Volume 340 — North Carolina Reports

<bold>1. Evidence and Witnesses § 1694 (NCI4th) — color photographs and</bold> <bold>slides</bold> <bold>of homicide victim's body — not unduly repetitive or</bold> <bold>prejudicial</bold> Two photographs showing a murder victim's body as it was discovered, four photographs from the autopsy, and ten slides from the autopsy, all of which were in color, were not unfairly prejudicial or unduly repetitive, and defendant was not prejudiced by the manner in which they were presented to the jury, where they were admitted to illustrate the position and condition of the body when found and various injuries sustained by the victim when he was dragged behind defendant's logging truck. The photographs and slides were not irrelevant because defendant admitted dragging the victim behind his truck and leaving the victim on the side of the road since they supported the jury's finding that the murder was premeditated and deliberate. <bold>Am Jur 2d, Evidence §§ 963, 964; Homicide §§ 417 et seq</bold>. <bold>Admissibility in evidence of colored photographs. 53 ALR2d 1102</bold>. <block_quote> <bold>Admissibility in evidence of enlarged photographs</bold> <bold>or photostatic</bold> <bold>copies. 72 ALR2d 308</bold>.</block_quote> <bold>2. Evidence and Witnesses § 1730 (NCI4th) — videotape — admission</bold> <bold>for</bold> <bold>illustrative purposes</bold> The trial court did not err by admitting a videotape illustrating testimony describing the route along which a homicide victim had been dragged behind defendant's logging truck and the location of blood along the route two days after the murder. <bold>Am Jur 2d, Evidence §§ 979-985, 987</bold>. <block_quote> <bold>Admissibility of videotape film in evidence in</bold> <bold>criminal trial. 60</bold> <bold>ALR3d 333</bold>.</block_quote> <block_quote> <bold>Admissibility of visual recording of event or</bold> <bold>matter giving rise to</bold> <bold>litigation or prosecution.</bold> <bold>41 ALR4th 812</bold>.</block_quote><page_number>Page 188</page_number> <block_quote> <bold>Admissibility of visual recording of event or</bold> <bold>matter other than that</bold> <bold>giving rise to litigation or</bold> <bold>prosecution. 41 ALR4th 877</bold>.</block_quote> <bold>3. Jury § 203 (NCI4th) — first-degree murder — recent murder of</bold> <bold>juror's</bold> <bold>friend — denial of challenge for cause</bold> The trial court did not err by denying defendant's challenge for cause of a potential juror in a first-degree murder trial on the basis that the recent murder of a friend of the juror could impair her ability to be fair and impartial in this case where the juror stated that she could follow the law and could separate the facts of her friend's murder from the one for which defendant was charged; on two occasions she stated that she would not be substantially impaired in her ability as a juror; and she stated that she would give defendant a fair trial and hold the State to its burden of proof. <bold>Am Jur 2d, Jury §§ 266, 267, 291</bold>. <bold>4. Constitutional Law § 309 (NCI4th) — ineffective assistance of</bold> <bold>counsel</bold> <bold>— concession of defendant's guilt — silent record as to</bold> <bold>defendant's</bold> <bold>consent — question not decided</bold> The Supreme Court will not pass upon defendant's assignment of error that his right to the effective assistance of counsel was denied by his attorney's concession to the jury in closing argument that defendant was guilty of involuntary manslaughter or second-degree murder where the record is silent as to whether defendant consented to his attorney's concession of guilt. Defendant's appropriate remedy, if any, is to file a motion for appropriate relief in the superior court pursuant to N.C.G.S. § <cross_reference>15A-1415</cross_reference>(b)(3) based upon ineffective assistance of counsel. <bold>Am Jur 2d, Criminal Law §§ 752, 985-987</bold>. <block_quote> <bold>Adequacy of defense counsel's representation of</bold> <bold>criminal client</bold> <bold>regarding argument. 6 ALR4th 16</bold>.</block_quote> <bold>5. Evidence and Witnesses § 1070 (NCI4th) — instructions on flight</bold> <bold> —</bold> <bold>sufficient supporting evidence</bold> The evidence in a first-degree murder trial was sufficient to support the trial court's instruction on flight as evidence of guilt where it showed that defendant left the scene of the murder and drove to his home in Virginia; after defendant became aware of injuries to the victim from being dragged behind defendant's logging<page_number>Page 189</page_number> truck, defendant drove the victim to a deserted area and dropped the victim into a creek fifteen to eighteen feet off the road and at the bottom of a twenty-feet drop; and after defendant got home, his truck was cleaned up and painted so that there was no evidence of blood on the truck. <bold>Am Jur 2d, Evidence §§ 1430, 1431; Trial §§ 1333-1335</bold>.

<bold>1. Criminal Law § 286 (NCI4th) — noncapital first-degree murder —</bold> <bold>continuance — pending capital trial — continuance denied — no</bold> <bold>error</bold> There was no violation of defendant's constitutional rights where defendant was tried noncapitally on an indictment charging her with the first-degree murder of her stepson in 1973, moved that this trial be continued until after the pending capital trial for the murder of her husband, and that motion was denied. Although defendant contended that she was forced to choose between testifying in her own behalf in this case and waiving her constitutional privilege against self-incrimination in the capital trial or waiving her constitutional right to testify in this trial to preserve her right against self-incrimination in her capital trial, the denial of the motion did not force defendant to choose between two constitutional rights but to make a purely tactical decision as to whether a it would be more advantageous to testify in this trial, in the capital trial, in both trials, or not at all. She would have faced the same dilemma regardless of which case was tried first since any incriminating statements made at the first trial could be used against her at the second trial. <bold>Am Jur 2d, Continuance § 60</bold>. <bold>2. Criminal Law § 288 (NCI4th) — motion for continuance — denied — not</bold> <bold>supported by findings — no error</bold> There was no abuse of discretion in a noncapital first degree murder prosecution in the denial of defendant's motion for a continuance where the ruling was not supported by any findings or analysis indicating that the trial court seriously considered the motion or the factors listed in N.C.G.S. § <cross_reference>15A-952</cross_reference>(g). The judge was not required to make specific findings of facts in denying the motion for a continuance because the facts presented in defendant's motion were not in dispute and the evidence before the court at the time the motion was heard clearly showed that none of the factors in N.C.G.S. § <cross_reference>15A-952</cross_reference>(g) was present in this case. <bold>Am Jur 2d, Continuance § 59</bold>.<page_number>Page 265</page_number> <bold>3. Indigent Persons § 27 (NCI4th) — noncapital murder — motion for</bold> <bold>funds</bold> <bold>for private investigator — no ex parte hearing</bold> There was no prejudice from the trial court's refusal to hold an <italic>ex</italic> <italic>parte</italic> hearing on defendant's pretrial motion for funds to hire an investigator in a noncapital first-degree murder prosecution where the court improperly based the denial of an <italic>ex parte</italic> hearing on defendant's failure to make a threshold showing of a particularized need, but defendant was not entitled as a matter of right to an <italic>ex parte</italic> hearing on her motion because the request for an investigator is more analogous to a request for fingerprint expert as in <italic>State v. Phipps</italic>, <cross_reference>331 N.C. 427</cross_reference>, than to a request for a psychiatrist as in <italic>State v. Ballard</italic>, <cross_reference>333 N.C. 515</cross_reference>. <bold>Am Jur 2d, Criminal Law §§ 719, 771, 955, 1006</bold>. <block_quote> <bold>Right of indigent defendant in criminal case to</bold> <bold>aid of state by</bold> <bold>appointment of investigator or</bold> <bold>expert. 34 ALR3d 1256</bold>.</block_quote> <block_quote> <bold>Right of indigent defendant in state criminal</bold> <bold>case to assistance of</bold> <bold>investigators. 81 ALR4th 259</bold>.</block_quote> <bold>4. Criminal Law § 762 (NCI4th) — noncapital first-degree murder —</bold> <bold>instruction during jury selection — reasonable doubt — moral</bold> <bold>certainty</bold> There was no error in a noncapital first-degree murder prosecution where the court gave a "moral certainty" reasonable doubt instruction during jury selection which defendant contended reduced the State's burden of proof below the standard required by the due process clause. The reasonable doubt instruction given during jury selection, taken as a whole, correctly conveyed the concept of reasonable doubt to the jury; moreover, even if there was error in the preliminary instruction, the trial court's use of the pattern jury instruction in its charge to the jury before it retired for deliberation cured any possible defect in the earlier instruction. <bold>Am Jur 2d, Evidence §§ 168, 170</bold>. <bold>5. Jury § 132 (NCI4th) — noncapital first-degree murder — jury</bold> <bold>selection</bold> <bold>— questions concerning pretrial publicity</bold> The trial court did not abuse its discretion during jury selection for a noncapital first-degree murder prosecution where the<page_number>Page 266</page_number> court did not allow defendant to ask whether the publicity surrounding the case or fear of later criticism would affect their verdict or their ability to be fair. Whether the case would attract future media attention or might subject jurors to criticism was purely speculative. These questions were an attempt by defense counsel to stake out prospective jurors and were not likely to result in answers relevant to a juror's qualification to serve. <bold>Am Jur 2d, Criminal Law § 688; Jury §§ 199, 208</bold>. <bold>6. Criminal Law § 107 (NCI4th) — noncapital first-degree murder —</bold> <bold>witness — files as drug informant — not disclosed</bold> There was no error in a noncapital first-degree murder prosecution where the trial court denied defendant's motion for disclosure of all files pertaining to a witness's activities as a drug informant. Defendant was aware that the witness had acted as a police informant in the past and was free to use that information for impeachment purposes. <bold>Am Jur 2d, Depositions and Discovery § 443</bold>. <bold>7. Evidence and Witnesses § 364 (NCI4th) — noncapital first-degree</bold> <bold>murder</bold> <bold>— other offense — chain of circumstances</bold> The trial court did not err in a noncapital first-degree murder prosecution by admitting evidence of defendant's alleged involvement in another murder where defendant was charged with the 1973 murder of her four year old stepson following a 1991 conspiracy to kill her husband and her motion <italic>in limine</italic> to exclude the evidence of her alleged involvement in her husband's death from the trial for the murder of her stepson was denied. The trial court's findings of fact and conclusions of law make it clear that the evidence of defendant's confession to the witness was admitted for the purpose of refuting accident and that the interwoven evidence of defendant's participation in her husband's murder was admitted for the purpose of establishing the witness's credibility and the contextual basis for defendant's confession; the evidence was so intertwined that the trial court did not err in concluding that all the evidence was admissible under the chain of circumstances rule. Finally, the trial court did not abuse its discretion under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 403 by concluding that the probative value of the interwoven evidence outweighed any prejudicial effect. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b). <bold>Am Jur 2d, Evidence §§ 326-327</bold>.<page_number>Page 267</page_number> <bold>8. Criminal Law § 787 (NCI4th) — noncapital first-degree murder —</bold> <bold>instruction on lack of accident</bold> The trial court did not err in the prosecution of defendant for the noncapital first-degree murder of her stepson by instructing the jury that it could consider evidence of defendant's involvement in her husband's murder to prove the absence of accident. The instruction was consistent with the trial court's findings of fact and conclusions of law in connection with the admission of this "other crimes" evidence. Furthermore, the trial court correctly limited the consideration of this evidence to the determination of the witness's credibility and absence of accident. <bold>Am Jur 2d, Evidence § 340; Homicide § 112</bold>. <bold>9. Evidence and Witnesses § 650 (NCI4th) — noncapital first-degree</bold> <bold>murder</bold> <bold>— motion in limine — no ruling</bold> There was no error in a noncapital first-degree murder prosecution from the court's failure to rule on a motion <italic>in limine</italic> to prohibit the prosecutor from cross-examining defendant with allegedly inadmissible evidence of her involvement in her husband's murder where the "other crimes" evidence here had been properly ruled admissible pursuant to N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) under the "chain of circumstances" rule. A criminal defendant's decision not to testify based on the introduction of competent admissible evidence against her is purely a tactical decision that does not implicate any of her constitutional rights; as there was no threat that impermissible evidence would be used to cross-examine defendant, she was not impermissibly discouraged from testifying at trial. <bold>Am Jur 2d, Evidence § 865</bold>. <bold>10. Evidence and Witnesses § 1694 (NCI4th) — noncapital first-degree</bold> <bold>murder — photograph of victim in casket — admissible</bold> The trial court did not err in a noncapital first-degree murder prosecution by admitting a photograph of the victim in his casket in a funeral home where no autopsy or criminal investigation was conducted at the time of the victim's death in 1973, no photographs were taken of the victim as he appeared at the time of his death other than this photograph, only the victim's bones remained when the body was exhumed, and this photograph was the only physical evidence to illustrate testimony about the condition<page_number>Page 268</page_number> of the victim's body shortly after the time of his death. Moreover, the photograph and accompanying testimony were relevant to establish the <italic>corpus delicti</italic> of the crime. <bold>Am Jur 2d, Evidence §§ 971, 974; Homicide §§ 416-417</bold>. <bold>11. Evidence and Witnesses § 212 (NCI4th) — noncapital first-degree</bold> <bold>murder</bold> <bold>— victim's prior injuries — admissible</bold> There was no error in a first-degree murder prosecution in the admission of evidence that the four year old victim had suffered from a skull fracture and severe burns on his leg and ankle several weeks before his death where a basis existed for the jury to infer that defendant was responsible for the prior injuries and the evidence that the victim suffered from a severe skull fracture and serious burns shortly before his death was relevant to the jury's determination of whether defendant was criminally negligent. Furthermore, this evidence was relevant and admissible under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) as proof of defendant's preparation and planning for the commission of this crime and that the victim's death was not accidental. <bold>Am Jur 2d, Evidence §§ 270-271; Homicide § 13</bold>. <bold>12. Evidence and Witnesses § 84 (NCI4th) — noncapital first-degree</bold> <bold>murder</bold> <bold>— victim's life insurance — defendant as beneficiary</bold> The trial court did not err in the prosecution of defendant for the noncapital first-degree murder of her four year old stepson by admitting evidence that her husband, an insurance agent, amended the victim's life insurance policy six days before his death to designate defendant as a co-beneficiary. Evidence of motive is relevant when it has a tendency to show that the defendant committed the crime at issue. The extent of defendant's knowledge about this insurance policy impacted only on the weight to be accorded the evidence. <bold>Am Jur 2d, Homicide § 12; Evidence § 435</bold>. <bold>13. Evidence and Witnesses §§ 2162, 2262, 2251 (NCI4th) — noncapital</bold> <bold>first-degree murder — child's death as accidental — nurses'</bold> <bold>testimony</bold> The trial court did not err in a noncapital first-degree murder prosecution for the death of a four year old child by admitting testimony<page_number>Page 269</page_number> from three nurses who were in the emergency room when the victim was brought in and who were present when a piece of plastic was removed from the victim's throat that the plastic could not have been accidentally swallowed by the victim. By overruling defendant's objections, the trial court implicitly accepted the nurses as expert witnesses and defendant waived her right to raise that issue on appeal by failing to specifically object to their qualifications at trial. Even if a challenge to their qualifications had been preserved, these nurses were in fact qualified to render their opinions as experts because they were in a better position than the jurors to know if it was physically possible for a piece of plastic the size of the one removed from the victim's throat to be accidentally swallowed or inhaled so deeply that it could not at first be seen. The use of the term "accident" by one nurse was not a legal term of art or an opinion as to the standard the jury should apply. <bold>Am Jur 2d, Expert and Opinion Evidence § 365</bold>. <bold>14. Evidence and Witnesses § 2890.5 (NCI4th) — noncapital first-degree</bold> <bold>murder — child's death — medical examiner — cross-examination as</bold> <bold>to</bold> <bold>reputation</bold> The trial court did not err in the noncapital first-degree murder prosecution of defendant for the 1973 death of her four year old stepson by excluding evidence on cross-examination about the competency of the medical examiner who removed a piece of plastic from the victim's throat and who signed the 1973 death certificate stating that the death was accidental. The prosecutor did not open the door to the admission of the testimony about the medical examiner's general reputation in the medical community because the prosecutor had merely disputed the conclusion that this death was accidental. Moreover, the doctor's current standing in the medical community has no logical probative value on whether his twenty-year-old opinion about this murder was accurate and supported by an a thorough investigation. Finally, assuming that the doctor's reputation for competency as a doctor had been attacked, that evidence was not probative of character for truthfulness and would not have been admissible. <bold>Am Jur 2d, Witnesses §§ 484 et seq</bold>.<page_number>Page 270</page_number> <bold>15. Criminal Law §§ 396, 380 (NCI4th) — noncapital first-degree murder —</bold> <bold>remarks by judge — opening remark on State's burden of proof —</bold> <bold>comment</bold> <bold>to defense counsel</bold> There was no reversible error in a noncapital first-degree murder prosecution where the trial court, in its preliminary remarks to prospective jurors, made a remark which defendant contends denigrated her plea of not guilty and suggested that the trial was a mere formality, but which in context accurately instructed the jury about defendant's presumption of innocence and the State's burden to prove every material element of its charges beyond a reasonable doubt; and where the court commented to defense counsel that "You can talk to her now..." when defense counsel was cross-examining a witness concerning her refusal to talk with defense counsel prior to trial. In context, the court's comment was intended to end defense counsel's badgering of the witness. The necessity for the court to intercede was created by defense counsel and the court's comment did not increase any prejudice to defendant arising from the conduct of her attorney. <bold>Am Jur 2d, Trial § 92</bold>. <bold>16. Criminal Law § 787 (NCI4th) — noncapital first-degree murder —</bold> <bold>instruction on accident — theory of acquittal — not in mandate —</bold> <bold>no</bold> <bold>plain error</bold> There was no plain error in a noncapital first-degree murder prosecution for the murder of defendant's four year old stepson in 1973 where the court instructed on accident as a theory of acquittal but did not include "not guilty by reason of accident" in the final mandate. <bold>Am Jur 2d, Trial § 726</bold>.

<bold>1. Homicide § 689 (NCI4th) — unlawful conduct — instruction on</bold> <bold>accident</bold> <bold>not required</bold> The trial court was not required to instruct the jury on the defense of accident in a first-degree murder prosecution by defendant's evidence that he fired one shot into the air to scare the victim, the gun went off a second time accidentally and fired the fatal shot when he was startled by a loud noise, and he only intended to scare the victim and not to hurt him where the evidence was uncontroverted that defendant was engaged in unlawful conduct and acted with a wrongful purpose when the killing occurred in that defendant sought out the victim armed with a loaded gun; an altercation ensured during which defendant assaulted the victim, who was unarmed; defendant admitted that he fired the gun once intentionally; and the gun was in defendant's hand when the fatal shot was fired. <bold>Am Jur 2d, Homicide §§ 482-535</bold>. <bold>2. Homicide § 704 (NCI4th) — refusal to instruct on accident —</bold> <bold>error</bold> <bold>cured by first-degree murder verdict</bold> Even if the trial court erred by refusing to instruct the jury on the defense of accident in a first-degree murder trial, this error was rendered harmless by the jury's verdict finding defendant guilty of first-degree murder where the trial court correctly instructed the jury as to possible verdicts of murder in the first and second degrees and involuntary manslaughter, and the jury found defendant guilty of first-degree murder on the theory of premeditation and deliberation, since an accidental killing, like involuntary manslaughter, is an unintentional killing; in reaching its verdict convicting defendant of first-degree murder, the jury necessarily found that defendant had the specific intent to kill the victim; and the verdict finding defendant guilty of first-degree murder and not the unintentional act of involuntary manslaughter precludes the possibility that the same jury would have accepted defendant's claim that the shooting was accidental had it been given the requested instruction. <bold>Am Jur 2d, Homicide §§ 529 et seq</bold>.<page_number>Page 339</page_number> <block_quote> <bold>Supreme Court's views as to what constitute</bold> <bold>harmless errors</bold> <bold>or plain errors, under Rule 52 of</bold> <bold>Federal Rules of Criminal Procedure</bold>. <bold><cross_reference>84 L.Ed.2d 876</cross_reference></bold>.</block_quote>

<bold>1. Constitutional Law § 372 (NCI4th) — capital trial — no arbitrary</bold> <bold>prosecutorial discretion — death penalty not unconstitutional</bold> The trial court properly denied defendant's motion to exclude the death penalty from consideration in his first-degree murder trial on the ground that the district attorney selected cases for capital prosecution in Robeson County in an arbitrary manner in violation of defendant's constitutional rights since the only limitation on the prosecutor's discretion pertinent to this case is that the decision to prosecute capitally may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including prosecution due to defendant's decision to exercise his constitutional rights; defendant did not show that the district attorney had an improper motive in deciding what charges to proceed with or which first-degree murder cases to try capitally; and a showing that one first-degree murder case was tried noncapitally in the county notwithstanding the existence of aggravating circumstances because of a mistake on the part of the assistant district attorney who prosecuted the case did not render the prosecutorial system for capital cases invalid as a whole. U.S. Const. amends. VII and XIV; N.C. Const. art. I, §§ 19, 23 and 27. <bold>Am Jur 2d, Criminal Law §§ 627, 628; Prosecuting Attorneys § 24</bold>. <bold>2. Jury § 222 (NCI4th) — jury selection — opposition to death</bold> <bold>penalty —</bold> <bold>excusal for cause — adequacy of questioning by court</bold> The trial court adequately questioned prospective jurors to determine whether they could follow the law despite their personal opposition to the death penalty prior to excusing them for cause where the court, upon learning that a prospective juror had reservations about the death penalty, asked the juror whether there were any circumstances in which he or she could vote in favor of the death penalty, and each juror said "No." <bold>Am Jur 2d, Jury §§ 199, 279</bold>.<page_number>Page 574</page_number> <block_quote> <bold>Comment Note. — Beliefs regarding capital</bold> <bold>punishment as</bold> <bold>disqualifying juror in capital case —</bold> <bold>post-</bold><bold><italic>Witherspoon</italic></bold> <bold>cases. 39 ALR3d 550</bold>.</block_quote> <bold>3. Jury § 232 (NCI4th) — death-qualification of jury — prejudice</bold> <bold>from</bold> <bold>racial composition not shown</bold> There was no merit to defendant's contention that he was prejudiced because death-qualification of the jury resulted in a racially imbalanced jury where defendant cited no case for his proposition that a jury which is racially disparate after death-qualification results in prejudice to defendant, and defendant failed to show that the jury in his case was racially disparate or that the jury composition prejudiced him. <bold>Am Jur 2d, Jury § 262</bold>. <bold>4. Jury § 141 (NCI4th) — jury selection — exclusion of question</bold> <bold>about</bold> <bold>parole</bold> The trial court properly refused to permit defense counsel to ask a prospective juror in a capital trial a question concerning the length of time defendant would serve in prison if convicted and sentenced to life imprisonment. Furthermore, where the court then instructed that "life means life," it will be assumed that the jury followed the court's instruction and did not consider the possibility of parole in reaching its verdict. <bold>Am Jur 2d, Jury § 205</bold>. <bold>5. Searches and Seizures § 69 (NCI4th) — search of defendant's</bold> <bold>jacket —</bold> <bold>residence of third party — consent by third party</bold> The trial court properly concluded that a search of defendant's jacket in a third party's residence was conducted with a valid consent, that defendant had no reasonable expectation of privacy, and that a pistol and car keys seized from the jacket were admissible in evidence where the third party consented to a search of her residence and signed the consent to search form; defendant's jacket was lying in a pile of clothing on the living room floor of the residence; and the officer who conducted the search did not know the jacket belonged to defendant when he discovered it there. <bold>Am Jur 2d, Searches and Seizures §§ 92 et seq</bold>.<page_number>Page 575</page_number> <block_quote> <bold>Authority to consent for another to search or</bold> <bold>seizure. 31 ALR2d</bold> <bold>1078</bold>.</block_quote> <block_quote> <bold>Comment Note. — Nature of interest in, or</bold> <bold>connection with, premises</bold> <bold>searched as affecting</bold> <bold>standing to attack legality of search. 78 ALR2d</bold> <bold>246</bold>.</block_quote> <block_quote> <bold>Admissibility of evidence discovered in</bold> <bold>warrantless search of</bold> <bold>property or premises</bold> <bold>authorized by one having ownership interest in</bold> <bold>property or premises other than relative. 49 ALR</bold> <bold>Fed. 511</bold>.</block_quote> <bold>6. Criminal Law § 454 (NCI4th) — capital sentencing — prosecutor's</bold> <bold>argument — prior life sentence — death penalty only additional</bold> <bold>punishment — error cured by court's actions</bold> The trial court did not err by failing to grant a mistrial when the prosecutor argued to the jury in a capital sentencing proceeding that defendant had already received a life sentence for another murder and the only way to give defendant additional punishment for the two murders at issue was to give him the death penalty where the court promptly sustained defendant's objection and allowed his motion to strike; the court then instructed the jury to "disregard that comment" of the prosecutor; and the court's actions therefore cured any possible error created by the prosecutor's argument. <bold>Am Jur 2d, Jury § 290; Trial §§ 708, 711</bold>. <bold>7. Criminal Law § 1347 (NCI4th) — capital sentencing — course of</bold> <bold>conduct</bold> <bold>aggravating circumstance — instructions — consideration of</bold> <bold>prior and</bold> <bold>subsequent crimes</bold> Defendant's commission of a prior convenience store robbery and murder of the store clerk and his subsequent shooting of a taxicab driver were sufficiently connected to two murders by defendant at a motel to support the trial court's instruction permitting the jury to find the "course of conduct" aggravating circumstance for the two motel murders based on the convenience store and taxicab crimes where defendant committed the convenience store robbery and murder only four days before the double motel murders; defendant shot the taxicab driver less than three weeks after the motel murders; there was a span of only twenty-two days from the convenience store crimes to the shooting of the taxicab driver; the <italic>modus operandi</italic> for each crime was similar in that defendant used the same pistol to kill, or attempt<page_number>Page 576</page_number> to kill, each victim and had one or two accomplices with him during each crime; and numerous witnesses testified that these acts were robberies for the purpose of obtaining money to buy drugs. Therefore, the trial court did not err by failing to give defendant's requested instruction which would have permitted the jury to find the course of conduct aggravating circumstance based only on the two motel murders. <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>. <block_quote> <bold>Sufficiency of evidence, for purposes of death</bold> <bold>penalty, to establish</bold> <bold>statutory aggravating</bold> <bold>circumstance that murder was committed for</bold> <bold>pecuniary</bold> <bold>gain, as consideration or in expectation of</bold> <bold>receiving</bold> <bold>something of monetary value, and the like</bold> <bold>— post-</bold><bold><italic>Gregg</italic></bold> <bold>cases. 66 ALR4th 417</bold>.</block_quote> <bold>8. Criminal Law § 454 (NCI4th) — capital sentencing — prosecutor's</bold> <bold>closing argument — jurors in position of victims — no due process</bold> <bold>violation — no gross impropriety</bold> The prosecutor's closing arguments in a capital sentencing hearing wherein he repeatedly asked the jurors to place themselves in the position of the murder victims did not prejudice defendant and thus did not deny him due process where the arguments did not manipulate or misstate the evidence and did not implicate specific constitutional rights of defendant, such as the right to counsel or the right to remain silent; the trial court also instructed the jurors that the arguments of counsel were not evidence and that their decision was to be made on the basis of the evidence alone; and the weight of the evidence was overwhelming as to the pecuniary gain and course of conduct aggravating circumstances. Furthermore, those arguments were not so grossly improper as to require the trial court to intervene in the absence of an objection by defendant. <bold>Am Jur 2d, Trial §§ 664 et seq., 708, 711</bold>. <block_quote> <bold>Propriety and prejudicial effect of prosecutor's</bold> <bold>remarks as to</bold> <bold>victim's age, family circumstances, or</bold> <bold>the like. 50 ALR3d 8</bold>.</block_quote> <bold>9. Criminal Law § 445 (NCI4th) — capital sentencing — prosecutor's</bold> <bold>jury</bold> <bold>argument — disapproval of taxpayers educating defendant — no</bold> <bold>gross</bold> <bold>impropriety</bold> Assuming impropriety in the prosecutor's argument in a capital sentencing proceeding expressing his disapproval of defendant<page_number>Page 577</page_number> being educated at Shaw University at taxpayer expense while discussing the nonstatutory mitigating circumstance that defendant had sought to better himself educationally during his confinement, the argument was not so prejudicial to defendant's case as to amount to gross impropriety where the evidence in the case was overwhelming; defendant had already been convicted in one case where he assaulted a man with a pistol in an attempt to kill him and in another case where he killed and robbed a convenience store clerk; those two crimes were similar in nature, time, and motivation to the crime in this case; in this case, defendant slit the throat of a motel clerk, later shot and killed him, and also shot and killed a second motel clerk before robbing the motel; defendant bragged to two other people about his deeds; and the outcome of the sentencing proceeding was not changed as a result of the allegedly improper argument. <bold>Am Jur 2d, Trial §§ 678, 708, 711</bold>. <block_quote> <bold>Counsel's reference in criminal case to wealth,</bold> <bold>poverty, or</bold> <bold>financial status of defendant or victim</bold> <bold>as ground for mistrial, new</bold> <bold>trial, or reversal.</bold> <bold>36 ALR3d 839</bold>.</block_quote> <block_quote> <bold>Prosecutor's appeal in criminal case to</bold> <bold>self-interest or prejudice</bold> <bold>of jurors as taxpayers as</bold> <bold>ground for reversal, new trial, or mistrial</bold>. <bold></bold> <bold>60 ALR4th 1063</bold>.</block_quote> <bold>10. Criminal Law § 1360 (NCI4th) — capital sentencing — impaired</bold> <bold>capacity mitigating circumstance — insufficient</bold> <bold>evidence</bold> The evidence in a capital sentencing hearing was insufficient to support a finding of the statutory mitigating circumstance that defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired where defendant's evidence of his voluntary intoxication came from witnesses who testified that defendant showed up at Army formations with alcohol on his breath, that defendant drank beer with an Army buddy regularly, and that he had failed a random drug test, and defendant's evidence of mental disorder consisted of testimony from family and friends that he underwent a radical and abrupt character change in the month before the murders which was indicative of a "mental breakdown." N.C.G.S. § <cross_reference>15A-2000</cross_reference>(f)(6). <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>.<page_number>Page 578</page_number> <block_quote> <bold>Comment Note. — Mental or emotional condition as</bold> <bold>diminishing</bold> <bold>responsibility for crime. 22 ALR3d 1228</bold>.</block_quote> <block_quote> <bold>Effect of voluntary drug intoxication upon</bold> <bold>criminal responsibility</bold>. <bold>73 ALR3d 98</bold>.</block_quote> <block_quote> <bold>When intoxication deemed involuntary so as to</bold> <bold>constitute a defense</bold> <bold>to criminal charge. 73 ALR3d 195</bold>.</block_quote> <bold>11. Criminal Law § 1363 (NCI4th) — capital sentencing — accomplice</bold> <bold>not</bold> <bold>tried capitally — not mitigating circumstance</bold> The trial court did not err by failing to submit as a nonstatutory mitigating circumstance in a capital sentencing proceeding that defendant's accomplice had not been and may not be tried capitally. <bold>Am Jur 2d, Criminal Law §§ 598, 785</bold>. <bold>12. Criminal Law § 482 (NCI4th) — conversation between witness and</bold> <bold>juror</bold> <bold>— adequacy of court's inquiry</bold> The trial court conducted an adequate inquiry into an alleged contact between a State's witness and a juror to meet its duty to ensure the impartiality of the jury where the prosecutor informed the court that a State's witness told him that he had begun a conversation with a juror during a lunch recess after he testified but ended it upon realizing that the person was a juror, the court called the jury into the courtroom and asked the jurors if any of them had been in contact with the witness after he testified, none responded, and the court resumed the trial. <bold>Am Jur 2d, Trial §§ 1607, 1608</bold>. <block_quote> <bold>Prejudicial effect, in civil case, of</bold> <bold>communications between</bold> <bold>witnesses and jurors.</bold> <bold>52 ALR2d 182</bold>.</block_quote> <block_quote> <bold>Prejudicial effect, in criminal case, of</bold> <bold>communications between</bold> <bold>witnesses and jurors.</bold> <bold>9 ALR3d 1275</bold>.</block_quote> <bold>13. Criminal Law § 1349 (NCI4th) — capital sentencing — statutory</bold> <bold>mitigating circumstances — instructions — mitigating value</bold> The trial court did not permit the jury to determine whether statutory mitigating circumstances found by the jury had mitigating value where the court first instructed as to the statutory mitigating circumstances; the court told the jurors that if they found<page_number>Page 579</page_number> a statutory mitigating circumstance to exist they should mark "yes" in the space provided but did not specifically instruct that statutory mitigating circumstances are deemed by law to have mitigating value; and the court then instructed on nonstatutory mitigating circumstances and told the jurors to mark "yes" in the space provided if one or more jurors believed defendant's evidence supporting such a circumstance and further believed that the circumstance had mitigating value. The instructions are in accord with the law and could not have caused a juror reasonably to understand the trial court's final instruction regarding nonstatutory circumstances to refer back to all of the mitigating circumstances. <bold>Am Jur 2d, Criminal Law §§ 598 et seq</bold>. <bold>14. Criminal Law § 1363 (NCI4th) — capital sentencing — adjustment</bold> <bold>to</bold> <bold>prison life — mitigating value</bold> The trial court did not err by failing to instruct that if any juror found by a preponderance of the evidence that defendant had the ability to adjust to prison life, the juror must give that circumstance mitigating value. <bold>Am Jur 2d, Criminal Law §§ 598 et seq</bold>. <bold>15. Criminal Law § 1351 (NCI4th) — mitigating circumstances — burden</bold> <bold>or</bold> <bold>proof — "satisfy you"</bold> The trial court's use of the words "satisfy you" to explain the burden of proof applicable to mitigating circumstances was not error. <bold>Am Jur 2d, Criminal Law §§ 598 et seq</bold>. <bold>16. Jury § 114 (NCI4th) — capital sentencing — denial of individual</bold> <bold>jury</bold> <bold>voir dire</bold> The trial court did not err by denying defendant's motion for individual jury <italic>voir dire</italic> in a capital sentencing proceeding. <bold>Am Jur 2d, Jury §§ 194, 195, 198, 199</bold>. <bold>17. Jury 226 (NCI4th) — capital sentencing — death qualification of</bold> <bold>jury</bold> <bold>— excusal without rehabilitation</bold> The trial court did not err by denying defendant the right to examine each juror challenged by the State during death qualification prior to his or her excusal and by excusing jurors that defendant was not permitted to question. <bold>Am Jur 2d, Jury §§ 199, 279</bold>.<page_number>Page 580</page_number> <bold>18. Homicide § 135 (NCI4th); Indictment, Information, and Criminal</bold> <bold>Pleadings § 31 (NCI4th) — first-degree murder — short form</bold> <bold>indictment</bold> <bold>— misspelling of defendant's name</bold> The "short form" indictment in N.C.G.S. § <cross_reference>15-144</cross_reference> was sufficient to charge defendant with first-degree murder. Furthermore, the misspelling of defendant's name in the indictment was not fatal. <bold>Am Jur 2d, Homicide § 207</bold>. <bold>19. Criminal Law § 1323 (NCI4th) — nonstatutory mitigating</bold> <bold>circumstances</bold> <bold>— finding of mitigating value</bold> The trial court did not err by failing to instruct in accord with defendant's request to prohibit jurors from rejecting nonstatutory mitigation evidence if they found that it had no mitigating value. <bold>Am Jur 2d, Criminal Law §§ 598, 599; Trial § 888</bold>. <bold>20. Criminal Law § 1325 (NCI4th) — capital sentencing — mitigating</bold> <bold>circumstances — instructions — use of "may"</bold> The trial court did not err by instructing that each juror "may" consider any mitigating circumstance found in sentencing issue two when answering issues three and four. <bold>Am Jur 2d, Criminal Law §§ 598, 599; Trial § 888</bold>. <bold>21. Criminal Law § 1332 (NCI4th) — capital sentencing — requested</bold> <bold>instruction — verdict binding on court</bold> The trial court did not err by refusing to give defendant's requested instruction that the jury's verdict in a capital sentencing proceeding "bound" the trial court and was not merely a recommendation. <bold>Am Jur 2d, Trial §§ 1830 et seq</bold>. <block_quote> <bold>Propriety of imposition of death sentence by</bold> <bold>state court following</bold> <bold>jury's recommendation of life</bold> <bold>imprisonment or lesser sentence. 8</bold> <bold>ALR4th 1028</bold>.</block_quote> <bold>22. Constitutional Law § 371 (NCI4th) — death penalty statute —</bold> <bold>constitutionality</bold> North Carolina's death penalty statute, N.C.G.S. § <cross_reference>15A-2000</cross_reference>, is constitutional and not based upon subjective discretion or applied arbitrarily, capriciously, or pursuant to a pattern of discrimination based upon race, gender, or poverty.<page_number>Page 581</page_number> <bold>Am Jur 2d, Criminal Law §§ 625 et seq</bold>. <bold>23. Criminal Law § 1373 (NCI4th) — death penalty not disproportionate</bold> Sentences of death imposed upon defendant for two first-degree murders were not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, where defendant pled guilty to two counts of first-degree murder; the jury found the aggravating circumstances that the murders were committed for pecuniary gain and were part of a course of conduct which included the commission of crimes of violence against another person; the evidence showed that defendant slit the throat of a motel clerk whom he later shot and killed, and that he also shot and killed a second motel clerk before robbing the motel; and defendant had previously been convicted of a murder and robbery and also of an assault with a deadly weapon with intent to kill inflicting serious injury and attempted armed robbery. <bold>Am Jur 2d, Criminal Law §§ 627, 628</bold>.

<bold>1. Indigent Persons § 19 (NCI4th) — first-degree murder — appointment</bold> <bold>of</bold> <bold>state psychiatrist as defense witness</bold> There was no error in a first-degree murder trial where the trial court appointed a forensic psychiatrist who worked for a state facility and who had handled the competency determination to assist defendant at trial. Assuming that defendant made an adequate showing of a specific need for an expert, the record establishes that defendant received adequate assistance from the psychiatrist, Dr. Rollins, in the presentation of mitigating evidence in that Dr. Rollins offered his opinions at trial; those opinions were based upon four interviews with defendant, defendant's statement, investigative reports, reports of interviews with defendant's mother and sisters, and Dr. Rollins' interview with defendant's sister; Dr. Rollins testified that defendant had two types of mental disorders, one of personality and one of adjustment; that defendant's ability to understand appropriate standards of behavior was affected by these disorders and was impaired further by his use of marijuana; that defendant began using marijuana when he was eleven or twelve; that defendant's youth was characterized by poverty-related concerns for food, clothing, and shelter; and Dr. Rollins's testimony was the sole supporting evidence for the lone statutory mitigating circumstance found by one or more jurors, mental or emotional disturbance, and also supported two nonstatutory mitigating circumstances, emotional neglect and a history of substance abuse beginning at an early age, that were found by one or more jurors. <bold>Am Jur 2d, Criminal Law §§ 955, 1006</bold>. <block_quote> <bold>Right of indigent defendant in state criminal</bold> <bold>case to assistance of</bold> <bold>psychiatrist or psychologist.</bold> <bold>85 ALR4th 19</bold>.</block_quote> <bold>2. Jury § 106 (NCI4th) — first-degree murder — jury selection — group</bold> <bold>questions required</bold> There was no abuse of discretion in a first-degree murder prosecution where the defendant contended that the trial court prohibited defendant from asking questions of prospective jurors individually and allowed individual questions only if a group<page_number>Page 613</page_number> question produced a response from some jurors. Defendant was allowed to question jurors individually at several points during jury selection and the jurors responded individually to group questions if the questions required an individualized response based on their personal situations. It is within the trial court's discretion to regulate the manner and extent of inquiries on <italic>voir dire</italic>. <bold>Am Jur 2d, Jury § 198</bold>. <bold>3. Criminal Law § 375 (NCI4th) — first-degree murder — comments by</bold> <bold>judge</bold> <bold>— no error</bold> There was no error in a first-degree murder prosecution in a comment by the court that "I think I've tested the jury's attention span for today" during defendant's testimony or in a later comment that on the next day the court would give the jury the law that pertains to this "sad situation." The comment regarding the attention span stated that the court, not defendant, had tested the jury's attention span and simply referred to the court's responsibility to manage the trial. The reference to a sad situation was not an expression of opinion by the court; defendant did not allege self-defense or justifiable homicide but claimed that someone else committed the murder, and the characterization of the situation as sad would seem to be a universal sentiment. <bold>Am Jur 2d, Trial § 276</bold>. <bold>4. Criminal Law § 466 (NCI4th) — capital murder — prosecutor's argument</bold> <bold>— treatment of rape victim by defense attorney</bold> There was no error in a capital first-degree murder prosecution requiring <italic>ex mero motu</italic> intervention where the prosecutor referred in closing argument to the cross-examination of a witness other than the victim in this case who testified that she had been kidnapped and raped by defendant. Defendant's prior crimes were introduced to show a pattern of behavior and the credibility of this witness was therefore important. It is not improper for the prosecutor to refer to the demeanor of a witness during the ordeal of testifying as evidence of her truthfulness, and the prosecutor emphasized that the purpose of the testimony was to aid the jury in determining what happened to the victim in this case. <bold>Am Jur 2d, Trial § 614</bold>.<page_number>Page 614</page_number> <bold>5. Criminal Law § 445 (NCI4th) — capital murder — prosecutor's argument</bold> <bold>— personal opinion — full prosecution</bold> The Supreme Court could not say in a capital first-degree murder prosecution that there was error requiring correction <italic>ex mero motu</italic> where defendant contended that the prosecutor conveyed to the jury his opinion that the case warranted full prosecution. Even assuming error in the prosecutor's statement that he was not in charge of defendant's prior cases when the charges were dropped, it could not have been prejudicial given the evidence against defendant, including his own pretrial confession. Further, the overall thrust of the argument was to point out why defendant gave a confession that he later contradicted in his trial testimony. <bold>Am Jur 2d, Trial § 554</bold>. <bold>6. Criminal Law § 436 (NCI4th) — first-degree murder — prosecutor's</bold> <bold>argument for conviction — deterrence</bold> There was nothing improper in a first-degree murder prosecution where the prosecutor argued that defendant should be convicted so that he would not commit crimes in the future. <bold>Am Jur 2d, Trial §§ 554, 568</bold>. <bold>7. Criminal Law § 1322 (NCI4th) — first-degree murder — sentencing —</bold> <bold>jury's questions regarding parole eligibility — instructions</bold> The trial court did not err in a first-degree murder prosecution in its instruction given in the sentencing hearing in response to the jury's questions regarding parole eligibility. Although defendant argues that the court should have included in the instruction the statement that "life means life," the court told the jury what was required: that it was not to consider parole in its deliberations. The trial court does not have to instruct the jury in the precise words the defendant requests. <bold>Am Jur 2d, Trial §§ 286, 1443</bold>. <block_quote> <bold>Prejudicial effect of statement or instruction</bold> <bold>of court as to</bold> <bold>possibility of parole or pardon.</bold> <bold>12 ALR3d 832</bold>.</block_quote> <bold>8. Criminal Law § 475 (NCI4th) — first-degree murder — sentencing —</bold> <bold>jury's exposure to defendant's escape attempt — questions by court</bold> There was no error in the sentencing hearing in a first-degree murder prosecution in the trial court's inquiries to the jury following<page_number>Page 615</page_number> a failed escape attempt by defendant where defendant stated that he did not know whether the jurors in question had seen him, one juror stated that she had seen only broken glass, another stated that he had seen broken glass but it would not impact his deliberations, another stated that he had seen a repairman working on the window, and the jury as a whole indicated that it could go by the evidence. Although defendant contends that the court failed to make a thorough inquiry, the court made a proper, individual inquiry of the three jurors, it is apparent from their <italic>voir dires</italic> that the three were aware only of a broken window, which does not readily suggest that defendant attempted to escape, and the entire jury indicated that it could be fair and impartial. <bold>Am Jur 2d, Trial §§ 1544, 1545</bold>. <block_quote> <bold>Prejudicial effect of prosecuting attorney's</bold> <bold>argument to jury that</bold> <bold>people of city, county, or</bold> <bold>community want or expect a conviction. 85</bold> <bold>ALR2d</bold> <bold>1132</bold>.</block_quote> <bold>9. Criminal Law § 446 (NCI4th) — first-degree murder — sentencing —</bold> <bold>prosecutor's argument — desire of community</bold> There was no error in the sentencing hearing in a first-degree murder prosecution where defendant contended that the prosecutor argued that the jury was obligated to return a sentence of death because the community expected it, but the prosecutor merely stated that the law is in accord with the community's view of the appropriate punishment and that the jury should follow the law in reaching its recommendation. <bold>Am Jur 2d, Trial § 648</bold>. <bold>10. Criminal Law § 436 (NCI4th) — first-degree murder — sentencing —</bold> <bold>prosecutor's argument — defendant's enjoyment of murder</bold> There was no error in the sentencing hearing in a first-degree murder prosecution where defendant contended that the prosecutor's argument that defendant had enjoyed the killing was not based on evidence and was extremely inflammatory, but there was evidence to support the prosecutor's argument. <bold>Am Jur 2d, Trial § 572</bold>.<page_number>Page 616</page_number> <bold>11. Criminal Law § 434 (NCI4th) — first-degree murder — sentencing —</bold> <bold>prosecutor's argument — prior misconduct</bold> There was no error in a first-degree murder prosecution where defendant contended that the prosecutor's argument emphasized the suffering of the victim of defendant's prior misconduct. However, the prosecutor may argue that defendant's criminal history deserves great weight. <bold>Am Jur 2d, Trial § 626</bold>. <bold>12. Criminal Law § 432 (NCI4th) — first-degree murder — sentencing —</bold> <bold>prosecutor's argument — defendant not human</bold> There was no impropriety requiring <italic>ex mero motu</italic> intervention in a first-degree murder prosecution where defendant contended that the prosecution had argued that defendant was not a human being, but the prosecutors characterized defendant's depravity as a void in his character and did not directly call him an animal. The character of a defendant is an appropriate consideration during sentencing. <bold>Am Jur 2d, Trial § 648</bold>. <bold>13. Criminal Law § 466 (NCI4th) — first-degree murder — sentencing —</bold> <bold>prosecutor's argument — credibility of defendant's attorneys</bold> There was no error in a first-degree murder prosecution where defendant contended that arguments by the prosecutor were designed to denigrate the credibility of defendant's attorneys, to punish him for having consulted with his counsel during trial, and to punish his counsel in advance for making arguments that would attempt to convince the jury that a life sentence was the appropriate punishment, but the argument did not implicate defendant's right to counsel. <bold>Am Jur 2d, Trial §§ 683, 686</bold>. <block_quote> <bold>Propriety and effect of attack on opposing</bold> <bold>counsel during trial of</bold> <bold>a criminal case. 99 ALR2d 508</bold>.</block_quote> <bold>14. Criminal Law § 1320 (NCI4th) — first-degree murder — sentencing —</bold> <bold>instructions — same evidence supporting more than one aggravating</bold> <bold>circumstance</bold> There was no error in the sentencing hearing in a first-degree murder prosecution where the court did not <italic>ex mero motu</italic> instruct the jury that it could not consider the same evidence as<page_number>Page 617</page_number> supportive of more than one aggravating circumstance. Four aggravating circumstances were submitted and four were found, defendant concedes that the circumstances all could have been properly considered without double-counting the evidence, and it need only be determined whether the court should have instructed the jury so as to prevent duplicative use of the evidence. It is unlikely that the court's failure to instruct <italic>ex mero motu</italic> on the duplicative use of evidence had a probable effect on the sentencing recommendation. The murder was particularly savage, the victim was stabbed many times and could have lived for a time after the wounds were inflicted, there was separate evidence to support each aggravating circumstance, and the court's instruction that defendant contends compounded the problem was likely interpreted by the jurors as permission to consider both guilt and sentencing phase evidence rather than as license to use the same evidence to support more than one circumstance. <bold>Am Jur 2d, Trial §§ 1441, 1444</bold>. <bold>15. Criminal Law § 1322 (NCI4th) — first-degree murder — sentencing —</bold> <bold>no</bold> <bold>instruction on life without parole</bold> There was no plain error in a first-degree murder sentencing hearing where the court failed to inform the jury that defendant would never be paroled, given his expected life span, if he were sentenced and received consecutive life sentences. Under the statutes in effect when the murder was committed, defendant would have been eligible for parole after serving twenty years in prison had he received life; an instruction that he would be ineligible for parole if he received life therefore would have been an incorrect statement of the applicable law. Furthermore, parole eligibility does not reveal anything about the defendant's character or record or any circumstances of the offense and therefore is irrelevant to the sentencing process. <bold>Am Jur 2d, Trial §§ 286, 1443</bold>. <block_quote> <bold>Prejudicial effect of statement or instruction</bold> <bold>of court as to</bold> <bold>possibility of parole or pardon.</bold> <bold>12 ALR3d 832</bold>.</block_quote> <bold>16. Jury § 226 (NCI4th) — first-degree murder — jury selection — death</bold> <bold>qualification — rehabilitation</bold> There was no error in a capital murder prosecution where the court denied defendant the right to examine each juror challenged by the State during death qualification prior to his or her<page_number>Page 618</page_number> excusal and by excusing jurors whom defendant was not permitted to question. <bold>Am Jur 2d, Criminal Law §§ 679, 680</bold>. <bold>17. Criminal Law § 1320 (NCI4th) — first-degree murder — sentencing —</bold> <bold>instructions — consideration of evidence from both phases of trial</bold> The trial court did not err in a first-degree murder sentencing hearing by instructing the jury that all evidence in both phases of the trial was competent for the jurors' consideration. <bold>Am Jur 2d, Trial §§ 1441, 1444</bold>. <bold>18. Criminal Law § 1343 (NCI4th) — first-degree murder — sentencing —</bold> <bold>especially heinous, atrocious, or cruel aggravating circumstance —</bold> <bold>instructions</bold> The trial court did not err in a first-degree murder prosecution by submitting to the jury the "especially heinous, atrocious, or cruel" aggravating circumstance with instructions that allegedly failed adequately to limit the application of the circumstance. <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>. <block_quote> <bold>Supreme Court's views on constitutionality of</bold> <bold>death penalty and</bold> <bold>procedures under which it is</bold> <bold>imposed or carried out. 90 L.Ed.2d</bold> <bold>1001</bold>.</block_quote> <bold>19. Criminal Law § 1351 (NCI4th) — first-degree murder — sentencing —</bold> <bold>mitigating circumstances — instructions — burden of proof</bold> The trial court did not err in a first-degree murder prosecution in its instructions on the burden of proof applicable to mitigating circumstances through use of the terms "satisfaction" and "satisfy" as defining the burden of proof. <bold>Am Jur 2d, Criminal Law §§ 598, 599</bold>. <block_quote> <bold>Supreme Court's views on constitutionality of</bold> <bold>death penalty and</bold> <bold>procedures under which it is</bold> <bold>imposed or carried out. 90 L.Ed.2d</bold> <bold>1001</bold>.</block_quote><page_number>Page 619</page_number> <bold>20. Criminal Law § 1323 (NCI4th) — first-degree murder — sentencing —</bold> <bold>instructions — value of mitigating circumstances</bold> The trial court did not err in a first-degree murder sentencing hearing in its instructions by allowing the jury to reject a mitigating circumstance on the basis that it had no mitigating value. <bold>Am Jur 2d, Trial §§ 1441, 1444</bold>. <bold>21. Criminal Law § 1318 (NCI4th) — first-degree murder — sentencing —</bold> <bold>instructions — use of "may"</bold> The trial court did not err in a first-degree murder sentencing hearing in the use of the term "may" in sentencing recommendation issues three and four because this gave the jury discretion in considering proven mitigating circumstances. <bold>Am Jur 2d, Trial §§ 1441, 1444</bold>. <bold>22. Criminal Law § 1373 (NCI4th) — first-degree murder — death sentence</bold> <bold>— proportionality</bold> A sentence of death for a first-degree murder was not disproportionate where the crime was distinguished by the brutal attack on the victim, which consisted of attempted strangulation and multiple stab wounds to her face and neck; the rape of the victim, which occurred prior to her death; and the kidnapping of the victim; defendant was found guilty of murder based on both the felony murder rule and on malice, premeditation, and deliberation, which indicates a more cold-blooded and calculated crime; the jury found all submitted aggravating circumstances and found only three of thirteen mitigating circumstances submitted; and the jury found that defendant is a recidivist whose prior convictions were for violent felonies. <bold>Am Jur 2d, Criminal Law § 628</bold>. <block_quote> <bold>Validity of death penalty, under Federal</bold> <bold>Constitution, as affected</bold> <bold>by consideration of</bold> <bold>aggravating or mitigating circumstances — Supreme</bold> <bold>Court cases. <cross_reference>111 L.Ed.2d 947</cross_reference></bold>.</block_quote>