Walters, Christina S.:
American Indian; age 20 at crime (DOB: 7-15-1978); murder of white
female age 19 and white female age 25 north of Fayetteville in
Cumberland County on 8-17-1998; sentenced on 7-6-2000.
Date of Birth
Offense - 8/17/1998
Age at Time of
Offense - 20
Occupation - Unknown
Record - Yes
Crime - Fayetteville, North Carolina
Gender of Victim - 2 White females
Christina Walters was convicted in the August
17, 1988, murders of 18-year-old Tracy Lambert and 21-year-old
Susan Moore. She was also tried for the attempted murder of Debra
Walters, leader of a local Crips gang, admitted
to shooting several .32-caliber bullets into Cheeseborough and
thinking she had successfully killed her. The murders were done as
a gang-initiation and the victims were chosen at random.
Cheeseborough survived the attack and was able to testify against
Walters and two others. The three were convicted and given the
death penalty for their crimes.
Source: North Carolina Department of
NC judge commutes death
sentences of 3 inmates to life
December 13, 2012
FAYETTEVILLE, N.C. -- A North Carolina judge
commuted the death sentences of three convicted killers, including
two who killed law enforcement officers, to life in prison without
the possibility of parole after ruling Thursday that race played
an unjust role in jury selection at their trials.
The judge's actions come months after the
Republican-controlled Legislature scaled back the Racial Justice
Act by limiting the use of statistics that can be used to prove
racial bias and legislating that statistics alone are not
sufficient to prove bias.
Cumberland County Superior Court Judge Gregory
A. Weeks said his ruling, which is certain to be appealed, applies
under both the new and old laws. The ruling was based on evidence
presented over four weeks of hearings that he says showed
prosecutors in each case made a concerted effort to reduce the
number of black jurors.
That evidence included handwritten notes of
prosecutors indicating they worked to get blacks eliminated from
the pool of jurors, resulting in panels that were overwhelmingly
"This conclusion is based primarily on the
words and deeds of the prosecutors involved in these cases," Weeks
said from the bench. "Despite protestations to the contrary, their
words, their deeds, speak volumes. During presentation of
evidence, the court finds powerful and persuasive evidence of
racial consciousness, race-based decision making in the writings
of prosecutors long buried in the case files and brought to light
for the first time during this hearing."
The cases involve convicted murderers Christina
"Queen" Walters, Tilmon Golphin and Quintel Augustine. Earlier
this year, Marcus Reymond Robinson became the first to have his
sentence commuted to life without parole under the provisions of
the landmark 2009 law.
The three who had their sentences commuted
Thursday are among the most notorious killers on North Carolina's
Walters was the leader of a Fayetteville street
gang convicted of killing two women and shooting another during an
initiation ritual in 1998.
Augustine was convicted of killing Fayetteville
police Officer Roy Turner Jr. in November 2001.
Golphin killed N.C. Highway Patrol Trooper Ed
Lowry and Cumberland County sheriff's Deputy David Hathcock during
a traffic stop in September 1997. Golphin's younger brother is
also serving a life sentence for the homicides.
Walters is a Lumbee Indian. Augustine and
Golphin are black.
Family members of the victims and more than 60
uniformed police officers packed the courtroom as Weeks made his
ruling. Before he could finish, the brother of the murdered state
trooper stood up and yelled an expletive at the judge.
"Judge, you had your mind made up the first
day," said Al Lowry, a photo of his brother pinned to his lapel.
He then turned to lock eyes with his brother's
killer, who was seated at the defense table.
"Golphin, you'll have me to deal with if you
ever get your sorry ass out of here," he yelled.
Lowry was escorted from the court room by
bailiffs, but not placed under arrest. As Weeks completed reading
his ruling, the law enforcement officers filed out of the
courtroom. A woman in civilian clothes yelled that they should all
take their badges off and leave them behind, because the justice
system would no longer protect the officers from criminals.
"I'm certainly disappointed that these
sentences for the convicted murders of three law enforcement
officers has been set aside and that the jury's sentence will not
be carried out," Col. Michael Gilchrist, commander of the State
Highway Patrol, said after leaving the courtroom. "Our purpose as
law enforcement officers - we don't make laws, we support and
enforce them and it is not out place to be critical of them. It's
important that we support the law enforcement officers that
protect us and support their families as well, and that's what
The original Racial Justice Act, passed when
Democrats controlled the state Legislature, allowed death row
inmates to use statistics to show that racial bias influenced
their sentences. After Republicans took control of the
Legislature, lawmakers rolled back much of the law, overriding the
veto this past summer of Democratic Gov. Beverly Perdue.
Prisoners now must introduce evidence pertinent
to their cases, in addition to statistics.
Prosecutors indicated they will petition to
have Weeks' ruling overturned by the N.C. Court of Appeals.
James E. Ferguson II, a Charlotte civil rights
lawyer who was a member of the defense team in the case, said
Weeks made his decision based on the evidence.
"It's not surprising there would be a strong
emotional reaction to justice being done in this case," Ferguson
said. "We understand the emotions the families might have. But the
judge said it all in his order when he said that equal justice
under the law has not been a reality and what we're trying to do
is come to the point where it is a reality. ... What happened here
was the Legislature enacted a law, the judge heard evidence and
applied that law to it. And it was a just result."
The families of the victims, some crying,
others visibly enraged, disagreed. Al Lowry, boarding the elevator
to leave with a group of state troopers, said it wasn't fair for
one judge to nullify the decision of the jurors who sentenced his
brother's murder to die.
"I think Greg Weeks is as biased and as racist
as the people that have been convicted," Lowry, who is white, said
of the judge, who is black. "This was a bunch of crap from day
one. I have nothing good to say about the justice system right
now, because it's totally, totally broke. ... Just give me the two
brothers that killed my brother and let me take justice in my own
hands. Because that's where this country needs to go."
Admitted Gang Member
Sentenced to Death
July 5, 2000
FAYETTEVILLE — An
admitted gang member is headed to North Carolina's death row.
A Cumberland County jury sentenced Christina
Walters to death Thursday.
Friday, Walters was convicted of randomly
abducting and murdering Tracy Rose Lambert and Susan Raye Moore as
part of an initiation into the Crips gang in August 1998.
The jury also found Walters guilty of attempted
murder for carjacking and shooting Deborah Cheeseborough several
times, leaving her to die in the woods at Fort Bragg in August
The district attorney has charged nine people
in the crimes.Paco Tirado and Eric Queenwere sentenced to death in
Walters is the fifth woman now on North
Carolina's death row.
Gang Initiation Tied to
Fayetteville Murders, Assault
By Melissa Buscher - Wral.com
August 19, 1998
Investigators now believe a double murder and a carjacking in
Cumberland County are related. They have arrested seven people,
one of them a juvenile, who were allegedly involved in a Los
Angeles gang initiation.
During a morning news conference, investigators
told the media all seven people had been taken into custody in
Myrtle Beach, S.C.
The six adults have been charged with murder,
kidnapping, armed robbery and conspiracy. Petitions have been
filed against the juvenile, reportedly a 16-year-old female. All
seven suspects are Cumberland County residents and all are under
the age of 21. They all lived together in a mobile home in
Preliminary reports indicate blue painted
bullets, indicative of the Crips gang, were used in both crimes,
which appear to be random acts of violence.
Late Wednesday night, detectives found other
gang paraphernalia, Cheeseborough's purse, and the license plates
from two of the victims' cars in the mobile home. The cars, with
stolen dealer tags, were found in Myrtle Beach. Officers had a
hunch the suspects were there. The suspects were wearing
gang-related blue bandanas.
"One of the cell phones from the victims ...
there were some calls being made on that telephone Tuesday," said
Cumberland County Chief Deputy Cuyler Windham. "[The calls] came
from the beach area of South Carolina."
On Monday, investigators found the bodies of
Susan Raye Moore and Tracy Rose Lambert in a field in Cumberland
County. Both had been shot to death execution style. Debra
Cheeseborough, a manager at the Raeford Road Bojangle's
restaurant, was also found Monday after being carjacked, shot
seven times and left for dead. She is recovering, and is listed in
Michael Cheeseborough, husband of the
carjacking victim, says his wife is scared, but he is angry.
"I'm mad at the teachers of these guys," he
said. "Because good upbringing would not bring this about in this
Police have now formally charged six of the
suspects in connection with the carjacking. They say Christina
Walters and a juvenile have confessed to the carjacking.
Detectives say the carjacking incident that left Cheeseborough
wounded was the first act of the crime spree.
The suspects are jailed in Myrtle Beach, where
investigators say they ran to get out of the area. The suspects
should all be back in Cumberland County by Thursday night.
The suspects are believed to be members of a
branch of the gang which is based in Los Angeles. Suspects John
Juarbe and Darryl Tucker, Jr., who were found driving a victim's
car, are said to be cooperating with investigators.
Investigators say the fact that one of the
victims survived is going to be of benefit to their investigation.
Fayetteville police are investigating the carjacking.
Cumberland County Sheriff Earl "Moose" Butler
says there have been many violent incidents in the county that
have consisted of attacks between gang members, but during his
career, he has never heard of a gang member singling out someone
at random for such violent attacks.
Supreme Court of North
State v. Walters
STATE of North Carolina,
Christina Shea WALTERS.
May 02, 2003
Roy Cooper, Attorney General, by
Jill Ledford Cheek, Special Deputy Attorney General, for the
State.Andrea Michelle FormyDuval, Whiteville and Steven E.
Williford, Myrtle Beach, SC, for defendant-appellant.
Defendant, Christina Shea Walters, was indicted
on 4 January 1999 for two counts each of first-degree murder,
first-degree kidnapping, and robbery with a dangerous weapon, as
well as one count each of conspiracy to commit first-degree
murder, conspiracy to commit first-degree kidnapping, and
conspiracy to commit robbery with a dangerous weapon. In a
second multicount indictment issued 25 January 1999, defendant was
also indicted for attempted first-degree murder, conspiracy to
commit first-degree murder, assault with a deadly weapon with
intent to kill inflicting serious injury, first-degree kidnapping,
and robbery with a dangerous weapon. Defendant was tried
capitally, and the jury found her guilty of all charges,
specifically finding her guilty of both murders on the basis of
premeditation and deliberation and under the felony murder rule.
Following a capital sentencing proceeding, the jury recommended a
sentence of death for each of the murders, and the trial court
entered judgments accordingly. The trial court also sentenced
defendant to consecutive terms of imprisonment for each of the
nine other felony convictions.
The State's evidence at trial tended to show
that defendant was one of nine gang members who set out to steal a
car on the evening of 16 August 1998. The gang members included
defendant, Francisco Tirado, Eric Queen, John Juarbe, Ione Black,
Tameika Douglas, Carlos Frink, Carlos Nevills, and Darryl Tucker.
The gang members gathered at and then left from defendant's
residence, a trailer at 1386 Davis Street in Fayetteville, North
Carolina. All nine gang members were “Crips” but of varying
subgroups called “sets.”
The gang needed money, and the members decided
they would steal a car, drive it into the window of a pawn shop,
and steal the property in the pawn shop. Several gang members,
including defendant, went to the local Wal-Mart to steal some
toiletry items and clothing, and to buy bullets for the occasion.
The bullets were taken to the Davis Street trailer, where Tirado
painted the tips blue, the color identified with the “Crips” gang,
with fingernail polish from defendant's bedroom.
Soon thereafter, defendant and an unidentified
deaf black male who was not part of the gang drove Douglas, Black,
and Nevills to a neighborhood location and dropped them off with
instructions to find a victim to rob, to steal the victim's car,
to put the victim in the trunk of the car, and then to return to
defendant's trailer within an hour and a half. Defendant
provided Nevills with a gun, and then she and the deaf black male
drove away, leaving Douglas, Black, and Nevills.
The three gang members walked around looking
for someone to rob, and at about 12:30 a.m. on Monday, 17 August,
they spotted Debra Cheeseborough leaving the Bojangles where she
was the manager. Douglas, Black, and Nevills abducted
Cheeseborough at gunpoint and drove around in her car with her in
the backseat for a period of time before they stopped the car and
put her in the trunk, also robbing her of her jewelry and money.
They returned to defendant's trailer, where the remainder of the
gang gathered around the car while discussing what to do with
Thereafter, with Cheeseborough still in the
trunk, defendant, Douglas, Frink, and Queen got into
Cheeseborough's car and drove her to Smith Lake, a location on the
Fort Bragg military base. Defendant told Cheeseborough to get
down on one knee. Defendant attempted to fire the gun at
Cheeseborough, but it jammed. Defendant said “hold up” and tried
to unjam the gun. Defendant then raised the gun again, this time
to the level of Cheeseborough's waist, and fired the bullet into
Cheeseborough's right side. After the shot knocked Cheeseborough
down onto her stomach, defendant shot her seven more times. The
final shot went through Cheeseborough's glasses, grazed her
eyelid, and hit her thumb. Cheeseborough pretended to be dead.
She was discovered the next morning by a passerby and was
subsequently taken to a hospital.
Debra Cheeseborough testified that no one told
defendant to shoot her, the gun jammed before any shots were
fired, it was defendant who told her to go down on one knee, there
was no break in the firing of the bullets sufficient for defendant
to have handed the gun to any other person to shoot her, and it
was defendant who shot her.
After defendant shot Cheeseborough and left her
for dead, the gang members returned to defendant's trailer, where
they concluded that they needed a second car. Tucker, Black,
Queen, and defendant rode around in Cheeseborough's car,
ultimately targeting a car driven by Susan Moore in which Tracy
Lambert was a passenger. The gang trapped Moore's car at the end
of a dead-end road, and defendant handed a gun to Tucker, telling
him to “go do what you got to do.” Defendant, Frink, and Queen
then drove away in Cheeseborough's car after Queen directed Black,
Tucker, and Douglas to be back at defendant's trailer in
Tucker and Douglas forced Moore and Lambert
into the trunk at gunpoint, and then Black, Tucker, and Douglas
returned to defendant's trailer with the women in the trunk. At
one point during the drive, the car was stopped so that the gang
members could open the trunk and rob the women of their jewelry.
Upon the return to defendant's trailer, the
entire gang surrounded the car and discussed who would kill the
women. Despite the women's pleas for mercy, the entire gang,
half in Cheeseborough's car and half in Moore's car, drove to a
location in Linden where the women were forced out of the trunk
and executed, each by a blue-tipped bullet to the brain. Queen
shot one of the women, and Tirado shot the other. The gang
members once again returned to defendant's trailer.
After talking for awhile, the group split up,
with instructions from Tirado to return by 3:30 p.m. Sometime
around dawn, Frink called defendant with news that some bodies had
been found. Seven members of the gang, including defendant,
subsequently fled to Myrtle Beach using Moore's cell phone to
place calls to defendant's trailer. Black and Nevills did not
accompany the gang to Myrtle Beach.
On Tuesday, 18 August, Juarbe and Tucker were
apprehended in Cheeseborough's car by Myrtle Beach police
officers. On Wednesday, 19 August, defendant, Frink, Douglas,
Queen, and Tirado were apprehended and arrested at the Bon Villa
motel in Myrtle Beach in a room rented by defendant.
Additional facts will be presented as needed to
discuss specific issues.
In defendant's first question presented before
this Court, she contends that the trial court committed reversible
error, or in the alternative plain error, in failing to order a
change of venue or in failing to order a special venire, thereby
depriving defendant of a fair and impartial trial in violation of
the Due Process Clause of the Fourteenth Amendment to the United
First, defendant did not move for change of
venue prior to trial as required under N.C.G.S. § 15A-957.
Pursuant to N.C.G.S. § 15A-952, a motion for change of venue must
be made prior to trial, unless the trial court, in its discretion,
permits the motion to be filed at a later time. Since defendant
did not move for change of venue prior to trial, or at any
subsequent time, she has failed to properly preserve this argument
for appellate review. See N.C. R.App. P. 10(b)(1).
Next, defendant argues that the trial court
erred by not ordering a special venire ex mero motu. N.C.G.S.
§ 15A-958 provides: “Upon motion of the defendant or the State,
or on its own motion, a court may issue an order for a special
venire of jurors from another county if in its discretion it
determines the action to be necessary to insure a fair trial.”
N.C.G.S. § 15A-958 (2001). For the following reasons, we
conclude that the trial court did not abuse its discretion by not
ordering a special venire.
Defendant claims that because of pretrial
publicity, she was not able to receive a fair and impartial trial.
She states that eight of the twelve jurors who were actually
seated on the jury had obtained information relative to the case
through the media. She also complains that jurors who were
seated in the case heard from other prospective jurors during voir
dire facts about the case and their feelings about the case based
upon what they heard in the media.
However, each juror about whom defendant
complains indicated that he or she would be fair and impartial and
decide the case on the evidence that was presented. Also, the
jurors indicated that they would disregard any information they
heard or read prior to the trial. Furthermore, with regard to
two of the jurors about whom defendant complains, defendant had no
objection and specifically stated that these jurors were
acceptable. After reading the transcripts and considering the
arguments by the State and defendant, we are not persuaded that
the pretrial publicity prevented defendant from receiving a fair
trial from jurors in the county in which the case was tried. We
therefore conclude that the trial court did not abuse its
discretion by not ordering a special venire in this case. This
assignment of error is overruled.
Defendant next contends that the short-form
murder indictment violated her constitutional rights on the
grounds that it failed to allege all the elements of first-degree
murder. See Jones v. United States, 526 U.S. 227, 119 S.Ct.
1215, 143 L.Ed.2d 311 (1999). However, this Court has repeatedly
addressed and rejected this argument. See, e.g., State v.
Braxton, 352 N.C. 158, 173-75, 531 S.E.2d 428, 437-38 (2000),
cert. denied, 531 U.S. 1130, 121 S.Ct. 890, 148 L.Ed.2d 797
(2001); State v. Wallace, 351 N.C. 481, 504-08, 528 S.E.2d 326,
341-43, cert. denied, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d
498 (2000). Defendant has presented no compelling reason for
this Court to reconsider the issue in the present case.
Accordingly, this assignment of error is overruled.
Next, defendant argues that the trial court
erred by granting the prosecutor's motion for joinder of the
murders and related charges regarding the victims Susan Moore and
Tracy Lambert and the charges regarding Debra Cheeseborough.
However, defendant has not cited to any place in the transcript or
record where she made a motion for severance, and this Court has
not found any such motion.
Pursuant to N.C.G.S. § 15A-927(a), a defendant
must make a motion for severance of offenses before trial unless
the basis for the motion is a ground not previously known. Under
such a situation, the defendant may move for severance during
trial but no later than the close of the State's evidence.
Defendant waives his right to severance “if the motion is not made
at the appropriate time.” N.C.G.S. § 15A-927(a)(1) (2001). “If a
defendant's pretrial motion for severance is overruled, he may
renew the motion on the same grounds before or at the close of all
the evidence. Any right to severance is waived by failure to
renew the motion.” N.C.G.S. § 15A-927(a)(2). Furthermore, as
this Court has previously stated,
[j]oinder is a decision which is made prior to
trial; the nature of the decision and its timing indicate that
the correctness of the joinder must be determined as of the time
of the trial court's decision and not with the benefit of
hindsight. While this rule may seem severe and, perhaps, highly
prejudicial to an accused, our statutes provide a method by which
an accused may protect against prejudice to his defense.
State v. Silva, 304 N.C. 122, 127-28, 282
S.E.2d 449, 453 (1981) (citation omitted).
In the instant case, not only did defendant
fail to renew a motion for severance, but she also failed to make
a motion for severance at any time before, during, or after the
trial. Therefore, defendant's assignment of error is without
Next, defendant argues that the trial court
erred in leaving the bench during a recess in jury selection
proceedings. Defendant contends that during the time the judge
was off the bench, a member of the media spoke with prospective
juror Richard Council, who eventually was seated on the jury, and
therefore deprived defendant of a fair trial. We disagree.
The court reporter recorded the following
events which form the basis of defendant's argument:
THE COURT: And, Madam Clerk, would you go
ahead and call another juror please for number five.
THE CLERK: Richard Council.
THE COURT: Thank you.
Counsel, I have to make a phone call to my
district attorney. If you'll give me just a moment, please.
(Judge left the courtroom.)
(Number five, Mr. Council, entered the
THE BAILIFF: Sir, come on up and have a seat
in number five.
(A male media representative was talking to the
juror, Mr. Council, as the juror walked by.)
THE REPORTER: Tell that guy to quit talking to
the juror, that media guy.
(Bailiff, Sgt. David Farrell, directed number
five, Mr. Council, in the box after Sgt. Farrell spoke to the
(The judge returned to the courtroom.)
THE COURT: Remain seated.
THE BAILIFF: Come to order. Court's in
Defendant contends that the juror's actions and
those of the media member were a direct violation of a 1 May 2000
order of the trial court regarding media access.
However, defendant has cited no authority to
this Court that would lead us to conclude that the trial court
erred in leaving the bench. Furthermore, even assuming arguendo
that it was error, we hold that defendant has failed to show
prejudice as required by N.C.G.S. § 15A-1443(a), and we cannot
conclude that a different result would have been reached at trial.
Defendant has provided no evidence that the
media member said anything to prospective juror Council that would
prejudice her case. Also, defendant provided no evidence that
Council said anything in response to the media member's “comment.”
The transcript shows only that the bailiff immediately
interrupted any inappropriate contact between prospective juror
Council and the media member.
On a final note, defendant included plain error
as an alternative in her question presented. “[T]his Court has
held that plain error analysis applies only to jury instructions
and evidentiary matters.” State v. Wiley, 355 N.C. 592, 615, 565
S.E.2d 22, 39-40 (2002), cert. denied, 537 U.S. 1117, 123 S.Ct.
882, 154 L.Ed.2d 795 (2003).
Therefore, we conclude that defendant has
failed to show prejudice as to this specific issue, and these
assignments of error are overruled.
Defendant next contends that the trial court
erred by denying defendant's challenge for cause of prospective
juror Kathrene Boxwell, thereby causing defendant to exercise a
peremptory challenge. Defendant argues that Boxwell, who had
previously managed an adult entertainment facility, was involved
in litigation in which the business was forced into receivership.
The defense attorney in the instant case, along with his wife,
were attorneys involved in this prior litigation. Boxwell
acknowledged remembering the defense attorney and his wife.
Defendant also contends that Boxwell knew Tracy Lambert when they
were employed at the same establishment. Furthermore, defendant
argues that Boxwell had knowledge of this case from the print
However, we conclude from reading the
transcripts that defendant used only thirteen of her fourteen
peremptory challenges. N.C.G.S. § 15A-1214(h) provides:
(h) In order for a defendant to seek reversal
of the case on appeal on the ground that the judge refused to
allow a challenge made for cause, he must have:
(1) Exhausted the peremptory challenges
available to him;
(2) Renewed his challenge as provided in
subsection (i) of this section; and
(3) Had his renewal motion denied as to the
juror in question.
N.C.G.S. § 15A-1214(h) (2001); see also State
v. Call, 349 N.C. 382, 402, 508 S.E.2d 496, 509 (1998). Also, “
‘[t]he statutory method for preserving a defendant's right to seek
appellate relief when a trial court refuses to allow a challenge
for cause is mandatory and is the only method by which such
rulings may be preserved for appellate review.’ ” State v.
Goode, 350 N.C. 247, 257, 512 S.E.2d 414, 420 (1999) (quoting
State v. Sanders, 317 N.C. 602, 608, 346 S.E.2d 451, 456 (1986)).
In this case, the transcript reveals that
defendant did not exhaust all of her peremptory challenges, and
defendant also acknowledges that she did not seek additional
peremptory challenges. Therefore, defendant has not met the
requirements of N.C.G.S. § 15A-1214(h) in order to preserve this
issue for appellate review. Furthermore, once again, defendant
included plain error as an alternative in her question presented,
but she does not specifically argue or give support in her brief
as to why plain error is appropriate. Therefore, we will not
address this part of her argument. See Grooms, 353 N.C. at 66,
540 S.E.2d at 723; see also N.C. R.App. P. 10(c)(4).
Alternatively, defendant claims that her
defense counsel's failure to challenge the three remaining
prospective jurors for cause (Richard Council, Virginia Brazier,
and Patricia Geroux) or to assert an additional peremptory
challenge rose to the level of ineffective assistance of counsel.
However, defendant provided this Court with no authority or
support for this ineffective assistance of counsel claim.
“Assignments of error not set out in the appellant's brief, or in
support of which no reason or argument is stated or authority
cited, will be taken as abandoned.” N.C. R.App. P. 28(b) (6);
see also State v. Lloyd, 354 N.C. 76, 87, 552 S.E.2d 596, 607
(2001). Accordingly, the assignments of error presented in this
issue are overruled.
In defendant's next question presented, she
argues that the trial court erred in denying her motion for
disclosure of Rule 404(b) evidence to be introduced by the State
and that the trial court erred in allowing cross-examination of
defendant about certain prior bad acts.
First, there is no requirement that the State
must provide a defendant with Rule 404(b) evidence that it intends
to use at trial. Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show
that he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake, entrapment or accident.
N.C.G.S. § 8C-1, Rule 404(b) (2001). As this
Court stated in State v. Payne, “[t]his rule addresses the
admissibility of evidence; it is not a discovery statute which
requires the State to disclose such evidence as it might introduce
thereunder.” 337 N.C. 505, 516, 448 S.E.2d 93, 99 (1994), cert.
denied, 514 U.S. 1038, 115 S.Ct. 1405, 131 L.Ed.2d 292 (1995).
Furthermore, in the instant case, just as in Payne, “the State did
not directly introduce or use evidence of prior crimes or bad acts
committed by defendant; rather, it cross-examined defendant about
the act.” Id. Thus, defendant's motion was properly denied.
As stated above, defendant also contends that
the trial court erred in allowing cross-examination of defendant
about certain prior bad acts. The following occurred during the
prosecutor's cross-examination of defendant:
Q. Did you say your dad almost killed a boy
that you stabbed?
A. I haven't stabbed no boy.
Q. Did you say that?
A. No, ma'am. I don't remember saying
anything like that.
Q. Do you remember saying the boy you stabbed
was 20-something at the time?
A. Unless the person who wrote this was talking
about when I had a boyfriend who was trying to take my shirt off
and I sliced him with a box cutter but that's not stabbing.
The trial court then excused the jury in order
to question the prosecutor about the purpose of the preceding
questions. During this questioning, the court asked defense
counsel why he had not objected, and defense counsel stated the
Well, because we didn't care at the point she
․ So far what she's asked her,
she said she doesn't remember saying it. As long as she doesn't
remember saying it, then-I mean I am assuming they can't prove it
by extrinsic evidence because she has denied saying it until she
tries to use those records to prove something that she said by
extrinsic evidence, we really don't care. I mean she is welcome
to keep asking her these things. If she remembers them, fine.
If she doesn't, fine. As long as she doesn't get into saying,
Well, didn't you say on such and such a date to Dr. So and So,
then more power to them.
At this point, the judge brought the jury back
into the courtroom, and the questioning resumed.
Rule 10(b)(1) of the North Carolina Rules of
Appellate Procedure provides that “[i]n order to preserve a
question for appellate review, a party must have presented to the
trial court a timely request, objection or motion, stating the
specific grounds for the ruling the party desired the court to
make.” N.C. R.App. P. 10(b)(1). In the instant case, the trial
court specifically asked defense counsel whether he wanted to
object, and defense counsel stated that he had no problem with the
questioning at that point in time. Thus, defendant has failed to
properly preserve this issue for appellate review. See, e.g.,
State v. Call, 353 N.C. 400, 426-27, 545 S.E.2d 190, 206-07, cert.
denied, 534 U.S. 1046, 122 S.Ct. 628, 151 L.Ed.2d 548 (2001).
Defendant also contends that the trial court's
alleged error amounted to plain error. This Court has previously
the plain error rule ․ is always to be applied
cautiously and only in the exceptional case where, after reviewing
the entire record, it can be said the claimed error is a
“fundamental error, something so basic, so prejudicial, so lacking
in its elements that justice cannot have been done,” or “where
[the error] is grave error which amounts to a denial of a
fundamental right of the accused,” or the error has “ ‘resulted in
a miscarriage of justice or in the denial to appellant of a fair
trial’ ” or where the error is such as to “seriously affect the
fairness, integrity or public reputation of judicial proceedings”
or where it can be fairly said “the instructional mistake had a
probable impact on the jury's finding that the defendant was
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995,
1002 (4th Cir.) (footnotes omitted) (emphasis in original), cert.
denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982)).
Thus, in our review of the record for plain error, “defendant is
entitled to a new trial only if the error was so fundamental that,
absent the error, the jury probably would have reached a different
result.” State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103
(2002). After reviewing the record and transcripts as a whole,
we conclude that defendant has not established any alleged
prejudicial error on the part of the trial court that was so
fundamental that the jury would have reached a different result
absent the foregoing testimony. Accordingly, we find no plain
Next, defendant argues that the trial court
erred by admitting evidence from the hotel room in Myrtle Beach,
South Carolina, where defendant was apprehended. Specifically,
defendant contends that the evidence was obtained through an
illegal search and seizure in violation of defendant's state and
federal constitutional rights.
However, we have not found, nor has defendant
cited, to any place in the transcript or record where she filed a
motion to suppress this evidence prior to trial. Moreover,
defendant has not cited to any place in the transcript where she
objected to the introduction of this evidence at trial. Thus,
defendant has failed to properly preserve this issue for appellate
review. See N.C. R.App. P. 10(b)(1). Furthermore,
“[c]onstitutional issues not raised and passed upon at trial will
not be considered for the first time on appeal.” Lloyd, 354 N.C.
at 86-87, 552 S.E.2d at 607; see also State v. Anthony, 354 N.C.
372, 389, 555 S.E.2d 557, 571 (2001), cert. denied, 536 U.S. 930,
122 S.Ct. 2605, 153 L.Ed.2d 791 (2002).
Finally, defendant, in her question presented,
asserts plain error as an alternative. However, defendant has
not specifically argued or given support in her brief as to why
plain error is appropriate in this situation. Rule 28(b)(6)
provides that “[a]ssignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.” N.C.
R.App. P. 28(b)(6); see also Lloyd, 354 N.C. at 87, 552 S.E.2d at
607. Thus, we will not address this aspect of defendant's
Defendant next contends that the trial court
erred when it overruled defendant's objection to the prosecutor's
cross-examination of defendant about a statement made by defendant
to Detective Jo Autry.
During the State's case-in-chief, the
prosecutor presented evidence that, after defendant's arrest, she
gave a statement to Fayetteville Police Officer Chris Corcione.
Officer Corcione testified that defendant stated that she had shot
Debra Cheeseborough, that Eric Queen had shot Tracy Lambert, and
that Francisco Edgar Tirado had shot Susan Moore.
When defendant took the stand during her
case-in-chief, defense counsel asked her whether she had given
another statement after giving the statement to Officer Corcione.
Defendant responded that she had given another statement to
Detective Jo Autry in which defendant said that she had not shot
Debra Cheeseborough. Defendant testified that the statement
given to Detective Autry was false and that she made it because
she “was scared” and “wanted to go home.” Defense counsel
subsequently objected to the prosecutor's cross-examination of
defendant about the statement to Detective Autry. In response to
this questioning, defendant testified, as she did on direct
examination, that she had lied in her statement to Detective
Autry. She also stated that she did not remember exactly what
she had said in her statement to Detective Autry. Defendant
claims that the trial court erred by allowing this testimony
because the prosecutor's questioning was improper under N.C.G.S.
§ 8C-1, Rule 803(5), the recorded recollection exception to the
hearsay rule. We disagree.
It is clear from the transcript that defendant
testified during her own defense that she gave two statements
regarding the shooting of Debra Cheeseborough. In the first
statement, given to Officer Corcione, defendant said that she shot
Cheeseborough. In the second statement, given to Detective
Autry, defendant said that she did not shoot Cheeseborough.
Defendant then testified on direct examination by her own attorney
that the second statement was false. This was the exact same
testimony that the prosecution elicited on cross-examination.
Thus, defendant was the one who placed this testimony into
evidence. This Court has previously held that
the law wisely permits evidence not otherwise
admissible to be offered to explain or rebut evidence elicited by
the defendant himself. Where one party introduces evidence as to
a particular fact or transaction, the other party is entitled to
introduce evidence in explanation or rebuttal thereof, even though
such latter evidence would be incompetent or irrelevant had it
been offered initially.
State v. Albert, 303 N.C. 173, 177, 277 S.E.2d
439, 441 (1981); see also State v. McKinney, 294 N.C. 432, 435,
241 S.E.2d 503, 505 (1978). While we make no judgment as to
whether this testimony would have been otherwise inadmissible, it
is clear to this Court that defendant introduced this evidence.
Therefore, since defendant “opened the door” to this testimony,
the prosecutor was entitled to question defendant about this
evidence. Thus, defendant's assignment of error is overruled.
In defendant's next question presented, she
argues that the trial court erred in overruling defendant's
objection to the admission of a portion of a prior statement by
Ione Black made to Detective Autry and portions of Black's
telephone call to a 911 operator. Specifically, defendant
contends that this evidence was inadmissible hearsay under
N.C.G.S. § 8C-1, Rule 801(d)(E); the evidence was inadmissible
404(b) evidence; and the evidence violated the rule of Bruton v.
United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
During the State's case-in-chief, Ione Black
testified to the events leading up to and surrounding the murders
and attempted murder. Black testified that when she returned
home after the murders and attempted murder, she was scared
because she knew that a couple of the people in the “gang” knew
that she did not want to be there when the crimes occurred, and
therefore, Black was afraid that these people might be looking for
her. Next, when people in the “gang” actually did come to
Black's house looking for her, Black told Carol Morrison, with
whom she was living at the time, to tell them that she had gone to
her mother's house. Dennis Jordan, Morrison's boyfriend, told
the “gang” that Black had gone to her mother's house.
Next, Black testified that after the “gang”
left her house, she was “really scared” because she had never seen
“anybody get shot,” and she “didn't really know any of the people
that were involved in this and [she] just felt like they might try
to do something to [her] because [she] didn't show up for the
meeting” at defendant's trailer after the incidents. Later that
evening, Black called 911 and told the operator that she had “seen
some people get shot,” and she described a couple of the people
who were involved in the incidents. Defendant then objected to
the 911 tape being played to the jury on the grounds that the tape
was unduly prejudicial because it contained a statement by Black
that “[t]hey might have killed them boys too.” Outside the
presence of the jury, Black told the judge that she asked Tameika
Douglas why they had to kill the women. Douglas responded by
saying, “[T]hat wasn't s---because [Douglas] shot somebody last
week.” Black stated that she had heard on the news about a guy
being shot a few days earlier, and she thought that might be what
Douglas was referring to. After hearing this, the trial court
overruled defendant's objection, stating that this evidence “is
highly probative of the state of mind of the declarant, Ms. Black,
at the time” and also that the evidence was “corroborative of her
Along with the 911 tape, defendant objected to
a portion of Detective Autry's testimony in which she testified to
a statement given to her by Black. Specifically, defendant
objected to that part of Black's statement where “she asked
[Douglas] why they wanted to kill [the women]. [Black] state[d]
that [Douglas] said, ‘This ain't s---. A few days ago, I shot a
man.’ [Black] state[d] [Douglas] told her they had done this
before.” In overruling defendant's objection to this portion of
the statement, the trial court stated that Black's statement to
Detective Autry was
substantially consistent, in the Court's
opinion, with the sworn testimony of Ione Black given here in open
court and that the variations are such that they can be argued to
the jury. The jury can make its own determination as to whether
or not specific aspects of the statement are consistent or in
conflict with Ms. Black's statement [sic] but that there is not
enough variation for the Court to require a redaction in the
interest of fairness, in the Court's opinion.
Subsequently, Detective Autry was allowed to
read Black's statement to the jury. For the following reasons,
we conclude that defendant's objections are without merit.
As the trial court correctly noted, the
foregoing 911 tape and the statement by Black to Detective Autry
were admissible for the purpose of corroborating Black's earlier
testimony at trial. It has been well established in this state
that “[a] prior consistent statement of a witness is admissible to
corroborate the testimony of the witness whether or not the
witness has been impeached,” even though the statement was
hearsay. State v. Jones, 329 N.C. 254, 257, 404 S.E.2d 835, 836
(1991); see also State v. Rose, 335 N.C. 301, 321, 439 S.E.2d
518, 529, cert. denied, 512 U.S. 1246, 114 S.Ct. 2770, 129 L.Ed.2d
883 (1994), and overruled on other grounds by State v. Buchanan,
353 N.C. 332, 543 S.E.2d 823 (2001). Furthermore, this Court has
In order to be admissible as corroborative
evidence, a witness' prior consistent statements merely must tend
to add weight or credibility to the witness' testimony. Further,
it is well established that such corroborative evidence may
contain new or additional facts when it tends to strengthen and
add credibility to the testimony which it corroborates.
State v. Farmer, 333 N.C. 172, 192, 424 S.E.2d
120, 131 (1993) (citations omitted). Moreover, “[i]f the
previous statements are generally consistent with the witness'
testimony, slight variations will not render the statements
inadmissible, but such variations ․ affect [only] the credibility
of the statement.” State v. Martin, 309 N.C. 465, 476, 308 S.E.2d
277, 284 (1983). Thus, we conclude that the 911 tape and Ione
Black's statement to Detective Autry were properly admitted to
corroborate her earlier testimony and that any variation goes to
her credibility. Therefore, the assignments of error presented
under this issue are overruled.
Defendant also alleges that this testimony
violated Bruton, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. “In
Bruton [,] the United States Supreme Court held that at a joint
trial, admission of a statement by a nontestifying codefendant
that incriminated the other defendant violated that defendant's
right of cross-examination secured by the Confrontation Clause of
the Sixth Amendment.” State v. Evans, 346 N.C. 221, 231, 485
S.E.2d 271, 277 (1997) (citing Bruton, 391 U.S. at 126, 88 S.Ct.
at 1622, 20 L.Ed.2d at 479), cert. denied, 522 U.S. 1057, 118
S.Ct. 712, 139 L.Ed.2d 653 (1998). Furthermore,
[t]he principles set out in Bruton apply only
to the extrajudicial statements of a declarant who is unavailable
at trial for full and effective cross-examination. Nelson v.
O'Neil, 402 U.S. 622 [91 S.Ct. 1723] 29 L.Ed.2d 222 (1971).
Where the declarant takes the stand and is subject to full and
effective cross-examination, a codefendant implicated by
extrajudicial statements has not been deprived of his right to
Evans, 346 N.C. at 232, 485 S.E.2d at 277.
In the instant case, defendant was tried alone,
not jointly. Also, the declarant, Ione Black, took the stand and
was available for a “full and effective cross-examination.”
Thus, the rule in Bruton has no applicability to the facts of this
case. Therefore, this argument is without merit.
Defendant also contends that the trial court
committed reversible error or, in the alternative, plain error, in
its instructions regarding mitigating and aggravating
circumstances. Specifically, defendant contends that the trial
court's charge and written instructions to the jury as to
mitigating and aggravating circumstances in the two cases were
erroneous because they contradicted the “Issues and Recommendation
as to Punishment” forms submitted. Furthermore, defendant argues
that the trial court's charge and instructions resulted in a
misleading conclusion as to mitigating and aggravating
circumstances and supporting evidence, thereby denying defendant
due process, a fair trial, and legal and constitutional rights
guaranteed by the United States Constitution and the North
Carolina Constitution. We disagree.
Despite defendant's claim that the jury
instructions were erroneous, defendant made no objection. After
the trial court gave the jury its instructions, both parties were
given an opportunity to object.
THE COURT: ․ Before sending the original
issues and recommendation form to the jury and allowing the jury
to commence their deliberations, I will now consider any requests
for corrections to the charge or any additional matters any
attorney feels is necessary or appropriate to submit a proper and
accurate charge to the jury.
Are there any specific requests for corrections
or additions? What says the state?
[PROSECUTOR]: Nothing, Judge.
THE COURT: What says the defense?
[DEFENSE COUNSEL]: None, your Honor.
After the jury began deliberations, it
requested that the judge “give [it] the instructions specifically
applying to mitigating values for issue two, questions eight
through 23, versus mitigating circumstances in questions one
through seven.” Outside the presence of the jury, and in the
presence of counsel, the judge proposed the following oral
I would propose to instruct the jury that it is
not for the court to instruct them as to values. That if they
find mitigating circumstances one through seven exist, if any one
or more of them finds it that they are to consider such statutory
mitigating circumstance and that they-if they find that any of the
circumstances numbered eight through 23 exist and find those to be
mitigating, that they are to consider those, but that any value to
be placed on any particular circumstance is for the jury to
THE COURT: ․ In regard to the court's oral
instructions, as I've just stated, do you have any objection with
the wording of those instructions?
[DEFENSE COUNSEL]: No, your Honor.
Defendant had yet another chance to object to
the judge's instructions to the jury with regard to Issue Two.
Written copies of the judge's instruction relating only to Issue
Two on mitigating circumstances were given to the jury. Before
the written instructions on Issue Two were given to the jury, the
judge said, “And with regard to the substance of the instructions,
I understand there's no objection. Is that correct, counsel?”
Defendant's counsel answered, “That's correct, your Honor.”
Defendant had several opportunities to object to the judge's
instructions, but failed to do so.
Because defense counsel did not object to this
sentencing instruction at trial, this assignment of error is
barred by Rule 10(b)(2) of the North Carolina Rules of Appellate
Procedure. State v. Neal, 346 N.C. 608, 620, 487 S.E.2d 734, 742
(1997), cert. denied, 522 U.S. 1125, 118 S.Ct. 1072, 140 L.Ed.2d
131 (1998). “A party may not assign as error any portion of the
jury charge or omission therefrom unless he objects thereto before
the jury retires to consider its verdict․” N.C. R.App. P.
10(b)(2). Because defendant failed to properly preserve this
issue on appeal, we may review it only for plain error. See N.C.
R.App. P. 10(c)(4); State v. Hardy, 353 N.C. 122, 131, 540 S.E.2d
334, 342 (2000), cert. denied, 534 U.S. 840, 122 S.Ct. 96, 151
L.Ed.2d 56 (2001). As noted previously, “defendant is entitled
to a new trial only if the error was so fundamental that, absent
the error, the jury probably would have reached a different
result.” Jones, 355 N.C. at 125, 558 S.E.2d at 103.
Defendant argues that the trial court's
instructions “did not distinguish [the] difference in how the jury
should determine the mitigating value or weight of statutory
versus non-statutory mitigating circumstances.” (Emphasis added.)
Defendant uses the terms “value” and “weight” interchangeably.
This Court has previously addressed the inappropriate
interchangeable use of “value” and “weight.” State v. Davis, 349
N.C. 1, 506 S.E.2d 455 (1998), cert. denied, 526 U.S. 1161, 119
S.Ct. 2053, 144 L.Ed.2d 219 (1999). We take this opportunity to
reiterate the distinction between “value” and “weight.” “The term
‘value’ is found only in the statutory catchall provision,
N.C.G.S. § 15A-2000(f)(9), and has also only been applied to
nonstatutory mitigating circumstances. The term ‘weight’ or
‘weighing’ is used only in N.C.G.S. § 15A-2000(b)(2) and
[ (c)(3) ] referring to the process of weighing the mitigating
circumstances found against the aggravating circumstances found.”
Id. at 51, 506 S.E.2d at 483.
First, we will deal with “value.” This Court
in State v. Jaynes, 342 N.C. 249, 285, 464 S.E.2d 448, 470 (1995),
cert. denied, 518 U.S. 1024, 116 S.Ct. 2563, 135 L.Ed.2d 1080
(1996), maintained that by virtue of distinguishing between
statutory and nonstatutory mitigating circumstances, “[t]he
General Assembly has determined as a matter of law that statutory
mitigating circumstances have mitigating value.” (Emphasis
added.) This simply means that only one or more of the jurors
have to find by a preponderance of the evidence that one of the
factual circumstances in N.C.G.S. § 15A-2000(f)(1) through (f)(8)
exists. Once one or more of the jurors find that one of the
factual circumstances in N.C.G.S. § 15A-2000(f)(1) through (f)(8)
exists, that circumstance has mitigating value. In other words,
the statutory mitigating circumstance that the jury found lessens
defendant's culpability for committing the crime. Contrary to
defendant's assertion, the General Assembly's determination does
not require jurors “to find value as to statutory mitigating
circumstances, as in the case of nonstatutory mitigating
circumstances.” Davis, 349 N.C. at 55, 506 S.E.2d at 485.
(Emphasis added.) “Value” becomes a part of the analysis only
when the jury determines whether the statutory catchall or
nonstatutory mitigating circumstances exist. Id. Upon submission
of a nonstatutory mitigating circumstance, at least one juror must
find that the circumstance exists. Having done so, the juror
must also find that the circumstance has value before it becomes
part of the weighing process. Therefore, the trial court is not
required to instruct the jury that statutory mitigating
circumstances have value as a matter of law. As such, “value”
should not be a consideration when the jury is considering
statutory mitigating circumstances.
“Weight” becomes relevant only once the jury
has found statutory and nonstatutory mitigating circumstances.
See N.C.G.S. § 15A-2000(c)(3) (2001). Jurors do not use or find
“weight” when considering whether a statutory or nonstatutory
mitigating circumstance exists. Once the jury has found a
statutory or nonstatutory mitigating circumstance, it weighs that
and any other mitigating circumstances found against the
aggravating circumstances found. See id. To summarize, “value”
deals only with nonstatutory and the statutory catchall mitigating
circumstances and applies to the process of determining the
existence of the submitted circumstance, whereas “weight” is for
balancing mitigating circumstances found against aggravating
Having reiterated the distinction between
“value” and “weight,” we will now deal with these concepts in
their proper context with respect to the trial court's jury
instructions as to Issue Two. For each of the seven statutory
mitigating circumstances submitted, the trial court instructed the
jury as follows:
If one or more of you finds by a preponderance
of the evidence that this circumstance exists, you would so
indicate by having your foreman write “yes” in the space provided
after this mitigating circumstance on the issues and
If none of you find the circumstance to exist,
you would so indicate by having your foreperson write “no” in that
Here, the trial court instructed the jurors to
write “yes” in the space provided if one or more of them found by
a preponderance of the evidence that a particular statutory
mitigating circumstance existed. The trial court did not
specifically explain to the jury that the seven circumstances
applicable to the aforementioned instruction are statutory
mitigating circumstances. However, the trial court did not need
to do so because once the jury found that one or more statutory
mitigating circumstances existed, that circumstance indeed
mitigated the crime or lessened defendant's culpability for the
crime and would be weighed against the aggravating circumstances
found. By virtue of the process through which the trial court
guides the jury, if the jury finds that a statutory mitigating
circumstance exists, that circumstance by implication has to have
“value” because it lessens the defendant's culpability for the
commission of the crime. Thus, the jury did not have to give the
statutory mitigating circumstance value, and value was not a
consideration. The jury simply wrote “yes” below the statutory
mitigating circumstance listed on the form if the jury found it to
exist by a preponderance of the evidence.
For the nonstatutory mitigating circumstances,
the trial court instructed the jury as follows:
Now, ladies and gentlemen, you should also
consider the following circumstances arising from the evidence
which you find to have mitigating value.
Now, if one or more of you finds by a
preponderance of the evidence that any of the following
circumstances exist and also are deemed by you to have mitigating
value, you would so indicate by having your foreperson write “yes”
in the space provided.
In contrast to the trial court's instructions
for statutory mitigating circumstances, the trial court's
instructions for nonstatutory mitigating circumstances required an
extra step. Once the jury found a nonstatutory mitigating
circumstance by a preponderance of the evidence, it then had to
determine if that nonstatutory mitigating circumstance had value.
With a nonstatutory mitigating circumstance, the jury's finding
of the facts supporting the existence of the circumstance does not
automatically give the circumstance “value.” The jury had to
further determine whether or not that nonstatutory mitigating
circumstance had value. Once again, the trial court's failure to
specifically mention the word “nonstatutory” in its instruction is
of no effect. The process the trial court's instructions
required the jury to follow comports with the two-step process
necessary to determine if a nonstatutory mitigating circumstance
should have been considered. For a nonstatutory mitigating
circumstance, even if a jury finds the factual basis for the
circumstance to exist by a preponderance of the evidence, the jury
must deem that circumstance to have mitigating value before it
lessens defendant's culpability for the commission of the crime.
Distinguishing “value” with regard to statutory
and nonstatutory mitigating circumstances is inherent in the trial
court's instructions. Once the jury finds that a statutory
mitigating circumstance exists, it is automatically considered in
the weighing process by the jury writing “yes” on the issues and
recommendation form. However, once a nonstatutory mitigating
circumstance is found, it is only considered in the weighing
process if the jury deems it to have mitigating value.
Therefore, there is no need for the trial court to specifically
state the distinction between statutory and nonstatutory
mitigating circumstances with respect to “value.”
Defendant argues that the trial court “made no
distinction as to the weight to give statutory mitigating
circumstance[s] and non-statutory mitigating circumstances.” It
is not necessary for the trial court to make a distinction between
statutory and nonstatutory mitigating circumstances when referring
to “weight.” Giving “weight” to statutory or nonstatutory
mitigating circumstances as distinct concepts is an improper
application of the law. N.C.G.S. § 15A-2000(c)(3) provides that
once a jury finds a mitigating circumstance or circumstances, it
must show that “the mitigating circumstance or circumstances
[found] are insufficient to outweigh the aggravating circumstance
or circumstances found.” This statute does not make a
distinction between statutory and nonstatutory mitigating
circumstances when weighing them against aggravating
circumstances. When the jury is considering “weight,” all
mitigating circumstances, whether statutory or nonstatutory, must
be weighed against all aggravating circumstances. Thus, the
trial court does not need to instruct the jury on how to weigh
statutory mitigating circumstances versus nonstatutory mitigating
circumstances because all mitigating circumstances are weighed
against all aggravating circumstances.
After reviewing the record and transcripts, we
conclude that the trial court did not commit error, much less
plain error. This assignment of error is overruled.
Next, defendant argues that her trial attorney
rendered ineffective assistance of counsel at trial in violation
of the Sixth Amendment to the Constitution of the United States.
We disagree. Defendant failed to provide transcript references
under the assignment of error. N.C. R.App. P. 10(c)(1) provides
that “[a]n assignment of error is sufficient if it directs the
attention of the appellate court to the particular error about
which the question is made, with clear and specific record or
transcript references.” (Emphasis added.) Defendant identifies
the “Entire Transcript” as the basis for the assignment of error
alleging ineffective assistance of counsel, as contained in the
record on appeal. As there are 3,285 transcript pages in this
case, a reference to the entire transcript is not a reference to a
“particular error”, nor is it “clear and specific.” See id.
Given that defendant's assignment of error does not comport with
the mandate of N.C. R.App. P. 10(c)(1), the ineffective assistance
of counsel argument is not properly before this Court.
Therefore, this assignment of error is overruled.
In defendant's next question presented, she
contends that the trial court erred in denying her motion to
exclude two photographs, exhibit H1 and H8, depicting Susan Horne
and Tracy Lambert. We disagree and will discuss each photograph
Exhibit H1 is a “close-up facial view of ․
Susan Moore.” The photograph shows “some blood on the face and ․
a fly on the left closed eyelid of the victim[.] ․ [U]nder the
victim's head appears to be tire tracks and the victim's left hand
appears to have blue fingernail polish. No other part of the
victim's body can be viewed except the left hand and the front
area of the head and face.” Defendant argues that this exhibit
was “unduly inflammatory” specifically concerning the fly on the
victim's eyelid. In finding that exhibit H1 is “highly
probative, material and relevant and that the danger of unfair
prejudice does not outweigh the high probative value,” the trial
[T]his photograph is highly probative, ․
finding that the position of the body is a material fact in the
case and that the location of the head on what appears to be a
tire track is consistent with testimony given by one of the
state's witnesses who was allegedly present at the scene and
witnessed the alleged murder.
The court finds further that the amount of
blood present is not excessive; that this is a fair and accurate
representation based upon previous testimony that the court has
witnessed of the body of the victim Susan Moore as it was observed
by investigators who first arrived on the scene. That it is an
identification photograph allowing witnesses who need to make an
identification to do so. Based upon their knowledge of the
identi[t]y of Susan Moore and their observation of the person at
the scene of the alleged murder.
[The court] finds that the presence in and of
itself of what appears to be a fly on the left eyelid is not
unduly prejudicial or inflammatory, the court taking as a matter
of common sense and judicial notice that flies do not only pitch
or light upon bodies, but that they are a constant irritant to
people who are alive as well and that there is no significance to
be attached to the presence of the fly.
“As a general rule, gory or gruesome
photographs have been held admissible so long as they are used for
illustrative purposes and are not introduced solely to arouse the
passions of the jury.” State v. Warren, 348 N.C. 80, 110, 499
S.E.2d 431, 448, cert. denied, 525 U.S. 915, 119 S.Ct. 263, 142
L.Ed.2d 216 (1998). Furthermore, this Court has previously
stated that “[p]hotographs ‘showing the condition of the body when
found, its location ․, and the surrounding scene at the time ․ are
not rendered incompetent by the portrayal of the gruesome events
which the witness testifies they accurately portray.’ ” State v.
Peterson, 337 N.C. 384, 393-94, 446 S.E.2d 43, 49 (1994) (quoting
State v. Elkerson, 304 N.C. 658, 665, 285 S.E.2d 784, 789 (1982)),
overruled on other grounds by State v. Jackson, 348 N.C. 644, 503
S.E.2d 101 (1998). Furthermore, “ ‘ [p]hotographs are usually
competent to be used by a witness to explain or illustrate
anything that it is competent for him to describe in words.’ ”
State v. Watson, 310 N.C. 384, 397, 312 S.E.2d 448, 457 (1984)
(quoting State v. Cutshall, 278 N.C. 334, 347, 180 S.E.2d 745, 753
The decision of whether to admit photographs
under N.C.G.S. § 8C-1, Rule 403 is “within the sound discretion of
the trial court, and the trial court's ruling should not be
overturned on appeal unless the ruling was ‘manifestly unsupported
by reason or [was] so arbitrary that it could not have been the
result of a reasoned decision.’ ” State v. Hyde, 352 N.C. 37, 55,
530 S.E.2d 281, 293 (2000) (quoting State v. Hennis, 323 N.C. 279,
285, 372 S.E.2d 523, 527 (1988)), cert. denied, 531 U.S. 1114, 121
S.Ct. 862, 148 L.Ed.2d 775 (2001). In the instant case, the
trial court properly exercised its discretion in admitting exhibit
H1. This photograph was used to identify this particular victim,
and it was used during the testimony of Officer Penny Goodwin to
illustrate her testimony as to what she observed on 17 August
1998. Furthermore, the photograph was not so gruesome as to
require its inadmissibility, and as the trial court found, the
presence of the fly on the victim's eyelid did not change this
outcome. Thus, applying the above principles and the
requirements of N.C.G.S. § 8C-1, Rule 403, we conclude that the
trial court properly admitted this evidence.
Next, with regard to exhibit H8, defendant
argues that this photograph should have been held inadmissible
because it was duplicative of exhibit H7. We disagree.
Exhibit H8 is a photograph of Susan Moore's and
Tracy Lambert's bodies lying in a field. In admitting exhibit H8
into evidence, the trial court found that “while it does duplicate
to some degree the state's exhibit H7, ․ H8 gives a different
perspective, and the court finds it could be probative and
valuable to the jury in determining ․ the relative positions of
the bodies one to another and the relative positions of the bodies
to a tree as a point of reference.” The trial court also found
“that there is nothing unduly prejudicial or gory about the
“Repetitive photographs may be introduced,
even if they are revolting, as long as they are used for
illustrative purposes and are not aimed solely at prejudicing or
arousing the passions of the jury.” Peterson, 337 N.C. at 394,
446 S.E.2d at 49. We conclude, as the trial court did, that this
photograph was not unduly prejudicial or gruesome under N.C.G.S.
§ 8C-1, Rule 403, and furthermore, this photograph offered a
different perspective than that which was offered by exhibit H7.
Thus, the trial court did not err in admitting exhibit H8 into
Next, defendant argues that the trial court
erred in submitting the aggravating circumstance that the murders
were especially heinous, atrocious, or cruel. See N.C.G.S.
§ 15A-2000(e)(9). We disagree.
Whether a trial court properly submitted the
(e)(9) aggravating circumstance depends on the facts of the case.
The capital offense must not be merely heinous, atrocious, or
cruel; it must be especially heinous, atrocious, or cruel. A
murder is especially heinous, atrocious, or cruel when it is a
conscienceless or pitiless crime which is unnecessarily torturous
to the victim.
State v. Flippen, 349 N.C. 264, 270, 506 S.E.2d
702, 706 (1998), (citations omitted), cert. denied, 526 U.S. 1135,
119 S.Ct. 1813, 143 L.Ed.2d 1015 (1999). This Court has
identified three types of murders that would
warrant the submission of the [especially heinous, atrocious, or
cruel] aggravating circumstance. The first type consists of
those killings that are physically agonizing for the victim or
which are in some other way dehumanizing. State v. Lloyd, 321
N.C. 301, 319, 364 S.E.2d 316, 328, sentence vacated on other
grounds, 488 U.S. 807 [109 S.Ct. 38], 102 L.Ed.2d 18 (1988). The
second type includes killings that are less violent but involve
infliction of psychological torture by leaving the victim in his
or her “last moments aware of but helpless to prevent impending
death,” State v. Hamlet, 312 N.C. [162,] 175, 321 S.E.2d [837,]
846 [ (1984) ], and thus may be considered “conscienceless,
pitiless, or unnecessarily torturous to the victim,” State v.
Brown, 315 N.C. 40, 65, 337 S.E.2d 808, 826-27 (1985), cert.
denied, 476 U.S. 1164 [106 S.Ct. 2293], 90 L.Ed.2d 733 (1986), and
overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364
S.E.2d 373 (1988). The third type includes killings that
“demonstrate[ ] an unusual depravity of mind on the part of the
defendant beyond that normally present in first-degree murder[s].”
Id. at 65, 337 S.E.2d at 827.
Lloyd, 354 N.C. at 122, 552 S.E.2d at 627-28
(citation omitted) (fifth and sixth alterations in original).
Furthermore, “[i]n determining whether the evidence is sufficient
to support the trial court's submission of the especially heinous,
atrocious, or cruel aggravating circumstance, we must consider the
evidence ‘in the light most favorable to the State, and the State
is entitled to every reasonable inference to be drawn therefrom.’
” Flippen, 349 N.C. at 270, 506 S.E.2d at 706 (quoting Lloyd,
321 N.C. at 319, 364 S.E.2d at 328).
Applying the principles above, we conclude that
the evidence in this case was sufficient to support the submission
of the (e)(9) aggravating circumstance to the jury. The evidence
at trial tended to show that the two victims were forced into the
trunk of their car at gunpoint while screaming and trying to
escape. Then, for about an hour, defendant and others drove the
car around while the two victims cried for help, begged not to be
hurt, and asked their abductors what was going to be done to them.
At some point during the ride, the car was stopped, and some of
the other gang members took jewelry off of the victims at
gunpoint. Eventually, the gang arrived at defendant's trailer
with the two victims in the trunk. The trunk was opened again,
and Susan Moore pled for their lives. She asked her abductors:
“Well, what are you all going to do to us?” “Are you going to
kill us?” “We don't know what y'all look like. Just let us go.”
One of the gang members then told her, “Shut up, b----,” and the
victims were then locked back in the trunk. The gang members
then went into defendant's trailer. Finally, the gang returned
outside and drove the victims to a “dirt road” that was about
twenty minutes away from defendant's trailer. The gang pulled
the victims out of the trunk. Queen held a gun to Tracy
Lambert's head and said, “Well, I'm about to open this b----'s
third eye.” Lambert started to cry, saying, “Oh, my God, Susan.
We're going to die. We're going to die. I don't want to
die.” Queen told Lambert to shut up and then shot her in the
head. Moore, who was being held with a knife to her throat,
begged the gang not to cut her in the throat, but to shoot her
instead. Subsequently, Francisco Tirado shot Moore in the head.
The victims were subjected to at least an hour
and a half of psychological torture by being trapped in the trunk
of a car while pleading for their lives. The victims were also
abducted at gunpoint and robbed of jewelry. Furthermore, Susan
Moore was forced to witness Tracy Lambert being shot in the head.
We thus conclude that the evidence more than warranted the trial
court's submission of the (e)(9) aggravating circumstance to the
jury for both murders. This assignment of error is overruled.
We turn once again to the all-too-familiar
contention by a defendant that counsel for the State engaged in
improper closing arguments. We note that this case was tried
prior to our decision in State v. Jones, 355 N.C. 117, 558 S.E.2d
97. However, Jones did not introduce into the parameters of
proper closing argument any new requirements, but instead
reiterated established principles long articulated by the laws of
this state and by this Court's decisions.
In this case, the State presented three
separate arguments to the jury at guilt-innocence and at
sentencing. In the first two arguments, the district attorney
and one of his assistants engaged in proper closing arguments
focusing on the evidence, the law, and the issues before the jury.
This is a compelling case based upon the evidence presented at
trial, and it is inconceivable why the third argument made by
another assistant district attorney was ever made. Little, if
any, argument was made about the evidence, law, or issues.
Instead, the argument consisted of a rambling, disjointed personal
attack on defendant, filled with irrelevant historical references
and name-calling. Examples of the prosecutor's name-calling
Ladies and gentlemen, you mean to tell me three
people get shot in cold blood by a bunch of no working, no school
going, heathen, murdering, low-lifes and nobody's supposed to get
․ The whole low-life, no working, unemployed
group, every one of them is just as guilty.
․ Ladies and gentlemen of the jury, you got to
learn how to recognize evil when you see it․ You got to learn how
to stand up to evil, ladies and gentlemen of the jury. You have
to learn how to stand up to evil.
And that girl and that whole gang of them over
there, just like this man said, evil, wicked and mean.
․ You say she's not evil? You say she's not
evil? You don't think so. Well, ladies and gentlemen of the
jury, if you can't recognize evil, you will never recognize it.
See State v. Smith, 279 N.C. 163, 165-67, 181
S.E.2d 458, 459-60 (1971) (reversing defendant's rape conviction
because of the prosecutor's “inflammatory and prejudicial” closing
argument describing defendant as “lower than the bone belly of a
cur dog”); see also State v. Miller, 271 N.C. 646, 659-61, 157
S.E.2d 335, 344-47 (1967) (holding that the prosecutor committed
reversible error by, inter alia, calling defendants
“storebreakers” and expressing his opinion that a witness was
Furthermore, large portions of the argument
consisted of matters that were totally extraneous to the decision
being made by the jury and that violated several principles of
closing argument set out previously by this Court. The effect of
this argument is to take a case that appears rock solid on the
evidence and law and that was twice ably argued to the jury and
bring it perilously close to mandating reversal.
In reviewing this matter, however, we are
constrained by the lack of objections by the trial attorneys for
defendant (there was only one objection), the total lack of
intervention by the trial judge, the limited number of questions
presented to this Court on appeal, and defendant's failure to
properly assign error.
We now turn to the issues raised by defendant.
Our standard of review depends on whether there was a timely
objection made or overruled, or whether no objection was made and
defendant contends that the trial court should have intervened ex
mero motu. If there is an objection, this Court must determine
whether “the trial court abused its discretion by failing to
sustain the objection.” Jones, 355 N.C. at 131, 558 S.E.2d at
106. Application of the abuse of discretion standard to closing
argument requires this Court to first determine if the remarks
were improper. Id. “Next, we determine if the remarks were of
such a magnitude that their inclusion prejudiced defendant, and
thus should have been excluded by the trial court.” Id.
When defendant fails to object to an argument,
this Court must determine if the argument was “so grossly improper
that the trial court erred in failing to intervene ex mero motu.”
State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002).
In other words, the reviewing court must
determine whether the argument in question strayed far enough from
the parameters of propriety that the trial court, in order to
protect the rights of the parties and the sanctity of the
proceedings, should have intervened on its own accord and: (1)
precluded other similar remarks from the offending attorney;
and/or (2) instructed the jury to disregard the improper comments
Jones, 355 N.C. at 133, 558 S.E.2d at 107.
Defendant raises two issues
regarding closing arguments, one in the guilt-innocence phase and
one in the sentencing phase, respectively. When considering
prejudice in a capital case,
special attention must be focused on the
particular stage of the trial. Improper argument at the
guilt-innocence phase, while warranting condemnation and potential
sanction by the trial court, may not be prejudicial where the
evidence of defendant's guilt is virtually uncontested. However,
at the sentencing proceeding, a similar argument may in many
instances prove prejudicial by its tendency to influence the
jury's decision to recommend life imprisonment or death. We also
point out that by its very nature, the sentencing proceeding of a
capital case involves evidence specifically geared towards the
defendant's character, past behavior, and personal qualities.
Therefore, it is certainly appropriate for closing argument at the
sentencing hearing to incorporate reasonable inferences and
conclusions about the defendant that are drawn from the evidence
presented. However, mere conclusory arguments that are not
reasonable-such as name-calling-or that are premised on matters
outside the record-such as comparing defendant's crime to infamous
acts-do not qualify and thus cannot be countenanced by this or any
other court in the state.
Id. at 134-35, 558 S.E.2d at 108.
We first address the one portion of the
argument to which there was an objection. Defendant argues that
the trial court erred in failing to intervene ex mero motu when
the prosecutor's grossly improper argument intended to invoke
passion into the jury by comparing defendant to Adolph Hitler.
Defendant improperly characterizes the argument here, as the trial
court does not intervene ex mero motu when an objection is made.
We reiterate that the proper standard of review when an objection
is made is whether “the trial court abused its discretion by
failing to sustain the objection.” Id. at 131, 558 S.E.2d at 106.
During closing arguments in the guilt-innocence
phase, the prosecutor told the jury:
Over 50-some years ago, a man from England went
to Germany to meet a fellow at a place called Berchtesgaden and he
went over there to sign a peace treaty, and this man had a great
big enormous picture window. Now, the man from England that
looked out the window [was] named Neville Chamberlain, when he
looked out the window, he saw a world of peace. He saw a world
of harmony. And he signed a little piece of paper, just like the
one that this defendant tried to pawn off on this district
attorney right here, signed a little piece of paper with that
man-that other man from Germany that looked out the window. And
he said we're at peace. The man from England took a little piece
of paper, went back home waving it to his folks, We have peace in
our time. He had no idea that he was talking to a man that,
before it was over, would be responsible for the deaths of 50
million people on every continent, every sea. He would be
responsible for the death of over 50 million women and children.
He had no idea that Adolph Hitler was going to turn out the way he
But, ladies and gentlemen of the jury, oh, he
met his match later on. Because Neville Chamberlain didn't
remain in office. A fellow named Winston Churchill took over.
And you know what Winston Churchill told the fuhrer? We will
fight you on the beaches. We will fight you in the air. We
will fight you on land. We will never surrender.
And if these people have their way-they got up
here political, economic, social and all that stuff, if they have
their way, they will turn this county-this state and this country
into a place of chaos.
[DEFENSE COUNSEL]: Your Honor, we object.
THE COURT: Overruled.
[PROSECUTOR]: That's what they'll do. Got 12
keys of life. The last few of which are money, mac and murder.
If they have their way-you know that man that looked out that
picture window, the German one, he wrote a book. He had a little
book he wrote while he was in prison called “Mein Kampf” and he
had a twisted dream too just like these folks right here. And he
didn't, I don't suppose, look evil to Mr. Chamberlain. Mr.
Chamberlain's head probably wasn't screwed on right but
Churchill's head was.
The State argues that defendant objected only
to the portion of the prosecutor's argument that defendant's gang
would “turn this county-this state and this country into a place
of chaos” and did not object to the references to Adolph Hitler.
It is apparent that defendant followed the prosecutor's argument
and objected when the prosecutor tied his prior references to
Hitler to defendant. Therefore, we conclude that defendant's
objection was directed to the reference to Hitler as well as the
statement tying defendant to Hitler, and thus we will review the
argument based on an objection having been made.
The State further contends that this Court
should apply by analogy the rule relating to admission of
evidence: “ ‘[T]he admission of evidence without objection waives
prior or subsequent objection to the admission of evidence of a
similar character.’ ” State v. Hudson, 331 N.C. 122, 151, 415
S.E.2d 732, 747-48 (1992) (quoting State v. Campbell, 296 N.C.
394, 399, 250 S.E.2d 228, 231 (1979)), cert. denied, 506 U.S.
1055, 113 S.Ct. 983, 122 L.Ed.2d 136 (1993). In other words, the
State argues that defendant's objection that was overruled should
be waived because defendant did not object to subsequent portions
of the prosecutor's argument relating to Adolph Hitler. However,
the rule relating to the admission of evidence during the trial is
not analogous to arguments allowed during closing arguments.
Whereas it is customary to make objections during trial, counsel
are more reluctant to make an objection during the course of
closing arguments “for fear of incurring jury disfavor.” Jones,
355 N.C. at 129, 558 S.E.2d at 105. Defendant should not be
penalized twice (by the argument being allowed and by her proper
objection being waived) because counsel does not want to incur
jury disfavor. Therefore, defendant properly objected to the
prosecutor's argument, and no waiver occurred by defendant's
failure to object to later references to Hitler.
Because defendant properly objected to the
closing argument, this Court must determine if “the trial court
abused its discretion by failing to sustain the objection.” Id.
at 131, 558 S.E.2d at 106. As previously noted, the application
of the abuse of discretion standard to closing arguments requires
this Court to first determine if the remarks were improper. Id.
“Next, we determine if the remarks were of such a magnitude that
their inclusion prejudiced defendant, and thus should have been
excluded by the trial court.” Id. Defendant contends that the
prosecutor's argument was improper. We agree. “[I]mproper
remarks include statements of personal opinion, personal
conclusions, name-calling, and references to events and
circumstances outside the evidence, such as the infamous acts of
Defendant contends that the prosecutor made
this argument to compare her and the Crips to Hitler and the
Nazis. However, at the conclusion of the argument, the
prosecutor's reasoning for this argument appears to be different.
“Ladies and gentlemen of the jury, go back there and act with
resolve. Go back there. Do like Winston Churchill when he
stood up to Hitler. Do it like that. Stand up to evil. Go
back there and find this person guilty of every single charge on
that indictment.” Thus, the purpose of the argument appears to
be to get the jury to “stand up to evil” like Winston Churchill
did to Hitler rather than to appease evil like Neville Chamberlain
While this Court in Jones stated that arguments
“premised on matters outside the record” during closing arguments
are inappropriate, id. at 135, 558 S.E.2d at 108, we do not
completely restrict closing arguments to matters that are only
within the province of the record, to the exclusion of any
historical references. However, despite the de facto historical
nature of any past event, this Court will not allow such arguments
designed to inflame the jury, either directly or indirectly, by
making inappropriate comparisons or analogies. In this case,
even if the prosecutor's argument about Neville Chamberlain and
Adolph Hitler and Winston Churchill was to illustrate appeasement,
using Hitler as the basis for the example has the inherent
potential to inflame and to invoke passion in the jury,
particularly when defendant is compared to Hitler in the context
of being evil. We conclude that the prosecutor's argument in
this case was improper.
Now we must “determine if the remarks were of
such a magnitude that their inclusion prejudiced defendant, and
thus should have been excluded by the trial court.” Id. at 131,
558 S.E.2d at 106. Although the prosecutor's argument was
improper, given the overwhelming evidence of defendant's guilt, it
can hardly be said that the prosecutor's remarks “were of such
magnitude that their inclusion prejudiced defendant.” See id.
In fact, this argument, coming when it did after two proper
arguments by the district attorney and an assistant district
attorney, most likely had little, if any, impact on the jurors'
decision on the issue of guilt or innocence. Finally, in viewing
the argument in its totality, it appears far more incomprehensible
and disjointed than powerful and persuasive. Thus, we must
conclude that, although improper, the necessary showing of
prejudice was not met.
Next, defendant argues that the prosecutor made
improper statements during closing arguments in the sentencing
phase. Defendant failed to make any objections, so this Court
must determine if the prosecutor's arguments were “so grossly
improper that the trial court erred in failing to intervene ex
mero motu.” Barden, 356 N.C. at 358, 572 S.E.2d at 135.
Defendant points to seven portions of the
prosecutor's closing argument during the sentencing phase that
defendant contends were so grossly improper as to require
intervention by the trial court. Specifically, defendant argues
that the prosecutor tried to prejudice the jury by referring to
the jury's “solemn” duty to the victims to do justice and by
referring to the jurors confronting the victims in the
“hereafter.” Contrary to defendant's contention and having
reviewed the argument in context, we conclude that the prosecutor
did not imply that the jury's duty was to sentence defendant to
death under God's law. This Court has disapproved of contentions
that state law-enforcement entities have been ordained by God and
that resisting those entities is resisting God. Call, 353 N.C. at
419, 545 S.E.2d at 202; State v. Cummings, 352 N.C. 600, 628, 536
S.E.2d 36, 56 (2000), cert. denied, 532 U.S. 997, 121 S.Ct. 1660,
149 L.Ed.2d 641 (2001). However, in this case, the prosecutor
neither argued nor implied that law-enforcement entities were
ordained by God. Furthermore, the remarks were not a biblical
argument, nor were they based improperly on religion. The
statements constituted a request to “do justice” and a
hypothetical reference to encountering the victims in the
hereafter. While inappropriate, these comments do not merit
intervention by the trial court ex mero motu. See Call, 353 N.C.
at 419, 545 S.E.2d 190.
Furthermore, in making references to God, the
prosecutor challenged defendant's direct testimony in the
guilt-phase that she had “found God.” The prosecutor's reference
to God was also in response to social worker Joan Cynthia Brooks'
testimony about defendant's complaint about her grandmother's
religious emphasis. Defendant contends that the prosecutor
argued that defendant should be willing to die under God's laws.
We disagree. The prosecutor did not suggest or imply that the
jury should sentence defendant to death under God's laws. The
prosecutor's comments were in direct response to defendant's
testimony in the guilt-innocence phase that she had “found God”
and to the social worker's testimony in the sentencing phase.
See, e.g., State v. Robinson, 336 N.C. 78, 129-30, 443 S.E.2d 306,
332 (1994) (holding that the prosecutor's argument on drugs and
race was in response to the defendant's expert, who testified that
defendant's inner-city background was partially responsible for
his criminal behavior), cert. denied, 513 U.S. 1089, 115 S.Ct.
750, 130 L.Ed.2d 650 (1995).
The prosecutor also argued that defendant's
mitigating circumstances were excuses for the murders committed
and challenged the weight of defendant's mitigating circumstances.
Defendant provides no support for her contention that the
prosecutor “misled the jury from the law” by making these
statements about defendant's mitigating circumstances. The
prosecutor simply contended that the jury should not give weight
to defendant's mitigating circumstances. See, e.g., id. at 129,
443 S.E.2d at 332 (holding that the prosecutor's remark that the
defendant's mitigation evidence constituted an “evasion of
responsibility” was “directed toward the weight that the jury
should give to defendant's evidence”). This Court has repeatedly
maintained that “[a] prosecutor is permitted to legitimately
belittle the significance of ․ mitigating circumstances.” State
v. Haselden, 357 N.C. 1, 20, 577 S.E.2d 594, 606 (2003); accord
State v. Billings, 348 N.C. 169, 186-87, 500 S.E.2d 423, 433-34
(quoting State v. Basden, 339 N.C. 288, 305, 451 S.E.2d 238, 247
(1994), cert. denied, 515 U.S. 1152, 115 S.Ct. 2599, 132 L.Ed.2d
845 (1995)), cert. denied, 525 U.S. 1005, 119 S.Ct. 519, 142
L.Ed.2d 431 (1998).
In addition, the prosecutor argued to the jury
during the sentencing stage, “You know what was once written about
people who harm children? ‘And whosoever shall offend one of
these little ones that believe in me, it is better that a
millstone be tied about his neck and he be drowned in the depths
of the sea.’ ” Defendant contends that this was grossly improper
and that the trial court should have intervened ex mero motu.
However, the prosecutor did not argue that the Bible commanded
that defendant be put to death. Instead, he used the statement
in question to respond to defendant's testimony that she did not
want her children in the Davis Street environment. The
prosecutor appears to have used this colloquy to amplify
defendant's bad parenting and to attempt to eliminate any sympathy
the defense might try to invoke with the jury because defendant
had children. This is evidenced by the prosecutor's following
Do not delude yourself, ladies and gentlemen of
the jury. Counsel will get up here and tell you how pitiful
[defendant] is, and how by letting her live, she'll be able to see
her children. They'll be able to see-come visit their mother.
Ladies and gentlemen of the jury, the last thing that you ought to
think of this person as is a mother. That's the person that put
her children out of the house for this motley crew.
This case does not involve the death of a child
such that an interpretation could be drawn from this argument that
defendant should die because she has harmed her children.
Furthermore, the prosecutor does not directly or indirectly state
that defendant should be executed for these crimes because the
Bible says so. Although “[t]his Court has strongly cautioned
against the use of arguments based on religion,” Barden, 356 N.C.
at 358, 572 S.E.2d at 135, we hold that the prosecutor's arguments
in this case were not grossly improper and that they do not
constitute reversible error by the trial court's failure to
intervene ex mero motu.
As we have observed, this closing argument was
made prior to our decision in Jones. However, let there be no
mistake. It is the expressed intention of this Court to make
sure all parties stay within the proper bounds of the laws and
decisions of this Court relating to closing argument. The
federal courts have consistently restricted closing argument,
while our state jurisprudence has tended to give far greater
latitude to counsel. There is a proper balance, and in Jones, we
took great care to spell out the proper parameters. In this
case, at one point in his argument, the prosecutor said, “I hope
the judge doesn't put me in jail for my language․” While not
inclined in this case to go that far, we once again remind counsel
for all parties that improper argument in flagrant disregard of
the limits placed on closing argument can and must be enforced by
Defendant also contends that the trial court
erred by allowing the prosecutor to argue, during closing
arguments at the guilt-innocence phase of the trial, that
defendant failed to call John Juarbe, Tameika Douglas, and
Francisco Tirado to the stand, which thereby impermissibly shifted
the burden of proof to defendant to prove her case.
During closing arguments at the guilt-innocence
phase of the trial, defense counsel stated:
We didn't take one or two words out of context.
We didn't take a statement here and a statement there and pull a
couple words out and try to confuse you and not show you the
statement. Heck, we even brought Eric Queen in here, put him on
the stand and tried to get him to talk to you. He invoked his
Fifth Amendment right which is his perfect right to do. End of
story. We can't question him any more about that. We brought
Darryl Tucker in here, put him on the stand and we asked him
questions and he invoked his Fifth Amendment rights. Can't ask
him questions any more. We did-we tried.
In sum, we've tried to be completely up front
with you. We tried to let you hear the whole story of what
happened in this incident. We tried to let you hear it without
emotional tirades, without smoke in [sic] mirrors. We tried to
let you have the bare, cold facts and let you decide what
happened. It's as simple as that.
During the prosecutor's closing argument in
rebuttal, the prosecutor responded to this argument by saying:
Now, the defense wants you to believe that they
called in Mr. Queen, they called in Mr. Tucker because they were
trying to show you everything and give you a chance to hear
everything because they want to be real truthful with you and make
sure you know everything. Well, were there any other defendants
in this case?
You've got to wonder, now, let's see, what was
this defendant's relationship to those two defendants? Well,
when she was arrested, law enforcement tells you she comes out of
the bedroom with Queen. She says in the statement you couldn't
sleep with somebody in your same set, so she didn't have a
relationship with Eric Queen. But she said on the stand, yeah,
we were boyfriend-no, we weren't boyfriend and girlfriend but we
had a sexual relationship. She comes out of the back bedroom
there-by law enforcement, those two were in the back bedroom.
She is so afraid of him. She is so afraid. She is so afraid she
keeps his picture right beside her bed. She look like she is
scared of anybody in that picture? Looks like they are on pretty
good terms in that picture. Eric Queen-you reckon-you reckon
Eric Queen is the boyfriend? He is the one that's caught in the
bedroom with her when law enforcement catches her. You reckon
there wouldn't be a chance he wouldn't unload on her if he did say
anything if they put him on the stand? Probably wouldn't, would
he? He's the boyfriend?
Now, who else on this chart would this
defendant be close to? Well, she kept saying what? Couldn't
throw Tucker out. His daddy was my O.G. [original gangster],
plus he's fam. He's fam. Got to let him stay there. Got to
send the children away for days. I cannot have the children
here. I can't do whatever. Can't throw out Tucker. Finally,
she did. When he questioned her, you got to leave. Fam, brings
him in. You reckon if he says anything, you can take that chance
putting him on the stand, can't you, because if he says anything,
she's close enough that he's not likely to hurt her, isn't he?
So why don't they put John Juarbe on the stand?
Why didn't they call Tameika Douglas? Why didn't they call
Paco [Tirado]? She was plenty ready to unload on Paco all the
way through her testimony. If you put Paco up there, I wonder
what he would have said. Put Carlos Frink, Carlos Nevills, think
about it. The defendant chose to call up there the two people
that, if they said anything, what? Were closest to her. Most
unlikely to do what? Hurt her. Remember that. Remember that.
Because the defendant has said to you how truthful she was, how
she tried to show you everything.
Defendant first contends that the trial court
committed plain error in this case by not intervening during this
closing argument. However, this Court has stated that plain
error review is appropriate only “when the issue involves either
errors in the trial judge's instructions to the jury or rulings on
the admissibility of evidence.” State v. Cummings, 346 N.C. 291,
314, 488 S.E.2d 550, 563 (1997), cert. denied, 522 U.S. 1092, 118
S.Ct. 886, 139 L.Ed.2d 873 (1998). “Since defendant failed to
object to these allegedly improper statements during the closing
arguments, [she] ‘must demonstrate that the prosecutor's closing
arguments amounted to gross impropriety.’ ” State v. May, 354
N.C. 172, 178, 552 S.E.2d 151, 155 (2001) (quoting State v. Rouse,
339 N.C. 59, 91, 451 S.E.2d 543, 560 (1994), cert. denied, 516
U.S. 832, 116 S.Ct. 107, 133 L.Ed.2d 60 (1995)), cert. denied, 535
U.S. 1060, 122 S.Ct. 1923, 152 L.Ed.2d 830 (2002). “ ‘To
establish such an abuse, defendant must show the prosecutor's
comments so infected the trial with unfairness that it rendered
the conviction fundamentally unfair.’ ” Hyde, 352 N.C. at 56, 530
S.E.2d at 294 (quoting State v. Robinson, 346 N.C. 586, 607, 488
S.E.2d 174, 187 (1997)). Furthermore, “ ‘[t]rial counsel is
allowed wide latitude in argument to the jury and may argue all of
the evidence which has been presented as well as reasonable
inferences which arise therefrom.’ ” Id. (quoting State v.
Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998), cert.
denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1013 (1999)).
Also, “[w]hile a prosecutor may not comment on
the failure of the accused to testify, he may ‘comment on a
defendant's failure to produce witnesses or exculpatory evidence
to contradict or refute evidence presented by the State.’ ” State
v. Skeels, 346 N.C. 147, 153, 484 S.E.2d 390, 393 (1997) (quoting
State v. Reid, 334 N.C. 551, 555, 434 S.E.2d 193, 196 (1993));
see also State v. Ward, 354 N.C. 231, 261-62, 555 S.E.2d 251, 271
(2001); State v. Fletcher, 348 N.C. 292, 322, 500 S.E.2d 668, 685
(1998),cert. denied, 525 U.S. 1180, 119 S.Ct. 1118, 143 L.Ed.2d
113 (1999); State v. Morston, 336 N.C. 381, 406, 445 S.E.2d 1, 15
(1994). “ ‘[T]he jury, in weighing the credibility of the
evidence offered by the State [ ] may consider the fact that it is
uncontradicted ․ or unrebutted by evidence available to
defendant.’ ” State v. Tilley, 292 N.C. 132, 143, 232 S.E.2d 433,
441 (1977) (quoting State v. Bryant, 236 N.C. 745, 747, 73 S.E.2d
791, 792 (1953)) (third alteration in original).
In the present case, we conclude that the
prosecutor was merely arguing that defendant had witnesses
available who could have offered exculpatory evidence but that
defendant had refused to call those witnesses. Furthermore, we
conclude that the prosecutor was also responding to defendant's
assertion in which her attorney said to the jury, “We tried to let
you hear the whole story of what happened in this incident.”
Therefore, we hold that the prosecutor's closing argument did not
amount to gross impropriety, and thus, the trial court did not err
by not intervening ex mero motu.
Defendant raises four additional issues that
she concedes have been previously decided contrary to her position
by this Court: (1) the trial court erred in allowing death
qualification of the jury; (2) the N.C.G.S. § 15A-2000 (e)(9)
aggravating circumstance that a murder is “especially heinous,
atrocious, or cruel” is unconstitutionally vague and overbroad;
(3) the trial court erred by instructing the jury during the
capital sentencing proceeding that the answers to Issues One,
Three, and Four on the “Issues and Recommendation as to
Punishment” form for each case must be unanimous; (4) the trial
court erred by failing to change the wording of Issue Three on the
“Issues and Recommendation as to Punishment” form for each case to
avoid a recommendation of death if the jury found the aggravating
and mitigating circumstances to be of equal weight and value.
Defendant raises these issues in order to urge
this Court to reexamine its prior holdings with regard to these
issues. We have considered defendant's arguments, and we find no
compelling reason to reverse our prior holdings. Therefore, the
assignments of error presented under these issues are overruled.
Having found no prejudicial error in
defendant's trial or capital sentencing proceeding, we must now
review and decide three issues: (1) whether the record supports
“the jury's findings of any aggravating circumstance or
circumstances upon which the sentencing court based its sentence
of death”; (2) whether “the sentence of death was imposed under
the influence of passion, prejudice, or any other arbitrary
factor”; or (3) whether “the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.” N.C.G.S.
§ 15A-2000(d)(2). If this Court finds the existence of one of
these factors, “[t]he sentence of death shall be overturned and a
sentence of life imprisonment imposed in lieu thereof.” Id.
After a thorough review of the record,
transcript, briefs, and oral arguments, we hold that the record
provides ample support for the jury's finding of all four
aggravating circumstances submitted as to each murder: (1) the
murder was committed while defendant was engaged in the commission
of a first-degree kidnapping, N.C.G.S. § 15A-2000(e)(5); (2) the
murder was committed for pecuniary gain, N.C.G.S.
§ 15A-2000(e)(6); (3) the murder was especially heinous,
atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9); and (4) the
murders for which defendant was convicted were part of a course of
conduct in which defendant engaged and which included the
commission by defendant of other crimes of violence against other
persons, N.C.G.S. § 15A-2000(e)(11). We also conclude that
nothing in the record suggests that defendant's death sentence was
imposed under the influence of passion, prejudice, or any other
We now turn to our final statutory duty of
proportionality review. In conducting our proportionality review,
we consider “whether the sentence of death in the present case is
excessive or disproportionate to the penalty imposed in similar
cases considering both the crime and the defendant.” State v.
Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 355, cert. denied, 464
U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 177 (1983). “[I]t is proper
to compare the present case with other cases in which this Court
has concluded that the death penalty was disproportionate.” State
v. Williams, 355 N.C. 501, 590, 565 S.E.2d 609, 660 (2002), cert.
denied, 537 U.S. 1125, 123 S.Ct. 894, 154 L.Ed.2d 808 (2003).
This Court has found a death sentence 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, 118 S.Ct. 248, 139 L.Ed.2d 177 (1997), and by State v.
Vandiver, 321 N.C. 570, 364 S.E.2d 373; State v. Young, 312 N.C.
669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319
S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d
170 (1983); State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).
We conclude that this case is not substantially
similar to any of the cases in which this Court has found the
death sentence disproportionate. Defendant was convicted of two
counts of first-degree murder both on the basis of premeditation
and deliberation and under the felony murder rule with two
underlying felonies-kidnapping and robbery with a firearm. This
Court has recognized that “a finding of premeditation and
deliberation indicates ‘a more calculated and cold-blooded crime.’
” State v. Harris, 338 N.C. 129, 161, 449 S.E.2d 371, 387 (1994)
(quoting State v. Lee, 335 N.C. 244, 297, 439 S.E.2d 547, 575,
cert. denied, 513 U.S. 891, 115 S.Ct. 239, 130 L.Ed.2d 162
(1994)), cert. denied, 514 U.S. 1100, 115 S.Ct. 1833, 131 L.Ed.2d
752 (1995). Additionally, the largest number of aggravating
circumstances found by the juries in the cases held
disproportionate was two. However, in the case at bar, the jury
found the existence of four aggravating circumstances.
The facts in the case at bar are similar, if
not more egregious than the facts in State v. Call, 353 N.C. 400,
545 S.E.2d 190. In Call, defendant lured one murder victim into
a remote cornfield and killed the victim by hitting him in the
head with a shovel and a tire iron. Defendant assaulted another
victim by hitting him in the head with an aluminum bat and leaving
him in the field all night. In the case at bar, both of the
victims were violently kidnapped and were forced to ride in the
trunk of their car, listening to plans to kill them. One of the
two murder victims watched as her friend was fatally shot in her
presence. The other begged to be shot versus having her throat
cut before she was shot in the head. The surviving victim was
kidnapped at gunpoint. She was thereafter robbed and was forced
to get into the trunk of her car. She was in the trunk when gang
members gathered around the car and discussed what to do with her.
Defendant and three others drove her to a remote area, where
defendant shot her multiple times and then left her in a field to
die. All three victims in this case endured an extended period
This Court in Call found defendant's death
sentence proportionate where the jury found the same four
aggravating circumstances as in this case: (1) the murders were
committed while defendant was engaged in the commission of a
kidnapping, N.C.G.S. § 15A-2000(e)(5); (2) the murders were
committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6); (3) the
murders were especially heinous, atrocious, or cruel, N.C.G.S.
§ 15A-2000(e)(9); and (4) the murder was part of a course of
conduct in which defendant engaged and which included the
commission by defendant of other crimes of violence against
another person or persons, N.C.G.S. § 15A-2000(e)(11). See id.
Accordingly, after reviewing the facts of this
case and the treatment of other similar cases, we find the death
sentence in this case to be proportionate.
Justice BRADY did not participate in the
consideration or decision of this case.