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Ronald Wayne FRYE





Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: January 24, 1993
Date of arrest: February 1993
Date of birth: October 9, 1958
Victim profile: Ralph Childress, 70 (his landlord)
Method of murder: Stabbing with scissors
Location: Catawba County, North Carolina, USA
Status: Executed by lethal injection in North Carolina on August 31, 2001


Ronald Frye was convicted on November 15, 1993 of first-degree murder and robbery with a dangerous weapon in the slaying of his landlord, Ralph Childress.

Frye was convicted in 1993 of stabbing his landlord to death with scissors. On the day of the murder, Frye returned to his home and found a note from Childress telling him the trailer had been leased and he needed to move out.

The next morning, Childress was found dead - stabbed multiple times - with a pair of scissors in his chest.

Ronald Frye was convicted on November 15, 1993 of first-degree murder and robbery with a dangerous weapon in the slaying of his landlord, Ralph Childress.

Frye was convicted in 1993 of stabbing his landlord to death with scissors. On the day of the murder, Frye returned to his home and found a note from Ralph telling him the trailer had been leased and he needed to move out.

The next morning, Ralph was found dead - stabbed multiple times - with a pair of scissors in his chest. Ralph was found with scissors jammed into his heart and his throat cut.

DNA testing linked Frye to blood found on the man's mattress and linked Ralph to blood on Frye's jacket, said Assistant District Attorney Jason Parker. "He deserves it," Parker said, recounting events that led to Frye taking $5,000 from Childress and spending it on drugs in 3 days.

"They're trying to say one of his lawyers was drunk," Parker said. "I sat in court with him for three weeks and never smelled a drop." Frye said he never noticed the smell or effects of alcohol on his attorney, Thomas Portwood, but said the two didn't talk much. Parker said defense lawyers did introduce evidence through a psychologist that Frye was abused as a child and abused drugs and alcohol.

"You should see what he did to the old man," Parker said. "He tortured him trying to find out where his money was." Christy Hollowell, Childress' niece, said of her uncle, "He was the most wonderful person. He was an invaluable part of my family, who was taken away tragically by the cold-heartedness of Ronald Frye. I have been told Mr. Frye was abused as a child, but my Uncle Ralph did not abuse him," she said.

"It is always disheartening to hear about child abuse, but being abused as a child does not give the right to kill as an adult. As sad as it is to say, many children are abused. However, most do not grow up and choose to murder another person," Hollowell said.

"Our family has been changed forever by the act of Mr. Frye ... Nothing will ever be the same again because of Mr. Frye's decision to murder Uncle Ralph. It was his decision. He decided that night to murder Uncle Ralph, knowing the consequences that may follow. Giving up his rights and facing the death penalty was a risk he was apparently willing to take," she said.


People of Faith Against the Death Penalty

Background on RONALD FRYE, Scheduled for NC Execution Aug. 31 Action Alert from People of Faith Against the Death Penalty.

He is the child of poor, alcoholic parents. His mother gave him away to complete strangers. His new caretakers whipped him for years. He was separated from his siblings. He was literally a poster child for child abuse. He later turned to alcohol and drugs. He later committed murder.

His defense lawyer admits to drinking heavily and being incompetent. His jury heard little about his childhood. Now, he is scheduled for execution.

Ronald Wayne Frye was the second of three boys whose parents fought constantly. “When the couple split up, the boys moved with their mother to a tiny rat-infested apartment. Soon, Frye’s mother gave up trying to care for her unruly, malnourished children,” reports the Charlotte Observer. “While filling their car at a gas station, Steve and Cleo Ford heard that a Hickory woman was giving her children away. They met Carolyn Frye at a restaurant. She introduced 4-year-old Ronnie and his 5-year-old brother David. Then she handed her boys a bag of candy and announced that the Fords were their new mama and daddy. No papers were signed, no authorities involved. Ronnie Frye became Ronnie Ford.”

The new family settled into the Ford’s home in Hudson, N.C., northwest of Hickory. The boys had not been toilet trained. They could only eat with their hands. “On a trip, the boys bought a souvenir bullwhip, and Steve Ford began using it on the children. Ford beat Ronnie so badly in fourth grade that witnesses reported ‘bloody stripes’ covered the 9-year-old from neck to ankles. Local police took front and back pictures.”

The photograph at left is the only remaining photo, showing marks left by the whip’s tip as it lashed from behind. Steve Ford was convicted of assault.

The Hudson police chief saved the pictures to show at child abuse seminars. “Authorities removed the boys from the Ford’s home, splitting up the brothers and sending Ronnie to an orphanage. Both boys cried for days, and now remember the separation as one of their most traumatic moments.”

As a teen Ronnie Frye turned to alcohol and drugs, then quit high school. Unemployed as a construction worker at age 35, he killed his 70-year-old landlord, Ralph Childress.

At trial, Frye’s jury would have been merciful had they heard the story of his turbulent life. They never did. Frye’s attorney, Tom Portwood of Morganton, has admitted to drinking as an alcoholic for years up to the trial and through other death penalty cases as well. (Portwood has a record of two DWI convictions and admits to drinking at least 375ml of 80-proof rum, about 12 shots, every day for months before and during Frye’s trial and more on weekends.) Portwood never interviewed any of Frye’s family, friends, teachers, or social workers.

Two members of the jury have now signed affidavits that they would not have voted for a death sentence had they known the details of Frye’s childhood.


National Coalition to Abolish the Death Penalty

Ronald Frye Scheduled Execution Date and Time: 8/31/01, 2:00am EST

On August 31st, 2001, the State of North Carolina will seal Ronald Frye’s fate, and, much like everyone else that has ever been charged with the responsibility of Mr. Frye’s life, the state will not only choose to neglect every element of fairness and decency towards him, but will also intentionally deny him his rights by executing him.

The story of Ronald Frye is one of unbelievable abuse and neglect. He entered the world on October 9, 1958, the son of Benson and Caroline Frye, but soon after his birth Ronnie’s father left home, and the young child was left to a woman who suffered from alcoholism and had no desire at all to care for him or his brother.

Quite shockingly, Ronnie’s mother shirked her responsibilities by handing the two baby boys to a couple she encountered randomly at a gas station, and the couple, Steve and Cleo Ford, took custody of four-year-old Ronnie and his brother through no legal process.

Ronnie’s life, sadly, did not improve upon such a seemingly timely act of generosity. Steve Ford, who was also an alcoholic, routinely whipped Ronnie and his brother using a bull whip, and the particularly cruel and vicious beatings left Ronnie severely scarred and lashed all over the surface of his body.

It was not until teachers at Ronnie’s school finally took notice of the copious wounds that marked the young boy’s body and bravely interceded that law enforcement arrested Steve Ford and charged him with child abuse.

The photographs of Ronnie’s slashed and beaten flesh were so compelling that they were used to train police officers in recognizing and treating child abuse cases. Ronnie’s luck seemed perversely haunted by the specter of alcoholism and neglect.

After removing Ronnie from the custody of the Fords, the courts placed Ronnie and his brother with their biological father, who had abandoned them at birth.

Ronnie’s father drank very heavily, and he too would beat and bruise them. However, as a psychologist would later confirm, nothing made matters as bad as the beatings of Carlene, Benson Frye’s latest wife. Benson Frye not only beat Carlene so severely that she one day fled permanently, but he would also wake Ronnie and his brother from bed to force them to watch the beatings.

Being forced to be witness the abuse caused deep and undeniably serious feelings of helplessness, and the resulting mental and emotional damage was immeasurably extensive. Moreover, Carlene’s eventual departure left the boys without any true caregiver. Their father was consistently drunk and away from home, and soon the boys were discovered, living in maggot-invested filth and begging local merchants for food.

Ronnie’s childhood never offered him any comfort or direction. He never received proper treatment and began to “self-medicate” using illegal drugs. He entered adulthood without any substantive foundation, and soon became an addict of drugs and alcohol himself, living in a trailer home without heat or water, alone and misdirected.

Court psychologists would later discover that Ronnie’s upbringing had left him with three psychiatric disorders—in addition to child abuse syndrome, and a “diminished capacity to know right from wrong and to conform his behavior to social requirements.” However, this discovery was too late for Ronnie or for Randolph Childress, whom Ronnie is accused of murdering in January of 1993.

Ronnie had been repeatedly asked by Mr. Childress to leave the trailer home that he was renting from Mr. Childress in the weeks prior to the murder, but Ronnie, strapped for cash and subject to a costly crack cocaine habit, pleaded otherwise and was able to delay his eviction until the unfortunate murder that took place in January.

Ronnie Frye was tried and convicted of murder, and sentenced to death by a jury in North Carolina.

None of the historical evidence, namely Ronnie’s tumultuous and harrowing childhood, was presented in his defense during the sentencing stage.

In fact, Ronnie’s fate was sealed again by an individual who, charged with fending for the helpless man, instead neglected his duties and handed Ronnie over to an unjust fate.

Tom Portwood, Ronnie’s attorney, admitted to drinking approximately 375mL of 80-proof rum every day during Ronnie’s trial. He had a known history of alcohol abuse, and was quite evidently under the influence of alcohol during trial proceedings.

A further examination of Portwood’s handling of the case revealed gross negligence in research, a complete omission of family history, and infractions that jeopardized Ronnie Frye’s case outside of the courtroom, such as a Mr. Portwood’s DWI violation.

Much more importantly though, are the two signed affidavits, submitted by jurors who participated in his trial and sentencing, stating that they would not have chosen the death penalty had they been informed of Mr. Frye’s past.

North Carolina law requires a unanimous decision in order for a death sentence to be reached: frankly, just one of those jurors would have been the difference between the life and death of Ronald Frye. Yet there is an even larger picture of injustice in which Ronnie Frye’s case is embedded.

Currently, there is no effective measure for granting clemency (pardons) in the state of North Carolina. This situation follows a decision to stay the execution of Robert Bacon, another death row inmate, indefinitely, pending a further investigation into the capacity of Governor Michael Easley to grant pardons.

Easley is the former North Carolina attorney general, and not only oversaw many of the cases whose sentences will transpire during his term in office, but also pushed very hard for the death penalty in those cases deemed eligible for capital punishment.

Most oddly and irrationally, the state has not granted indefinite stays for all upcoming executions, and Ronnie Frye’s case is one of two that has been confirmed for next month.

The decision to uphold his execution date follows another judge’s decision to suspend it, and it does not seem that any immediate resolution will be reached. The life of Ronnie Frye is again in the hands of those whose intentions seem to lie perversely beyond the limits of justice and fairness.

There appears no rational cause for the district and state courts to expedite his date and the date of another inmate, Clifton White. As Marilyn Ozer, Ronnie’s current counsel, expressed in reference to the courts, judges, and governor: “They seem obsessed.”

Ms. Ozer further believes that although every case in North Carolina deserves and is owed a stay under the current circumstances, Ronnie’s case “seems particularly atrocious” and provides an example of complete failure of the system. It is hard to imagine that Ronnie Frye has ever been able to make a reasonable decision in his life. His destiny has been dictated by outside forces too vicious and inept to care and, now, too careless and unjust to put an end to violence and abuse.

Do not allow the North Carolina Courts to ignore Ronnie’s past. Do not allow the Governor to let his personal obsession supercede the cause of justice. Do not let the state kill Ronnie Frye, in the name of violence, ignorance, and carelessness.


Amnesty International USA

Beyond a Reasonable Doubt?

Amnesty International Urges Halt of Execution for Man Whose Lawyer was Intoxicated During Trial

Amnesty International USA (AIUSA) today called on North Carolina Governor Michael Easley to grant clemency to Ronald Frye, scheduled to be executed this Friday, August 31.

Sentenced to die in 1993 for the murder of his landlord Ralph Childress, Frye received severely flawed counsel during his trial. Frye's defense lawyer was an alcoholic who admitted to consuming approximately 12 shots of 80 proof rum per day during his seven months of work on Frye's case.

Three years later the defense lawyer was removed from a different capital case because of his alcohol consumption. "Because the lawyer was drinking rather than working to save his client's life, the jury heard only the most minimal account of the mitigating circumstances in Ronnie Frye's case," said Ari Kohen, AIUSA's State Death Penalty Coordinator for North Carolina. "The jury was unaware that Frye was beaten severely while in foster care as a young child, and forced to witness his biological father beat up his stepmother. Instead, the jury was left to guess whether Frye's story was the truth, because the readily-available corroborating evidence of the severe abuse he endured was not presented in court."

"This case provides further evidence that our nation's death penalty system is unjust," said Sue Gunawardena-Vaughn, AIUSA's Director of the Program to Abolish the Death Penalty. "The governor's power of executive clemency exists to compensate for flawed cases like that of Ronald Frye. We urge Governor Easley not to promote this miscarriage of justice and continue the cycle of violence by allowing this execution to proceed."

As an organization that works with and on behalf of victims of violence, Amnesty International has great sympathy for the family of Ralph Childress.

However, Amnesty International opposes the death penalty in all cases, believing that killing prisoners offers no constructive contribution to society's efforts to combat violent crime.





No. 511A93 - Catawba

Appeal of right pursuant to N.C.G.S. [section] 7A-27(a) from a judgment imposing a sentence of death entered by Hyatt, J., at the 1 November 1993 Criminal Session of Superior Court, Catawba County, on a jury verdict finding defendant guilty of first-degree murder and robbery with a dangerous weapon. Heard in the Supreme Court 10 May 1995.

Michael F. Easley, Attorney General, by William P. Hart, Special Deputy Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Constance H. Everhart, Assistant Appellate Defender, for defendant-appellant.

WHICHARD, Justice.

Defendant was tried capitally for the first-degree murder and robbery with a dangerous weapon of Ralph Childress, his landlord. The jury found defendant guilty of all charges and recommended a sentence of death for the first-degree murder. The trial court sentenced accordingly on the murder charge. It arrested judgment on the robbery conviction because it was the basis for an aggravating circumstance found by the jury in the capital case. We hold that defendant had a fair trial, free of prejudicial error, and that the sentence of death is not disproportionate.

The State's guilt-phase evidence tended to show the following:

Leroy Childress, the victim's brother, testified that the victim owned a trailer, across the street from his home, which he had leased to defendant for about a year prior to his death. Defendant could not always pay the rent, so the victim occasionally allowed him to perform yard work in exchange for the rent owed. The victim had been trying to evict defendant for two or three months before the murder, but defendant had not left.

Leroy and the victim spent the afternoon together on Saturday, 23 January 1993. At 6:00 p.m. they arrived at the victim's home where the victim wrote and signed two notes, which Leroy also signed, ordering defendant to vacate the trailer. Leroy affixed one note to the front door of the trailer and the other to the back door. The brothers then drove to Leroy's house to retrieve the victim's truck. The victim drove off to run an errand; Leroy never again saw him alive. Leroy further testified that the victim was known to carry five thousand dollars in his pocket in a roll consisting primarily of hundred-dollar bills.

The victim telephoned Leroy at about 2:00 a.m. on Sunday, 24 January. He stated that defendant, who had been at his house trying to sell him a couch, would vacate the trailer in the morning. According to Leroy, the victim called because he was upset about defendant's visit. At the close of the conversation, Leroy told the victim he would see him at breakfast later that morning.

Leroy telephoned the victim about one-half hour before he planned to pick him up for breakfast. The victim did not answer; Leroy immediately rushed to his house, arriving between 7:30 and 8:00 a.m. He found the storm door open and the victim lying on the floor near the door with a pair of scissors embedded in his chest. The telephone had been disconnected, so Leroy called the police from a neighbor's house.

Hickory police officers arrived at about 8:01 a.m. They found the victim with the scissors in his chest and blood around his neck area. A bloody wallet, devoid of money, lay open between his legs. The investigation of the premises revealed no sign of forced entry.

The living room furniture had been knocked over. Police found a .38 Special revolver under a cushion behind a footstool and a bloody knife blade under the cushion of an easy chair. A small file box next to the chair appeared to have been opened; police removed a latent fingerprint from the box. The television was still on.

The light in the victim's bedroom was on, the bed covers were pulled back revealing a blood smear on the mattress, and the cord to the telephone on the nightstand had been pulled out of the wall. Desk drawers were open, and clothes were scattered about the room. A knife handle was discovered on the floor near the bedroom door. Just inside the door, police found a pair of bloodstained khaki pants. In the kitchen bloodstains were found around the sink area, including the faucet handles. A silver Derringer .22-caliber pistol lay on the kitchen table with blood on its handle.

Leroy testified that the .38 Special belonged to the victim and was normally kept under the cushion of the footstool in front of the easy chair. He never kept the gun loaded; he stored the cartridges in the nightstand beside the chair. The victim also owned the Derringer and ordinarily kept it in his top dresser drawer.

Leroy and his daughter, Linda Cline, returned to the victim's house to clean it on 30 January 1993. Cline found a piece of white paper with duct tape on it in the bedroom. It said, "Get out now," in Leroy's handwriting and bore his signature. Leroy identified the paper as one of the two notes he had attached to defendant's trailer and turned it over to police on 2 February 1993.

Dr. Joseph Vogel testified about the autopsy results. The victim's body contained six discrete wounds to the neck and chest region. Dr. Vogel determined that blood loss from the stab wound to the chest from which the scissors were removed caused the victim's death. That wound penetrated through the skin and sternum into the aorta. The victim bled one and one-half liters of blood into his left chest cavity and one liter into the right. The other chest wounds were inflicted prior to death by a relatively dull instrument, such as scissors. They would have caused pain but not unconsciousness. Bruising occurred around the chest wounds, and three ribs were broken.

The victim also sustained two neck wounds which could have been inflicted by a knife blade or sharp scissors. One was almost one and one-half inches deep and cut into smaller blood vessels and some neck muscles. The other, one-half inch wide, penetrated to the bone under the chin. These wounds could have been inflicted sometime before the fatal chest wound and occurred prior to the victim's death. Nothing indicated that the victim would have lost consciousness prior to his death.

Michael Ramseur testified that defendant bought seventy-five dollars' worth of crack from him late on a Friday night in January 1993. After he had smoked it, he traded jewelry, old coins, and a microwave for more crack. He returned to Ramseur on Saturday morning, out of money. He told Ramseur he knew he could get some money from "that landlord." Defendant suggested that Ramseur rob the man, who would recognize defendant if he did it, but Ramseur refused. Defendant then told Ramseur to meet him at 11:30 on Sunday morning; he would have money with which to buy more crack. On Sunday, Ramseur saw defendant and sold him more drugs. At that time defendant had a roll of money which included five or six hundred-dollar bills.

Kenneth Berry, defendant's cousin, testified that he lived next door to the victim. He further testified that defendant came to his house between 11:30 p.m. on 23 January and 1:00 a.m. on 24 January. Defendant was drunk and tried to sell the green army jacket he was wearing and two tires to Berry. Berry told defendant not to sell his jacket and sent him away; defendant did not have a cut on his hand at that time.

Doug Propst testified that defendant visited him between 8:30 and 9:00 on 24 January and paid him the one hundred dollars he owed. The two men smoked some crack; defendant then laid a large number of hundred-dollar bills on the counter, stating it totaled three thousand dollars. Propst asked defendant where he had obtained the money, and defendant replied, "Ask me no questions, I'll tell you no lies." Defendant stayed with Propst until Tuesday, when he was arrested. Police officers conducted a consent search of Propst's house. They seized the army jacket defendant was wearing when he arrived on 24 January, among other items.

Franki Bryson testified that she saw defendant on a Sunday morning in 1993 and that they were both smoking crack. Defendant, who then had a lot of hundred-dollar bills, asked her to buy some crack for him. She did so and continued to buy drugs for him with his money, two or three hundred dollars at a time, from Sunday until the time of his arrest. When Bryson first saw defendant on Sunday, his hand was cut. Defendant kept all his money in a roll.

Kevin Templeton testified that he had used drugs with defendant in the past. He knew the victim and had spoken with defendant several times after the murder. Templeton told defendant that he had heard that defendant had a lot of money, and he asked why he had no more left. Defendant replied that he had spent some on drugs and given some to a girl. He also told Templeton he "only meant it to be a robbery" and "got carried away." Defendant said he had obtained almost five thousand dollars.

SBI Special Agent Jennifer Elwell of the Serology Section testified about the blood she found on various pieces of evidence. She determined that: blood on the knife handle, Derringer, mattress, three areas of defendant's army jacket, and defendant's blue jeans was consistent with that of defendant; blood on the khaki pants, knife blade, and the left sleeve of defendant's army jacket was consistent with that of the victim.

SBI Special Agent Mark Boodee analyzed the DNA content of substances on several items of evidence received from Elwell. He determined that bloodstains from the knife blade and the army jacket matched the blood sample taken from the victim. He further determined that the bloodstain from the mattress matched the sample taken from defendant.

Defendant presented no evidence during the guilt phase. The State introduced no additional evidence at the sentencing phase.

Defendant's sentencing phase evidence showed the following:

Paul Burgess, the chief jailer at the Catawba County Jail, testified that defendant had caused no problems while incarcerated for nine months awaiting trial. Further, defendant had been in jail previously and had demonstrated an ability to conform to prison life.

Dr. Jerry Noble, a clinical psychologist, testified about his interviews with defendant and the results of psychological tests he administered. Defendant did not talk about the victim's death and never directly expressed feelings of remorse for the murder. He did speak well of the victim, whom he considered a friend. Defendant requested that Dr. Noble not talk with his family; the doctor spoke only with defendant and defense counsel. Defendant had lived in several foster homes and an orphanage. He suffered extreme physical abuse at the hands of his first foster father. He dropped out of high school and began abusing drugs and alcohol as a teenager. Dr. Noble opined that the victim represented a benign father figure to defendant.

Test results revealed that defendant was immature, suspicious, isolated, oriented toward immediate gratification, and had difficulty sustaining interpersonal relationships. He also had concerns about being conspired against and persecuted. Dr. Noble diagnosed defendant with three psychiatric disorders: paranoid; mixed substance abuse; and mixed personality. He also believed defendant suffered from child abuse syndrome. Dr. Noble opined that defendant had diminished capacity to know right from wrong and to conform his behavior to social requirements.

On rebuttal the State presented evidence of defendant's criminal record, which included convictions for damage to property, damage to city property, assault on an officer, destruction of property, felonious breaking and entering, and possession with intent to sell or deliver drugs.


Defendant first assigns as error four statements made by the trial court to all prospective jurors. He argues that the comments indicated the court's opinion about the proper verdict or otherwise gave weight to the State's position.

First, defendant contends the court encouraged the jurors to identify with it by stating, "You will become in effect officers of the Court and collaborators in judgment with me." He asserts this comment ensured that any suggestion of an opinion by the court would carry significant weight with the jury and would affect the verdict. We disagree. The statement occurred during the court's preliminary instructions, before the prospective jurors were sworn, regarding their role in the criminal justice system. The court stated, inter alia :

When you are selected and qualify as jurors in a trial, and [take] the juror[']s oath, you become the sole judges of the weight to be given any evidence and the credibility of each and every witness. Any decision agreed to by all 12 jurors which is free of partiality, unbiased and unprejudiced, reached in sound and conscientious judgment based on credible evidence, and in accord with the Court's instruction, becomes a final and determinative result in a case. You will become in effect officers of the Court and collaborators in judgment with me.

It is my duty to see that the trial is conducted in accord with the rules of law that prescribe the pattern of trial procedure, to rule on points of evidence, to maintain order, to preserve decorum, and instruct you on that law that you are to apply to the facts as you find the facts to be.

. . . .

Your entry upon this service will delegate to you certain powers of decision on human affairs which are not given to every citizen. It will impose upon you important duties and grave responsibilities which enlist your best talent of appraisal and judgment to discharge.

These comments accurately described the criminal justice process, including the interrelated roles of judge and jury. We cannot conclude that the statement defendant complains of was erroneous.

Second, the trial court asked each prospective juror: "If chosen to sit as a juror will you require the state to satisfy you of the defendant's guilt beyond a reasonable doubt before you find him guilty?" Defendant contends this question improperly conveyed an assumption that each juror would vote to convict. Defendant further contends the court exacerbated this error by failing to ask whether the prospective juror would vote to acquit if not satisfied of defendant's guilt beyond a reasonable doubt.

N.C.G.S. [section] 15A-1222 provides that a court "may not express[,] during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury." N.C.G.S. [section] 15A-1222 (1988). The context of the court's comment reveals that it was not an expression of opinion but an attempt to ascertain whether the prospective jurors could follow the court's preliminary instructions regarding the burden of proof. We conclude that no reasonable juror would have interpreted the question as indicating an opinion of the court.

Third, the trial court asked the following question after explaining the two sentences possible for first-degree murder:

If you serve as a juror in this case, and the state has satisfied you of the existence of those things [which constitute first-degree murder] beyond a reasonable doubt, will you vote to find the defendant guilty of first degree murder or would your personal convictions about the death penalty prevent or substantially impair the performance of your duty in accordance with your instructions and your oath?

Defendant asserts that this inquiry was erroneous because, among other reasons, it required each juror to draw a legal conclusion about his or her competence to serve and had the effect of staking out jurors by eliciting an agreement to vote in favor of a guilty verdict. We cannot conclude that this question was improper. It sought to assort those prospective jurors who were unable to find defendant guilty, regardless of the evidence presented by the State, because of their views about capital punishment. Such jurors may be excused for cause. Wainwright v. Witt , 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985).

Fourth, defendant contends the trial court accorded undue weight to the State's position during its remarks regarding aggravating and mitigating circumstances, in which it stated:

Members of the jury, if the defendant is found guilty of first degree murder, then the court will conduct a sentencing trial. At that trial the same jury will hear the evidence from the state of aggravating factors, those factors which suggest that the death penalty should be imposed. And then the defense may present evidence of mitigating factors, that is, those factors which suggest that life imprisonment should be imposed.

Defendant asserts that this instruction improperly implied that the existence of aggravating circumstances was predetermined but that there might be no mitigating circumstances. We disagree. No capital sentencing proceeding occurs unless the State has evidence to support at least one aggravating circumstance. State v. Johnson , 298 N.C. 47, 79-80, 257 S.E.2d 597, 620 (1979). After such evidence is presented, a defendant is permitted to present evidence of mitigating circumstances. State v. Taylor , 304 N.C. 249, 276-77, 283 S.E.2d 761, 779 (1981), cert. denied , 463 U.S. 1213, 77 L. Ed. 2d 1398, reh'g denied , 463 U.S. 1249, 77 L. Ed. 2d 1456 (1983). A defendant may opt not to present any evidence at the sentencing phase. Thus, the instruction was accurate, proper, and not an expression of the court's opinion. These assignments of error are overruled.

Defendant next contends the trial court committed reversible error by striking prospective juror Mallonee for cause. He asserts the court should not have excused her for her views on the death penalty unless they would have prevented or substantially impaired her performance of her duty as a juror. Defendant contends that Mallonee should not have been excused because she affirmatively agreed to follow the law, said she believed in the death penalty, and made statements indicating that although she would not like to impose the death penalty, she could do so.

Defendant asserts that the standard of review is de novo because fundamental constitutional rights are implicated. The United States Supreme Court, however, has stated that "deference must be paid to the trial judge who sees and hears the juror." Wainwright, 469 U.S. at 426, 83 L. Ed. 2d at 853. Accordingly, "[t]he granting of a challenge for cause where the juror's fitness or unfitness is arguable is a matter within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion." State v. Abraham , 338 N.C. 315, 343, 451 S.E.2d 131, 145 (1994).

In response to questioning by the prosecutor during voir dire , Mallonee twice stated that having to vote on the death penalty would substantially impair her ability to function as a juror. She also stated, in response to questioning by the court, that her personal convictions would prevent her from recommending the death penalty. These responses appear to contradict her statement to defense counsel that she could follow the law if selected. Defendant contends that because Mallonee's responses to the questions of the court and the prosecutor are consistent with a desire to follow the law, the court should not have excused her for cause.

The bias of a prospective juror may not be provable with unmistakable clarity. Wainwright, 469 U.S. at 424, 83 L. Ed. 2d at 852. "Despite [a] lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." Id . The trial court here properly could have formed such an impression about Mallonee. Thus, we conclude that it did not abuse its discretion by excusing this prospective juror for cause. This assignment of error is overruled.

Next, defendant asserts that certain of the prosecutor's comments, during both voir dire and closing arguments at sentencing, distorted the jury's understanding of the function of mitigating circumstances. The prosecutor stated, in different forms, that aggravating circumstances made a crime more deserving of the death penalty and that mitigating circumstances, for example, "move[d] it down from death to life." Defendant contends the prosecutor also misstated the fourth issue of the capital sentencing procedure by informing certain panels of prospective jurors that they had to decide whether the aggravating circumstances were sufficiently substantial to call for a death sentence. This, defendant argues, misrepresented the importance of mitigating evidence by omitting it from the calculus.

At sentencing the prosecutor again stated that a mitigating circumstance reduced the prospect of the death penalty. He also stated, with regard to Issue Three:

Do you unanimously find beyond a reasonable doubt that mitigating circumstance or circumstances are insufficient to outweigh the aggravating? So let me not confuse you. The first issue, is there any aggravating? I said you find yes. . . . Are any mitigating? You've got 59. So find as many as you want. Three[,] . . . you have to balance them. Number three's your balance question. . . . If some of you found yes on all 59 at this weighing session . . . [e]very one of those will not stack to reach his burden. And outweigh the aggravating circumstances of the State. . . . And I say number three is a yes, those mitigating circumstances don't outweigh what happened [in] this case. So find every one of them yes, if that's what you think, and I argue to you, you can find every one of them yes, that's still going to be a burden they can't overcome.

Defendant argues that this was an insidious misstatement of the law because defendants bear no burden of proof regarding the third issue.

Defendant did not object to any of these statements at trial. Thus, we will find error only if the comments were so grossly improper that the trial court should have intervened ex mero motu . "[T]he impropriety of the argument must be gross indeed in order for this Court to hold that a trial [court] abused [its] discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it." State v. Johnson , 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979).

The comments during jury selection were shorthand summaries of the definitions of aggravating and mitigating circumstances. They were substantially correct, even if slightly slanted toward the State's perspective. The statement concerning Issue Four of the balancing process at sentencing was also essentially correct. Further, the prosecutor reminded the prospective jurors that the court would instruct them on the applicable law at the appropriate time, and the court properly did so. The statements were not grossly improper and did not require the trial court to intervene ex mero motu .

Assuming arguendo that the closing argument regarding Issue Three placed a burden of proof upon defendant which the law does not require, we nevertheless conclude the trial court did not err by failing to intervene immediately to correct the prosecutor. Before closing arguments began, the court told the jury: "At the conclusion of these arguments I will instruct you on the law in this case . . . . The final arguments of the lawyers are not evidence but are given to assist you in evaluating the evidence. . . . I will go over [the Issues & Recommendations as to Punishment form] with you during my instructions." Further, the court properly instructed on Issue Three at the close of the arguments. Specifically, the court stated, "If you unanimously find beyond a reasonable doubt that the mitigating circumstances found are insufficient to outweigh the aggravating circumstances found, you would answer issue three yes." This correctly stated the applicable burden of proof. In this context, the prosecutor's statement could not have denied defendant due process of law and was not grossly improper. See State v. Jones , 336 N.C. 490, 493-96, 445 S.E.2d 23, 24-26 (1994) (assuming arguendo prosecutor erroneously defined "reasonable doubt," defendant not entitled to new trial where court notified jury prior to arguments that it would give instructions on the applicable law and then properly instructed on reasonable doubt after closing arguments). These assignments of error are overruled.

Next, defendant asserts that the trial court improperly allowed only one of his attorneys to conduct voir dire . During the questioning of a prospective juror by the State, both defense attorneys objected at different times. After an objection by the second attorney, the trial court ruled that it would "hear from one of you and not both and, of course, this applies to [the prosecutors]." Defendant argues that this ruling impermissibly infringed on his statutory right to the assistance of two attorneys in a capital trial and his constitutional right to the assistance of counsel. We disagree.

The governing statute provides in relevant part:

An indigent person indicted for murder may not be tried where the State is seeking the death penalty without an assistant counsel being appointed in a timely manner. If the indigent person is represented by the public defender's office, the requirement of an assistant counsel may be satisfied by the assignment to the case of an additional attorney from the public defender's staff.

N.C.G.S. [section] 7A-450(b1) (1989). Violation of this statute constitutes prejudicial error per se . State v. Hucks , 323 N.C. 574, 579-81, 374 S.E.2d 240, 244-45 (1988).

We do not interpret the trial court's ruling to have violated defendant's statutory entitlement to two attorneys, however. The court ruled that only one attorney from each side could make objections during voir dire. The second attorney remained present and could prompt the first when he thought objections should be made. The court thus did not deny defendant the assistance of a second attorney or so drastically circumscribe the second attorney's role as to render the appointment of two attorneys meaningless. Therefore, the statute was not violated.

The Sixth Amendment to the United States Constitution and Article I, Section 23 of the North Carolina Constitution secure a defendant's right to the assistance of counsel. State v. Colbert , 311 N.C. 283, 286, 316 S.E.2d 79, 80-81 (1984). Defendant contends the trial court's ruling prejudiced these rights. Defendant did not raise this constitutional issue at trial and therefore failed to preserve it for our review. See State v. Gibbs , 335 N.C. 1, 42, 436 S.E.2d 321, 344 (1993), cert. denied , --- U.S. ---, 129 L. Ed. 2d 881 (1994). Defendant would not prevail even if he had preserved the issue, however, because "[a]n indigent defendant's right to the appointment of additional counsel in capital cases is statutory, not constitutional." State v. Locklear , 322 N.C. 349, 357, 368 S.E.2d 377, 382 (1988). These assignments of error are overruled.

Defendant also contends the trial court erred by excusing prospective juror Kenneth Pless, upon the State's challenge for cause, without according defendant a chance to question him. Pless stated during voir dire that he had a close friend who knew the victim's brother, that he had discussed the case with his friend, that he had formed an opinion about the case, and that he would be unable to set aside that opinion. After Pless left the courtroom following the court's excusal for cause, defense counsel informed the court that the purpose of his request for further questioning was to determine whether Pless had discussed his knowledge of and opinions about the case with other prospective jurors. Defendant contends the court should have allowed such an inquiry and that its failure to do so constitutes reversible error.

Whether to excuse a prospective juror for cause is a decision within the trial court's sound discretion. State v. McDowell , 329 N.C. 363, 379-80, 407 S.E.2d 200, 209 (1991). A defendant must show both an abuse of discretion and prejudice to establish reversible error relating to voir dire . State v. Parks , 324 N.C. 420, 423, 378 S.E.2d 785, 787 (1989). Defendant has not met this burden. No prospective juror, including Pless, indicated that Pless had shared his opinion about the case with other members of the venire . Further, defense counsel did not -- even after Pless's departure -- ask any prospective jurors whether Pless had divulged to them his opinion or other information regarding the case. Thus, we are left with speculation as to whether Pless talked to other prospective jurors about his opinion. Mere speculation is an insufficient basis upon which to grant relief. See State v. Bell , 338 N.C. 363, 379, 450 S.E.2d 710, 719 (1994), cert. denied , --- U.S. ---, --- L. Ed. 2d ---, 63 U.S.L.W. 3906 (1995). This assignment of error is overruled.

Defendant also contends the trial court erred by failing to question prospective jurors ex mero motu regarding their exposure to media coverage after it learned that a newspaper article about the case had been circulated around the jury assembly room. Prospective juror Anita Allison testified on voir dire that she had read a newspaper article about the jury selection brought into the jury assembly room by another member of the jury pool. At this time, eleven jurors had been selected. Defendant challenged Allison for cause the next morning. The court then questioned the entire panel of twelve, including Allison, about exposure to media coverage. Allison and two others admitted to seeing the article. Maria Sharpe stated that she had read the entire article the morning she was chosen and that something bothered her about the case as a result. Sharpe and Allison were both excused for cause. The third person who admitted seeing the article said that he had read only defendant's name and the charges and that this would not impair his ability to be fair and impartial. He remained on the jury panel. Defendant concedes that the court properly questioned the selected jurors "regarding their exposure to the news coverage of this case and what impact, if any, such exposure might have on their ability to be fair and impartial." He contends, however, that the trial court should have questioned subsequent prospective jurors in a similar manner even though defendant himself neither requested nor conducted such an inquiry.

Defendant has again failed to show that the trial court abused its discretion and that he suffered prejudice as a result. Defendant was on notice that at least one newspaper had circulated in the jury assembly room; he chose, however, not to ask prospective jurors about their exposure to media coverage after Sharpe and Allison were excused. In fact, defendant objected when the prosecutor challenged for cause two jurors who stated that they had read information about the case and were not sure they could set aside that information. The trial court excused both jurors. Defendant elicited information from one prospective juror that she had read an article about the case at her grandmother's house. Defendant accepted this person without asking her whether that article had affected her ability to be fair and impartial. He did not ask any of the final six prospective jurors about media exposure. Based on this record, we cannot conclude that the trial court abused its discretion. See, e.g., State v. Barts , 316 N.C. 666, 678-80, 343 S.E.2d 828, 837-38 (1986) (no abuse of discretion where the defendant failed to show "that the jury selection process resulted in the 'contamination' of other jurors by information from jurors previously exposed to . . . pretrial publicity"). This assignment of error is overruled.


Defendant next contends the trial court erred by admitting State's Exhibit 22, a sample of blood purportedly taken from the victim during the autopsy, as well as expert testimony based thereon. Defendant argues that the State did not adequately establish the exhibit's chain of custody because it failed to present evidence of: who drew the blood sample from the victim; who gave the sample to Investigator Mueller; how the sample was transferred from Mueller to Investigator Shook, who delivered it to the SBI lab; and how SBI Agent Elwell made a bloodstain from the sample which she submitted to SBI Agent Mark Boodee for DNA analysis.

Defendant objected to the portion of Elwell's testimony that relied on Exhibit 22 and to the exhibit's admission into evidence on the sole ground that "there was no testimony from anyone as to who drew that blood or when it was drawn or, in fact, that it was drawn from Mr. Ralph Childress." He now presents three additional grounds on which he contends the exhibit should have been excluded.

Rule 10(b)(1) of the Rules of Appellate Procedure provides in pertinent part:

(1) . . . . In 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 if the specific grounds were not apparent from the context .

(Emphasis added.) Defendant objected to the evidence on only one ground; thus, he failed to preserve the additional grounds presented on appeal. He also waived appellate review of those arguments by failing specifically and distinctly to argue plain error. N.C. R. App. P. 10(c)(4).

As to the ground for objection properly preserved, this Court has stated that the person who draws a blood sample need not always testify to establish a proper foundation for the admission of the sample. State v. Grier , 307 N.C. 628, 632-33, 300 S.E.2d 351, 353-54 (1983). In Grier , the first link of the chain of custody was sufficiently proven because a doctor who had examined a rape victim "testified that although she did not actually see the blood drawn from [the victim], she signed a blood sample that was supposedly taken from the victim by a laboratory technician either immediately before or after the examination. The technician who drew the blood did not testify." Id. at 632, 300 S.E.2d at 353. We concluded that "[a]ny weakness in the chain of custody relate[d] only to the weight of the evidence and not to its admissibility." Id. at 633, 300 S.E.2d at 354.

There was sufficient evidence here to permit the inference that either Dr. Vogel or Bob Osborn, an autopsy assistant, drew the blood during the autopsy, even though Dr. Vogel was never questioned about the samples of blood and Osborn never testified. Dr. Vogel testified that Osborn was present during the autopsy. Investigator Mueller stated without objection that he received two vials of the victim's blood "directly from Dr. Vogel and Bob Osborn." Defendant calls Mueller's testimony into question by noting that Dr. Vogel did not recall seeing Mueller at the time of the autopsy. This does not, however, preclude the inference that Osborn gave Mueller the blood which either Osborn or Dr. Vogel withdrew from the victim. Any weakness in this chain of custody affected the weight, not the admissibility, of the exhibit. Thus, the trial court properly admitted the exhibit and the testimony based thereon. This assignment of error is overruled.

Next, defendant complains about the prosecutors' closing arguments at the guilt and sentencing phases. He did not object to any of them but now asserts that the trial court should have intervened ex mero motu because they were grossly improper. Defendant contends the arguments in which the prosecutors suggested that defendant stabbed the victim several times to force him to reveal the location of his money, but not to kill him, were unsupported by the record and represented "gross speculation bordering on fantasy." The first prosecutor to argue in closing at the guilt phase stated, inter alia :

[Defendant] comes over to his house. And we don't know if he broke down the door or had problems with the door or whatever.

. . . And he wants some money. . . . I am being thrown out, I've got to leave tomorrow. Okay I'll leave, but I want some money.

Wallet's open. . . . But it was empty between his legs. No money. Where's your money? . . . Broke the knife on him. Jabbed him through the fat, through the skin, and through the bone, and broke the knife.

[The victim] sat through five wounds to tell [where] his money [was]. He finally said okay, my money is under the mattress. That's how the defendant got the blood under the mattress. He went to get his money under the mattress. . . . Why was [the bedroom] torn up? Why that place look so messy? . . . Why was the Derringer in the kitchen? That man's alive. I'm not going to kill him until I find his money. . . . Remember the bloody Derringer was found in the sink area in the kitchen. He was just moving it around so he couldn't get it and shoot him with it. . . . The defendant is keeping him alive. Until he finds his money.

How about the pants? The pants had [the victim's] blood. Now [the victim] was in [the] living room stabbed to death. The pants are back in the bedroom. [Defendant] cut himself. Slicing up [the victim]. . . . So [defendant] picks up [that] pair of pants, wherever they were. He wipes [his] hand off. Why? Because he's walking to the bedroom. Why? Because that's where the mattress is. Why? That's where the money is. And right when he gets to the door, he throws those pants down.

. . . .

Now I think you've heard [about] proximate cause from the doctor. He talked a lot about the wounds. He said the first five were not fatal. Said that makes sense, those first five were just to get him to talk. Wasn't going to kill him until he got his money. Washed everything off, went to the sink, had the handles, washed everything. And as he was leaving he gave him the deathblow after he had his money.

He also made a comparable argument at sentencing. The second prosecutor argued in a similar vein, stating, inter alia : "And while [defendant is] . . . searching, ransacking it, [the victim] is laying here on the floor bleeding. He's suffering. He's not lost consciousness because the doctor said 'Hey, those wounds to his neck wouldn't cause him to lose consciousness.' That old man was suffering. He's suffering."; and

While [the victim is] alive, laying here bleeding, he's running through the house trying to find the money. Finds the money, then tries to go wash his hands. On his way out [the victim] moved. . . . [O]ld man, . . . you can't stay here, you know who I am, you can identify me.

Counsel have wide latitude to argue the law, the facts, and reasonable inferences supported thereby. State v. Syriani , 333 N.C. 350, 398, 428 S.E.2d 118, 144, cert. denied , --- U.S.

---, 126 L. Ed. 2d 341 (1993), reh'g denied , --- U.S. ---, 126 L. Ed. 2d 707 (1994). Prosecutors may, in closing arguments, create a scenario of the crime committed as long the record contains sufficient evidence from which the scenario is reasonably inferable. State v. Ingle , 336 N.C. 617, 645, 445 S.E.2d 880, 895 (1994), cert. denied , --- U.S. ---, 131 L. Ed. 2d 222 (1995).

Our review of the record reveals sufficient evidence to support the scenarios created by both prosecutors during their guilt phase closing arguments. Dr. Vogel testified that the fatal wound was the one in the center of the victim's chest from which a pair of scissors was removed. The remaining wounds to the chest and neck were painful but not fatal and were inflicted prior to the victim's death. The mattress in the victim's bedroom was found askew and contained blood consistent with defendant's. Blood consistent with that of the victim was found on a pair of pants in the bedroom. Police officers also found blood around the kitchen sink and on the faucet handles. This evidence supports the scenario created by the prosecutors. The arguments were not grossly improper; thus, the trial court did not err by failing to intervene ex mero motu.

At sentencing the second prosecutor argued that the murder was especially heinous, atrocious, or cruel by surmising what the victim might have thought as defendant committed the crime:

Do you think he might have asked why Ronny, why you doing this to me, I loved you, I treated you like a son and you're doing this to me? . . . Do you think that might have been a psychological torture the old man had to go through? The pain of that knife going through his chin. The slash on his throat. Laying there, blood dripping out of his neck. And the only thing he could think of was why Ronny, why?

We cannot conclude that this argument was grossly improper. In Ingle the victims were discovered by their grandson. The prosecutor argued in closing, over the defendant's strenuous objections, about how that young boy might remember "the day when he 'flew' into the home of his grandparents and encountered their dead bodies, finding that he could not kiss his grandma and grandpa because defendant had bludgeoned them to death." Id. at 644, 445 S.E.2d at 894. The defendant argued that he should receive a new trial because no evidence supported this argument. Noting that prosecutorial arguments may be permissible even though they address facts not testified to, we concluded that "[d]espite the absence of evidence of [the grandson's] . . . feelings toward his grandparents, the prosecutor's emphasis on the inherent tragedy of the episode and [the grandson's] reaction were a reasonable extrapolation of what may have been the thoughts and actions of such a boy upon encountering such a grisly scene." Id. at 645-46, 445 S.E.2d at 895.

Here we have the benefit of testimony regarding the relationship between the victim and defendant. Dr. Noble testified that defendant considered the victim a friend and appeared to view him as a father figure. Leroy Childress testified about the victim's willingness to forgive defendant's debts in exchange for work around the house and yard. The evidence portrayed the relationship between the two as one of trust and kindness. This created a basis, stronger than that present in Ingle , from which the prosecutor could reasonably extrapolate the victim's thoughts as defendant ruthlessly attacked him. Therefore, the argument was not grossly improper.

Defendant also asserts that both prosecutors referred to the victim's wounds as "slashes" and "stabs" when some were only minor lacerations. This, defendant asserts, falsely portrayed the gravity of the wounds. We conclude that the language used, while perhaps hyperbolic, was neither inflammatory nor grossly improper. It did not fall outside the latitude granted counsel in closing arguments. We hold that none of the arguments complained of in these assignments of error required the trial court to intervene ex mero motu .

Defendant argues that the evidence was insufficient to support a conviction based on malice, premeditation, and deliberation. Therefore, only the theory of felony murder, with robbery with a dangerous weapon as the underlying felony, should have been submitted to the jury. Had the trial court submitted this theory alone, the State would not have been allowed to submit as an aggravating circumstance that the murder was committed while defendant was engaged in the commission of a robbery with a dangerous weapon; therefore, defendant contends, he must have a new sentencing hearing at which this aggravating circumstance is not submitted. We disagree.

Before a trial court submits the charge of first-degree murder, it must determine whether the evidence, taken in a light most favorable to the State, shows that defendant "thought about the act [of murder] for some length of time, however short, before the actual killing; no particular amount of time is necessary to illustrate that there was premeditation." State v. Sierra , 335 N.C. 753, 758, 440 S.E.2d 791, 794 (1994). Evidence of premeditation and deliberation is usually circumstantial. Id.

Defendant contends the uncontroverted evidence shows that he entered the victim's home with the intent to rob, not to kill. Even if true, that does not foreclose the existence of premeditation and deliberation, which could have arisen at any time before, during, or after the robbery. For example, in State v. Thomas , 332 N.C. 544, 423 S.E.2d 75 (1992), the defendant argued that he had not formed the intent to kill when his fatal assault of the victim began and therefore that the charge of first-degree murder on the theory of premeditation and deliberation should not have been submitted. We found no error, stating, "[i]t is clear that defendant's intent to kill the victim could have developed at any time prior to the beating, during the beating, or after the beating." Id. at 561, 423 S.E.2d at 85.

Our review of the evidence reveals numerous circumstances from which premeditation and deliberation are inferable. First, a lack of provocation on the victim's part supports such an inference. State v. Olson , 330 N.C. 557, 565, 411 S.E.2d 592, 596 (1992). The evidence shows that the victim was felled in his living room near the front door. There is no evidence that the victim provoked defendant into stabbing him. Second, the evidence permits the inferences that defendant struck the deadly blow after felling the victim and rendering him defenseless and that he used a second deadly weapon, scissors, after the first one, a knife, broke from the force of his attack. These also support a finding of premeditation and deliberation. See State v. Vause , 328 N.C. 231, 239, 400 S.E.2d 57, 62 (1991). Third, premeditation and deliberation may be inferred where, as here, the evidence tends to show that the defendant killed his victim to avoid apprehension. See State v. Brown , 315 N.C. 40, 59, 337 S.E.2d 808, 822 (1985), cert. denied , 476 U.S. 1164, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver , 321 N.C. 570, 364 S.E.2d 373 (1988). From the foregoing we conclude that the trial court properly submitted the charge of first-degree murder based on premeditation and deliberation. This assignment of error is overruled.

Next, defendant argues that the trial court erred by failing to instruct on the charge of second-degree murder. Defendant neither requested such an instruction nor objected to its absence, but he now contends the court committed plain error. It is well established that

[i]f the evidence is sufficient to fully satisfy the State's burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant's denial that he committed the offense, the trial [court] should properly exclude from jury consideration the possibility of a conviction of second degree murder.

State v. Strickland , 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983), overruled in part on other grounds by State v. Johnson , 317 N.C. 193, 344 S.E.2d 775 (1986). Defendant argues that because the evidence of premeditation and deliberation conflicted, the court had to instruct on second-degree murder. As noted above, however, uncontroverted evidence supported an inference of premeditation and deliberation. Defendant's assertion that he had the intent only to rob when he arrived at the victim's house does not negate or contradict the State's proof of premeditation and deliberation. Investigator Greg Shook's testimony that he had the impression that a struggle had occurred in the victim's house, without more, is insufficient to require a second-degree murder instruction. Evidence of a struggle during the commission of a felony does not necessarily entitle a defendant to an instruction on a lesser charge. See Thomas , 332 N.C. at 560-62, 423 S.E.2d at 84-85 (evidence of struggle during a sexual assault which resulted in the victim's death did not require trial court to instruct on second-degree murder where State proved every element of first-degree murder). We conclude that the evidence did not support submission of the charge of second-degree murder. This assignment of error is overruled.


Defendant argues that the trial court erred by submitting the aggravating circumstance that the murder was especially heinous, atrocious, or cruel. See N.C.G.S. [section] 15A-2000(e)(9) (Supp. 1994). He contends that the evidence was insufficient to support submission of the circumstance and that the trial court's action violated the Eighth and Fourteenth Amendments to the United States Constitution. We disagree.

In determining whether the evidence is sufficient to submit this aggravating circumstance, it must be considered in the light most favorable to the State. State v. Quick , 329 N.C. 1, 31, 405 S.E.2d 179, 197 (1991). "[T]he State is entitled to every reasonable . . . inference to be drawn [from the evidence]; contradictions and discrepancies are for the jury to resolve . . . and all of the evidence . . . admitted . . . which is favorable to the State is to be considered." State v. Powell , 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).

We have held that "killings which are less violent, but involve infliction of psychological torture by leaving the victim in his last moments aware of but helpless to prevent impending death" warrant submission of the circumstance. State v. Hamlet , 312 N.C. 162, 175, 321 S.E.2d 837, 846 (1984). The evidence here permits the inference that defendant's crime involved psychological torture. The victim, defendant's landlord, had forgiven defendant's rent payments in exchange for yard work. Defendant viewed the victim as a benign father figure, indicating that the men trusted and were kind to each other. The victim would have admitted defendant into his home in the middle of the night without suspecting that defendant would attack him. This relationship, while not quite as close as a familial one, rendered the offense more egregious than normal. See State v. Greene , 324 N.C. 1, 25-26, 376 S.E.2d 430, 445 (1989) (murder of father by son distinguished from other robbery-murders because of relationship between killer and victim), sentence vacated on other grounds , 494 U.S. 1022, 108 L. Ed. 2d 603 (1990), on remand , 329 N.C. 771, 408 S.E.2d 185 (1991).

Medical evidence raises the inference that five wounds were inflicted to the victim's neck and chest before the sixth and fatal stab wound. The preliminary wounds would have caused pain but not unconsciousness; one cut was deep enough to hit bone. The fatal stab wound, which tore a hole in the victim's aorta, caused him to bleed to death. He would not have lost consciousness immediately but would probably have remained conscious for about two minutes.

The physical evidence showed that defendant used two different weapons. He first used a sharp knife, resorting to scissors when the knife blade broke off of the handle. The telephone had been torn from the wall in the bedroom, which was completely ransacked. It is reasonable to infer from this that the victim was still alive while defendant searched the room for money. The blood found in the bedroom, some of which matched the victim's, raises the further inference that defendant cut the victim, leaving him to bleed and feel pain, but not to die, before he went on his rampage in the bedroom. Defendant inflicted the fatal blow before leaving the house because he knew the victim could identify him.

A reasonable juror could have found from the foregoing evidence that the murder was especially heinous, atrocious, or cruel. Thus, the trial court did not err by submitting the (e)(9) circumstance.

Defendant argues that the evidence was insufficient to support submission of the statutory mitigating circumstance that defendant had no significant history of prior criminal activity. See N.C.G.S. [section] 15A-2000(f)(1). He also argues that the court should not have allowed the State to present evidence of his criminal record in rebuttal at sentencing. Although no juror found the circumstance to exist, defendant contends its submission affected the jury's weighing process and therefore is harmful error.

Before a trial court submits the (f)(1) circumstance, it must "determine whether a rational jury could conclude that defendant had no significant history of prior criminal activity." State v. Wilson , 322 N.C. 117, 143, 367 S.E.2d 589, 604 (1988). A significant history for purposes of this circumstance is one likely to influence the jury's sentence recommendation. State v. Sexton , 336 N.C. 321, 375, 444 S.E.2d 879, 910, cert. denied , --- U.S. ---, 130 L. Ed. 2d 429 (1994). In reviewing this issue, "it is this Court's duty only to review the evidence brought forth at trial." Ingle , 336 N.C. at 643, 445 S.E.2d at 893.

A review of the record indicates that evidence of defendant's criminal past consisted of testimony regarding his extensive use of illicit drugs and the testimony of Paul Burgess, who stated that he had dealt with defendant often in his capacity as chief jailer at the Catawba County jail. Burgess testified that he had "dealt with [defendant] a number of times over the years" when defendant was "in jail for reasons."

As defendant notes, we stated in State v. Rouse , 339 N.C. 59, 100, 451 S.E.2d 543, 566 (1994), reconsideration denied , 339 N.C. 619, 453 S.E.2d 188 (1995), petition for cert. filed , --- U.S.L.W. --- (19 May 1995) (No. 94-9360), that the (f)(1) circumstance should not be submitted where "the references to criminal activity are made not with regard to this mitigating circumstance but in other contexts for other reasons." Id. Defendant requested that the court submit the circumstance. He presented no evidence expressly directed at this or any other circumstance, but he presented witnesses who testified about his drug use and his numerous prior periods of incarceration. The trial court properly could have viewed this evidence as offered to support this mitigating circumstance. Thus, Rouse does not entitle defendant to a new sentencing proceeding.

We held in Ingle that the record contained sufficient evidence to warrant submission of the (f)(1) circumstance where it showed that the defendant had used illegal drugs and that his aunt had taken out warrants on him for communicating threats and trespassing. Ingle, 336 N.C. at 643, 445 S.E.2d at 893. Following Ingle , we hold that the evidence here was sufficient to support submission of the circumstance. We further hold that the trial court properly allowed the State to present evidence of defendant's criminal record in rebuttal. See Brown , 315 N.C. at 64, 337 S.E.2d at 826 (1985) (State "is entitled to offer evidence designed to rebut mitigating circumstances . . . after the defendant offers evidence in support of [them]."). These assignments of error are overruled.

Defendant next assigns as error the trial court's refusal to submit the nonstatutory mitigating circumstance that defendant's alcohol intoxication impaired his abilities to conform his behavior to the requirements of law. Defendant timely requested this circumstance in writing. The trial court concluded, however, that it was subsumed within the statutory mitigating circumstance that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, N.C.G.S. [section] 15A-2000(f)(6).

Trial courts may combine redundant mitigating circumstances. See Greene , 324 N.C. at 19-21, 376 S.E.2d at 441-43. We agree that the requested nonstatutory circumstance was covered by the (f)(6) circumstance, which was submitted and found. Further, the trial court instructed on three nonstatutory circumstances regarding defendant's alcohol problems as well as on the circumstance that defendant had diminished capacity to conform his social behavior to social norms at the time of the offense. Finally, the court instructed on the "catchall" mitigating circumstance, N.C.G.S. [section] 15A-2000(f)(9). Therefore, the jury was not precluded from hearing or considering mitigating evidence regarding defendant's alcohol abuse and its effect on his mental capacity. This assignment of error is overruled.

Next, defendant argues that the trial court erred by failing to intervene ex mero motu during the prosecutors' closing arguments at sentencing. He points to three specific types of arguments: (1) those which misstated the law and diminished the jury's sense of responsibility for the verdict, (2) those which criticized the capital sentencing statute, and (3) those which strayed beyond the facts in evidence. Defendant objected to none of the arguments; thus, we will find error only if the statements were so grossly improper as to warrant the trial court's ex mero motu intervention. Rouse , 339 N.C. at 91, 451 S.E.2d at 560.

First, defendant contends both prosecutors misstated the law and diminished the jury's sense of responsibility for its recommendation. The first prosecutor stated that

everybody [who is] tried for murder and then goes to phase two should be treated equally. Everybody treated alike. If this jury feels sympathy and lets him go, he's not treated the same. . . . So this isn't an issue of sir, what do you feel?, ma'am, what do you feel? This is follow the law. Follow the law. You don't have to struggle with your own emotions oh, did I want to kill him.

The second prosecutor likewise stated, "It's not about mercy. It's about following the law."

Defendant contends these comments misstated the law in that the United States Supreme Court has held that the Eighth Amendment to the United States Constitution requires an individualized assessment regarding whether a death sentence is appropriate. See Penry v. Lynaugh , 492 U.S. 302, 317, 106 L. Ed. 2d 256, 277 (1989). Further, they falsely informed jurors that sympathy, mercy, and personal beliefs should play no part in the sentence recommendation. Defendant finally contends the comments improperly diminished the jury's sense of responsibility for its recommendation. By repeatedly telling the jury to follow the law, the prosecutors implied that the law, not the jury, was responsible for a recommendation of death.

We consider these remarks within their context, including the factual circumstances to which they referred. The record indicates that the above statements were in response to the following argument made by defense counsel:

As I said you have to answer in your own minds two questions. The first question is do I really, do I want to kill [defendant]? Each of you has to make that personal decision. And second, do I have to kill [defendant]? Is it necessary for society or for protection to kill [him]? I submit to you, and I argue to you, that the answer to both of these questions is no.

Given this context, the prosecutors' statements were reminders to the jury that it should be guided by the law, not by emotions, and that all persons are treated alike under the law. This is not grossly improper. Further, prosecutors may properly argue to the sentencing jury that its decision should be based not on sympathy, mercy, or whether it wants to kill the defendant, but on the law. Rouse , 339 N.C. at 93, 451 S.E.2d at 561-62. It follows that the comments here did not misstate the law. Finally, the arguments did not diminish the jury's sense of responsibility by telling it to follow the law. Juries are to exercise guided discretion when making the findings required by the capital sentencing statute. State v. Pinch , 306 N.C. 1, 33-34, 292 S.E.2d 203, 227, cert. denied , 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), reh'g denied , 459 U.S. 1189, 74 L. Ed. 2d 1031 (1983), overruled on other grounds by State v. Benson , 323 N.C. 318, 372 S.E.2d 517 (1988), and by State v. Robinson , 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied , --- U.S. ---, 130 L. Ed. 2d 650 (1995). The law, as instructed by the court, constitutes the jury's guide in exercising its discretion. Id . Thus, the prosecutors correctly told the jurors to follow the law.

Second, defendant contends one of the prosecutors improperly criticized the capital sentencing statute by arguing that the State is restricted in the presentation of aggravating circumstances while the defense can "play a numbers game" and "come up with as many [mitigating circumstances] as [it] want[s] to." Defendant asserts such comments disparaged his right to present evidence in mitigation and misled the jury into believing that defendants may submit anything as a mitigating circumstance, regardless of whether the evidence supports its submission. We disagree.

Read in context, the comment was intended to attack the weight of the mitigating circumstances and to convince the jury that the fifty-nine mitigating circumstances could not outweigh the two aggravating circumstances. Further, the argument was more innocuous than some we have upheld in other cases. For example, we found no gross impropriety when a prosecutor argued that the law required submission of any mitigating circumstance imaginable and that some of the defendant's proposed mitigating circumstances "border[ed] on the ridiculous." State v. Basden , 339 N.C. 288, 304-05, 451 S.E.2d 238, 247 (1994), cert. denied , --- U.S. ---, --- L. Ed. 2d ---, 63 U.S.L.W. 3891 (1995). The statements here, as in Basden , were not grossly improper.

Third, defendant posits that the prosecutor argued outside the evidence when he stated that defendant was a Type H inmate, "the most dangerous there are." We conclude that the statement was a reasonable extrapolation from the testimony of Dr. Noble. He testified that Type H inmates, such as defendant, "are some of the most disturbed prison inmates" and "are more likely than other prisoners . . . to be psychotic and diagnosed by their medical staff as psychotic." Such inmates "typically have been hard drug users before they went into the jail." Mindful of the wide latitude accorded prosecutors in their closing arguments, we conclude that this argument was not grossly improper.

We hold that none of the arguments complained of in these assignments of error were grossly improper. Thus, the trial court did not err by failing to intervene ex mero motu.

Defendant also argues that the trial court gave erroneous instructions on two statutory mitigating circumstances: mental or emotional disturbance, N.C.G.S. [section] 15A-2000(f)(2); and impaired capacity, N.C.G.S. [section] 15A-2000(f)(6). Defendant contends the court improperly instructed in the conjunctive for both circumstances, thereby constricting the scope of each. The jury found both circumstances. We review this issue for plain error because defendant did not object to the instructions at trial. See State v. Payne , 337 N.C. 505, 526-29, 448 S.E.2d 93, 106-07 (1994), cert. denied , --- U.S. ---, 131 L. Ed. 2d 292 (1995).

The trial court instructed that the jury would find the (f)(2) circumstance if it determined that defendant was under the influence of a mental and/or emotional disturbance at the time of the murder as a result of "paranoid disorder, mixed substance abuse disorder, mixed personality disorder, and child abuse syndrome." Similarly, the court instructed the jury to find the (f)(6) circumstance if it found "that the defendant suffered from paranoid disorder, mixed substance abuse disorder, mixed personality disorder and substance abuse syndrome, and that this impaired his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." Defendant maintains that the use of "and" in these instructions impeded the jury's consideration of "significant mitigating evidence." We disagree.

The court's instructions here did not preclude the jury from considering mitigating evidence. The court stated, with respect to the (f)(2) circumstance, that "it is enough that the defendant's mind or emotions were disturbed from any cause." This permitted the jury to consider any or all of defendant's psychological problems in the context of that circumstance. As to the (f)(6) circumstance, Dr. Noble never testified that any one of defendant's disorders alone resulted in impaired capacity. He did testify that defendant's history of drug abuse exacerbated his paranoia and that "intoxicants and psychosis [were] driving his behavior" at the time of the crime. (Emphasis added.) Thus, both instructions basically comported with defendant's evidence and were not plain error.

Defendant also disputes the trial court's instruction on the (f)(6) circumstance on the ground that it did not include child abuse syndrome or intoxication as factors to be considered in determining whether the circumstance existed. He contends these omissions improperly precluded the jury from considering mitigating evidence. Again, we disagree.

The record contains no evidence that defendant was intoxicated at the time of the murder. It indicates that defendant smoked crack cocaine on the Friday night preceding the Sunday morning murder; it further shows that defendant walked unsteadily on the Saturday night before the murder. None of this evidence establishes that defendant was intoxicated when he killed the victim sometime after 2:00 a.m. Sunday morning. Thus, the trial court properly omitted intoxication as a factor from its instruction on impaired capacity.

Assuming arguendo that the trial court should have included child abuse syndrome in the instruction on the (f)(6) circumstance, we find the error harmless beyond a reasonable doubt. The jury heard Dr. Noble testify at length about the physical abuse defendant endured in a foster home. It also heard Dr. Noble opine that defendant suffered from child abuse syndrome. The trial court submitted the "catchall" mitigating circumstance, which no juror found. Thus, the instruction at issue did not improperly restrict the jury's consideration of mitigating evidence, and any error is harmless beyond a reasonable doubt. These assignments of error are overruled.

Defendant contends the trial court erred by failing to individually instruct on each of the fifty-four nonstatutory mitigating circumstances submitted. The court instructed:

You should also consider circumstances five through 58 arising from the evidence which you find to have mitigating value. If one or more of you find by a preponderance of the evidence that any one of the following circumstances, that being numbers five through 58, exist and also are deemed by you to have mitigating value, you would so indicate by having your foreman write yes in the space provided.

The court did not name the particular circumstances in question. Defendant asserts that this instruction diminished the importance of the nonstatutory mitigating circumstances, thereby discouraging the jury's full consideration of them in violation of Lockett v. Ohio , 438 U.S. 586, 57 L. Ed. 2d 973 (1978), and its progeny.

Assuming error arguendo , we conclude that it was harmless beyond a reasonable doubt. The jury heard and was instructed to consider all the evidence defendant proffered in mitigation. Trial courts are not required to state, summarize, or recapitulate evidence which might support submitted mitigating circumstances. N.C.G.S. [section] 15A-1232 (1988). All fifty-four nonstatutory mitigating circumstances were listed individually on the Issues and Recommendation as to Punishment form. The jury found thirty-two of them; it also found two statutory mitigating circumstances. The trial court submitted, but the jury did not find, the "catchall" circumstance. Despite the substantial amount of mitigating evidence, the jury recommended a sentence of death. Based on the foregoing, we cannot hold that defendant was prejudiced by the court's failure to repeat fifty-four times the mechanics by which the jury might answer "yes" to any of the nonstatutory mitigating circumstances. This assignment of error is overruled.


Defendant presents numerous preservation issues that, as he acknowledges, we have decided contrary to his position: (1) the trial court erred by denying defendant's motion for individual voir dire and sequestration of prospective jurors; (2) the trial court erred by excusing for cause prospective jurors who expressed an unwillingness to impose the death penalty, thereby creating a death-qualified jury "biased in favor of the prosecution and prone to find . . . defendant guilty"; (3) the trial court erred in its instructions regarding nonstatutory mitigating circumstances because it allowed a juror to reject those he or she deemed to have no mitigating value; (4) the trial court erred by using the words "satisfaction" and "satisfy" in its definition of the burden of proof applicable to mitigating circumstances; (5) the trial court erred by defining a mitigating circumstance as a fact or group of facts that may extenuate or reduce the moral culpability of the killing because that precluded consideration of evidence of defendant's character; (6) the trial court erred by using the word "may" in its instructions regarding Issues Three and Four because this allowed jurors to ignore proven mitigating circumstances; (7) the trial court erroneously instructed that each juror should consider at Issues Three and Four only those mitigating circumstances found by that juror at Issue Two; and (8) the trial court erred by instructing the jury that it had a "duty" to recommend a sentence of death if it determined that the mitigating circumstances found were insufficient to outweigh the aggravating circumstances and that the aggravating circumstances were sufficiently substantial to warrant the imposition of the death penalty. Defendant presents no compelling reason to overrule our precedents on these issues.

Defendant also presents two issues which he should have treated as preservation issues: (1) the trial court erred by denying his pretrial motion to permit questioning of prospective jurors regarding their beliefs about parole eligibility; and (2) the trial court erred by giving an instruction on the "especially heinous, atrocious, or cruel" aggravating circumstance that did not adequately limit the application of this inherently vague circumstance. We have decided both of these issues contrary to defendant's position and perceive no reason to depart from our holdings. These assignments of error are overruled.


Having found no error in either the guilt or sentencing phase, we must determine whether: (1) the evidence supports the aggravating circumstances the jury found; (2) passion, prejudice, or "any other arbitrary factor" influenced the imposition of the death sentence; and (3) the sentence is "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." N.C.G.S. [section] 15A-2000(d)(2).

The jury found defendant guilty of first-degree murder under the theory of malice, premeditation, and deliberation, as well as under the felony murder rule. It also convicted defendant of robbery with a dangerous weapon. The trial court submitted two aggravating circumstances, both of which the jury found: that the murder was committed while defendant was engaged in a robbery with a dangerous weapon, N.C.G.S. [section] 15A-2000(e)(5); and that the murder was especially heinous, atrocious, or cruel, N.C.G.S. [section] 15A-2000(e)(9). We conclude that the evidence supports both circumstances. We further conclude, based on our thorough review of the record, that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor. We therefore consider proportionality.

One purpose of proportionality review "is to eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury." State v. Holden , 321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied , 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). Another is to guard "against the capricious or random imposition of the death penalty." State v. Barfield , 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied , 448 U.S. 907, 65 L. Ed. 2d 1137, reh'g denied , 448 U.S. 918, 65 L. Ed. 2d 1181 (1980). We compare this case to others in the pool, which we defined in State v. Williams , 308 N.C. 47, 79-80, 301 S.E.2d 335, 355, cert. denied , 464 U.S. 865, 78 L. Ed. 2d 177, reh'g denied , 464 U.S. 1004, 78 L. Ed. 2d 704 (1983), and State v. Bacon , 337 N.C. 66, 106-07, 446 S.E.2d 542, 563-64 (1994), cert. denied , --- U.S. ---, 130 L. Ed. 2d 1083 (1995), that "are roughly similar with regard to the crime and the defendant." State v. Lawson , 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied , 471 U.S. 1120, 86 L. Ed. 2d 267 (1985). Whether the death penalty is disproportionate "ultimately rest[s] upon the 'experienced judgments' of the members of this Court." State v. Green , 336 N.C. 142, 198, 443 S.E.2d 14, 47, cert. denied , --- U.S. ---, 130 L. Ed. 2d 547 (1994).

This case has several distinguishing features. The jury convicted defendant under both the felony murder rule and the theory of malice, premeditation, and deliberation. "The finding of premeditation and deliberation indicates a more cold-blooded and calculated crime." State v. Artis , 325 N.C. 278, 341, 384 S.E.2d 470, 506 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990), on remand , 329 N.C. 679, 406 S.E.2d 827 (1991). Further, the victim was killed in his own living room in the middle of the night. A murder in the home "shocks the conscience, not only because a life was senselessly taken, but because it was taken [at] an especially private place, one [where] a person has a right to feel secure." State v. Brown , 320 N.C. 179, 231, 358 S.E.2d 1, 34, cert. denied , 484 U.S. 970, 98 L. Ed. 2d 406 (1987). Defendant chose to kill a person who had treated him with kindness and compassion, one whom he viewed as a friend and father figure. A quasi-familial relationship between a defendant and his victim renders a murder more dehumanizing than normal. See Greene , 324 N.C. at 25-26, 376 S.E.2d at 445. Additionally, there is evidence that the victim suffered physical and psychological torture before he died. Dr. Vogel testified that the victim would not have lost consciousness prior to his death; thus, he was not only in pain but also aware of his impending death as he lay bleeding on his living room floor. Finally, the victim, age seventy, would have been unequal in physical strength to defendant, a healthy thirty-four-year-old man. These features distinguish this case from those in which we have held the death penalty disproportionate.

Defendant argues that his sentence is disproportionate for several reasons, including: (1) the jury found thirty-four of the fifty-nine mitigating circumstances submitted, and (2) the killing was "a simple robbery-murder." The sheer volume of mitigating circumstances does not suffice to render a death sentence disproportionate. Even a "single aggravating circumstance may outweigh a number of mitigating circumstances and . . . be sufficient to support a death sentence." Bacon , 337 N.C. at 110, 446 S.E.2d at 566. Here only five of the mitigating circumstances submitted were statutory, including the "catchall," and the jury found only two of them -- impaired capacity and mental or emotional disturbance. Significantly, all but four of the nonstatutory mitigating circumstances found were directly related to those two statutory circumstances. Seventeen related to defendant's dysfunctional childhood, which Dr. Noble linked to defendant's mental disorders. Six were directed at defendant's drug and alcohol abuse, which exacerbated the mental problems created by his childhood experiences. Five listed the specific disorders diagnosed by Dr. Noble.

We have held a death sentence proportionate where only one aggravating circumstance was found and thirty-eight of forty-one mitigating circumstances were found. State v. Lynch , --- N.C. ---, ---, --- S.E.2d ---, ---, slip op. at 59-60 (No. 242A93, filed 28 July 1995). Here the jury found two aggravating circumstances, including that the murder was especially heinous, atrocious, or cruel. Under Lynch , defendant's sentence is not disproportionate simply because the jury found numerous mitigating circumstances.

Defendant points to several cases in which juries have returned life sentences and argues that they require us to hold his sentence disproportionate. While we cannot distinguish all of them from this case, "the fact that one, two, or several juries have returned recommendations of life imprisonment in cases similar to the one under review does not automatically establish that juries have 'consistently' returned life sentences in factually similar cases." Green , 336 N.C. at 198, 443 S.E.2d at 47.

Based on the nature of this crime, particularly the features noted above, we cannot conclude as a matter of law that the sentence of death was disproportionate. We hold that defendant received a fair trial and sentencing proceeding, free of prejudicial error.



United States Court of Appeals for the Fourth Circuit

RONALD WAYNE FRYE, Petitioner-Appellant,
R. C. LEE, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.

December 22, 2000

Appeal from the United States District Court for the Western District of North Carolina, at Statesville.

Lacy H. Thornburg, District Judge. (CA-99-108-5-T)

Before WILKINSON, Chief Judge, and MOTZ and KING, Circuit Judges.

Certificate of appealability denied and appeal dismissed by published opinion. Judge King wrote the opinion, in which Chief Judge Wilkinson and Judge Motz joined.


KING, Circuit Judge:

Ronald Wayne Frye, sentenced to death by the State of North Carolina for the crime of first-degree murder, seeks relief in this Court following the district court's refusal to grant his petition for a writ of habeas corpus. Because we conclude that Frye has failed to make a substantial showing of the denial of a constitutional right, we decline to grant Frye a certificate of appeal ability, and we dismiss his appeal.


Frye was sentenced to death on November 15, 1993, in the Superior Court of Catawba County, North Carolina, for the murder of his landlord. The Supreme Court of North Carolina affirmed Frye's conviction, State v. Frye, 461 S.E.2d 664 (N.C. 1995), and the Supreme Court of the United States denied certiorari. Frye v. North Carolina, 517 U.S. 1123 (1996). Frye then initiated post-conviction proceedings in the Superior Court of Catawba County ("MAR court"). The MAR court denied Frye's Motion for Appropriate Relief ("MAR"), with its written decision setting forth findings of fact and conclusions of law. State v. Frye, No. 93 CRS 1884, No. 93 CRS 3215 (N.C. Super. Ct. April 24, 1998) (hereinafter cited as "MAR Hearing"). That decision was upheld on April 8, 1999, when the Supreme Court of North Carolina denied certiorari. State v. Frye, 535 S.E.2d 34 (N.C. 1999).

Pursuant to 28 U.S.C. § 2254, Frye petitioned for a writ of habeas corpus in the district court for the Western District of North Carolina. The Warden ("State") moved for summary judgment, which the district court granted by its Memorandum of Opinion dated March 9, 2000. Frye v. Lee, 89 F. Supp. 2d 693 (W.D.N.C. 2000). On May 30, 2000, the court denied Frye's application for a certificate of appeal ability.1

Frye now appeals to this Court, asserting two constitutional defects in the imposition of his death sentence. First, Frye claims that he has been denied his Sixth Amendment right to the effective assistance of counsel, alleging, inter alia, that his two court-appointed lawyers failed to adequately prepare for and present mitigation evidence during the sentencing phase of his jury trial. Second, Frye asserts that certain jury instructions given during the sentencing phase, specifically those relating to the statutory aggravating circumstance of "heinous, atrocious, or cruel" murder, were unconstitutionally vague and overbroad.


The facts underlying this case, summarized below, are largely drawn from the accounts related by the state courts-the Supreme Court of North Carolina and the MAR court. See 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.").

On January 24, 1993, Frye committed the crime of first-degree murder in Catawba County, when he repeatedly rammed a pair of scissors into the neck and chest of his seventy-year-old landlord, Ralph Childress. Local police, responding to a call from the decedent's brother, found Mr. Childress dead on the floor of his home with a pair of scissors protruding from his chest. An empty wallet was discovered on the floor of the house, and blood stains appeared throughout the residence. Childress had been stabbed five other times. Three days later, the police arrested Frye at the apartment of a local crack dealer.

Frye was thereafter tried in the Superior Court of Catawba County for first-degree murder and for robbery with a dangerous weapon. The prosecution case against Frye was, in a word, substantial. The testimony revealed that, on the day before the murder, Childress had ordered Frye to vacate his trailer for failing to pay rent. A crack cocaine dealer, Michael Ramseur, testified for the prosecution that Frye, just prior to the murder, had attempted to enlist him to rob Childress. According to Ramseur, Frye wanted a third party to commit the robbery because Frye knew that he would be recognized. Ramseur refused Frye's request. On the day after Childress's murder, Frye, who had been without sufficient funds to satisfy his drug habit, was able to purchase crack cocaine with a thick wad of money. Another witness, Kevin Templeton, testified that Frye told him about robbing and killing Childress. According to Templeton, Frye only intended to rob Childress but "got carried away." Other testimony established that, around the time of the murder, Frye developed cuts on his hand and somehow obtained large amounts of cash.

The physical evidence implicating Frye was overwhelming. Frye's blood was found at the murder scene on a mattress, on a knife, and on one of Childress's pistols. Blood discovered on Frye's jacket matched that of the victim. Frye's attorneys presented no evidence in defense during the trial's guilt phase. The jury convicted Frye of firstdegree murder, and it also convicted him of robbery with a dangerous weapon.

Frye's court-appointed lawyers, Theodore Cummings and Thomas Portwood, possessed a legitimate tactical basis for not presenting evidence of their client's innocence. Their plan was to instead focus on avoiding the death penalty by presenting mitigation evidence to the jury during the trial's sentencing phase.2 This plan was frustrated, however, by Frye's insistence that none of his family members be contacted. Frye specifically instructed his attorneys that he "would not permit contact with his family and friends," and would not permit them "to assist in forming mitigating factors[.]" MAR Hearing at 6, 9. Frye's lawyers "fully informed" Frye about the consequences of his decision and "the importance of using family members to develop mitigating circumstances." Id. at 11. However, Frye "maintained [his] position throughout the trial." Id. at 9.

In an effort to deal with the problem created by Frye's instructions that family members not participate in his defense, Portwood and Cummings arranged two separate psychological evaluations of their client. The first evaluation occurred more than four months before the trial, at Dorothea Dix Hospital in Raleigh, North Carolina. At the hospital, a psychiatrist performed an extensive analysis of Frye's psychological state for use by his attorneys in their death penalty defense.

Two weeks before trial, when it was clear that neither Frye nor his family members would testify, Portwood and Cummings contacted a clinical forensic psychologist, Dr. Noble, to secure another evaluation of Frye and to gather evidence as to his mental state and possible mitigating circumstances. While interviewing with Dr. Noble, Frye recounted a particularly troubled personal history: at the age of four, he was given away at a restaurant by his parents to a family of strangers; he was severely beaten and subjected to extreme physical torture by the father of that family; subsequently, he had lived in several foster homes. Later, as a teenager, Frye dropped out of high school and abused drugs. He had very few friends -one of whom had been Mr. Childress, the victim. Moreover, Frye had excessive fears of being conspired against and of being persecuted.

During the trial's sentencing phase, Dr. Noble was called as a defense witness and asserted that Frye suffered from paranoia, mixed substance abuse, mixed personality, and child abuse syndrome. Dr. Noble also testified that Frye possessed a "diminished capacity to know right from wrong and to conform his behavior to social requirements." Frye, 461 S.E.2d at 671. On cross-examination, however, Dr. Noble admitted that his knowledge of Frye's personal history was limited to what Frye had told him, since Frye had specifically instructed him not to contact family members. In his closing argument in the sentencing phase, the prosecutor attacked Dr. Noble's testimony by suggesting that Frye may have lied to Noble about the horrors of his childhood.

Frye's defense attorneys presented one other witness at the sentencing phase. One of Frye's jailers testified that Frye was wellbehaved in custody, having adapted well to prison life. The prosecution then presented rebuttal evidence consisting of Frye's criminal record, which included convictions for destruction of property, resisting arrest and assaulting an officer, felonious breaking and entering, and various drug crimes.

In furtherance of his defense, Frye's attorneys presented the jury with fifty-nine "mitigating circumstances."3 Under North Carolina law, if a single juror finds a mitigating circumstance present, the jury is instructed to answer "Yes" on the verdict form, indicating the presence of that circumstance. See State v. Meyer , 412 S.E.2d 339, 34546 (N.C. 1992). In Frye's case, the jury answered"Yes" to thirty-four of the fifty-nine asserted mitigating circumstances. However, the jury also found the aggravating circumstances of the Childress murder to outweigh those in mitigation, and it recommended a sentence of death.4 The trial judge accepted the jury's recommendation and imposed the death penalty.


As we explained, Frye appealed directly to the Supreme Court of North Carolina, which upheld the jury verdicts and his death sentence. Frye then petitioned for review to the Supreme Court of the United States, which denied certiorari on April 1, 1996.

On November 18, 1996, Frye filed his MAR in state court. He was granted an evidentiary hearing in the Criminal Superior Court of Catawba County (presided over by a judge not previously involved in Frye's case or his appeals). That court conducted a four-day MAR hearing, from October 14-17, 1997, and it denied relief on April 24, 1998. The Supreme Court of North Carolina denied certiorari.

Since Frye filed his MAR in state court within one year of the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1), the AEDPA statute of limitations was tolled during his state court proceedings. 28 U.S.C. § 2244(d)(2); Hernandez v. Caldwell, 225 F.3d 435, 438 (4th Cir. 2000). After his state court remedies were exhausted, Frye timely filed his petition for a federal writ of habeas corpus in the district court. The district court granted the State's motion for summary judgment and dismissed the petition. Frye now seeks to appeal. We review de novo the district court's grant of summary judgment. Becton v. Barnett, 920 F.2d 1190, 1192 (4th Cir. 1990).



Frye has raised two constitutional questions in this proceeding. Frye initially contends that he was denied his right to the effective assistance of counsel because his lawyers failed to competently prepare for the sentencing phase of his trial. Frye alleges two different bases for the ineffective assistance of his counsel. First, he asserts that his lawyers were constitutionally ineffective in not presenting the jury with supplemental witnesses and other evidence to verify and explain Frye's troubled past. Specifically, Frye maintains that additional nonfamily witnesses and certain documentary evidence would have provided crucial support of the mitigating circumstances presented to the jury by Dr. Noble. Perhaps more importantly, this evidence may have facilitated the jury's belief in the story of Frye's childhood, as related to the jury through Dr. Noble. Second, Frye maintains that his representation in the trial's sentencing phase was compromised by an asserted alcohol dependency on the part of Mr. Portwood. According to the district court, Portwood consumed approximately twelve ounces of liquor each evening during the course of the trial, but was never intoxicated prior to or during each day's proceedings. Frye, 89 F. Supp. 2d at 701.

Frye also contends that constitutional error is found in the sentencing court's jury instructions regarding the "heinous, atrocious, or cruel" aggravating circumstance of the Childress murder. These terms may be, without an appropriate limiting instruction, unconstitutionally vague. Maynard v. Cartwright, 486 U.S. 356, 363-64 (1988). Although the instruction in this case was accompanied by a narrowing provision, Frye argues that the limiting language does not meet the standards required by Maynard and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64L.Ed.2d 398 (1980).5 Thus, Frye contends that this instruction, as given, did not provide adequate guidance to the jury in limiting the circumstances in which a death sentence is warranted.


As pointed out above, both of the constitutional claims asserted by Frye have been adjudicated on their merits by the North Carolina state courts. Accordingly, we review his 28 U.S.C. § 2254(d) petition under the standards recently enunciated by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000). Under § 2254, as interpreted by Williams, we are precluded from granting habeas corpus relief unless we find the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id. at 1518. Thus Frye can only secure relief by demonstrating: (1) the state court decision was contrary to, or an unreasonable application of, federal law that (2) was clearly established.

At the threshold, we must consider whether Frye's claims are premised on "clearly established Federal law." The first claim in Frye's petition -ineffective counsel -is certainly based on clearly established law, notably Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court held that, for a conviction to be invalidated because of ineffective assistance, the defendant must show that "particular errors of counsel were unreasonable [and that those errors] actually had an adverse effect on the defense." Id. at 693. Williams involved facts somewhat similar to those here, i.e., failure to present mitigation evidence. In Williams, the petitioner argued that his claim was premised on Strickland, and it thus satisfied the requirement of being based on clearly established federal law. The Supreme Court agreed, observing that the question of whether the petition fell under clearly established law was "easily answered." Williams, 120 S. Ct. at 1511. This observation applies to Frye's ineffective assistance claim as well.

Frye's second claim -the unconstitutional instruction -is based on the Supreme Court's decision in Shell v. Mississippi, 498 U.S. 1 (1990), and on a line of related authorities. Although the challenged instruction in Frye's case is similar to the one held to be unconstitutional in Shell, the instruction under challenge here contained a limiting provision that, the State argues, cures the Shell problem. While we must determine whether the State's position has validity, this second claim of Frye's petition is also governed by clearly established law enunciated by the Supreme Court.

Our conclusion that Frye's claims are premised on clearly established federal law, however, merely allows us to continue our inquiry. Even though Frye's petition is properly premised on errors of clearly established federal law, we may not grant habeas corpus relief merely because we conclude "that the relevant state-court decision applied [such law] erroneously or incorrectly." Rather, the state court's "application must also be unreasonable" in order for us to grant the writ.6 Williams, 120 S. Ct. at 1522 (emphasis added). We are cognizant of, and we are bound to apply, the Williams reasonableness standard as we analyze and consider the claims made in this proceeding.




Frye asserts that his counsel was constitutionally ineffective for failing to adequately investigate and present mitigating evidence to the jury. His claim is primarily based on his assertion that the holding in Williams, supra, is controlling in his case. In Williams, the Court held defense counsel's performance deficient for failing to adequately prepare for the sentencing phase of a murder trial. We, however, are able to identify controlling factual distinctions that doom Frye's claims. In Williams, for example, preparations were not even begun until a week before trial. And when counsel finally prepared the defense, they purposely ignored evidence of the"petitioner's nightmarish childhood, not because of any strategic calculation, but because they incorrectly thought state law barred access to such records[.]" Williams, 120 S. Ct. at 1514.

Another important factor distinguishing this case is that Frye adamantly refused to permit his lawyers to contact his family members or to engage their services in securing mitigation evidence. In Williams, the prisoner's counsel failed to gather the required evidence because of professional negligence, while in this situation Frye personally stymied his lawyers' efforts. As the Supreme Court concluded in Strickland, "when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Strickland, 466 U.S. at 691.

Based on Frye's refusal to allow himself or his family members to participate in the development or presentation of mitigation evidence, Frye's counsel came to the reasonable conclusion that attempting to find such evidence would be fruitless. Simply because a defendant objects to the development of evidence, however, does not necessarily absolve his lawyers from gathering that evidence. The Sixth Circuit, in a situation involving failure to present adequate mitigation evidence, observed that "reluctance on [the defendant's] part to present a mental health defense or to testify should not preclude counsel's investigation of those potential factors." Carter v. Bell, 218 F.3d 581, 596 (6th Cir. 2000). Similarly, the Eleventh Circuit has found error when defendant's counsel "acquiesced in [the defendant's] defeatism without knowing what evidence [the defendant] was foregoing." Blanco v. Singletary, 943 F.2d 1477, 1501 (11th Cir. 1991). See also Emerson v. Gramley, 91 F.3d 898, 908 (7th Cir. 1996).7


The controlling distinction in this case, however, is that Frye not only flatly forbade his attorneys from involving his family in investigating his background, but that his defense counsel also took numerous alternative steps to prepare for and present evidence of Frye's personal history. Unlike the cases arising from the Sixth and Eleventh Circuits, supra, this is not a situation where counsel completely gave up in response to reluctance or defeatism that ambiguously telegraphed the client's uninformed wishes. Frye gave repeated and explicit instructions to his lawyers about not contacting or involving family members. Nonetheless, counsel convinced him to go to Dorothea Dix Hospital for a psychological evaluation.8 They then hired Dr. Noble to examine their client and present evidence to the sentencing jury. These steps were a logical -and indeed thorough -response to Frye's continued insistence that he did not want his family members "to assist in forming mitigating factors[.]" MAR Hearing at 6. As the MAR court concluded, defense counsel painstakingly informed Frye of the consequences of not involving family members in the mitigation stage. Id. Frye, however, refused to accede to the warnings and advice of his lawyers. And it is not our role to second-guess the competence of counsel in these circumstances. Fisher v. Lee, 215 F.3d 438, 447 (4th Cir. 2000); Eaton v. Angelone , 139 F.3d 990, 994 (4th Cir. 1998).

This is simply not a case involving professional negligence or lack of attention on the part of counsel. We instead perceive this to be a situation where two court-appointed lawyers endeavored to do their best, under difficult circumstances interposed by their client. Frye's counsel, as a result of their investigation, knew that Frye had suffered from serious child abuse and neglect, and they introduced evidence in that connection -in the most effective way possible under the circumstances. However, Frye now claims that the method of introducing the evidence -through Dr. Noble -was constitutionally inadequate, in part because Dr. Noble was not presented with sufficient background information about Frye. In this regard, Frye relies on our decision in McCarver v. Lee, 221 F.3d 583, 595 (4th Cir. 2000), where we concluded that "it is sound and reasonable trial strategy to provide all available information" to an expert psychological witness.

Frye's reliance on McCarver, however, is misplaced, and he overstates its relevance in this instance. While it may be "reasonable" to provide an expert witness with all available information, we did not hold in McCarver that it is per se"unreasonable" to fail to provide the expert with such information. Importantly, Frye's attorneys simply did not possess all the relevant information, and they were not privy to it, because of their client's steadfast refusal to allow them to complete a full investigation.9 Significantly, however, counsel provided Dr. Noble with a "stack" of documents from Dorothea Dix Hospital, which was all the "available information" they were able to provide while honoring their client's explicit instructions.

Dr. Noble testified at the MAR hearing that his work in preparing for trial was constrained by the lack of time and paucity of background material, and that he was unable to testify as convincingly as he otherwise might have. However, he gave no indication, either at trial or at the MAR hearing, that he had been unable to render a competent opinion. Indeed, at the MAR hearing, he testified that supplementary materials concerning Frye's background (which Frye's trial counsel did not uncover and therefore did not present to Dr. Noble before his testimony) had "not really altered[his] diagnosis[.]" J.A. 418.

The purpose of Frye's pretrial meeting with Dr. Noble was to develop additional evidence and history, which Frye was unwilling to allow his lawyers to uncover by way of interviews with his family. Frye only agreed to meet with Dr. Noble on the insistence of his counsel, which led to a compromise -between Frye and his lawyers -that Frye would accept expert testimony as an alternative way of presenting mitigating evidence. In these circumstances, any diminution in the effectiveness of Dr. Noble's testimony did not result from his counsel's lack of competence, but emanated directly from Frye's refusal to follow their advice.

Notwithstanding the complications hindering its development, Dr. Noble's testimony was effective, as demonstrated by the jury's acceptance of thirty-four of the fifty-nine mitigating circumstances. Whether Dr. Noble could have been more effective if corroborated by other evidence is speculative. We must, under the law, judge the reasonableness of the lawyers' conduct as of the time their actions occurred, not the conduct's consequences after the fact. Strickland, 466 U.S. at 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."); see also Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991) ("When examining ineffective assistance claims, however, we must appreciate the practical limitations and tactical decisions that trial counsel faced."). In this situation, the presentation of mitigation evidence through Dr. Noble was a reasonable solution to the dilemma faced by Frye's lawyers.


In our analysis of the ineffective assistance claim alleged by Frye, we are mindful that in North Carolina -as in most jurisdictions -the client must be permitted by his lawyers to control his own defense, as long as he is "fully informed" in making his decisions. See State v. White, 508 S.E.2d 253, 273 (N.C. 1998), cert. denied, 527 U.S. 1026 (1999); State v. Wilkinson, 474 S.E.2d 375, 382 (N.C. 1996) ("The attorney is bound to comply with her client's lawful instructions, `and her actions are restricted to the scope of the authority conferred.'") (quoting People v. Wilkerson, 463 N.E.2d 139, 14344 (Ill. App. Ct. 1984)); State v. Ali, 407 S.E.2d 183, 189 (N.C. 1991).

Frye's attorneys took reasonable steps to comply with their professional responsibilities in this regard. Frye's decision not to allow his family to aid in mitigation was unchanged after repeated discussions where his lawyers explained their displeasure with his position, and the consequences thereof. The MAR court specifically found that:

Mr. Portwood engaged in several conferences with the defendant wherein he sought to convince the defendant to permit the defense to produce mitigating evidence. Also, Mr. Portwood tried to convince the defendant to permit fam ily members to testify.

MAR Hearing at 6. There is simply no basis for us to conclude that this finding of fact is unreasonable. Williams , 120 S. Ct. at 1522. Indeed, this finding is fully supported in the record, and it is uncontroverted. Were we to hold that Portwood and Cummings rendered ineffective assistance, despite their repeated attempts to have Frye change his mind on presenting mitigation evidence, we would be forcing defense lawyers in future cases to choose between Scylla and Charybdis.10 If the lawyer facing a reluctant client accedes to the client's requests, he might be constitutionally ineffective. On the other hand, if the lawyer defies his client's wishes, and in so doing presents evidence that harms the client, he might render ineffective assistance and commit malpractice as well.


Frye also contends, in connection with his ineffective assistance claim, that Portwood's asserted alcohol dependency rendered him incapable of providing constitutionally effective assistance up to and during the sentencing phase of the trial. We are indeed troubled by Portwood's acknowledgment of a decades-long routine of drinking approximately twelve ounces of rum each evening. However, the district court found that Portwood "never consumed alcohol during the work day and never performed any work on the case when he had consumed alcohol." Frye, 89 F. Supp. 2d at 701. We agree with our sister circuits that, in order for an attorney's alcohol addiction to make his assistance constitutionally ineffective, there must be specific instances of deficient performance attributable to alcohol. See Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995); Cabarello v. Keane, 42 F.3d 738, 740 (2d Cir. 1994); Berry v. King , 765 F.2d 451, 454 (5th Cir. 1985); Young v. Zant, 727 F.2d 1489, 1492-93 (11th Cir. 1984). In this case, there is no evidence of specific instances of defective performance caused by Portwood's alcohol abuse.11 Furthermore, it is significant that Frye was not represented by Portwood alone -he had the benefit of two court-appointed lawyers assisting in his defense. And no attack is made on the professional capacity of Mr. Cummings. See Lopez-Nieves v. United States, 917 F.2d 645, 647 (1st Cir. 1990) ("[T]he presence of a second attorney during the proceedings seriously undermines appellant's claim of ineffective assistance of counsel.").


Under the Strickland standard, the performance of Frye's lawyers was simply not deficient, and the sentencing phase defense was conducted reasonably. Moreover, Frye is unable to point to a single instance where Portwood's consumption of alcohol affected his performance. We have carefully considered all of Frye's contentions in this regard, and we are unable to conclude that the legal assistance he received was constitutionally defective.12


Frye also claims that the jury instruction relating to a statutory aggravating circumstance was unconstitutionally vague and overbroad. This instruction was given with respect to the jury's determination of whether the prosecution had established the aggravating circumstance that the Childress murder was "heinous, atrocious, or cruel" under N.C. Gen. Stat. § 15A-2000(e)(9) (1999).13

As we have pointed out, the first paragraph of the challenged instruction bears similarities to the instruction found to be unconstitutional in Maynard, 486 U.S. at 363-64. The Maynard instruction, like this one, was given pursuant to state law which permitted imposition of a death sentence if the murder was "especially heinous, atrocious, or cruel." In Maynard, the Court held the instruction overly vague, and therefore unconstitutional, because it provided no meaningful basis to distinguish a murder warranting the death penalty from those in which the ultimate punishment should not be imposed. 486 U.S. at 363-64. See also Godfrey, 446 U.S. at 428-29.

Likewise, we have previously held a North Carolina instruction on the statutory aggravating circumstance of "especially heinous, atrocious, or cruel" to be, standing alone, unconstitutionally vague. Smith v. Dixon, 14 F.3d 956, 974 (4th Cir. 1994) (en banc). There is, however, a controlling distinction here -the instruction given to Frye's jury did not stand alone. A statutory aggravating circumstance that is otherwise vague may be constitutional if it is accompanied by an appropriate limiting provision providing sufficient guidance to the jury. Fisher v. Lee, 215 F.3d at 457-58. Indeed, the Supreme Court of North Carolina, in Frye's direct appeal, held that the limiting explanation in this case -defining the level of brutality or torture to the victim -provided sufficient guidance to the jury. Frye, 461 S.E.2d at 685. We are unable to disturb the state court's finding in this regard, since it was not contrary to, or an unreasonable application of, governing Supreme Court precedent.


We find no reason to upset the carefully considered judgments of the courts that have considered Frye's petitions for post-conviction relief. Neither the MAR court's conclusion that Frye's lawyers were not constitutionally ineffective, nor the Supreme Court of North Carolina's conclusion that the sentencing instruction was not unconstitutionally vague, constitutes an unreasonable application of governing legal principles enunciated by the Supreme Court of the United States. The district court therefore properly granted summary judgment to the State. We must decline to issue Frye a certificate of appeal ability, and we dismiss his appeal.





Pursuant to 28 U.S.C. § 2253(c)(2), "a certificate of appeal ability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."


North Carolina law provides that"[u]pon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment." N.C. Gen. Stat. § 15A-2000(a)(1) (1999).


North Carolina law, particularly N.C. Gen. Stat. § 15A-2000 (1999), provides a full list of "aggravating circumstances" and a partial list of "mitigating circumstances" that a jury may consider in deciding whether to recommend a death sentence for a defendant convicted of a capital felony. If the jury finds that one or more aggravating circumstances exist and outweigh mitigating circumstances, it may recommend a death sentence. As explained infra, of the fifty-nine mitigating circumstances presented in this case by Frye's lawyers, thirty-four were found by the jury to exist. These thirty-four included, for example:

38. That the Defendant is [a] victim of child abuse syndrome.

44. The Defendant was whipped repeatedly by his foster father with a bullwhip.

55. The Defendant has been a drug abuser since his teens.

J.A. 129-36.


The two aggravating circumstances found by the sentencing jury were: (1) the Childress murder was committed during an aggravated robbery; and (2) it was "especially heinous, atrocious and cruel." See Part IV, infra.


The limiting provision of the challenged instruction in this case provides as follows:

For this murder to have been especially heinous[,] atrocious or cruel, any brutality which was involved in it must have exceeded that [which] is normally present in any killing. Or this murder must have been a [conscienceless] or pitiless crime which was unnecessarily torturous to the victim.


On the interpretation of the crucial word "unreasonable," the Court counseled that "the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." Williams, 120 S. Ct. at 1522.


Furthermore, the American Bar Association's guidelines for defense counsel in death penalty cases provide that "investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered." American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases § 11.4.1.c (1989). While practice advisories such as those published by the ABA are "guides to determining what is reasonable," they cannot always "take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Strickland, 366 U.S. at 688.


Frye now argues that his position changed after the Dix report was prepared, and that counsel then had a duty to investigate notwithstanding his earlier instructions. The problem with this argument, raised in Frye's reply brief, is that it is contradicted by the facts reasonably found by the state court. MAR Hearing at 6 ("The defendant maintained his position that he did not want his family members . . . to assist in forming mitigating factors throughout the trial up to and including the sentencing phase.") (emphasis added).


Frye asserts additional authority that, as a general proposition, it constitutes ineffective assistance not to provide expert psychological witnesses with background material. See Wallace v. Stewart, 184 F.3d 1112 (9th Cir. 1999); Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995). These decisions are inapposite, inasmuch as they do not involve situations where the defendant insisted that his family members not be involved in "forming mitigating factors."


In Homer's Odyssey, Odysseus is presented with a most difficult choice: he must sail through straits that are bracketed by two monsters, and he must choose a course which leads closer to one or the other. One choice, Scylla, is a six-headed creature who is certain to eat six of his crewman, while the other, Charybdis, spews forth a whirlpool that poses an uncertain risk to the entire ship and crew. Odysseus, following the advice of the sorceress Circe, chose Scylla, and six of his men perished.


Indeed, with respect to Portwood's alcohol dependency, Cummings testified at the MAR hearing that he "never saw Mr. Portwood's professional demeanor or behavior affected by the consumption of alcohol" and that he was a "diligent, hard-working lawyer working for the defendant[.]" J.A. 742.


Having concluded that the performance of Frye's counsel was not deficient, we need not decide whether Frye was prejudiced by the errors he alleged. Strickland, 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one."). See also Chandler v. United States, 218 F.3d 1305, n.44 (11th Cir. 2000); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998).


The entirety of the sentencing instruction on the aggravating circumstance of "heinous, atrocious, or cruel," embodied in § 15A-2000(e)(9), was as follows:

Aggravating factor number two. Was this murder especially heinous[,] atrocious or cruel? In this context heinous means extremely wicked or shockingly evil. Atrocious means outrageously wicked and vile. And cruel means designed to inflict a high degree of pain with utter indifference to and even enjoyment of the suffering of others. However, it is not enough that this murder be heinous[,] atrocious or cruel as these terms have just been defined. This murder must have been especially heinous, atrocious or cruel, and not every murder is especially so. For this murder to have been especially heinous[,] atrocious or cruel, any brutality which was involved in it must have exceeded that [which] is normally present in any killing. Or this murder must have been a [conscienceless] or pitiless crime which was unnecessarily torturous to the victim.

J.A. 97-98.



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