest warrant had been issued, asking if they would be willing to speak with detectives. Robb testified that without a warrant for defendant\u2019s arrest, he would not have had the authority to stop defendant had he chosen to leave. In addition, Robb stated that it is not the responsibility of the FTF to investigate crimes and FTF members are not privy to every aspect of an investigation. Here, he knew only such basic information as that \u201cthere had been a murder and that a female had been stabbed\u201d and that defendant \u201cwas a person of interest in the case.\u201d After reviewing the record, we conclude that the trial court\u2019s findings as to Robb\u2019s encounter with defendant are fully supported by competent evidence.\nDefendant next argues the trial court incorrectly found that defendant \u201cvoluntarily\u201d agreed to accompany detectives to the Raleigh Police Department. Although defendant phrases this argument in terms of whether a reasonable person would have believed he had any choice in accompanying the officers, the reasonable person standard is properly used in determining whether one is in custody, an issue we address below. See State v. Garcia, 358 N.C. 382, 396-97, 597 S.E.2d 724, 736-37 (2004), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005). For now, we consider the trial court\u2019s finding that defendant acted voluntarily. The investigators testified that when they arrived at defendant\u2019s Vann Street location, they introduced themselves, shook hands, and told him he was not under arrest and was not in trouble. Detective Copeland told defendant they would like to talk with him and asked defendant if he would mind taking a ride downtown. Defendant replied he \u201cwanted to come down\u201d and added that he had asked Brad Sasser for the detectives\u2019 phone number the night before and was eager to answer their questions \u201cbecause he had nothing to do with the girl getting hurt.\u201d This evidence from the hearing supported the trial court\u2019s finding of fact that defendant \u201cvoluntarily agreed\u201d to accompany detectives to the police station.\nFinally, defendant contests the trial court\u2019s finding of fact that no guard was at the door of the interrogation room at various points during defendant\u2019s questioning. Defendant points to statements made by Detective Copeland on cross-examination that Raleigh Police Department protocol called for having an officer by the door when someone was in the interrogation room, and a person in the room was not permitted to leave without an escort. However, Detective Taylor testified at the suppression hearing that when defendant was left alone in the room, no one was standing guard. In addition, Detective Taylor testified that \u201cafter the confession, [defendant] was much more confined\u201d in that \u201cnow he\u2019s being watched by somebody, being locked in the room when people are leaving. Before that, he had free movement.\u201d While the protocol described by Detective Copeland may not have been followed here, Detective Taylor\u2019s testimony about specific aspects of defendant\u2019s questioning was not contradicted. \u201c[A] trial court\u2019s findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.\u201d State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (citations and internal quotations marks omitted). The trial court\u2019s resolution of conflicting evidence will not be disturbed on appeal. State v. Braxton, 344 N.C. 702, 709, 477 S.E.2d 172, 176 (1996) (citation omitted). Because competent evidence supported the trial court\u2019s findings that no one guarded the door during the initial interviews of defendant, these findings are binding on appeal.\nWe now turn to the trial court\u2019s conclusions of law. Defendant contends that the trial court erred when it concluded as a matter of law that he was not in custody for Miranda purposes prior to his admission that he stabbed the victim. Whether an individual is in custody for purposes of Miranda is a mixed question of law and fact. Thompson v. Keohane, 516 U.S. 99, 110-13, 133 L. Ed. 2d 383, 393-94 (1995). Accordingly, we review the trial court\u2019s pertinent findings of fact to determine whether they are supported by competent evidence from the record, and we review whether its conclusions of law are proper and \u201creflect^ a correct application of [law] to the facts found.\u201d State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997).\n\u201c[P]olice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.\u201d Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977) (per curiam).. \u201cThe proper inquiry for determining whether a person is \u2018in custody\u2019 for purposes of Miranda is \u2018based on the totality of the circumstances, whether there was a \u201cformal arrest or restraint on freedom of movement of the degree associated with a formal arrest.\u201d \u2019 \u201d State v. Barden, 356 N.C. 316, 337, 572 S.E.2d 108, 123 (2002) (quoting Buchanan, 353 N.C. at 339, 543 S.E.2d at 828 (citations omitted)), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003). \u201c[T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.\u201d Stansbury v. California, 511 U.S. 318, 323, 128 L. Ed. 2d 293, 298 (1994) (per curiam). \u201cWe must therefore determine whether, based upon the trial court\u2019s findings of fact, a reasonable person in defendant\u2019s position would have believed that he was under arrest or was restrained in his movement to that significant degree.\u201d Garcia, 358 N.C. at 396-97, 597 S.E.2d at 736-37 (citation omitted).\nDefendant argues that a reasonable person who was detained for questioning, transported to the secure floor in the police department while having no ability to communicate with anyone outside the station, unable to return to his residence, and deprived of his shoes after 10:30 a.m., would have believed he was constrained \u201cto a degree commens\u00farate with arrest.\u201d Because \u201cno single factor is necessarily controlling\u201d when we consider whether an individual is in custody for Miranda purposes, see Barden, 356 N.C. at 338, 572 S.E.2d at 123-24, we must examine the totality of the circumstances surrounding defendant\u2019s interrogation, Garcia, 358 N.C. at 396, 597 S.E.2d at 736. This Court has considered such factors as whether a suspect is told he or she is free to leave, State v. Kemmerlin, 356 N.C. 446, 457, 573 S.E.2d 870, 880 (2002), whether the suspect is handcuffed, State v. Greene, 332 N.C. 565, 577-78, 422 S.E.2d 730, 737 (1992), whether the suspect is in the presence of uniformed officers, Garcia, 358 N.C. at 397, 597 S.E.2d at 737, and the nature of any security around the suspect, State v. Jackson, 348 N.C. 52, 56, 497 S.E.2d 409, 411, cert. denied, 525 U.S. 943, 142 L. Ed. 2d 301 (1998).\nDefendant is an adult male with prior experience with the state\u2019s criminal justice system. See Garcia, 358 N.C. at 397, 597 S.E.2d at 737. When first approached by Officer Robb, defendant was told he was being detained until detectives arrived but that he was not under arrest. When he was again advised by the detectives upon their arrival that he was not under arrest, defendant voluntarily agreed to accompany them to the police station, affirmatively telling them he was \u201canxious\u201d to talk with them and answer their questions. Defendant was never restrained from the time of his initial encounter with Detectives Copeland and Taylor until the door of the investigation room was locked after defendant admitted stabbing the victim. Until then, defendant was frequently left alone in the interview room with the door unlocked and no guard posted. Throughout the interview he was given several bathroom breaks and was offered food and drink. Defendant was cooperative and allowed investigators to examine his shoes. Although detectives encouraged defendant to tell the truth, they did not raise their voices and they neither threatened defendant nor wheedled statements from him with promises. Defendant was never misled, deceived, or confronted with false evidence. Once defendant implicated himself by acknowledging his direct participation in the killing, the interview ended and defendant was given his Miranda rights. Under these circumstances, we agree with the trial court that defendant was not formally arrested or otherwise subjected to the restraint on his freedom of movement associated with a formal arrest.\nDefendant correctly points out he was told by Officer Robb that he was \u201cdetained\u201d while he waited on the curb for the detectives to arrive. However, any custody associated with the detention ended when defendant left Robb and voluntarily accompanied Detectives Copeland and Taylor. Robb also told defendant more than once that he was not under arrest, a status investigators confirmed when they arrived, and any conflict engendered in defendant\u2019s mind by being told at the outset that he was being detained pending the investigators\u2019 arrival necessarily dissipated when those investigators appeared and specifically told defendant he was not under arrest. See State v. Gaines, 345 N.C. 647, 658-63, 483 S.E.2d 396, 402-06 (holding that the juvenile defendants who voluntarily left their homes in the middle of night to ride to the police department in patrol cars and who were told they were not under arrest were not in custody), cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997); State v. Lane, 334 N.C. 148, 154, 431 S.E.2d 7, 10 (1993) (holding that a defendant who was told several times he was not under arrest and who never asked to leave during an interview with investigators was not in custody); State v. Phipps, 331 N.C. 427, 443-45, 418 S.E.2d 178, 185-87 (1992) (holding that a defendant who voluntarily rode to the station with officers in a police car, waited in a lobby with unlocked external doors, and was told more than once he was not under arrest, was not in custody).\nAlthough defendant focuses on his inability to leave the interview room without supervision or escort, we believe it unlikely that any civilian would be allowed to stray through a police station. Defendant was in an area not open to the public, and the prevention of unsupervised roaming in such a space is hardly the type of restriction that a reasonable person would associate with a formal arrest. See State v. Medlin, 333 N.C. 280, 290-92, 426 S.E.2d 402, 407-08 (1993) (holding that the defendant, who was constantly in the presence of officers and escorted to the rest room, was not in custody and \u201c[i]t is also unlikely that anyone would have been permitted to wander unmonitored around police headquarters\u201d).\nThus, under the totality of the circumstances, we do not find that \u201ca reasonable person in defendant\u2019s position would have believed that he was under arrest or was restrained in his movement to that significant degree.\u201d Garcia, 358 N.C. at 396-97, 597 S.E.2d at 737. As a result, defendant was not in custody when he arrived at the Raleigh Police Station on the morning of 9 November 2005, nor was he placed in custody upon entering the interview room or during the interviews prior to his acknowledgment that he stabbed the victim. Because these statements were voluntary and would have been admissible if offered into evidence, no issue arises under Missouri v. Seibert. 542 U.S. 600 passim, 159 L. Ed. 2d 643 passim (holding that a statement given after Miranda warnings have been administered may be inadmissable when police have elicited a previous unwarned statement during a custodial interrogation). Accordingly, the statements made after defendant was taken into custody and advised of his rights under Miranda, including his tape-recorded confession, as well as any physical evidence derived therefrom, were properly admitted into evidence.\nDefendant next contends that his invocation of his right to silence was not scrupulously honored while he was with Detective Passley and Officer Lindsey. The three were together in a police car for approximately three hours while defendant assisted the officers in recovering evidence. The investigators told defendant they did not believe the other participant in the killing was \u201cTony Martinez,\u201d as defendant claimed, and urged him to provide the correct name. Defendant responded that he \u201cwas not going to snitch on anyone\u201d and declined to reveal the name of the other person involved. Defendant argues that giving investigators notice of his scruples against snitching invoked his right to silence and that all interrogation should have ceased.\n\u201c[A] criminal defendant who has been advised of and has waived his rights has the right to terminate a custodial interrogation by indicating \u2018in any manner, [and] at any time prior to or during questioning, that he wishes to remain silent.\u2019 \u201d State v. Murphy, 342 N.C. 813, 823, 467 S.E.2d 428, 433-34 (1996) (quoting Miranda, 384 U.S. at 473-74, 16 L. Ed. 2d at 723 (alteration in original)). However, \u201c[although custodial interrogation must cease when a suspect unequivocally invokes his right to silence, an ambiguous invocation does not require police to cease interrogation immediately.\u201d State v. Forte, 360 N.C. 427, 438, 629 S.E.2d 137, 145, cert. denied, 549 U.S. 1021, 166 L. Ed. 2d 413 (2006). Defendant\u2019s statement that he \u201cwas not going to snitch\u201d when asked the correct name of an accomplice is not a clear invocation of his right to silence. At most, his response was ambiguous and did not require officers to cease their questioning or seek clarification. See Davis v. United States, 512 U.S. 452, 459, 129 L. Ed. 2d 362, 371-72 (1994) (holding that a suspect must unambiguously request counsel).\nFinally, defendant contends that he was deprived of his constitutional right to effective assistance of counsel as the result of his lawyers\u2019 failure to present evidence at the suppression hearing of defendant\u2019s limited intellectual functioning. Although defense counsel did not raise any issue concerning defendant\u2019s intellectual functioning at the hearing, no evidence indicated that defendant was confused or incapable of understanding either the detectives or his rights. In contrast, the evidence indicates he was coherent, gave cogent answers that were responsive to the questions asked, and made his statements knowingly, freely, and voluntarily. Moreover, the record plainly reveals that defense counsel was aware of evidence of defendant\u2019s mental condition, suggesting that failure to pursue the issue during the pretrial suppression hearing may have been a strategic decision. See State v. Frogge, 359 N.C. 228, 245, 607 S.E.2d 627, 637 (2005) (holding that defense counsels\u2019 decision to abandon a defense based upon brain dysfunction and pursue a different approach was a \u201creasonable professional judgment\u201d (citations and internal quotation marks omitted)). Nevertheless, because the record is silent as to why this issue was not raised at the suppression hearing, we dismiss this assignment of error without prejudice to defendant\u2019s right to reassert it in a post-conviction motion for appropriate relief. See State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).\nJURY SELECTION ISSUES\nWe next turn to issues pertaining to selection of the jury. In his first related argument, defendant contends that the State improperly used peremptory challenges to strike prospective African-American jurors Glenda Rogers and Francine Johnson on the basis of race.\nOur review of race-based or gender-based discrimination during petit jury selection has been the same under both the Fourteenth Amendment to the United States Constitution and Article 1, Section 26 of the North Carolina Constitution. State v. Maness, 363 N.C. 261, 271-72, 677 S.E.2d 796, 803 (2009) (citations omitted), cert. denied, \u2014 U.S. \u2014, 176 L. Ed. 2d 568 (2010). The Supreme Court of the United States has held that \u201cthe Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State\u2019s case against a black defendant.\u201d Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 83 (1986). A defendant\u2019s claim that a peremptory challenge is improperly based upon race triggers a three-step inquiry. First, the party raising the claim must make a prima facie showing of intentional discrimination under the \u201ctotality of the relevant facts\u201d in the case. Id. at 94, 90 L. Ed. 2d at 86. Second, if a prima facie case is established, the burden shifts to the State to present a race-neutral explanation for the challenge. Rice v. Collins, 546 U.S. at 333, 163 L. Ed. 2d at 831. Finally, the trial court must then determine whether the defendant has met the burden of proving \u201cpurposeful discrimination.\u201d Miller-El v. Dretke, 545 U.S. 231, 239, 162 L. Ed. 2d 196, 213 (2005). The trial court\u2019s ruling will be sustained \u201cunless it is clearly erroneous.\u201d Snyder v. Louisiana, 552 U.S. 472, 477, 170 L. Ed. 2d 175, 181 (2008) (citations omitted).\nIn Miller-El the Supreme Court confirmed that this process is not a formality:\nA Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.\n545 U.S. at 252, 162 L. Ed. 2d at 221. Thus, \u201cin reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.\u201d Snyder, 552 U.S. at 478, 170 L. Ed. 2d at 181. Accordingly, this Court has been sensitive to Batson\u2019s requirements. See, e.g., Barden, 356 N.C. at 342-45, 572 S.E.2d at 126-28; State v. Hoffman, 348 N.C. 548, 553-56, 500 S.E.2d. 718, 722-23 (1998).\nDefendant first contends that a Batson violation occurred when the prosecutor exercised a peremptory challenge against Glenda Rogers, an African-American female. Rogers was the seventeenth prospective juror and the fourth African-American examined on voir dire. The first three African-Americans were successfully challenged for cause by the State on the basis of their opposition to the death penalty. At the time Ms. Rogers was examined, four white jurors had been accepted by the State and seated on the jury.\nThe first question the prosecutor asked each prospective juror during voir dire was whether he or she opposed the death penalty. When that question was posed to Ms. Rogers, she initially expressed unequivocal opposition:\nProsecutor: . . . [L]et me start with your personal views about the death penalty. Are you opposed to the death penalty?\nMs. Rogers: I am.\nProsecutor: You are. Are \u2014 are your \u2014is your opposition to the death penalty a strong personal belief?\nMs. Rogers: The fact that I believe people are going to be punished for what they do. And it\u2019s because the death penalty, I don\u2019t believe in that.\nHowever, as voir dire proceeded, Ms. Rogers\u2019s apparent conviction wavered. When asked whether, knowing no details of the case, she would be predisposed to vote for life imprisonment without parole rather than death, Ms. Rogers responded, \u201cNo, I don\u2019t think I would be predisposed.\u201d The prosecutor then asked if she could vote for the death penalty in any case on which she might be required to sit, and she answered, \u201cI don\u2019t know.\u201d The prosecutor next explained to her the juror\u2019s role in a capital sentencing proceeding and asked if she could personally vote to sentence someone to death. Ms. Rogers responded, \u201cI don\u2019t think so.\u201d However, when the prosecutor rephrased the question, Ms. Rogers answered: \u201cIf \u2014 if I\u2019m picked, and I\u2019m sitting on the jury, and all the evidence and everything following the law, I could.. I could. ... I mean, I could vote for the death penalty.\u201d Ms. Rogers acknowledged that her responses had been inconsistent and, when the prosecutor probed further, stated:\n\u201cPersonally if I \u2014 -if you asked me, and I\u2019m not sitting on the case, no, I wouldn\u2019t go with the death penalty. ... But if I\u2019m here, and I\u2019m hearing the case and understanding the laws, I feel like I could do it.\u201d\nThe prosecutor turned to other subjects, and Ms. Rogers answered routine questions about her employment and personal life. She stated that she was single, worked at the State Employees\u2019 Credit Union as a debit card specialist, and was her church\u2019s videographer. When the prosecutor asked Ms. Rogers whether she read the local newspaper, she responded that she did not, but watched the local news on television. The prosecutor then referred to her jury questionnaire and asked Ms. Rogers if she had not checked \u201cNo\u201d when asked whether she watched television regularly. Ms. Rogers confirmed her response to the questionnaire, clarifying that \u201c[o]nly when I have time, I might turn [the television] on.\u201d Questioned further, she explained that she actually watched the local news \u201cjust about\u201d every night, adding that \u201c[u]sually at night I turn it on when I\u2019m getting ready to go to bed.\u201d\nDuring additional questioning by the prosecutor, Ms. Rogers . revealed that one of her brothers had been a murder victim in New York approximately twenty years earlier. She had left blank the question on her jury questionnaire that asked if any family member or close friend had been a victim of a crime.\nBefore concluding his voir dire, the prosecutor returned to the death penalty, asking what her views were now that she had been directly questioned on the issue. She responded that she had thought about it and elaborated, \u201cWell, when you first said to me, do you believe in the death penalty . . . [,] I said no. But you know, given the laws and the penalties that goes with the laws, I feel like I could.\u201d The State then exercised its first peremptory challenge to strike Ms. Rogers, and defendant raised a Batson objection. Defendant acknowledged that this was the State\u2019s first peremptory challenge, but pointed out that Ms. Rogers is an African-American woman and argued that the language she used regarding the death penalty was \u201cconsistent with language that the prosecutor [had] passed for accepting jurors on that were not black or of African-American persuasion.\u201d Defendant referred to jurors Metz, a white male, and Skiff, a white female. According to defendant, both of these jurors had expressed similar positions on the death penalty during voir dire, but had not been challenged by the State and were seated on the jury. The only difference here, defendant contended, appeared to be Ms. Rogers\u2019s race. In addition, defendant argued that all four jurors seated at this point were white and Ms. Rogers had \u201cclearly expressed that she could follow the law, and if appropriate, recommend a death punishment.\u201d\nThe trial court determined that defendant failed to make a prima facie showing of racial discrimination and overruled his Batson objection:\nI don\u2019t think that the defense has made a prima facie showing requiring the second or third steps of the three-part Batson analysis, and I am going to deny your request, in my discretion. I think that you have failed to show that the State has exercised a peremptory \u2014 a peremptory challenge that was motivated by improper \u2014 they were not removing based solely on the fact that she was an African-American female.\nDefendant objected, and the court allowed the prosecutor to proffer race-neutral reasons for the strike. The State noted that Detectives Passley and Montague, lead investigators in the murder and witnesses at the guilt portion of the trial, are both African-American. The prosecutor then addressed Ms. Rogers\u2019s views on the death penalty:\nJudge, Ms. Rogers said that she was opposed to the death penalty, and that she believed people were going to be punished by God, ultimately, but she was personally opposed to the death penalty. I have not passed anyone that has said that they were personally opposed to the death penalty.\nThe State is looking for jurors that are not personally opposed to the death penalty. But then, also, Ms. Rogers, who has been thinking about this since last Tuesday, and after I inquire, she\u2019s equivocal about this. Not enough for the State to make a challenge for cause, but her initial answers to me, this is her first time to come down to this court and talk about it is she doesn\u2019t think she can do it, no, I can\u2019t do it, then she could do it. Okay.\nThose are \u2014 those are reasons why I\u2019m not comfortable with Ms. Rogers, who is opposed to the death penalty, unlike Mr. Metz \u2014 and I\u2019m not going to go back and piecemeal every juror I have \u2014 I have passed or not. But I have not passed anyone that is personally opposed to the death penalty, and will continue to look for people that are not personally opposed to the death penalty.\nThe prosecutor also noted the inconsistencies between Ms. Rogers\u2019s answers on her jury questionnaire and her voir dire testimony regarding whether any of her family members had been a crime victim, as well as details of her television viewing habits. The prosecutor concluded:\nI didn\u2019t get a good sense that Ms. Rogers had a good sense of herself, of whether she could participate in this process. And she was opposed to the death penalty, gave extremely equivocal responses, and her last ones were that she could participate.\nThis Court has noted that \u201ca prima facie showing of racial discrimination[] is not intended to be a high hurdle for defendants to cross. Rather, the showing need only be sufficient to shift the burden to the State to articulate race-neutral reasons for its peremptory challenge.\u201d Hoffman, 348 N.C. at 553, 500 S.E.2d at 722. We have identified several relevant factors that may be considered in determining whether a defendant has met his or her burden, including:\nthe defendant\u2019s race, the victim\u2019s race, the race of the key witnesses, questions and statements of the prosecutor which tend to support or refute an inference of discrimination, repeated use of peremptory challenges against blacks such that it tends to establish a pattern of strikes against blacks in the venire, the prosecution\u2019s use of a disproportionate number of peremptory challenges to strike black jurors in a single case, and the State\u2019s acceptance rate of potential black jurors.\nState v. Quick, 341 N.C. 141, 145, 462 S.E.2d 186, 189 (1995) (citation omitted). Although the State proffered reasons to support its exercise of a peremptory challenge against Ms. Rogers, the trial court did not rule on these reasons. Instead, the trial court, in its discretion, effectively denied defendant\u2019s Batson challenge by allowing the State\u2019s peremptory challenge. Therefore, \u201c \u2018[wjhere the trial court rules that a defendant has failed to make a prima facie showing, our review is limited to whether the trial court erred in finding that defendant failed to make a prima facie showing, even if the State offers reasons for its exercise of the peremptory challenges.\u2019 \u201d Barden, 356 N.C. at 343, 572 S.E.2d at 127 (quoting State v. Smith, 351 N.C. 251, 262, 524 S.E.2d 28, 37, cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000)).\nIn raising his Batson challenge, defendant argued that Ms. Rogers\u2019s language regarding the death penalty was \u201cconsistent with language that the prosecutor has passed for accepting jurors on that were not black or of African-American persuasion,\u201d specifically referring to jurors Metz and Skiff, both of whom during voir dire had \u201cexpressed various opinions about the death penalty and various concerns about their level of comfortability with it.\u201d Defendant noted that juror Metz had voiced some personal issues with the death penalty but ultimately stated he could follow the law. Defendant argued that juror Metz\u2019s position was \u201cessentially the same position that Ms. Rogers has taken, the difference between the two appearing to be race.\u201d In addition, defendant pointed out that juror Skiff had indicated that she was \u201cpredisposed to life without parole\u201d and that \u201cthe death penalty would not be [her] \u2018plan A.\u2019 \u201d\nBecause Ms. Rogers was the first prospective juror peremptorily challenged by the State, no pattern of disproportionate use of peremptory challenges against African-Americans had been established. However, \u201cthe Constitution forbids striking even a single prospective juror for a discriminatory purpose.\u201d Snyder, 552 U.S. at 478, 170 L. Ed. 2d at 181 (citation and quotation marks omitted); State v. Robbins, 319 N.C. 465, 491, 356 S.E.2d 279, 295 (\u201cEven a single act of invidious discrimination may form the basis for an equal protection violation.\u201d), cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226 (1987). Therefore, we consider other relevant facts to determine if defendant established a prima facie case of racial discrimination.\nWe note that while prospective jurors Metz, Skiff, and Rogers all indicated they could follow the law and vote to impose capital punishment, Ms. Rogers is the only one of the three who stated when first asked that she was personally opposed to the death penalty. By contrast, when the prosecutor initially asked prospective juror Skiff, \u201cAre you opposed to the death penalty?,\u201d her answer was \u201cI \u2014 no.\u201d Similarly, when the prosecutor asked prospective juror Metz at the outset of his voir dire, \u201cAre you opposed to the death penalty?,\u201d his answer was \u201cNo.\u201d Consequently, a definable difference was apparent in the personal views on the death penalty as expressed by prospective juror Rogers on one hand and prospective jurors Skiff and Metz on the other. Balanced against this difference are the factors that this case involved an African-American defendant and a white victim; all three African-American prospective jurors previously examined had been excused for cause on grounds that they opposed the death penalty; and four white jurors had been seated. In light of the responses of the prospective jurors to the key voir dire questions about their views on the death penalty, and considering the absence of any pattern of discrimination in the exercise of the State\u2019s peremptory challenges at the time the prosecutor peremptorily challenged prospective juror Rogers, we conclude that defendant failed to meet his burden of establishing a prima facie case, that the State\u2019s action was motivated by race. Accordingly, the trial court did not err in denying this Batson challenge.\nOur inquiry as to this challenge does not end here, however. Defendant also contends the trial court applied the wrong standard when it stated that defendant failed to show that the State\u2019s challenge was \u201cbased solely on the fact that she was an African-American female.\u201d (Emphasis added.) As stated in Miller-El, the third step in a Batson analysis is the less stringent question whether the defendant has shown \u201crace was significant in determining who was challenged and who was not.\u201d 545 U.S. at 252, 162 L. Ed. 2d at 221 (emphasis added). The entire record indicates that, despite this misstatement, the trial judge applied the correct standard. When explaining to defense counsel its initial burden of establishing a prima facie case, the trial judge stated: \u201cMy understanding is that you have the burden of making a prim[a] facie showing that [the State] has exercised the challenge, and it was motivated by discriminatory purposes.\u201d (Emphasis added.) Later in the jury selection process, defendant again raised a Batson objection when the prosecutor exercised a peremptory challenge against prospective juror Francine Johnson. The trial court heard defendant\u2019s reasons, then asked the prosecutor to \u201cprovide rebuttal reasons why the peremptory challenge was not motivated by racial or gender discrimination.\u201d (Emphasis added.) These statements demonstrate that the trial court did not consider defendant\u2019s Batson challenges in the mistaken belief that defendant was required to establish that race was the sole reason for the State\u2019s peremptory challenge of a prospective juror. Accordingly, we conclude that the trial court\u2019s lapsus linguae did not indicate that it was applying an incorrect standard to defendant\u2019s Batson challenges.\nMoreover, the record shows the trial court found defendant failed to meet the initial Batson requirement of demonstrating a prima facie case that the prosecutor\u2019s challenge of prospective juror Rogers was based upon improper racial discrimination. The trial court\u2019s ruling that defendant had not made a sufficient initial showing preceded, and thus was not based on, the State\u2019s subsequently proffered race-neutral reasons for its peremptory challenge.\nDefendant next argues that the State impermissibly used a peremptory challenge against prospective juror Francine Johnson based on her race. Johnson, an African-American female, was the thirtieth prospective juror and the eighth African-American prospective juror to be examined. Although two African-American jurors ultimately were chosen (one sat as a juror, the other as an alternate), at this point none had been selected, with six having been excused for cause and one excused peremptorily by the State.\nAfter the trial court obtained initial background and biographical information, the State began its voir dire by asking Johnson her views on the death penalty and whether she had thought about it since being asked to consider it when she first reported for jury duty the previous week:\nProsecutor: . . . [L]et me start with your personal views about capital punishment. Are you opposed to the death penalty?\nMs. Johnson: I really haven\u2019t thought about it one way or the other.\nProsecutor: Okay. Before \u2014 before you were called here last Tuesday morning, you really hadn\u2019t considered your views about the death penalty, ma\u2019am?\nMs. Johnson: Yes.\nProsecutor: Is that correct?\nMs. Johnson: Yes.\nProsecutor: And on Tuesday, do you recall the judge saying if you hadn\u2019t thought about it, you need to start thinking about it?\nMs. Johnson: Yes.\nProsecutor: And have \u2014 you still haven\u2019t had the opportunity to formulate your personal opinion about the death penalty?\nMs. Johnson: No, not really.\nProsecutor: Well, have you \u2014 over this last week, at least since last Tuesday, it\u2019s Tuesday now. So over the last week, have you \u2014have you been thinking about it?\nMs. Johnson: Yes.\nProsecutor: Okay. Well, what \u2014 what have you been thinking about? Tell me what\u2019s kind of been going through your mind over the last week about this issue of capital punishment?\nMs. Johnson: Well, I thought about it and I thought \u2014 I tried to think of it in a personal level, how I would feel if something were to happen to somebody in my family. And then I try to think of it as a person if something were to happen where one of my family members were accused\u2014\nProsecutor: Accused?\nMs. Johnson: \u2014of\u2014yes.\nProsecutor: Okay, all right.\nMs. Johnson: And I still didn\u2019t come up with a position where I would be swayed in either way. So I just took the same position.\nProsecutor: All right. Same position, which is you don\u2019t quite know what your position is, is that fair?\nMs. Johnson: That\u2019s it.\nThe prosecutor then went on to describe a juror\u2019s responsibilities in a capital case and the circumstances under which a defendant can be sentenced to life imprisonment or death, and Johnson stated that she understood. The prosecutor then asked if she could participate in the process:\nProsecutor: . . . [T]ell me if you believe that you could participate in the process, and under the appropriate circumstances, personally vote to impose a sentence of death?\nMs. Johnson: Yes.\nProsecutor: Okay. And tell me if you could personally participate in the process and under the appropriate circumstances, personally vote to impose a sentence of life without parole?\nMs. Johnson: Yes.\nAsked if she would have any reluctance performing her duties, Johnson responded, \u201cNo,\u201d and added that she would look at the evidence to help her decide the issue.\nThe prosecutor pursued other lines of questioning including her occupation, education, hobbies, and activities. Johnson responded that she drove a city bus, had some college education, belonged to a church, and enjoyed reading and watching cartoons and reality shows on television. Johnson acknowledged that she had been arrested for driving an automobile with an altered VIN number, but added that the charges were dropped when the person whose car she had been driving \u201cstepped up.\u201d She responded, \u201cNo,\u201d when the prosecutor asked if she had any religious or personal objections to sitting in judgment of someone.\nThe prosecutor peremptorily challenged prospective juror Johnson. Defendant objected on Batson grounds, pointing out that this peremptory challenge was the State\u2019s second and that both such challenges had been against African-American females of about the same age who averred that they could impose the death penalty. Defendant argued that Johnson\u2019s answers were neutral and that she had said she could follow the law and vote to impose a recommendation of death. Defendant contended that \u201cother than the race and perhaps gender, in combination thereof,\u201d there was no reason based on her answers to warrant a challenge. The trial court ruled that defendant had made a prima facie showing and directed the State to provide race-neutral reasons for the challenge.\nThe prosecutor responded:\nFirst of all, Ms. Johnson, who was bom in 1957 by her jury questionnaire, before last Tuesday, being called for jury duty, had never formulated her personal views or opinions about the death penalty. Your Honor specifically told all potential jurors that day, that\u2019s a week ago, as of this date \u2014 I think we can all agree that was last Tuesday, this is now the next Tuesday- \u2014 you said if you hadn\u2019t, you need to start thinking about it, in formulating your opinions.\nShe came here, and she still couldn\u2019t tell me one way or the other what her opinions about capital punishment are. So I agree, as Ms. Godwin said, neutral, that begs the question.\nI don\u2019t know what her personal views about the death penalty are, and it concerns me when someone who is born in 1957 can\u2019t articulate their own personal views about capital punishment, particularly after your Honor told them about a week ago, told them you need to start considering that because they\u2019re going to be asked that type of question.\nThe next thing that I thought \u2014 again, not to harp on the\u2014 some other things about her, and I\u2019ll go back about the death penalty, but she seems to be completely removed from any type of local, national news, or print media or anything. I was \u2014 I\u2019m concerned about \u2014 not concerned, but she doesn\u2019t watch the news or read the news, but she does enjoy watching cartoons.\nAgain, you think of a lady that was born in 1957 who hasn\u2019t formulated opinions about [the] death penalty, these things are starting to concern the State.\nAnd I\u2019ll be clear with your Honor, it\u2019s going to be the State\u2019s position in this case that at least felony murder seems to be a rather certain verdict. This is a confession case. I\u2019m looking at the punishment phase, and I\u2019m looking for jurors at this time who are not opposed to the death penalty, and who can obviously impose it under the appropriate circumstances.\nThose \u2014 that\u2019s really what I\u2019ve been looking at right now, particularly when I have the luxury of no perempts or one perempt[], or \u2014 up to this point being used, and the defendant has burned, I think maybe five, okay?\nAt some point you \u2014 you can\u2019t get too picky about the death penalty views and how personally strong you\u2019re looking for, but if \u2014 if you\u2019ve got a pretty good comfort zone with the perempts, you can \u2014 you don\u2019t need to maybe start taking jurors whose, views are not ideally what you\u2019re talking for about the death penalty. And I\u2019m talking about the death penalty. I\u2019m not talking about gender, I\u2019m not talking about race.\nWhich brings up another question. I have never mentioned race in any of my remarks to any potential jurors. My question to all potential-jurors \u2014 I would ask your Honor to observe, there\u2019s been ho disparate treatment of any male, female or whatever race in my questioning. And in fact, I have never mentioned race in any of my questions to any potential jurors.\nThe defense has, and that\u2019s fine. They should inquire of that, if they think that\u2019s appropriate, but I haven\u2019t. So I\u2019d ask you to consider that.\nAlso, Judge, this juror has \u2014 she wrote down that she was arrested and VIN \u2014 I couldn\u2019t figure out what that meant, VIN number not correct, dropped.\nShe\u2019s been \u2014 we checked on the AOC. She, as she admitted, she was charged with a felony. Yes, your Honor, she was charged with a felony. I am trying not to, if I can help it \u2014 that\u2019s important to me, regardless of the disposition, someone has been charged with a felony. That\u2019s different than someone that\u2019s been charged or convicted of \u2014 of you know, DWI, okay?\nThat\u2019s \u2014 that\u2019s kind of the a whole \u2018nother little thing to look at. She proffered the reason, that was the extent of her criminal record, and it was dropped because someone else came and took the blame, something to that \u2014 someone else stepped up, or whatever her comment was. Someone else came and made a statement or took the blame.\nWell, if you look on AOC, the case was actually arrested, Judge, September 20th of \u201995, in Wilson. She was indicted in October of \u201996. It wasn\u2019t dismissed until March of \u201998 in Superior Court. And if you look at the AOC, it says unable to locate victim in felony case. There [were] two charges, and if you look at the companion case, it says unable to locate the victim in a felony case.\nThat\u2019s \u2014 that\u2019s what I have on the AOC, Judge, okay? I\u2019ve heard her explanation. On top of her explanation, it\u2019s a felony charge. On top of that, it\u2019s not something that was summarily quickly dispatched because there was an error. She, in fact, was indicted. It stayed pending for \u2014 I can\u2019t do the math \u2014 is that more than a year, two years, going into three years. And at least the AOC doesn\u2019t proffer the reason she said.\nOn top of that, if you want to keep looking on AOC, you\u2019ll find other convictions on there, Judge, including failure to return rental property in Edgecombe County with a Buena Vista Avenue address. She was convicted of that. There\u2019s also in that same \u2014 in that same Nash County, but again, her \u2014 there appears to be 2-18-57 same date of birth, so open container case on the street. That\u2019s not too concerning at all, but the return rental property, that\u2019s not mentioned. But all of that \u2014 and if you actually look, there\u2019s some other cases out of Rocky Mount. It\u2019s unclear if it\u2019s her or not, for some simple assault \u2014 a conviction and maybe a VL\u2019d case.\nBut let\u2019s just put that aside, let\u2019s say that\u2019s not her. I don\u2019t know, but the felony charge that wasn\u2019t quickly, you know, dropped because someone else stepped up, but that was, in fact, indicted and stayed pending for a couple years. And the AOC says unable to locate victim. These are concerns to the State.\nSo when you add up that race neutral, gender neutral reason, her inability to say anything other than she doesn\u2019t have \u2014 hasn\u2019t been able to formulate an opinion about the death penalty, all of this leads me to believe \u2014 while I do have a pretty good number of peremptories left, that this is not a juror, given a case where it\u2019s [a] confession case, and I do believe we\u2019ll get into a penalty phase, I\u2019m looking for some strong people on the death penalty.\nDefendant responded that the prospective juror\u2019s answers to questions about the death penalty were neutral and reflected that she could follow the requirements of the law, and also that she appeared more comfortable and was more unequivocal in her responses than similarly situated white jurors passed by the State. As to the prosecutor\u2019s comments about Johnson\u2019s record, defendant pointed out that she had not been asked about some of the purported offenses and suggested she might not be the individual reflected in the criminal records. As to the charge involving an automobile\u2019s VIN, defendant noted that the resolution of that matter was unclear. Defendant added that other passed jurors had criminal charges or convictions and that Johnson\u2019s answers about the death penalty were consistent with, and perhaps less equivocal than, the answers given by jurors the prosecutor had not challenged.\nAfter considering arguments of counsel, the trial court found that the prosecutor\u2019s proferred explanation of the challenge satisfied his burden of establishing nondiscriminatory reasons for the challenge and that defendant had failed to prove that the State was acting in a racially discriminatory manner.\nIn reviewing the trial court\u2019s finding, we note that during the entire course of jury selection, the prosecutor exercised nine peremptory challenges. Of these, two were against African-Americans. Of the four African-American prospective jurors who were not excused for cause, two were challenged peremptorily by the prosecutor, one served as a juror, and one served as an alternate, yielding a fifty percent acceptance rate of African-American prospective jurors by the State. These numbers do not suggest a systematic effort on the part of the State to prevent African-Americans from serving as jurors.\nNevertheless, as detailed above, the improper peremptory challenge of even one prospective juror on racially improper grounds constitutes a Batson violation, so statistics tell only part of the story. See Barden, 356 N.C. at 344, 572 S.E.2d at 127-28 (noting that \u201cnumerical analysis ... is not necessarily dispositive,\u201d but \u201ccan be useful\u201d in determining \u201cwhether a prima facie case of discrimination has been established\u201d (citations omitted)). We are mindful that \u201c[m]ore powerful than . . . bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve.\u201d Miller-El, 545 U.S. at 241, 162 L. Ed. 2d at 214. While a prosecutor\u2019s reason for exercising a peremptory challenge can appear race-neutral when standing alone, a comparative analysis may provide a more reliable gauge of its plausibility. \u201cIf a prosecutor\u2019s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson\u2019s third step.\u201d Id.\nThe prosecutor proffered as race-neutral reasons for his peremptory challenge of prospective juror Johnson that she had never formulated her views on the death penalty either over the course of her life or after being admonished to do so by the judge when she first reported for jury duty, that she did not read the newspaper or watch the news, and that she had been charged with a felony and both her jury questionnaire and testimony concerning the disposition of the charges were inconsistent with the \u201cAOC records\u201d (North Carolina Administrative Office of the Courts Automated Criminal/Infractions System). We will address each of these reasons in the context of the prosecutor\u2019s examination of similarly situated white jurors who were not peremptorily challenged by the prosecutor.\nFirst, the prosecutor contended that he was concerned that Ms. Johnson did not have established views on the death penalty. Defendant responds that this proffered race-neutral reason is pretextual in light of similar answers given by jurors Metz, a white male, and Skiff, a white female, both of whom served on the jury. The record shows that when the prosecutor asked as his first question if she was opposed to the death penalty, Johnson responded, \u201cI really haven\u2019t thought about it one way or the other.\u201d Moreover, further questioning by the prosecutor revealed that Johnson was unable to articulate an opinion despite being instructed the previous week to consider the issue if she had not done so already. In contrast, as previously noted, prospective jurors Metz and Skiff each responded to the prosecutor\u2019s initial voir dire question by stating that they were not opposed to the death penalty. Specifically, prospective juror Metz indicated that he had never been opposed to the death penalty and, in fact, believed it was necessary, but too expensive: \u201cI think it\u2019s necessary. It\u2019s a good deterrent for some crimes. I think it\u2019s too expensive right now.\u201d Although imposing capital punishment \u201cwould be a harder decision than I thought it would be . . . before I came in this courtroom,\u201d he had concluded that \u201cit\u2019s necessary.\u201d Prospective juror Skiff also stated that she was not opposed to the death penalty, although she acknowledged that death would not be her \u201cplan A.\u201d \u201cI think it would be pretty hard, and thankfully there would be a bunch \u2014 you know, a jury to help with that.\u201d\nAlthough Johnson, Metz, and Skiff all indicated they believed they could ultimately impose the death penalty under the appropriate circumstances, only juror Johnson had failed to define for herself her position on the death penalty at the time the prosecutor began his questioning. In fact, after a careful examination of the record, we find that no juror was accepted by the State who did not respond, \u201cNo,\u201d to the State\u2019s first voir dire question asking whether he or she was opposed to the death penalty. Accordingly, this reason offered by the State does not appear to be pretextual.\nThe prosecutor\u2019s second proffered race-neutral reason, that Johnson was \u201ccompletely removed from any type of local, national news, or print media,\u201d also does not appear to be pretextual. While this reason may not be as compelling as the first, no prejudicial intent appears when Johnson\u2019s answers are compared with the voir dire responses of other prospective jurors who previously had been questioned and accepted by the State. For instance, juror Skiff answered that she received the newspaper daily, juror Metz indicated he subscribed to the local newspaper, juror Rickard responded that he read the newspaper every day, and juror Wilson advised that he watched local and national news daily.\nThe prosecutor also gave Johnson\u2019s prior criminal charges as a third race-neutral reason for his peremptory challenge. Defendant argues that the State accepted white prospective jurors who had analogous criminal records and that this proffered reason was pretextual. Defendant\u2019s argument here is in two parts. First, defendant argues in his brief that the prosecutor had accessed AOC\u2019s records to check on Johnson\u2019s criminal history, but there was \u201cno indication that the State had done this for any white juror; indeed, the indications are the opposite.\u201d To support this claim, defendant points out that the prosecutor advised the court during the voir dire of prospective juror Johnson that her responses pertaining to her criminal history were inconsistent with the criminal records maintained by AOC. In contrast, prospective juror Wilson, a white male who was ultimately seated, had checked the box on his jury questionnaire labeled \u201cYes\u201d in response to the question whether he had been arrested, then further responded on the questionnaire that the charge had been \u201cDUI\u201d and the resolution had been \u201cGuilty.\u201d As detailed below, the trial court later determined from AOC records that prospective juror Wilson had two DUI convictions, but the record does not indicate whether the prosecutor had accessed this prospective juror\u2019s AOC records prior to voir dire. Thus, argues defendant, the record suggests that the prosecutor was running record checks on minority jurors only.\nProspective juror Johnson\u2019s answer on her questionnaire to the question pertaining to prior charges against her was \u201cVIN # not correct.\u201d The prosecutor stated to the court that he was uncertain what this response meant and, in the absence of additional information, further investigation by the State was neither inherently unreasonable nor indicative of racial discrimination. We are unwilling to conclude from this sparsely developed record that the prosecutor\u2019s pretrial clarification of prospective juror Johnson\u2019s criminal record was racially motivated.\nThe second part of defendant\u2019s argument is that other similarly situated white jurors with criminal records were not challenged peremptorily. As noted above, prospective juror Johnson indicated on her juror questionnaire that she had been charged with an incorrect vehicle identification number. When the prosecutor asked for details about this charge during voir dire, Johnson indicated that it had been dismissed because \u201c[another] person said that, you know, they did it.\u201d However, the AOC records indicated that, over two years after she was charged, the case was dismissed because the State was unable to locate the victim. In addition, the State discovered in the AOC database other charges against prospective juror Johnson. The prosecutor cited her felony charge, her other undisclosed charges, and her somewhat enigmatic and unsupported explanation for the resolution of the charge involving the false VIN number as grounds for his peremptory challenge.\nDefendant compares the treatment of prospective juror Johnson with that accorded prospective juror Wilson, a white male who, as noted above, was not challenged, contending that the difference reveals the pretextual nature of the State\u2019s proffered reason. When asked via his jury questionnaire whether he had been arrested, Wilson checked the box labeled \u201cYes,\u201d then wrote that the charge had been \u201cDUI\u201d and the result was \u201cGuilty.\u201d During his voir dire Wilson explained that he had received a DUI conviction in 1993. However, when the prosecutor advised that he was satisfied with prospective juror Wilson, the trial court asked Wilson to step out of the courtroom. The judge then advised counsel that, while the prosecutor was conducting his voir dire, the judge had used his laptop computer to check the AOC records on Wilson and had discovered that he had been convicted of two DUIs, one in 1990 and another in 1993. The prosecutor initially advised the court that the State did not wish to inquire further about those charges, but, after further discussion between the court and counsel, readdressed the issue when prospective juror Wilson returned to the courtroom. The prosecutor asked how many times he had been convicted of DUI and when and where they had occurred. Wilson responded, \u201cTwice. . . . Here in Wake County 1990, 1993.\u201d When asked why he didn\u2019t list two DUIs on the questionnaire, Wilson responded, \u201cNo r\u00e9ason in particular, no.\u201d The prosecutor then again stated that he was satisfied with prospective juror Wilson.\nDefendant argues that the disparate treatment of these prospective jurors reveals that the prosecutor\u2019s explanation for his peremptory challenge of prospective juror Johnson was pretextual. However, the record indicates that these two prospective jurors were not similarly situated. Wilson\u2019s voir dire testimony was ultimately consistent with the AOC records, while Johnson\u2019s voir dire responses were inconsistent and incomplete. Second, as the prosecutor noted, Wilson\u2019s unrevealed conviction was of a misdemeanor, while Johnson had been charged with a felony, and the prosecutor passed other jurors whose brushes with the law apparently involved only misdemeanors. Finally, Wilson stated forthrightly that he was not opposed to the death penalty, whereas Johnson equivocated. The pattern revealed in the treatment of these two prospective jurors is consistent with the State\u2019s acceptance of only those jurors who were not opposed to the death penalty.\nAfter considering all the relevant circumstances, we conclude that the State\u2019s proffered race-neutral reasons were not pretextual and that race was not a significant factor in the strike of Francine Johnson. Because there was no evidence of purposeful discrimination, the trial court was not clearly erroneous in denying defendant\u2019s Batson claim. '\nAt oral argument, defendant contended that we should remand this case to the trial court for further findings of fact in light of Snyder v. Louisiana, in which the prosecutor peremptorily struck a prospective black juror who was a college senior attempting to complete a student teaching obligation. 552 U.S. at 478, 170 L. Ed. 2d at 181-82. The prosecutor proffered as race-neutral reasons for the strike that the prospective juror appeared nervous during the questioning and that the prospective juror\u2019s missing his student-teaching classes might impair his ability to be a fair and impartial juror. Id. at 478, 170 L. Ed. 2d at 182. The trial judge overruled the defendant\u2019s Batson objection, stating only that he was allowing the challenge. Id. at 479, 170 L. Ed. 2d at 182.\nIn reviewing the challenge, the Supreme Court did not discount the prosecutor\u2019s first reason, that the juror was nervous, but noted that \u201cdeference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a [peremptory] strike.\u201d Id. The trial judge in Snyder allowed the challenge without making a specific finding about the prospective juror\u2019s nervousness, so the Supreme Court could not \u201cpresume that the trial judge credited the prosecutor\u2019s assertion that [the juror] was nervous.\u201d Id. Consequently, the Court could review only the State\u2019s second reason, that the juror might go along with a lesser verdict in order to complete jury duty more quickly and return to his teaching responsibilities. After comparing the circumstances presented by this prospective juror with other similarly situated white jurors who were not challenged peremptorily by the prosecutor, the Court held that the peremptory challenge was \u201cmotivated in substantial part by discriminatory intent.\u201d 552 U.S. at 485, 170 L. Ed. 2d at 186. Accordingly, the Court ruled that the trial court erred in overruling petitioner\u2019s Batson challenge.\nWe do not believe Snyder applies to the case at bar because the pertinent peremptory challenges do not involve demeanor or any other intangible observation that cannot be gleaned from the record. Consistent with Snyder, we encourage the trial courts to make findings where necessary to elucidate aspects of the jury selection process that are not preserved on the cold record so that review of such subjective factors as nervousness will be possible. However, the absence of such a finding will not preclude appellate review when the record permits objective review of sufficient pertinent factors. Therefore, no remand is required.\nIn addition to his issues relating to Batson, defendant raises other issues relating to jury selection. Defendant contends the trial court erred in allowing the State\u2019s challenge for cause of prospective juror Ewbank based on his beliefs concerning the death penalty. Here, Ewbank answered the prosecutor\u2019s first question, asking whether he was opposed to the death penalty, by stating that he had \u201ctwo answers.\u201d He explained that his head and his heart were in conflict, and while his head understood that \u201cthe law is the law,\u201d his heart was \u201cnot for capital punishment.\u201d The prosecutor next summarized the procedures used in a capital trial and sentencing proceeding, then asked Ewbank if he could vote for capital punishment. When Ewbank responded that he was \u201cstill undecided,\u201d the prosecutor asked him a few more general questions, then again sought a more specific response:\nProsecutor: .... What I\u2019m hearing from you is that the conflict that you have going on inside you, between your heart and mind, is precluding you from being able to vote to impose, a sentence of death and have someone executed, if you\u2019re required to sit as a juror in the case, that\u2019s what I\u2019m hearing from you.\nMr. Ewbank: I [sic] that\u2019s a fair assessment.\nAdditional questioning by the State led only to repeated assertions by Ewbank that he did not know if he. could vote in favor of death in a sentencing proceeding.\nWhen the State challenged prospective juror Ewbank for cause, the trial court asked him a few questions and received similarly hairsplitting and unilluminating responses. Defense counsel\u2019s attempts to rehabilitate Ewbank were unavailing, as indicated by the following exchange:\nDefense counsel: .... [W]hat I\u2019m asking is if for you, if \u2014 if the State, under what I\u2019ve just discussed with you as a first-degree murder, if you could ever consider a sentence of death if the State brought you the quality and the quantity of evidence that fully satisfied and convinced you in your heart, beyond a reasonable doubt, that death was the appropriate punishment?\nMr. Ewbank: I think I answered that. I said [that] the word \u201cever\u201d in the sense of an engineer can be some pretty long odds. And if you used the word \u201cever,\u201d I tend to have to answer \u201cyes.\u201d\nDefense counsel: Okay.\nMr. Ewbank: But almost any other word in there I\u2019d say[,] \u201cI don\u2019t know.\u201d\nBased on this record, the trial judge concluded that Mr. Ewbank\u2019s demeanor and testimony showed that his views \u201cwould prevent or at least substantially impair his performance as a juror\u201d and allowed the State\u2019s challenge for cause.\nWe have held that \u201c[a] trial court has broad discretion to see that a competent, fair, and impartial jury is impaneled, and its rulings concerning jury selection will be reversed only upon a showing of abuse of discretion.\u201d State v. Anthony, 354 N.C. 372, 395, 555 S.E.2d 557, 574 (2001) (citation omitted), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002). If a juror\u2019s views about the death penalty would \u201c \u2018prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath,\u2019 \u201d that juror may be excused for cause. Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)). Even when a juror\u2019s opinions toward the death penalty cannot be proven with \u201c \u2018unmistakable clarity,\u2019 \u201d id. at 424, 83 L. Ed. 2d at 852, the Supreme Court has recognized that situations will arise \u201cwhere the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law,\u201d id. at 425-26, 83 L. Ed. 2d at 852. In such situations deference must be given to the trial court\u2019s judgment. Id. at 426, 83 L. Ed. 2d at 853.\nProspective juror Ewbank\u2019s beliefs could not be pinned down. The trial court was in the best position to observe and evaluate his responses, and we defer to the court\u2019s ruling concerning Ewbank\u2019s ability to serve as a juror and follow the law applicable to a capital sentencing proceeding. Accordingly, the trial court did not abuse its discretion in allowing the State\u2019s challenge for cause.\nDefendant\u2019s next contention involving jury selection is that the trial court erred in denying his motion to dismiss on the basis of purported constitutional violations in the jury selection process. Specifically, defendant complains that the jury selection violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution because disproportionate numbers of prospective jurors who were African-American or who opposed the death penalty, or both, were excluded from the jury in violation of Wainwright v. Witt and Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776 (1968). Under Witherspoon, as clarified by Witt, a juror may not be excused for cause unless their views on the death penalty would \u201c \u2018prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.\u2019 \u201d Witt, 469 U.S. at 424, 83 L. Ed. 2d at 851-52 (quoting Adams, 448 U.S. at 45, 65 L. Ed. 2d at 589).\nAs to defendant\u2019s Witherspoon-Witt argument, we note that the trial court applied virtually verbatim the test enunciated in Witt. As defendant concedes, this Court has held that death qualifying a jury in a capital case does not violate the United States Constitution or the North Carolina Constitution. State v. Barts, 316 N.C. 666, 677-78, 343 S.E.2d 828, 836-37 (1986). Although defendant asks that we reconsider Barts, we decline to do so.\nNext, defendant contends the trial court erred by barring statements made by defense counsel during voir dire concerning the jury\u2019s application of North Carolina law during the sentencing proceeding. Specifically, defense counsel stated to prospective juror Seitzinger that \u201cthere\u2019s a presumption that life without parole is the appropriate sentence.\u201d After Seitzinger was excused for cause, the State objected to any further such statements, arguing that because the jury had to be unanimous in imposing life or death, \u201c[t]here is no presumption, one way or the other.\u201d The trial court sustained the objection. Later, during the voir dire of another prospective juror, the State again successfully objected to defense counsel\u2019s statement that\nthe law is always satisfied with a life sentence. It never demands a death penalty for a first-degree murder case. And it would be the State\u2019s obligation to prove, to each and every juror, beyond a reasonable doubt, or all twelve unanimously agreed, that death is the appropriate punishment, before a jury can return a recommendation for a death sentence.\nDefendant argues that the trial court\u2019s rulings were erroneous because, under North Carolina law, if the defendant is convicted of first-degree murder but the State fails to convince the jury unanimously beyond a reasonable doubt of the existence of aggravating circumstances, the trial court will impose a life sentence even if the jury is not unanimous that life is appropriate. Thus, argues defendant, until an aggravating circumstance is proven, life is not only the presumed sentence, it is the only sentence.\nNorth Carolina General Statute section 15A-2000(b) provides that in a capital sentencing proceeding, \u201c[t]he sentence recommendation must be agreed upon by a unanimous vote of the twelve jurors.\u201d N.C.G.S. \u00a7 15A-2000(b) (2010). However, \u201c[i]f the jury cannot, within a reasonable time, unanimously agree to its sentence recommendation, the judge shall impose a sentence of life imprisonment.\u201d Id. We have observed that the General Assembly\u2019s statutory scheme has the \u201cpronounced advantage\u201d of allowing the trial court to impose a life sentence at the end of the trial \u201cwithout encouraging any juror to vote for death or life without honestly deliberating with the other jurors, simply because he or she has been informed that he alone may require that a sentence of life be entered by holding out against the other eleven jurors.\u201d State v. McCarver, 341 N.C. 364, 393, 462 S.E.2d 25, 41 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996), see also McKoy v. North Carolina, 494 U.S. 433, 452, 108 L. Ed. 2d 369, 387 (1990) (Kennedy, J., concurring in judgment) (stating that the jury unanimity requirement \u201cis an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room, and that the jury\u2019s ultimate decision will reflect the conscience of the community\u201d). Although the trial court will perforce impose a sentence of life imprisonment when a jury is unable to agree in a capital sentencing proceeding, this Court has held that it would be \u201cimproper\u201d for a trial court so to inform a jury prior to its deliberations. State v. Johnson, 317 N.C. 343, 390, 346 S.E.2d 596, 622 (1986). North Carolina law does not establish a presumption in favor of a life sentence. The trial court\u2019s rulings were correct.\nIn his final arguments related to jury selection, defendant contends that the State injected error in its voir dire of prospective jurors when it stated that the jury had to be unanimous in the sentencing proceeding as to a sentence either of death or life without parole. During his routine introduction of the capital sentencing process to each prospective juror, the prosecutor declared that the State has the sole burden of proving that aggravating circumstances exist, that the aggravating circumstances outweigh the mitigating circumstances, and that the aggravating circumstances are \u201csufficiently substantial\u201d to warrant the death penalty. The prosecutor went on to explain to each prospective juror that if the State failed to meet those burdens \u201cin any respect, it would be the jurors\u2019 duty to impose life imprisonment without parole.\u201d Defendant objected and argued, as he does before this Court, that the prosecutor\u2019s comments omitted the requirement that the State must also establish that the aggravating circumstances found by the jury were sufficiently substantial to call for the death penalty when considered against the established mitigating circumstances. However, any omission by the State during voir dire was remedied by the trial court\u2019s correct instructions, which the jury is presumed to follow. State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 535 (2004) (citations omitted), cert. denied, 544 U.S. 909, 161 L. Ed. 2d 285 (2005).\nDefendant further argues that the prosecutor\u2019s comments erroneously indicated that the jury had to recommend a life sentence unanimously, thus effectively placing a burden on defendant, when in fact the trial court will impose a life sentence if the jury cannot agree during a capital sentencing proceeding. As discussed above, any jury recommendation requiring a sentence of life in prison or death must be unanimous. N.C.G.S. \u00a7 15A-2000(b); McCarver, 341 N.C. at 388-94, 462 S.E.2d at 38-42. \u201c[T]he jury should answer Issues One, Three, and Four on the standard [jury] form used in capital cases either unanimously \u2018yes\u2019 or unanimously \u2018no.\u2019 \u201d McCarver, 341 N.C. at 390, 462 S.E.2d at 39. While defendant is correct that an inability to reach unanimity in a capital sentencing proceeding will result in a life sentence, we held in McCarver that the jury is not to be instructed as to the result of being unable to reach a unanimous sentencing recommendation. 341 N.C. at 394, 462 S.E.2d at 42. Accordingly, the prosecutor did not impose an additional burden of proof on defendant and the trial court did not err by overruling defendant\u2019s objection. Nor did the State reduce its burden when it asked some prospective jurors to presuppose that defendant had been found guilty. Such a supposition was a necessary prelude to voir dire questions relating to the sen- \u25a0 tencing proceeding, should one be needed.\nTRIAL ISSUES\nWe turn now to the issues defendant raises pertaining to the trial. Defendant argues that the trial court erred in permitting the State to introduce for illustrative purposes eighteen autopsy photographs of the victim. Defendant argues that the photographs were inflammatory and repetitive and that their probative value was outweighed by their prejudicial effect.\nIn determining whether to admit such photographs into evidence, the trial court must weigh their probative value against the danger of unfair prejudice to a defendant. N.C.G.S. \u00a7 8C-1, Rule 403 (2010). This determination rests in the sound discretion of the trial court and will not be reversed unless it is \u201cmanifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted). Photographs are not inadmissible simply because they are gruesome or tend to inflame the jury, \u201ceven where the photographs depict remains in an advanced state of decomposition and where the cause of death is uncontroverted.\u201d State v. Harris, 323 N.C. 112, 127, 371 S.E.2d 689, 698 (1988) (citation omitted).\nAfter eliciting testimony from Cynthia Gardner, M.D. regarding her findings from the autopsy performed on the victim, the State asked Dr. Gardner to identify autopsy photos marked as State\u2019s Exhibits Five through Twenty-two. The State asked whether the photos accurately depicted the victim\u2019s body during the autopsy, whether they would help her explain to the jury the location of the victim\u2019s injuries, and whether they accurately depicted all the injuries to which Dr. Gardner had previously testified. Based on Dr. Gardner\u2019s affirmative responses, the State moved to introduce the photos into evidence. When defendant objected that the photographs were excessive, repetitive, and inflammatory, the trial court reviewed the tendered photos, noted that they \u201cappear to depict independent injuries\u201d and \u201c[do] not appear to be repetitive,\u201d and admitted them into evidence.\nWe have carefully reviewed the record and the photographs and conclude that the trial court did not abuse its discretion by admitting the photographs. They were relevant and probative of material facts in this case. The photos were not unnecessarily repetitive, were not unduly gruesome or inflammatory, and illustrated both Dr. Gardner\u2019s testimony pertaining to the autopsy and corroborating statements made by defendant to the investigators. Accordingly, the' trial court did not err in admitting them.\nDefendant next contends the trial court erred in sustaining the State\u2019s objection to defense counsel\u2019s recross-examination of law enforcement officers concerning Joseph \u201cJoey\u201d Sanderlin, who participated with defendant in killing the victim. Defendant refers specifically to his question to Detective Taylor whether, when she first interviewed Sanderlin and obtained DNA samples from him, he \u201cdenied any involvement in the rape or the murder of [the victim].\u201d Defendant claims he sought this testimony regarding Sanderlin\u2019s lack of cooperation with police because this evidence was relevant to defendant\u2019s proposed (f)(8) mitigating circumstance, that defendant aided in the apprehension of a capital felon. Defendant also argues this evidence was relevant because the State was proceeding under the theory that defendant and Sanderlin acted in concert.\nThe range of cross-examination, though broad, is subject to the trial judge\u2019s discretionary powers \u201cto keep it within reasonable bounds.\u201d State v. Newman, 308 N.C. 231, 254, 302 S.E.2d 174, 187 (1983) (citation omitted). The trial court\u2019s rulings on cross-examination \u201cwill not be held in error absent a showing that the verdict was improperly influenced thereby.\u201d State v. Sams, 317 N.C. 230, 240, 345 S.E.2d 179, 185 (1986) (citation omitted). After Detective Taylor identified in her direct examination a photograph of Joseph Sanderlin and the oral swabs she had taken from him for DNA testing, the prosecutor asked how she had obtained the samples. Taylor responded that she asked Sanderlin for them and he consented. She then described the process of taking and preserving the swabs. On cross-examination, defense counsel asked Taylor about obtaining similar samples from Sanderlin and had the detective identify a photo of him.\nDefense counsel then asked whether \u201c[w]hen you went and talked to Mr. Sanderlin and got his DNA samples, he denied any involvement in the rape or the murder of [the victim]?\u201d When the State objected on the grounds that the answer would be inadmissible hearsay, defendant responded that the. testimony was not being offered for the truth of the matter asserted but instead to indicate that Sanderlin was not cooperative. Defendant also contended that the State opened the door to the admission of this testimony during its direct examination of Taylor and by the admission of evidence from other witnesses who did not testify.\nTo the extent that the testimony pertained to the substance of Sanderlin\u2019s statements to Taylor, it is hearsay. \u201c \u2018Hearsay\u2019 is a statement, other than one made by the declarant while testifying at the trial, or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C.G.S. \u00a7 8C-1, Rule 801(c) (2010). Defendant has not shown how Sanderlin\u2019s purported lack of cooperation or denial of his own culpability was relevant to defendant\u2019s guilt. At the time defendant sought to elicit this evidence, the question before the jury was whether defendant was guilty of first-degree murder either on the basis of malice, premeditation, or deliberation, or under the felony murder rule. Defendant had already admitted that he had robbed the victim; that he had held her down while Sanderlin raped her; and that he had punched and stomped the victim in the face, stabbed her, and cut her throat. In light of this evidence, Detective Taylor\u2019s testimony relating to Sanderlin\u2019s response to a warrant would bear little, if any, relevance to the jury\u2019s consideration of defendant\u2019s culpability. Furthermore, the State\u2019s questions relating to Taylor\u2019s encounter with Sanderlin did not elicit any responses that required an explanation or rebuttal or otherwise opened the door for defendant to elicit Sanderlin\u2019s statement on cross-examination. See, e.g., State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981).\nAlthough defendant argues that he was asking the question only to demonstrate Sanderlin\u2019s lack of cooperation and thereby establish that the (f)(8) mitigating circumstance applied to defendant, the exchange occurred during the guilt portion of defendant\u2019s trial. At the subsequent sentencing proceeding, defendant\u2019s counsel argued to the jury that it should find the (f)(8) mitigating circumstance. The trial judge instructed on this statutory mitigating circumstance and told the jury that Sanderlin is a capital felon, and the verdict form indicated that one or more jurors found the existence of this mitigating circumstance. Accordingly, the trial court did not abuse its discretion in sustaining the State\u2019s objection to this evidence, and defendant was not prejudiced thereby.\nNext, defendant presents several issues relating to the State\u2019s closing arguments in the guilt-innocence portion of the trial. Of these, defendant first argues the trial court committed plain error when it failed to intervene ex mero motu during the State\u2019s purportedly improper closing argument. \u201c \u2018The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.\u2019 \u201d State v. McNeill, 360 N.C. 231, 244, 624 S.E.2d 329, 338 (citations omitted), cert. denied, 549 U.S. 960, 166 L. Ed. 2d 281 (2006). \u201cUnder this standard, \u2018[o]nly an extreme impropriety on the part of the prosecutor will compel this Court to \u25a0 hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.\u2019 \u201d Anthony, 354 N.C. at 427, 555 S.E.2d at 592 (citation omitted). \u201cTo establish such an abuse, defendant must show that the prosecutor\u2019s comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.\u201d State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998) (citation omitted), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999).\nIn its closing argument, the State suggested that a mark seen on the victim\u2019s forehead in one of the photographs had been caused by defendant\u2019s shoe. Specifically, the prosecutor stated: \u201cYou can look at the forehead impression, is that a footprint, I don\u2019t know, but he even tells you he stomped on her face a couple [of] times.\u201d Earlier in the trial, forensic pathologist Gardner testified that the autopsy she performed on the victim identified \u201c[o]n the right forehead ... a red contusion\u201d that \u201cappealed] to be a pattern of linear red lines.\u201d While Gardner was unable to identify the cause of the mark, other evidence admitted at trial indicated that defendant acknowledged that he had punched and stomped the victim in the face. Thus, the evidence at trial supported the prosecutor\u2019s implication that defendant\u2019s shoe caused the mark. Because \u201c[c]ounsel is permitted to argue the facts which have been presented, as well as reasonable inferences which can be drawn therefrom,\u201d State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986) (citations omitted), the prosecutor\u2019s remark was not grossly improper.\nDefendant next contends the prosecutor injected his personal opinion as to defendant\u2019s guilt of first-degree murder based upon felony murder when the prosecutor argued:\nI think the evidence is overwhelming, the defendant is guilty under that theory of first-degree murder. I believe the evidence is overwhelming that the defendant is guilty of first-degree felony murder during the perpetration of a robbery, also. The evidence is clear, when you apply the law to the facts.\nThis argument was obviously improper. \u201cDuring a closing argument to the jury an attorney may not . . . express his personal belief ... as to the guilt or innocence of the defendant . . . .\u201d N.C.G.S. \u00a7 15A-1230(a) (2010). However, this argument also related the strength of the evidence to the theories under which defendant was being prosecuted and which would be presented shortly to the jury on the verdict sheets. Defendant failed to object, and we do not believe this unfortunate argument was so grossly improper that it \u201cinfected the trial\u201d so as to \u201crender[] the conviction fundamentally unfair.\u201d State v. Lemons, 348 N.C. 335, 356, 501 S.E.2d 309, 322 (1998) (citation omitted), judgment vacated on other grounds, 527 U.S. 1018, 144 L. Ed. 2d 768 (1999). Accordingly, the trial court did not err by failing to intervene ex mero motu.\nDefendant also argues that the prosecutor made an improper argument about intent. Defendant refers to the prosecutor\u2019s comments on the location of one of the stab wounds suffered by the victim as evidence that Sanderlin intended to kill, which was relevant to the State\u2019s theory that Sanderlin and defendant acted in concert. The State argued:\nBut during that time is when Joey [Sanderlin], using his knife that he\u2019s brought with him, according to the defendant, starts to stab [the victim] in the neck, in the neck. That\u2019s a vital area. It\u2019s a vital area. I think it\u2019s an excellent indication of Joey\u2019s intent, when you stab someone in the neck. And you can recall the pictures, I\u2019m not going to bring them out here for you at this time. But that\u2019s an excellent indication.\nWe have stated that \u201c[a]n intent to kill is a mental attitude, and ordinarily it must be proved, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be reasonably inferred.\u201d State v. Cauley, 244 N.C. 701, 708, 94 S.E.2d 915, 921 (1956). Here the State was discussing application of the law to the circumstantial evidence that had been introduced. While, as above, the prosecutor\u2019s injection of his own opinion was an error, in the absence of an objection we do not find that the trial court erred in failing to intervene ex mero motu.\nNext, defendant contends that the State improperly argued that defendant committed burglary. During closing arguments, and in the context of describing premeditation and deliberation, the State remarked that Sanderlin\u2019s mode of entry, which the prosecutor characterized as \u201cunlawfully breaking and entering [the victim\u2019s] dwelling ... at night, with the intent to commit a felony,\u201d constituted \u201cburglary.\u201d Defendant notes that the State\u2019s theory of felony murder was based upon the two underlying felonies of rape and robbery. Defendant argues that the State\u2019s argument both injected a third underlying felony and also proposed an aggravating circumstance that carried over to the sentencing proceeding. However, the reference was to Sanderlin only. Neither Sanderlin nor defendant was charged with burglary, and the trial court did not instruct the jury to consider burglary as an aggravating circumstance. Defendant has failed to show that this comment was fundamentally unfair or affected the outcome of the trial. Therefore, the trial court did not err in failing to intervene ex mero motu.\nAs to these jury arguments by the State, defendant also makes the alternative contention that trial counsel\u2019s failure to raise timely objections deprived defendant of effective assistance of counsel. To make a successful ineffective assistance of counsel claim, a defendant must show that (1) defense counsel\u2019s \u201cperformance was deficient,\u201d and (2) \u201cthe deficient performance prejudiced the defense.\u201d Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984); accord State v. Wilkerson, 363 N.C. 382, 413, 683 S.E.2d 174, 193 (2009), cert. denied, \u2014 U.S. \u2014, 176 L. Ed. 2d 734 (2010). Counsel\u2019s performance is deficient when it falls' \u201cbelow an objective standard of reasonableness.\u201d Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693. Deficient performance prejudices a defendant when there is \u201ca reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d Id. at 694, 80 L. Ed. 2d at 698; see also Wilkerson, 363 N.C. at 413, 683 S.E.2d at 193. \u201cA reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698. However, even assuming arguendo that trial counsel was deficient in failing to object during closing arguments, we do not find defendant was prejudiced as a result. The evidence against him was overwhelming and there was no probability that the outcome was affected by the improprieties in the prosecutor\u2019s argument.\nDefendant also asserts that the State improperly argued motive by suggesting that defendant and Sanderlin killed the victim to eliminate her as a witness. Although defendant cites State v. Williams, 317 N.C. at 481-83, 346 S.E.2d at 410-11, that case is distinguishable. In Williams, the defendant had been tried capitally once before, and we had vacated defendant\u2019s sentence and remanded for a new sentencing proceeding because the trial court erroneously submitted the (e)(4) aggravating circumstance, that the capital felony was committed for the purpose of avoiding or preventing an unlawful arrest. Id. at 479-80, 346 S.E.2d at 409. At the defendant\u2019s second capital sentencing proceeding, the trial court correctly refrained from submitting the (e)(4) circumstance. Id. at 480, 346 S.E.2d at 409. Despite the prior reversal, and even though the State had presented no evidence of such a motive, the State nevertheless argued that the defendant killed the victim to silence her. Id. at 480-81, 346 S.E.2d at 409-10. We found this argument grossly improper. Id. at 483, 346 S.E.2d at 410-11. In contrast, the argument here was made during the guilt portion of the trial, was a reasonable extrapolation of the evidence, and was made in the context of the prosecutor\u2019s explanation of premeditationa and deliberation. Accordingly, this statement was not grossly improper, and the trial court did not err in failing to intervene ex mero mo tu.\nIn his final argument relating to the guilt-innocence portion of his trial, defendant contends that the court improperly instructed the jury on acting in concert. Defendant submitted in writing the proposed instruction: \u201c[Y]ou must be convinced, beyond a reasonable doubt, that the defendant had the intent to commit robbery with a dangerous weapon or rape at the time the victim was killed.\u201d Defendant also argued to the trial court that it would be improper to instruct in a manner indicating that Sanderlin\u2019s intent to commit those offenses was imposed on defendant. Thus, the crux of defendant\u2019s contention is that the State should have been obligated to prove that defendant himself had the requisite intent.\nThe trial court denied defendant\u2019s request and instructed the jury:\nThere is a principle in our law known as acting in concert. For a person to be guilty of a crime, it is not necessary that he himself do all of the acts necessary to constitute the crime. If two or more persons act together, with a common purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal, if the other commits that particular crime, but he is also guilty of any other crime committed by the other, in pursuance of the common purpose, or as a natural or probable consequence of. the common purpose.\nThe trial court then defined the elements of first-degree murder based upon premeditation and deliberation:\nFirst, that the defendant, or someone with whom he was acting in concert, intentionally and with malice killed the victim with a deadly weapon. . . .\nIf the State proves, beyond a reasonable doubt, that the defendant, or someone with whom he was acting in concert, intentionally killed the victim with a deadly weapon, or intentionally inflicted a wound upon the victim with a deadly weapon that proximately caused his death, you may infer first, that the killing was unlawful; and second, that it was done with malice, but you\u2019re not compelled to do so.\nFourth, that the defendant, or someone with whom he was acting in concert, acted after premeditation, that is that he formed the intent to kill the victim over some period of time, however short, before he acted.\nThe trial court gave similar acting-in-concert instructions as to felony murder based upon rape and upon robbery.\nDefendant argues that these instructions did not require the jury to find that defendant had the necessary intent and allowed the jury to convict defendant on the basis of Sanderlin\u2019s intent. In State v. Barnes, 345 N.C. 184, 481 S.E.2d 44, cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134 (1997), and cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998), this Court, in approving instructions virtually identical to the instructions provided in the case at bar, gave the following \u201ccorrect statement\u201d of the doctrine of acting in concert:\n\u201c[I]f \u2018two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose ... or as a natural or probable consequence thereof.\u2019 \u201d\nId. at 233, 481 S.E.2d at 71 (quoting State v. Westbrook, 279 N.C. 18, 41-42, 181 S.E.2d 572, 586 (1971) (alterations in original), death sentence vacated, 408 U.S. 939, 33 L. Ed. 2d 761 (1972)). Although defendant argues that we should apply State v. Blankenship, 337 N.C. 543, 447 S.E.2d 727 (1994), Barnes explicitly overruled Blankenship. Barnes, 345 N.C. at 230, 481 S.E.2d at 69. Accordingly, the trial court\u2019s instructions relating to intent were proper.\nSENTENCING PROCEEDING\nWe now turn to issues pertaining to sentencing. Defendant argues that the trial court committed plain error in failing to intervene ex mero motu during the State\u2019s opening statement in the sentencing proceeding. The State\u2019s brief opening remarks, quoted in their entirety, read:\nYesterday, you labelled the defendant a murderer. The defendant murdered Lauren Redman.\nAt this point in the proceedings, you\u2019re going to stop hearing much about Lauren Redman. Transition into the penalty phase, you\u2019re going to start hearing about the defendant.\nThe victim and the victim\u2019s loved ones will not be heard from at this point. Certainly her parents have already been sentenced to grieve themselves to their own graves haunted by the memory of that little girl they loved so much.\nNow, you have to decide what will be the punishment for Lauren\u2019s killer. Thank you.\nDefendant claims that this statement inflamed the passions of the jury, misled the jury into believing the State could not present evidence at sentencing, and indicated that the victim\u2019s loved ones could not be heard.\nThe control of opening statements rests in the discretion of the trial court. See State v. Gibbs, 335 N.C. 1, 40, 436 S.E.2d 321, 343 (1993), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994). \u201c[T]he proper function of an opening statement is to allow the party to inform the court and jury of the nature of his case and the evidence he plans to offer in support of it.\u201d State v. Paige, 316 N.C. 630, 648, 343 S.E.2d 848, 859 (1986) (citation and internal quotation marks omitted). Because defendant did not object, we review opening statements to determine whether they were so grossly improper that the trial court abused its discretion by not intervening ex mero mo tu. State v. Gladden, 315 N.C. 398, 417, 340 S.E.2d 673, 685, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986).\nThe alleged errors in the statement must be examined in the context of defendant\u2019s own opening statements. Id. at 423, 340 S.E.2d at 689. The prosecutor\u2019s statement, to the effect that the jury would stop hearing about the victim and begin hearing about defendant, was consistent with defendant\u2019s opening statement at the beginning of the guilt-innocence portion of the trial when defense counsel advised the jury that it would first \u201chear the story of how this young woman died\u201d and then at a later point it would hear defendant\u2019s story. The State\u2019s opening statement in the sentencing proceeding echoed defendant\u2019s earlier guilt-innocence opening statement and accurately described the shift in focus that would take place.\nThe State briefly mentioned that the victim\u2019s loved ones would not be heard from again. Although defendant claims that these statements evince the prosecutor\u2019s intent \u201csolely to inflame the passions of the jury,\u201d the statement described the nature of the proceeding and provided the jury a forecast of what to expect. See Paige, 316 N.C. at 648, 343 S.E.2d at 859. Moreover, brief references to victims or their families in closing arguments are not grossly improper. See State v. Haselden, 357 N.C. 1, 20-21, 577 S.E.2d 594, 607 (stating a prosecutor may remind the jury that it should also consider the life of the victim), cert. denied, 540 U.S. 988, 157 L. Ed. 2d 382 (2003); State v. Moseley, 338 N.C. 1, 50, 449 S.E.2d 412, 442 (1994) (brief references to victims or their families determined not grossly improper), cert. denied, 514 U.S. 1091, 131 L. Ed. 2d 738 (1995). Here we do not find the prosecutor\u2019s references to the victim and her family improper, much less grossly so, when the statement is an otherwise correct summary for the jury of the nature of the penalty proceeding and forecast of the evidence to be put forth. See Paige, 316 N.C. at 648, 343 S.E.2d at 859.\nDefendant also claims ineffective assistance of counsel because trial counsel failed to object to this opening statement. Because the opening statement was not improper, defendant\u2019s counsel was not ineffective for failing to object.\nWe now turn to defendant\u2019s assignments of error with respect to the State\u2019s cross-examination of Dr. James Hilkey, who testified as an expert on defendant\u2019s behalf during the sentencing proceeding. First, we address defendant\u2019s argument that the trial court erred when it overruled defendant\u2019s objection to a question asked by the State. Defendant contends that the State\u2019s cross-examination mischaracterized Dr. Hilkey\u2019s test results while attempting to induce Dr. Hilkey to admit defendant malingered.\nIn his direct examination, Dr. Hilkey testified that defendant suffers from attention deficit hyperactivity disorder and he provisionally diagnosed a cognitive disorder. In addition, Dr. Hilkey found features of a schizotypal personality disorder along with dependent personality disorder. In Dr. Hilkey\u2019s opinion, defendant\u2019s \u201cbehavior at the time of this alleged crime would ... not have happened, had it not been for the influence of Mr. Sanderlin and his associates.\u201d\nOn cross-examination, the prosecutor asked if safeguards were in place to detect malingering and ensure accurate results. Dr. Hilkey responded that the results of defendant\u2019s memory malingering \u201cTOMM\u201d test did not indicate malingering. When the prosecutor asked why Dr. Hilkey had not used a score sheet for this particular exam and whether the failure to use such a sheet was ethical, Dr. Hilkey answered that he recorded defendant\u2019s answers \u201chonestly\u201d using a notepad and that his scoring method was neither \u201cunusual\u201d nor \u201cunethical.\u201d The prosecutor then asked about another test known as the Milner Forensic Assessment of Symptoms, and Dr. Hilkey gave his opinion that defendant\u2019s score on this test was not indicative of malingering for psychological symptoms.\nThe prosecutor then turned to a third test, the Mill\u00f3n Clinical Multiaxial Inventory (MCMI). Dr. Hilkey testified that he had invalidated this test because of defendant\u2019s report of an excessive number of symptoms. The prosecutor then noted that Dr. Hilkey did not print out the results of this test, and Dr. Hilkey replied, \u201cIt was an invalid test. The . . . information generated would not be of use to me.\u201d The prosecutor next asked, \u201cWould it be of use to anybody to see what type of malingering answers that Byron Waring provided on that test to print out that sheetf?]\u201d The trial court overruled defendant\u2019s objection, and Dr. Hilkey responded that doing so would not have been useful to him, but that the raw scores were available from which anyone could generate defendant\u2019s profile. He gave three potential reasons for invalidation of the test results: failure to comprehend the test sufficiently, extreme psychological vulnerability and an attempt to draw attention to his condition, and overt malingering. Dr. Hilkey added that he believed defendant\u2019s test was invalid for the second reason.\nThe significance of this cross-examination of Dr. Hilkey emerged during the prosecutor\u2019s subsequent questioning of Dr. Mark Hazelrigg, an expert forensic psychologist who was presented by the State as a rebuttal witness. Dr. Hazelrigg disagreed with Dr. Hilkey as to the question of defendant\u2019s malingering. With regard to the MCMI test result that Dr. Hilkey determined- to be invalid, Dr. Hazelrigg noted that the results were internally inconsistent because \u201c[defendant] reported having symptoms in virtually every category at a fairly high level,\u201d yielding results that were logically and medically incompatible. Dr. Hazelrigg interpreted defendant\u2019s over-reporting of symptoms as either \u201cmalingering or begging for help.\u201d Although \u201cthat\u2019s sort of a subjective judgment about which one,\u201d Dr. Hazelrigg\u2019s opinion was that defendant was exaggerating his symptoms rather than asking for help.\nBecause the experts disagreed on the extent, if any, of defendant\u2019s purported malingering, defendant\u2019s mental capacity and possible neurological and psychological disorders were key issues contested at sentencing. \u201cThe scope of cross-examination is governed by the sound discretion of the trial court and the requirement that the questions be asked in good faith.\u201d State v. Fleming, 350 N.C. 109, 139, 512 S.E.2d 720, 740 (citation omitted), cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999). The prosecutor\u2019s question appropriately sought to elicit a concession from Dr. Hilkey that other experts might disagree with his opinions on this pertinent evidence. See State v. Hipps, 348 N.C. 377, 409, 501 S.E.2d 625, 644 (1998) (concluding that prosecutor\u2019s questions \u201cdesigned to elicit that another conclusion could be drawn from the facts\u201d were \u201cwell within the bounds of proper cross-examination of an expert witness\u201d), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 114 (1999). Nothing in the record indicates this questioning was conducted in bad faith, nor do we see any indication that the trial court abused its discretion in ov\u00e9rruling defendant\u2019s objection.\nNext, we address defendant\u2019s argument that the trial court erred when it failed to intervene ex mero mo tu, first, when the State purportedly accused Dr. Hilkey of unethical conduct and later, when the State asked Dr. Hilkey about defendant\u2019s potential for future violence. When a defendant fails to object to a cross-examination question, but later contests the question on appeal, we review for plain error only. See State v. Locklear, 349 N.C. 118, 156, 505 S.E.2d 277, 299 (1998), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999). \u201cIn criminal cases, a question which was not preserved by objection . . . nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.\u201d N.C. R. App. P. 10(c)(4) (2009). Defendant has not \u201cspecifically and distinctly\u201d assigned plain error as to these issues and has thus failed to preserve them on appeal.\nEven so, mindful that this case is capital, we have reviewed these issues and find them to be without merit. As to Dr. Hilkey\u2019s ethics, the record provides no basis for the prosecutor\u2019s cross-examination question to Dr. Hilkey asking whether he was ethically obligated to record some of defendant\u2019s test results on a score sheet, other perhaps than Dr. Hazelrigg\u2019s statement that \u201cit really isn\u2019t possible to test without the scoring sheet and the materials.\u201d At any rate, Dr. Hilkey gave a full and appropriate response to the question, which the prosecutor accepted at face value. As to defendant\u2019s purported potential for future violence, the prosecutor asked Dr. Hilkey only: \u201cAnd within the scales, the printout [from defendant\u2019s testing] gives you scales. The defendant was very elevated ... in the scale for violence potential, is that accurate?\u201d The import of this question is ambiguous and could refer to defendant\u2019s past violent acts as well as any tendency toward the future. No evidence suggests that the question was asked in bad faith. Accordingly, the trial court did not err by failing to intervene ex mero mo tu as to either question.\nIn the alternative, defendant contends that trial counsel failed to provide effective assistance by failing to object to these questions. Because the record has not been developed on this issue, we dismiss these assignments of error without prejudice to raise them during post-conviction proceedings. See Fair, 354 N.C. at 167, 557 S.E.2d at 525.\nIn an argument related to evidence presented about defendant\u2019s intelligence, defendant contends that the trial court erred in sustaining the State\u2019s objection when defendant sought to introduce opinion evidence of his actual intelligence quotient. Defendant called as a witness Ms. Harriet Borom, a special education teacher who had met defendant when he was eleven years old. She testified that he fell behind in his school work and became frustrated and angry. She added, without objection, that she did not believe the results of I.Q. tests taken by defendant at age eleven that placed him in the normal range. She described defendant\u2019s experiences in school and testified that an I.Q. test administered to defendant when he was in the sixth grade that yielded a score of 89 \u201cha[d] no foundation in reality.\u201d She added that he presented the traits of a person who is mentally handicapped. However, when Ms. Borom volunteered, \u201cIf I had to take a stab at it, and just from my working with [defendant], if I had to guess, I would say his I.Q. was somewhere in the neighborhood of the high seventies \u2014 I mean high \u2014 neighborhood of the high \u2014 mid to high sixties,\u201d the State successfully objected. Defendant argues that this testimony was admissible lay opinion testimony. However, the witness was allowed to offer her opinion that defendant suffered from a \u201clower I.Q.,\u201d and the State objected only when she gave an opinion about a specific score range. Because the witness had not been tendered as an expert and was admittedly guessing, her speculation as to a specific range of scores was inadmissible. Compare State v. Fullwood, 323 N.C. 371, 385, 373 S.E.2d 518, 527 (1988) (concluding that an expert\u2019s characterizing his opinion as a \u201cguess\u201d does not render the opinion inadmissible when the term implies uncertainty instead of \u201cmere conjecture or speculation\u201d), judgment vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 602 (1990). The objection was properly sustained.\nDefendant next argues that the trial court abused its discretion by failing to intervene ex mero motu during the prosecutor\u2019s closing argument in the sentencing proceeding. Defendant claims that the prosecutor incorrectly advised the jury that the same evidence could be used to find more than one aggravating circumstance. In the State\u2019s closing arguments, the prosecutor discussed the facts of the case, then turned to the issue of punishment, explicitly foreshadowing the instructions that the trial court would later provide. The prosecutor informed the jury that it would consider three separate aggravating circumstances: that the murder was committed while defendant was engaged in the commission of a rape (N.C.G.S. \u00a7 15A-2000(e)(5)); that the murder- was committed for pecuniary gain (N.C.G.S. \u00a7 15A-2000(e)(6)); and that the murder was especially heinous, atrocious, or cruel (N.C.G.S. \u00a7 15A-2000(e)(9)). The prosecutor\u2019s initial description of the (e)(5) and (e)(6) circumstances was short and straightforward. However, when the prosecutor turned to the (e)(9) circumstance, he supported his contention that the victim\u2019s ordeal and knowledge of her impending death justified a finding of this circumstance by playing for the jury a tape recording of defendant\u2019s confession to the crime, during which defendant said:\n\u201cI moved back beside her, . . . and he told me to finish her. I got on my knees, I picked up the knife. ... I had the knife again in my sleeves, my hands in my sleeves again holding the knife. I looked at her and then she looked at me and she said, \u2018please don\u2019t kill me.\u2019 She said she was about to die anyway. The last words she said to me was, \u2018can I please get some water.\u2019 And I said, \u2018no.\u2019. . . and I walked out.\u201d\nThe prosecutor argued that the victim did not die \u201ca quick and painless death,\u201d but continued to suffer, and that her last moments awaiting death would have, for her, seemed \u201can eternity.\u201d\nAfter discussing these three aggravating circumstances individually, the prosecutor addressed them together:\nCollectively, these three aggravating circumstances, a rape, pecuniary gain, especially heinous, atrocious and cruel, provide the following context of some important factors for you to consider.\nNumber one, victimized in home at night, that distinguishes other killings. Defendant Byron Waring\u2019s consent was by fraud, lied to her to get inside the house. Then he assisted codefendant Joseph Sanderlin in his burglary, breaking and entering at night with intent to commit a felony. Victimized in one\u2019s own home at night.\nTwo, not just one, but two attackers, two men. It\u2019s very important, strength in numbers. That sets this case apart from others.\nThree, a blameless victim. Young, her whole life ahead of her. Certainly confused why this was happening to her. There really is no explanation on the facts of this case.\nFour, standing alone by itself is an overwhelming circumstance in this case. The actual rape. Rape, nonetheless, on her own living room floor, face down. This defendant choking her, holding her down on her back while Joseph Sanderlin is raping her. One of these exhibits has the trauma Dr. Gardner pointed out that she found to her vagina, not to be expected.\nFive, Lauren Redman was taped. She was tortured, taped up and tortured. Tortured physically, tortured psychologically. Recall the seventeen knife flecks, give me what \u2014 here it is, going to give me what I want, going to give me what I want. Just torture. Physically knowing this has happened to you psychologically and the after[e]ffects. And what are the aftereffects of this point from the facts?\nNumber six, the defendant decides to start punching her in the face and stomping her on the face, after she\u2019d been raped..\nNumber seven, keep in mind, I have one to show you, but there were two knives involved, two knives. Whichever way she turned, whichever way she was flipping, there was a knife to defend against. Two knives, the number, the severity of the stab wounds.\nRecall Dr. Gardner\u2019s testimony. I think if you added [it] up you have \u2014 on top of the seventeen flecks, you have the twenty-three stab wounds to the torso, five to the head and neck, and the two actual cuttings. Thirty wounds, thirty stab and cutting wounds, seventeen flecks, forty-seven wounds.\nThe level of other violence in this case can be distinguished from other ordinary murders. This is not to be expected. This is especially heinous, atrocious and cruel.\nNumber eight, pecuniary gain, robbed for money, robbed for money. While Mr. Pipkin is making a 911 call, you don\u2019t know the timeframe, is the defendant using the twenty dollars that he got from Ms. Redman\u2019s wallet to buy cigarettes about that time? Human life reduced to money. It\u2019s particularly contemptible, particularly contemptible. That distinguishes this murder from others.\nFinally, prolonged conscious suffering. As I depicted to you, from being attacked in her living room for however long that lasted, make it most conservative short time by her perception, how long was that?\nAfter her attackers leave, she\u2019s still fighting and willing to live. She gets outside and goes on to apartment B, Andy Pipkin and the 911 call. She dies at the end of that 911 call, all the evidence shows to you that. Officer David Naumuk, when he gets there doesn\u2019t see a sign. EMS gets there on his heels, and she\u2019s dead, placed in the ambulance.\nLauren was tortured, absolutely tortured. The 911 call, as she told Andy Pipkin on that call, you can hear it, it\u2019s tough, your stomach hurts. I remember asking Mr. Pipkin on the stand, what was she doing while you were on the phone with 911, his response was, \u201cjust trying not to bleed to death.\u201d That speaks for itself.\nIndividually, these aggravating circumstances are weighty, important, substantial. Collectively, they cannot be defeated. They just can\u2019t.\nDefendant argues that the trial court committed plain error by failing to intervene because, defendant contends, the State improperly argued that the jury could use the same evidence to find the (e)(9) aggravating circumstance (murder especially heinous, atrocious, or cruel) that it would also use to find the (e)(5) aggravating circumstance (murder committed during commission of the felony of rape) and the (e)(6) aggravating circumstance (murder committed for pecuniary gain).\n\u201cIn a capital case the trial court may not submit multiple aggravating circumstances supported by the same evidence.\u201d State v. Lawrence, 352 N.C. 1, 29, 530 S.E.2d 807, 825 (2000) (citation omitted), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001). However, while the submission of two aggravating circumstances based upon the same evidence is impermissible \u201cdouble counting,\u201d State v. Kandies, 342 N.C. 419, 450, 467 S.E.2d 67, 84, cert. denied, 519 U.S. 894, 136 L. Ed. 2d 167 (1996), judgment vacated on other grounds, 545 U.S. 1137, 162 L. Ed. 2d-884 (2005), \u201c[aggravating circumstances are not considered redundant absent a complete overlap in the evidence supporting them,\u201d State v. Moseley, 338 N.C. at 54, 449 S.E.2d at 444 (citations omitted).\nA review of the State\u2019s argument indicates that the prosecutor did not ask the jury to double count. Although defendant contends that the above-quoted argument pertained only to the (e)(9) aggravating circumstance, the prosecutor at the outset of this portion of his argument advised jurors they would be considering three aggravating circumstances that would be submitted to them. The prosecutor then set out nine aspects of the case to support those three aggravating circumstances. The fourth aspect that was argued related to the rape, supporting (e)(5). The eighth aspect that was argued related to pecuniary gain, supporting (e)(6). Several other aspects related to the violence inflicted on the victim, supporting (e)(9). The prosecutor closed by saying that each of the statutory aggravating circumstances was, by itself, \u201cweighty, important, [and] substantial\u201d and that the three together \u201ccannot be defeated.\u201d\nThus, the argument distinguished the three aggravating circumstances and the evidence supporting each. A similar closing argument was made ia.State v. Miller, 357 N.C. 583, 596-97, 588 S.E.2d 857, 867 (2003), cert. denied, 542 U.S. 941, 159 L. Ed. 2d 819 (2004), in which this Court considered whether the State\u2019s (e)(9) argument was proper when the prosecutor asked the jury to imagine the victim\u2019s feelings during a kidnapping that was also the factual basis for a separate (e)(5) aggravating circumstance. We noted that, while there was \u201csome overlap\u201d between the (e)(9) and (e)(5) aggravating circumstances in that case, \u201cseparate and distinct evidence exist[ed]\u201d for each circumstance, and the prosecutor\u2019s exhortation to the jury to consider the victim\u2019s thoughts during the kidnapping \u201cwas not a request for the jury to consider the exact same evidence to find aggravating circumstances (e)(5) and (e)(9).\u201d Id. at 597, 588 S.E.2d at 867.\nHere, as in Miller, there was substantial \u201cseparate and distinct evidence\u201d for the (e)(5), (e)(6), and (e)(9) aggravating circumstances. Because the prosecutor\u2019s argument was proper, the trial court had no reason to intervene. In addition, defendant\u2019s contention that trial counsel\u2019s neglect to object to this argument constituted ineffective assistance fails because counsel had no basis for raising an objection.\nDefendant contends that the trial court committed plain error by failing to instruct the jury that the same evidence could not be used to support the existence of more than one aggravating circumstance. We have held that a defendant seeking such an instruction must make a request to the trial court. State v. Roache, 358 N.C. 243, 325-26, 595 S.E.2d 381, 433 (2004). No timely request was made here. Because the trial court was under no duty to give such an instruction in the absence of a request, plain error review is not available to defendant. Cf., State v. Peterson, 350 N.C. 518, 529, 516 S.E.2d 131, 138 (1999) (no plain error review conducted when trial court found not to have a duty to give a peremptory instruction), cert. denied, 528 U.S. 1164, 145 L. Ed. 2d 1087 (2000).\nIn the alternative, defendant argues ineffective assistance of counsel for trial counsel\u2019s failure to request such an instruction. Because the record is undeveloped as to the reasons why no such request was made, we dismiss this issue without prejudice to defendant to raise it in post-conviction proceedings. See Fair, 354 N.C. at 167, 557 S.E.2d at 525.\nDefendant next contends that the trial court plainly erred in failing to prevent the State from making grossly improper closing arguments during the sentencing proceeding. In this line of argument, defendant first asserts that the prosecutor improperly injected his personal beliefs on three occasions when he used the words \u201cI think\u201d or \u201cI believe\u201d while commenting on the mitigating circumstances presented by defendant. In discussing the (f)(6) statutory mitigating circumstance, the State argued:\nI think anyone that can take the roll of packaging tape over to her apartment, do what you do, leave, discard the evidence, recognize and tell Joey, \u201cwe have blood on our clothes,\u201d take a shower, throw away the clothes, . . . we never got the clothes, get rid of this car, get rid of the knife, get rid of the property, and then when the officers arrive at your house, initially denying any involvement in this.\nAnd when you grab this knife during the course of committing the murder, you\u2019re using the shirt sleeve to avoid fingerprints, I think you can appreciate the criminality of your conduct.\nThen, in addressing the statutory (f)(8) mitigating circumstance, the prosecutor argued:\nBut as to \u201cthe defendant aided in the apprehension of another capital felon,\u201d I think the evidence is the defendant is at [the Raleigh Police Department], obviously the initial denial of what he did.\nFinally, in summarizing his view of the defense mitigation case, the prosecutor referred to the testimony of various lay witnesses who had spoken about the hardships defendant faced in his youth:\nThe essence of what I believe is that the defendant had numerous people that tried the best they could to no avail, and that he suffered from academic problems. That describes a lot of people.\nAs a general rule, it is improper for an attorney to inject his or her personal beliefs into a closing argument. \u201cDuring a closing argument to the jury an attorney may not. . . express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant . . . N.C.G.S. \u00a7 15A-1230(a). While prosecutors are permitted to argue as to \u201cthe circumstances of the murder and whether these circumstances warrant imposition of the death penalty,\u201d see, e.g., Haselden, 357 N.C. at 25, 577 S.E.2d at 609, they may not \u201c \u2018inject [their] personal experiences, [their] views and [their] opinions into the argument before the jury,\u2019 \u201d State v. Jones, 355 N.C. 117, 130, 558 S.E.2d 97, 105 (2002) (citation omitted).\nAlthough the State argues that the words \u201cI think\u201d and \u201cI believe\u201d were used merely to introduce permissible arguments regarding the facts and characteristics of this murder, we have no doubt that the prosecutor crossed the line when he shared with the jury \u201c[t]he essence of what I believe.\u201d While the phrases \u201cI think\u201d and \u201cI believe\u201d often axe no more than verbal padding in oral argument, they can, as happened here, bleed over into a violation of N.C.G.S. \u00a7 15A-1230 and should be avoided when a party is seeking directly to persuade a jury.\nNevertheless, while the prosecutor\u2019s argument contained improper material, our review of the record satisfies us that his comments were a far cry from the type of inflammatory argument we condemned in Jones. Id. at 132-34, 558 S.E.2d at 106-08 (finding error when prosecutor made a \u201cthinly veiled attempt\u201d to compare the defendant\u2019s acts to the killing of students at Columbine High School and the bombing of the federal courthouse in Oklahoma City, then argued that the defendant was \u201clower than the dirt on a snake\u2019s belly\u201d). The argument here did not trigger an objection and was not so grossly improper as to require the trial court to intervene ex mero motu. Therefore, the trial court did not err in failing to intervene ex mero motu.\nIn his second related argument, defendant claims \u201cthe State openly mocked and laughed at Dr. Fozdar\u2019s opinions after (wrongly) implying that Dr. Hilkey had doubted Dr. Fozdar\u2019s diagnosis\u201d when the prosecutor argued during the sentencing proceeding:\nIs [Dr. Hilkey\u2019s] bright line of Dr. Fozdar\u2019s confident opinion, beyond a reasonable doubt, laugh, laugh. I don\u2019t know. These are things for you to consider.\nWhile this statement, standing alone, is somewhat opaque, a review of the context reveals that the comment was part of the prosecutor\u2019s discussion of defendant\u2019s experts\u2019 opinions, which the prosecutor suggested were inconsistent and ill-founded.\n\u201c \u2018When the prosecutor becomes abusive, injects his personal views and opinions into the argument before the jury, he violates the rules of fair debate ....\u2019\u201d Id. at 130, 558 S.E.2d at 105 (quoting State v. Smith, 279 N.C. 163, 166, 181 S.E.2d 458, 460 (1971)). However, \u201cit is not improper for the prosecutor to impeach the credibility of an expert during his closing argument.\u201d State v. Roache, 358 N.C. at 300, 595 S.E.2d at 417 (citation and internal quotation marks omitted). The prosecutor here was impeaching the credibility of an expert witness during closing arguments. While the phrase \u201claugh, laugh\u201d may well have been meant to ridicule the defense experts, these words are ambiguous and confusing in context and did not trigger an objection. This argument was not so grossly improper as to require the court to-intervene ex mero motu.\nIn his third related argument, defendant contends the prosecutor argued outside the record and attempted to inflame the jury with an unfairly prejudicial argument about \u201cclearly irrelevant evidence.\u201d Defendant refers to two portions of the State\u2019s closing argument relating to aggravating circumstances. While discussing the (e)(9) aggravating circumstance, the prosecutor described how the victim, after being raped and stabbed, dragged herself to a neighboring apartment. The prosecutor then described how Pipkin had tried to help:\nCertainly Andy Pipkin did the best he could. Decent guy, stranger, trying to help out. I told you he\u2019d never knew her, certainly will never forget her. He\u2019s been affected, you can tell by his testimony, his demeanor. He told you he never returned to sleep another night at that apartment.\nHe called 911. He applied the towel to Ms. Redman. I suspect if he didn\u2019t, the blood outside on State\u2019s [Exhibit] 87 will be a lot more. I don\u2019t know how you can get a lot more, that\u2019s a lot of blood, but that\u2019s what [sic] the towel covering your open wound.\nYou heard [the] 911 tape. You heard the interaction going on between Mr. Pipkin, who I suspect,- I assume was shell-shocked with Ms. Redman. It\u2019s not like the movies, it\u2019s not like the movies.\nDefendant contends that the State improperly argued that the effect of the crime on Pipkin justified the (e)(9) aggravating circumstance. However, this Court has found not improper an argument offered in support of the (e)(9) circumstance stating that the victim\u2019s survivors were present at the time of her death and \u201ceven attempted to stop [the] defendant from killing her.\u201d State v. Fisher, 336 N.C. 684, 699-700, 445 S.E.2d 866, 874-75 (1994), cert. denied, 513 U.S. 1098,130 L. Ed. 2d 665 (1995). Here, as in Fisher, the prosecutor used Pipkin\u2019s experience as a means of conveying the victim\u2019s suffering and the heinous, atrocious, or cruel nature of the crime. Thus, this portion of the State\u2019s closing argument was not improper.\nDefendant next complains about the prosecutor\u2019s description, presented at the end of his argument on aggravating circumstances, of \u201ca highly emotional \u2014 and completely imagined \u2014 conversation with [victim] Lauren Redman\u2019s father\u201d:\nWhen a father hears a daughter has been murdered, what does he ask? What\u2019s the first thing does he want to know? Did she suffer? Did she suffer? And then after that, I suspect what\u2019s the next question? You fumble for the word, was she, you know, abuse \u2014 was she raped? The answer on these facts to both of those, Mr. Redman, are yes, she suffered, and she was raped.\nDefendant contends that this argument improperly strays outside the record.\nIn a closing argument in a criminal trial, \u201can attorney may not ... make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice.\u201d N.C.G.S. \u00a7 15A-1230(a). However, this Court has also observed that \u201chypothetical examples, by their very nature, are fictional and do not purport to contain facts of record or otherwise.\u201d State v. Chapman, 359 N.C. 328, 372, 611 S.E.2d 794, 826 (2005). \u201cThus, it is unlikely that jurors were misled . . . .\u201d Id,.; see also State v. Moseley, 338 N.C. at 49-50, 449 S.E.2d at 441 (concluding that the argument, \u201cYou don\u2019t think this woman wouldn\u2019t have been loving to a child if he had given her a chance to have one?,\u201d was not \u201cso egregious as to require intervention by the trial court ex mero motu\u201d).\nThe prosecutor never indicated that such a conversation had occurred. In context, this argument was another permissible reminder from a different perspective of how the victim had suffered and the nature of defendant\u2019s actions. See State v. Tyler, 346 N.C. 187, 206, 485 S.E.2d 599, 609 (speculation about what would have happened if a child had walked into his mother\u2019s murder scene held pot grossly improper), cert. denied, 522 U.S. 1001, 139 L. Ed. 2d 411 (1997). This argument was not so grossly improper as to require the trial court to intervene ex mero motu.\nDefendant also contends that the State improperly accused defendant of being \u201ca principal in a street gang\u201d and asserted that the victim\u2019s death \u201cwas in fact a gang killing\u201d:\n[Defendant] comes to live with [his mother]. Was that the best thing? Who knows. But he comes to live with her, and at some point, he asserts himself. He starts making his own decisions. He starts running wild, the gang life. This culminates in November 8th, 2005 of the death of Lauren Redman.\nDefendant argues that the \u201crecord was devoid of any evidence that [defendant was actually involved in any significant way in a street gang.\u201d\nAs noted above, in a closing argument in a criminal trial, \u201can attorney may not. . . make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice.\u201d N.C.G.S. \u00a7 15A-1230(a). \u201c \u2018Counsel may, however, argue to the jury the law, the facts in evidence, and all reasonable inferences drawn therefrom.\u2019 \u201d Wilkerson, 363 N.C. at 423, 683 S.E.2d at 199 (quoting State v. Alston, 341 N.C. 198, 239, 461 S.E.2d 687, 709-10 (1995), cert. denied, 516 U.S. 1148, 134 L. Ed. 2d 100 (1996)). The prosecutor did not argue that defendant had any significant involvement in a gang or that the killing was gang-related. The term \u201cgang life\u201d is shorthand for a lawless and unrestrained existence. Even so, defendant himself admitted to Dr. Hazelrigg that he had been involved in a gang for about three years. In addition, trial evidence indicated that defendant had been suspended from school for his involvement in a snowball fight between the Bloods and an Hispanic gang. While the record is ambiguous as to whether defendant himself had flashed gang signs during the altercation, such signs were used by participants in the melee. Other evidence indicated that codefendant Sanderlin had been charged with recruiting potential members to join a gang. Thus, the prosecutor\u2019s statements were supported by evidence in the record and were not improper.\nIn his final contention relating to the prosecutor\u2019s closing argument, defendant asserts that the prosecutor committed a gross impropriety when he argued that defense counsels\u2019 entire mitigation case was a \u201clie\u201d based on \u201chalf-truths\u201d and omitted information. The State argued that the defense had made defendant\u2019s mother the \u201cfall guy\u201d and that her failure to testify was deliberate because the defense did not want the jury to hear from her. The prosecutor summed up with the \u201c[o]ld saying, a lie can travel halfway around the wprld while the truth is still putting on its shoes.\u201d While the prosecutor then qualified his argument by adding, \u201cI\u2019m not for a moment suggesting anyone in the world has intentionally deceived this jury, that\u2019s not what I\u2019m suggesting,\u201d he subsequently reintroduced the theme that the defense had presented an incomplete picture: \u25a0\nAnd then [defendant\u2019s] grandfather told you, he wanted to come back to Raleigh, the big city and all that entails. These are his decisions. Homeless by design.\nAgain, half the truth equals a whole lie. Consider the fuller presentation of all the evidence.\nAs detailed above, counsel may argue the facts admitted into evidence as well as any reasonable inference that can be drawn therefrom. Wilkerson, 363 N.C. at 423, 683 S.E.2d at 199. Arguments against a defendant\u2019s mitigating circumstances are not an improper denigration of mitigating evidence, but constitute legitimate argument on the weight of that evidence. State v. Robinson, 336 N.C. 78, 129, 443 S.E.2d 306, 332 (1994), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 650 (1995). However, we have also held that calling a witness or opposing counsel a liar when no evidence supports the epithet is a gross impropriety. State v. Rogers, 355 N.C. 420, 462-63, 562 S.E.2d 859, 885 (2002).\nA closing argument is to be considered as a whole. See Moseley, 338 N.C. at 50, 449 S.E.2d at 442 (noting that a prosecutor\u2019s arguments are not to be reviewed in isolation and consideration must be given to the context of the remarks and to the overall factual circumstances). At this point in his argument, the prosecutor\u2019s theme was that defendant\u2019s mitigating evidence failed to present a complete picture. Although defendant\u2019s mother had not been called to testify, at least eighteen of the sixty-eight mitigating circumstances submitted to the jury at sentencing related to defendant\u2019s mother and her deficiencies as a parent. The prosecutor acknowledged that there was evidence of abuse and neglect on her part while contending there was also evidence of her positive effort and involvement in defendant\u2019s life. Thus, the prosecutor properly asked the jury to consider the credibility of those testifying as well as the \u201cfuller presentation of some of this proposed mitigation evidence.\u201d\nRegarding defendant\u2019s homelessness, ample evidence in the record supported the prosecutor\u2019s contention that defendant was homeless \u201cby design.\u201d Defendant never responded to an offer from his teacher to assist him with living accommodations. In 2004, the year defendant claimed homelessness, he spent no less than eighty days in jail and at least a month living at his grandparents\u2019 house. Although defendant declared he had been put out of his mother\u2019s home, interviews with family members indicated defendant did not want to follow the house rules. Accordingly, we find the prosecutor\u2019s argument appropriately drew inferences from properly admitted evidence and was not so grossly improper as to require the trial court to intervene ex mero motu.\nDefendant also asks that we find cumulative error in the prosecutor\u2019s closing argument. As discussed above, several of the prosecutor\u2019s arguments were not erroneous in any sense. The collective impact of other errors in the closing argument does not rise to the level of reversible error.\nNext, we address defendant\u2019s argument that the trial court erred by refusing to give peremptory instructions on certain statutory mitigating circumstances. Specifically, during the charge conference defense counsel requested peremptory instructions on several statutory mitigating circumstances, including the following three: that \u201c[t]he capital felony was committed while the defendant was under the influence of mental or emotional disturbance,\u201d pursuant to N.C.G.S. \u00a7 15A-2000(f)(2); that \u201c[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired,\u201d pursuant to N.C.G.S. \u00a7 15A-2000(f)(6); and that \u201c[t]he defendant aided in the apprehension of another capital felon,\u201d pursuant to N.C.G.S. \u00a7 15A-2000(f)(8). The trial court declined to give the requested instructions peremptorily, but did provide nonperemptory instructions on each of these mitigating circumstances. Relating to the (f)(2) mitigating circumstance, the trial court also gave peremptory instructions regarding both the nonstatutory mitigating circumstance that \u201cByron Waring suffers from borderline intellectual functioning,\u201d which at least one juror found, and the nonstatutory mitigating circumstance that \u201cByron Waring suffers from right hemisphere brain dysfunction,\u201d which no juror found. One or more jurors found the (f)(6) and (f)(8) circumstances, but no juror found the (f)(2) circumstance.\nWe have held that a \u201c \u2018trial court should, if requested, give a peremptory instruction for any mitigating circumstance, whether statutory or nonstatutory, if it is supported by uncontroverted and manifestly credible evidence.\u2019 \u201d Maness, 363 N.C. at 291, 677 S.E.2d at 815 (citation omitted); State v. Gay, 334 N.C. 467, 492-93, 434 S.E.2d 840, 854-55 (1993). Evidence supporting the (f)(2) and (f)(6) mitigating circumstances was presented by Dr. Hilkey, a psychologist, and Dr. Fozdar, a neuropsychiatrist, who testified on defendant\u2019s behalf. Dr. Hilkey stated that at the time of the crime, defendant was suffering from a cognitive disorder and personality disorder with schizotypal and dependent features. According to Dr. Hilkey, defendant also has borderline intellectual function that limits his ability to function and solve problems. Dr. Fozdar testified that defendant suffers from a neurodevelopmental and neuropsychiatric disorder that affects the right hemisphere of his brain, which regulates behavior and judgment. Dr. Fozdar explained that, as a result of this condition, defendant has impaired judgment and insight and has difficulty processing information, especially in stressful situations. Both of these experts testified that, in their opinion, defendant was under the influence of a mental or emotional disturbance at the time he committed the crime and that he lacked the capacity to conform his conduct to the requirements of the law.\nHowever, this evidence was not uncontested. Other evidence presented during the guilt portion of the trial, the cross-examination of defendant\u2019s experts, and the rebuttal testimony presented on behalf of the State by Dr. Hazelrigg, all contradicted defendant\u2019s experts. Dr. Fozdar\u2019s acknowledgment that defendant knows right from wrong and concession that he did not believe defendant\u2019s disorder caused him to commit murder were at least somewhat inconsistent with his assessment that defendant\u2019s mental or emotional disturbance \u201cinfluenced\u201d the murder. Also, Dr. Hazelrigg, testifying for the State, contradicted the opinions of defendant\u2019s experts and did not find any mental disorder or dysfunction that would interfere with defendant\u2019s ability to control his behavior or understand right from wrong. See also State v. Duke, 360 N.C. 110, 131-32, 623 S.E.2d 11, 25 (2005) (holding that the trial court correctly refused to give the jury a peremptory instruction on the (f)(2) mitigating circumstance when an expert testified about inconsistent diagnoses of the defendant, thereby making \u201cevidence of [the] defendant\u2019s mental or emotional disturbance . . . not uncontroverted\u201d), cert. denied, 549 U.S. 855, 166 L. Ed. 2d 96 (2006).\nThe trial court also noted that defendant\u2019s covering his hand with his sleeve as he picked up the knife was evidence contradicting defendant\u2019s argument that he was unable to appreciate the criminality of his conduct. The trial court further found that defendant\u2019s evidence that he prayed and asked for forgiveness after the murder was inconsistent with his decision initially to lie about his involvement. See State v. Badgett, 361 N.C. 234, 257-58, 644 S.E.2d 206, 219-20 (holding the trial court\u2019s refusal to submit the (f)(2) mitigating circumstance was appropriate when \u201c[t]he events before, during, and after the killing suggest[] deliberation, not the frenzied behavior of an emotionally disturbed person\u201d and that \u201c[i]n particular, defendant\u2019s initial lies to police about his involvement in the murder and his washing and disposal of the murder weapon are especially relevant on the (f)(6) mitigator, because they tend to show that defendant fully appreciated the criminality of his conduct\u201d (internal quotation and citations omitted) (first alteration in original)), cert, denied, 552 U.S. 997, 169 L. Ed. 2d 351 (2007). Because the evidence supporting submission of the (f)(2) and (f)(6) mitigating circumstances was not uncontroverted, the trial court did not err by refusing to instruct peremptorily.\nIn addition, the evidence supporting submission of the (f)(8) mitigating circumstance was not uncontroverted. Although some evidence supported defendant\u2019s claim that he aided in the apprehension of Sanderlin, other evidence indicated that defendant provided several different names and identities for the other man involved in the murder, led police officers on a wild goose chase in Apex, and stated that he was not going to snitch. Accordingly, the evidence that defendant aided in the apprehension of Sanderlin was not uncontroverted and the trial court did not err when it refused to give a peremptory instruction on the (f)(8) mitigating circumstance.\nDefendant next contends the trial court erred when it instructed the jury to consider, over his objection, whether he had \u201cno significant history of prior criminal activity,\u201d pursuant to N.C.G.S. \u00a7 15A-2000(f)(l). Defendant argues that this circumstance was not supported by the evidence and its submission invited ridicule by the prosecutor. Defendant originally submitted the (f)(1) mitigating circumstance at the charge conference, but later moved to withdraw it. The State argued against its withdrawal, contending that the trial court had a duty to offer the circumstance when the evidence supported it. The trial court reviewed several cases along with defendant\u2019s criminal history, then concluded the evidence supported submission of the mitigating circumstance.\nThe statute governing capital sentencing proceedings requires that:\nIn all cases in which the death penalty may be authorized, the judge shall include in his instructions to the jury that it must consider any aggravating circumstance or circumstances or mitigating circumstance or circumstances from the lists provided in subsections (e) and (f) which may be supported by the evidence ....\nN.C.G.S. \u00a7 15A-2000(b). In the context of the (f)(1) mitigating circumstance, although this Court has long \u201cheld that the trial court has no discretion and must submit the statutory circumstance when sufficient supporting evidence is presented,\u201d State v. Hurst, 360 N.C. 181, 193, 624 S.E.2d 309, 319 (citation omitted), cert. denied, 549 U.S. 875, 166 L. Ed. 2d 131 (2006), we have also acknowledged that this particular mitigating circumstance paradoxically can be used to a defendant\u2019s disadvantage, as defendant argues happened here, id. at 195-97, 624 S.E.2d at 320-22. Accordingly, we review the trial court\u2019s decision whether to submit the (f)(1) mitigating circumstance in light of the whole record. Id. at 197, 624 S.E.2d at 322.\nIn Hurst we acknowledged that \u201c[o]ur trial judges are capable of making sensible assessments.\u201d Id. Defendant\u2019s prior criminal activity consisted of breaking and entering a motor vehicle (a Class I felony) and several misdemeanors, including misdemeanor larceny, public disturbance, defrauding an innkeeper, trespassing, carrying a concealed weapon, and possession of marijuana. There was also evidence of unspecified theft activity, mostly at school. Because the evidence related to submission of (f)(1) was limited to minor offenses, the trial court reasonably determined that a rational jury could conclude that defendant had no significant history of criminal activity. Therefore, the trial court did not err in submitting the (f)(1) statutory mitigating circumstance.\nDefendant also argues that the trial court erred in failing to give peremptory instructions as to nine nonstatutory mitigating circumstances. The jury was given nonperemptory instructions on each of these circumstances, but no juror found that any of the nine circumstances existed. While we have held that a trial court\u2019s failure to give a peremptory instruction is reviewed for error that is harmless beyond a reasonable doubt, Gay, 334 N.C. at 494, 434 S.E.2d at 855, we also have noted the \u201cdraconian\u201d effect of this standard of review and the practical difficulties faced by judges who may be required to recall, at the end of a lengthy trial, evidence that supports a proposed mitigating circumstance along with any evidence that may contradict it, Barden, 356 N.C. at 376, 572 S.E.2d at 146.\nThe first circumstance on which defendant argues the trial court should have given a peremptory instruction is that \u201cByron Waring\u2019s mother took, during her pregnancy, medicine prescribed for her brother, became ill, and did not seek medical attention.\u201d The pertinent evidence indicates that defendant\u2019s grandmother testified that, while pregnant, defendant\u2019s mother took a \u201chigh power medicine\u201d that had been prescribed for her brother\u2019s bronchitis. The medicine is not otherwise identified, and the only stated effect on defendant\u2019s mother was that it made her \u201cact different\u201d and \u201cshake.\u201d It is not clear to us from the record how this evidence was mitigating or that the evidence was manifestly credible. Accordingly, the trial court did not err in failing to instruct peremptorily.\nNext, defendant argues that the trial court erred in failing to instruct peremptorily on the nonstatutory mitigating circumstance that \u201cByron Waring needed special education services in elementary school but was mainstreamed and placed in an academic environment where the expectations exceeded his ability to perform.\u201d However, evidence was presented that defendant was tested before entering kindergarten and placed in a special class. As a result, that mitigating circumstance was not supported by uncontradicted evidence.\nThe next circumstance was that \u201cByron Waring had a negative self image at an early age.\u201d Because testimony was presented that defendant was an active and happy child, the evidence supporting this circumstance was not uncontradicted. This same evidence contradicted the mitigating circumstance that \u201cByron Waring began having chronic feelings of inadequacy and rejection at an early age.\u201d\nDefendant argues that peremptory instructions should have been given on a related group of circumstances regarding his mother: \u201cByron Waring\u2019s mother did not accept his cognitive impairment and intellectual deficits\u201d; \u201cByron Waring\u2019s mother consistently sabotaged his ability to obtain psychiatric treatment\u201d; \u201cByron Waring\u2019s mother consistently sabotaged his ability to obtain necessary mental health treatment\u201d; \u201cByron Waring\u2019s mother would not allow him to take medications for his mental disabilities\u201d; and \u201cByron Waring was repeatedly rejected by his mother throughout his life.\u201d Because defendant\u2019s mother did not testify, she appears to us only as projected by others. After a careful review of the evidence and the arguments made by defendant and the State, we conclude that the trial court erred in failing to instruct peremptorily that defendant\u2019s mother did not accept his deficits. The evidence regarding the other circumstances was controverted, and thus, no peremptory instruction was needed.\nHowever, in light of the fact that several of the mitigating circumstances submitted by defendant relating to his mother were virtually identical in effect, the fact that peremptory instructions were given as to three other mitigating circumstances relating to defendant\u2019s mother, the fact that the jury failed to find mitigating effect as to those circumstances relating to defendant\u2019s mother where the court gave a peremptory instruction, and the fact that the jury failed to find seventeen of the nineteen non-statutory mitigating circumstances where the court gave a peremptory instruction, we conclude that the trial court\u2019s error in failing to give this particular instruction peremptorily was harmless beyond a reasonable doubt.\nPRESERVATION ISSUES\nDefendant raises nine additional issues that he concedes have previously been decided contrary to his position by this Court: (1) whether the short-form indictment was adequate to confer jurisdiction on the trial court to try defendant for first-degree murder; (2) whether the trial court erred by denying defendant\u2019s motion to prohibit the State from seeking and obtaining the death penalty against him; (3) whether the trial court plainly erred by instructing jurors they \u201cmay\u201d consider mitigating circumstances rather than instructing them they \u201cmust\u201d do so; (4) whether the trial court plainly erred by instructing the jury that it was to determine whether nonstatutory mitigating circumstances found by one or more jurors had mitigating value; (5) whether the trial court plainly erred in its instructions on mitigating circumstances in that the burden of proof is too vague to be understood by jurors and the use of the term \u201csatisfies you\u201d imposes too high a burden on defendant, thereby precluding the jury from giving effect to all mitigating circumstances and violating the Eighth and Fourteenth Amendments to the Constitution of the United States; (6) whether the trial court plainly erred by instructing jurors that they had to be unanimous to impose a sentence of life imprisonment; (7) whether the trial court plainly erred by instructing the jury that it was required to determine that the mitigating circumstances were insufficient to outweigh the aggravating circumstances; (8) whether the trial court plainly erred by instructing the jury that it had a \u201cduty\u201d to find that the mitigating circumstances were insufficient to outweigh the aggravating circumstances and that the aggravating circumstances were sufficiently substantial to call for imposition of the death penalty; and (9) whether the trial court plainly erred by failing to instruct the jury that the State was required to prove beyond a reasonable doubt that the mitigating circumstances were insufficient to outweigh the aggravating circumstances.\nDefendant raises these issues for purposes of urging this Court to re-examine its prior holdings and to preserve them for federal review. We have considered defendant\u2019s arguments on these issues and conclude that defendant has demonstrated no compelling reason to depart from our prior holdings.\nPROPORTIONALITY\nFinally, we consider whether the record supports the aggravating circumstances found by the jury, whether the death penalty \u201cwas imposed under the influence of passion, prejudice, or any other arbitrary factor,\u201d and whether defendant\u2019s \u201csentence of death is-excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\u201d N.C.G.S. \u00a7 15A-2000(d)(2) (2010).\nThe jury found all three aggravating circumstances submitted: that the murder was committed for pecuniary gain; that the murder was especially heinous, atrocious, or cruel; and that the murder was committed while defendant was engaged in the commission of a rape. The evidence presented by the State during its case in chief fully supports each of these aggravating circumstances. In addition, nothing in the record of this case suggests that defendant\u2019s sentence was imposed arbitrarily or under the influence of passion or prejudice.\nConcerning the proportionality of defendant\u2019s- death sentence, we note that, in addition to the aggravating circumstances, at least one juror found four statutory mitigating circumstances and at least one juror found two of the fifty-nine nonstatutory mitigating circumstances. In addition, no juror found the catchall mitigating circumstance.\nIn determining proportionality \u201c[w]e consider all cases which are roughly similar in facts to the instant case, although we are not constrained to cite each and every case we have used for comparison.\u201d State v. McNeill, 360 N.C. at 254, 624 S.E.2d at 344 (citation omitted). However, the determination of proportionality of an individual defendant\u2019s sentence is ultimately dependent upon the sound judgment and experience of the members of this Court. See id. at 253, 624 S.E.2d at 344.\nThe aggravating circumstances found by the jury here are among those most commonly present when a sentence of death has been found proportionate. State v. Bacon, 337 N.C. 66, 129-31, 446 S.E.2d 542, 577-79 (1994) (Exum, C.J. & Frye, J., dissenting), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995). Of the four aggravating circumstances that, standing alone, have supported a death sentence, see id. at 110 n.8, 446 S.E.2d at 566 n.8 (majority), two were found here, that is, that the murder was especially heinous,' atrocious, and cruel; and that the murder was part of a course of conduct in which the defendant committed a violent crime against another person. Moreover, defendant invaded the victim\u2019s home, where she had a right to feel secure. See State v. Brown, 320 N.C. 179, 231, 358 S.E.2d 1, 34, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987). In addition, this Court has affirmed death sentences after proportionality review in cases in which a codefendant received a life sentence. See State v. McNeill, 349 N.C. 634, 655, 509 S.E.2d 415, 427 (1998) (\u201cWe note that the fact that a defendant is sentenced to death while a codefendant receives a life sentence for the same crime is not determinative of proportionality.\u201d (citations omitted)), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999).\nThis Court has determined that the death penalty 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 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997), and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983). Each of these cases is distinguishable from the case at bar. Defendant participated in a brutal, prolonged, and merciless killing. The sentence of death in this case is not disproportionate.\nCONCLUSION\nDefendant received a fair trial and sentencing proceeding. We find no prejudicial error in his conviction or sentence. In addition, we find that defendant\u2019s sentence of death is not disproportionate.\nNO ERROR\n. Details of Sasser\u2019s identity and relationship with the victim and defendant were developed during the pretrial hearing on defendant\u2019s suppression motion, as detailed later in this opinion, but were not provided to the jury.\n. Spelled \u201cJackie\u201d in some transcripts.\n. Rule 10 of the Rules of Appellate Procedure was recently amended to eliminate assignments of error on appeal. However, the amended rule \u201cappli[es] to all cases appealed on or after [1 October 2009].\u201d N.C. R. App. P. 10 (2010). Because notice of appeal in the instant case was entered on 9 July 2007, we analyze this case under the version of Rule 10 applicable at that time.",
        "type": "majority",
        "author": "EDMUNDS, Justice."
      }
    ],
    "attorneys": [
      "Roy Cooper, Attorney General, by Joan M. Cunningham and Derrick C. Mertz, Assistant Attorneys General, for the State.",
      "James R Cooney III and Mary S. Pollard for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BYRON LAMAR WARING\nNo. 525A07\n(Filed 5 November 2010)\n1. Criminal Law\u2014 motion to suppress \u2014 pretrial ruling\u2014 preliminary\nThe trial court\u2019s denial of a motion to suppress in a first-degree murder prosecution was subject to plain error review where defendant did not object at trial. Although defendant argued that the trial judge was bound by a hearing judge\u2019s ruling on the suppression motion, a pretrial motion to suppress is preliminary because different evidence may be admitted at trial.\n2. Confessions and Incriminating Statements\u2014 first contact with officer \u2014 not custodial\nThe evidence supported the findings in the pretrial suppression hearing of a first-degree murder prosecution that the officer who first made contact with defendant was not privy to the details of the investigation and would have allowed defendant to walk away if defendant had so chosen.\n3. Confessions and Incriminating Statements\u2014 pretrial suppression hearing \u2014 findings\u2014voluntarily going with detectives\nThe finding of the trial court in a pretrial suppression hearing that defendant voluntarily agreed to accompany detectives to the Raleigh Police Department was supported by the evidence. \u2022\n4. Confessions and Incriminating Statements\u2014 pretrial suppression hearing \u2014 findings\u2014door of interview room not guarded\nCompetent evidence in a pretrial suppression hearing supported the court\u2019s findings that no one guarded the door during the initial interviews of defendant in a police department. The trial court\u2019s resolution of conflicting evidence will not be disturbed on appeal.\n5. Confessions and Incriminating Statements\u2014 initial interrogation \u2014 custodial\nUnder the totality of the circumstances, a reasonable person in the position of defendant when he was originally detained would not have believed that he was under arrest or was restrained in his movement to a significant degree.\n6. Constitutional Law\u2014 right to silence \u2014 police car ride \u2014 no clear invocation of right\nDefendant\u2019s right to silence was not violated during a three-hour police car ride in which defendant helped officers recover evidence. Defendant\u2019s statement of scruples against snitching was not a clear invocation of his right to silence.\n7. Constitutional Law\u2014 effective assistance of counsel \u2014 limited intellectual functioning \u2014 no evidence presented\nDefendant was not deprived of his right to the effective assistance of counsel where his lawyers failed to present evidence of his limited intellectual functioning at a hearing to suppress his statements to officers. The assignment of error was dismissed without prejudice to defendant\u2019s right to reassert it in a post-conviction motion for appropriate relief.\n8. Jury\u2014 selection \u2014 peremptory challenges \u2014 racial discrimination \u2014 Batson claim\nThere was no error in a capital first-degree murder prosecution where the trial court effectively denied defendant\u2019s Batson challenge by allowing the State\u2019s peremptory challenge. The trial court applied the correct standard, despite a lapsus linguae.\n9. Jury\u2014 selection \u2014 peremptory challenge \u2014 Batson claim\nThe trial court did not err by denying defendant\u2019s Batson claim during jury selection in a capital first-degree murder prosecution. The trial court found that the prosecutor\u2019s proffered explanation satisfied his burden of establishing nondiscriminatory reasons for the challenge and that defendant had failed to prove that the State acted in a racially discriminatory manner. Trial courts are encouraged to make findings when necessary to make clear aspects of the jury selection that are not preserved on the cold record.\n10.Jury\u2014 capital voir dire \u2014 beliefs not clear \u2014 challenge for cause\nThe trial court did not abuse its discretion by allowing the State\u2019s challenge for cause in a capital first-degree murder prosecution where a prospective juror\u2019s beliefs about the death penalty could not be pinned down.\n11. Constitutional Law\u2014 death qualifying jury \u2014 no constitutional violation\nThere was no constitutional violation in death qualifying a jury.\n12. Jury\u2014 capital voir dire \u2014 prosecutor\u2019s statements to jury\u2014 no presumption favoring life sentence\nNorth Carolina law does not establish a presumption in favor of a life sentence in a capital sentencing proceeding, and the trial court correctly barred defense counsel\u2019s statement to that effect during jury selection.\n13. Jury\u2014 capital \u2014 voir dire \u2014 prosecutor\u2019s omission \u2014 remedied by instructions\nAny omission by the State in its statements during a capital voir dire concerning aggravating circumstances were remedied by the trial court\u2019s correct instructions.\n14. Jury\u2014 capital voir dire \u2014 unanimity\u2014life sentence\nThere was no error during jury selection for a capital first-degree murder prosecution where the prosecutor indicated that the jury had to recommend a life sentence unanimously. Although defendant argued that the court would impose a life sentence if the court could not agree, the jury is not to be instructed about the result that follows the failure to reach a unanimous sentencing recommendation.\n15. Evidence\u2014 autopsy \u2014 photographs\u2014admissibility\nThe trial court did not abuse its discretion in a first-degree murder prosecution by allowing the State to introduce for illustrative purposes autopsy photographs of the victim.\n16. Evidence\u2014 recross-examination \u2014 objection sustained \u2014 no abuse of discretion\nSustaining the State\u2019s objection to defendant\u2019s recross-examination of law enforcement officers was not an abuse of discretion in light of defendant\u2019s admissions.\n17. Criminal Law\u2014 prosecutor\u2019s argument \u2014 supported by evidence\nThere was no gross impropriety in the guilt-innocence portion of a first-degree murder prosecution where the prosecutor argued that a mark on the victim\u2019s forehead in an autopsy photograph was made by defendant\u2019s shoe. Although the pathologist did not identify the cause of the mark, the argument was supported by the evidence.\n18. Criminal Law\u2014 prosecutor\u2019s opinion \u2014 not grossly improper\nThe trial court did not err by failing to intervene ex mero motu in the guilt-innocence phase of a first-degree murder prosecution where the prosecutor expressed his opinion that the evidence of guilt was overwhelming. Defendant did not object, and the argument was not grossly improper.\n19. Criminal Law\u2014 prosecutor\u2019s opinion \u2014 intent to kill\nThe trial court did not err by failing to intervene ex mero motu in the prosecutor\u2019s closing argument in the guilt-innocence phase of a first-degree murder prosecution where the prosecutor argued that, in his opinion, stabbing the victim in the neck was an indication of intent to kill.\n20. Criminal Law\u2014 prosecutor\u2019s comment \u2014 accomplice\u2019s conduct\nThe trial court did not err by failing to intervene ex mero motu in a first-degree murder prosecution where the prosecutor commented that an accomplice\u2019s mode of entry into the victim\u2019s apartment constituted burglary. Defendant did not show that the comment was fundamentally unfair or affected the outcome of the trial.\n21. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to timely object\nThe failure of a first-degree murder defendant\u2019s counsel to raise timely objections was not ineffective assistance of counsel. The evidence against defendant was overwhelming and there was no probability that the outcome was affected.\n22. Criminal Law\u2014 prosecutor\u2019s argument \u2014 motive\nThe trial court did not err by failing to intervene during a first-degree murder prosecution where the prosecutor argued that defendant and an accomplice killed the victim to eliminate her as a witness.\n23. Criminal Law\u2014 acting in concert \u2014 instructions\nThe trial court properly instructed the jury on acting in concert in a first-degree murder prosecution. Although defendant argued that these instructions did not require the jury to find intent by defendant, they were virtually identical to those in State v. Barnes, 345 N.C. 184.\n24. Sentencing\u2014 capital \u2014 prosecutor\u2019s opening statement\u2014 victim\u2019s family\nReferences to the victim and her family in the prosecutor\u2019s opening remarks in a capital sentencing proceeding, examined in the context of defendant\u2019s opening remarks, were a correct summary of the nature of the penalty proceeding and forecast of the evidence and were not improper.\n25. Constitution Law\u2014 effective assistance of counsel \u2014 failure to object to argument\nThere was no ineffective assistance of counsel arising from the failure to object to a prosecutor\u2019s opening statement that was not improper.\n26. Sentencing\u2014 capital \u2014 cross-examination of defendant\u2019s expert \u2014 malingering during tests\nThe trial court did not abuse its discretion in a capital sentencing proceeding by overruling defendant\u2019s objection to the State\u2019s cross-examination of defendant\u2019s expert about whether defendant was malingering during psychological tests. Defendant\u2019s mental capacity and possible neurological and psychological disorders were key issues and nothing in the record indicates that the questioning was in bad faith.\n27. Sentencing\u2014 capital \u2014 questioning of defense expert\u2014 unethical conduct\nEven if defendant had properly preserved the questions for appeal, the trial court did not' err by failing to intervene ex mero motu in a capital sentencing proceeding where the prosecutor asked defendant\u2019s expert about unethical conduct and defendant\u2019s potential for future violence.\n28. Sentencing\u2014 capital \u2014 defendant\u2019s I.Q. \u2014 lay testimony\nThe trial court properly sustained the State\u2019s objection to lay opinion testimony about defendant\u2019s intelligence in a capital sentencing proceeding. The witness was allowed to testify that defendant suffered a \u201clower I.Q.,\u201d but was not allowed to give a specific I.Q. range.\n29. Sentencing\u2014 capital \u2014 prosecutor\u2019s closing argument\u2014 multiple circumstances \u2014 distinct evidence\nThe trial court did not err by failing to intervene in a capital sentencing proceeding during the prosecutor\u2019s closing argument concerning three aggravating circumstances where there was substantial and distinct evidence of each circumstance. The failure to object was not ineffective assistance of counsel.\n30. Sentencing\u2014 failure to give instruction \u2014 plain error review \u2014 not available\nPlain error review was not available for the failure to give an instruction where defendant did not make a timely request for the instruction. The trial court did not have a duty to give the instruction in the absence of a request. The record was undeveloped about why the request was not made and an ineffective assistance of counsel issue was denied, but could be raised in a post-conviction proceeding.\n31. Sentencing\u2014 capital \u2014 prosecutor\u2019s closing argument \u2014 personal opinion\nThe trial court did not err in a capital sentencing proceeding by allowing the State to make closing arguments expressing a personal opinion. While the prosecutor\u2019s argument contained improper material, the comments were a far cry from the type of inflammatory argument condemned in other cases, did not trigger an objection, and were not so grossly improper as to require the trial court to intervene ex mero motu.\n32. Sentencing\u2014 capital \u2014 prosecutor\u2019s comments \u2014 ridiculing defense experts \u2014 not grossly improper\nIn a capital sentencing proceeding, the prosecutor\u2019s comments on defense experts may have been meant as ridicule, but were ambiguous and confusing in context, did not trigger an objection, and were not so grossly improper as to require the court to intervene ex mero motu.\n33. Sentencing\u2014 capital \u2014 prosecutor\u2019s closing argument\u2014 efforts to help victim\nThe prosecutor did not argue outside the record and attempt to inflame the jury in a capital sentencing proceeding with an argument about the attempt of a neighbor to help the victim. The prosecutor used the victim\u2019s experience as a means of conveying the victim\u2019s suffering and the heinous, atrocious, or cruel nature of the crime.\n34. Sentencing\u2014 capital \u2014 prosecutor\u2019s closing argument\u2014 imaginary conversation with victim\u2019s father\nA prosecutor\u2019s closing argument in a capital sentencing proceeding was not so grossly improper as to require intervention ex mero motu where the prosecutor related an imaginary conversation with the victim\u2019s father. The prosecutor never indicated that the conversation had occurred and, in context, the argument was a permissible reminder from a different perspective of how the victim suffered and the nature of defendant\u2019s actions.\n35. Sentencing\u2014 capital \u2014 prosecutor\u2019s closing argument\u2014 gang involvement\nThe prosecutor\u2019s closing arguments in a capital sentencing prosecution regarding defendant\u2019s gang involvement were supported by the evidence and were not improper.\n36. Sentencing\u2014 capital \u2014 prosecutor\u2019s closing argument\u2014 credibility of defense case \u2014 proper inferences\nThere was no gross impropriety in a capital sentencing proceeding where the prosecutor argued that defendant\u2019s case for mitigation was a lie. The prosecutor\u2019s argument appropriately drew inferences from properly admitted evidence and was not so grossly improper as to require the trial court to intervene ex mero motu.\n37. Sentencing\u2014 capital \u2014 prosecutor\u2019s closing argument \u2014 no cumulative error\nThere was no cumulative error in a prosecutor\u2019s closing argument in a capital sentencing proceeding where the arguments were not in error or did not rise collectively to the level of reversible error.\n38. Sentencing\u2014 capital \u2014 peremptory instructions \u2014 not given \u2014 controverted evidence\nThe trial court did not err in a capital sentencing proceeding by refusing to instruct peremptorily on the (f)(2),(f)(6), and (f)(8) mitigating circumstances where the evidence supporting their submission was controverted.\n39. Sentencing\u2014 capital \u2014 mitigating circumstances \u2014 no significant criminal activity \u2014 properly submitted\nThe trial court did not err in a capital sentencing procedure by submitting the (f)(1) mitigating circumstance (no significant history of criminal activity) over defendant\u2019s objection. The evidence was limited to minor offenses and the trial court reasonably determined that a rational jury could conclude that defendant had no significant history of criminal activity.\n40. Sentencing\u2014 capital \u2014 nonstatutory mitigating circumstances \u2014 peremptory instruction\nThe trial court did not err in a capital sentencing proceeding by failing to give peremptory instructions on nonstatutory mitigating circumstances where the evidence did not support the instructions.\n41. Sentencing\u2014 capital \u2014 mitigating circumstance \u2014 defendant\u2019s mother \u2014 peremptory instructions not given\nAny error in a capital sentencing proceeding in not giving peremptory instructions on mitigating instructions regarding defendant\u2019s mother was harmless. Several of the circumstances were controverted, and, while the court erred by not giving a peremptory instruction in one instance, other peremptory instructions relating to defendant\u2019s mother were given and the jury did not find mitigating effect.\n42. Sentencing\u2014 death penalty \u2014 proportionate\nThe death penalty was proportionate where the jury found three aggravating circumstances, the evidence fully supported each aggravating circumstance, and nothing in the record suggested a sentence imposed arbitrarily or under the influence of passion or prejudice. Defendant participated in a brutal, prolonged, and merciless killing.\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 Paul G. Gessner on 9 July 2007 in Superior Court, Wake Cotmty, upon a jury verdict finding defendant guilty of first-degree murder. Heard in the Supreme Court 9 September 2009.\nRoy Cooper, Attorney General, by Joan M. Cunningham and Derrick C. Mertz, Assistant Attorneys General, for the State.\nJames R Cooney III and Mary S. Pollard for defendant-appellant."
  },
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